‘Showman’ Judge Has Already Paved the Way for Harvey Weinstein Appeal, Legal Expert Says

Opening statements are set for Wednesday in the rape trial of disgraced Hollywood mogul Harvey Weinstein, but attorneys are always playing the long game. A legal expert told the Law&Crime Network on Friday that the court handed the defense a reason to appeal if the defendant is convicted.

You might recall that Manhattan Supreme Court Judge James Burke chewed Weinstein out for using a cell phone in court.

“Mr. Weinstein, I could not implore you more to not answer the following question: Is this really the way you want to end up in jail for the rest of your life, by texting in violation of an order?” he said. “Is it?”

While it certainly made for a dramatic scene, it also amounted to appeal fodder if Weinstein, who faces life in prison, is convicted for allegedly raping an unnamed woman in 2013, and sexually assaulting former production assistant Mimi Haleyi in 2006. Indeed, the defense has asked Burke to recuse himself.

Vinoo Varghese, a criminal defense lawyer and a former prosecutor, told Law&Crime Network host Jesse Weber that he’s known Burke for probably about 15 years, and has appeared before him as both a prosecutor and defense lawyer. He spoke pretty well of him, saying the judge was fair, but he also described him as a “showman.” Varghese, who is not working on the Weinstein trial, argued that Burke isn’t the the right judge for this kind of case.

“I think there’s too much pressure on him,” he said. “Some of his decisions are problematic. I think they’re opening up grounds for appeal. I think his comment about the cell phone–I think at that point, when he made that comment that it hit me the very next day when [Weinstein attorney Arthur Aidala] and his team made the motion to recuse himself.”

He argued that Burke should have recused himself.

“The guy’s using a cell phone,” Varghese said. “But don’t say he’s going to throw him in jail for the rest of his life. That says that he’s intending to throw this guy in jail for the rest of his life. What else does that say? There’s no other explanation.”

Of course, the long-term ramifications cut both ways, and even cross the entire country. Los Angeles prosecutors announced new charges against Weinstein on the first day of jury selection in the New York case.

Varghese and Law&Crime analyst Terri Austin argued that was no accident.

“Let me tell you what that was all about,” Varghese said. “That was designed to put the nail in the coffin of Harvey Weinstein in New York. That’s why the prosecutor announced those charges the day jury selection was starting because [District Attorney Jackie Lacey] knows that’s going to get to the jurors in New York.”

Austin said that anything that happens in the New York trial will affect the Los Angeles case — especially if Weinstein testifies.

“I don’t think there are any coincidences here,” she said. “I do think that it was sort of planned. I don’t think it was coordinated, but I do think what the LA DA did was timing, and it was intentional.”

Both Austin and Varghese agreed that the LA trial might never be tried if Weinstein is convicted in New York.

“They want to see him convicted here,” Varghese said.

Austin argued that the California prosecutors might still pursue their case, however, if the defendant doesn’t go away for life in New York.

[Image via Scott Heins/Getty Images]

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Rachel Stockman is President of Law&Crime and The Law&Crime Network. She has spent years covering courts and legal issues, and was named Atlanta Press Club's 'Rising Star' in 2014. Rachel graduated from Northwestern University's Medill School of Journalism and Yale Law School.

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