SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: FIRST DEPARTMENT
---------------------------------------------------------------X
PEOPLE OF THE STATE OF NEW YORK,
NOTICE OF MOTION
FOR CHANGE OF VENUE AND
STAY OF PROCEEDINGS (CPL
SECTIONS 230.20(2)(a) and
230.30)
New York County
Indictment No. 2335/2018
-againstHARVEY WEINSTEIN,
Defendant.
---------------------------------------------------------------X
PLEASE TAKE NOTICE that upon the annexed Affirmation of Arthur L. Aidala, Esq.,
dated the ___ day of January, 2020, and upon all the pleadings and proceedings heretofore had
herein, the undersigned will move this Court at a Motion term thereof, to be held at the Appellate
Division Courthouse, located at 27 Madison Avenue, New York, New York 10010 on the ___ of
January, 2020 at 10:00 o’clock in the forenoon of that day or as soon thereafter as counsel can be
heard, for an Order granting the following:
I)
II)

A Change of Venue Pursuant to Criminal Procedure Law Section 230.20(2)(a);
A Stay of the Trial Proceeding Pursuant to Criminal Procedure Law Section
230.30; and

III)

Such other and further relief that this Court may deem just and proper.

 Dated: January ___, 2020
New York, New York

Respectfully Submitted,
________________________________
Arthur L. Aidala, Esq.
Attorney for Harvey Weinstein
Aidala, Bertuna, & Kamins, Esq.
546 Fifth Avenue
New York, New York. 10036
(212) 486-0011

2

 SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: FIRST DEPARTMENT
---------------------------------------------------------------X
PEOPLE OF THE STATE OF NEW YORK,
AFFIRMATION
-againstHARVEY WEINSTEIN,
Defendant.
---------------------------------------------------------------X
ARTHUR L. AIDALA, ESQ, being duly sworn deposes and says:
I am the attorney of record for defendant HARVEY WEINSTEIN and as such fully
familiar with all facts, circumstances, and proceedings had herein and I submit this Affirmation
in support of the instant motion seeking relief pursuant to Criminal Procedure Law (“CPL”)
Sections 230.20(2)(a) and 230.30.
1.

Defendant brings this renewed motion for Change of Venue and Stay of

Proceedings, pursuant to CPL Sections 230.20(2)(a) and 230.30.
2.

Defendant was arrested on May 25, 2018, and charged by felony complaint with

the crimes of Criminal Sex Act in the First Degree (P.L. 130.50[1]), Rape in the First Degree
(P.L. 130.35[1]), and Rape in the Third Degree (P.L. 130.25[1]).
3.

On May 30, 2018, a grand jury indicted the defendant on the three charges in

the felony complaint.
4.

On July 2, 2018, without notice to the defendant, the District Attorney filed a

superseding indictment charging Mr. Weinstein with two counts of Predatory Sexual Assault

3

 (P.L. 130.95[2]), and two counts of Criminal Sex Act in the First Degree (P.L. 130.50[1]), and
one count each of Rape in the First Degree and Rape in the Third Degree.
5.

On July 9, 2018, Mr. Weinstein was arraigned on the superseding indictment.

6.

On September 18, 2018, the Court dismissed one count of Criminal Sex Act in

the First Degree, based on revelations that the complainant whose testimony supported that
charge lied.
7.

On February 12, 2019, the People filed an amended bill of particulars in which

they added a new crime dating back 25 years alleged by a person who had not testified in the
grand jury.
8.

On August 8, 2019, the Court granted the defendant’s motion to strike the

amended bill of particulars as an improper amendment of the indictment and a usurpation of the
role of the grand jury to bring charges.
9.

On August 16, 2019, defendant filed his original motion for Change of Venue

and Stay of Proceedings, pursuant to CPL Sections 230.20(2)(a) and 230.30.
10. On August 22, 2019, the prosecution filed a brief in opposition to defendant’s
motion.
11. On August 26, 2019, without notice to the defendant, the District Attorney filed
yet another superseding indictment charging Mr. Weinstein with two counts of predatory sexual
assault, two counts of rape and one count of a criminal sexual act.
12. On October 3, 2019, this Court denied defendant’s motion for Change of Venue
and Stay of Proceedings.

4

 13. Jury selection began on January 7, 2020 and are continuing, before the
Honorable James Burke in Part 99 at 100 Centre Street, New York, New York. We ask that the
Court stay the proceedings until such time as it has an opportunity rule on the within motion.
INTRODUCTION
14. The relief requested herein is necessary for several reasons. First, the vast
majority of prospective jurors have been tainted by extrajudicial information contained in a
deluge of pretrial publicity, which was stoked by a fresh new wave of negative press that
emerged at the exact moment the trial began. Second, the current venue has devolved into a
carnival-like atmosphere that no prospective juror can avoid. Reporters and camera crews fill
the entrance to the courthouse and line the hallways leading into the courtroom, celebrity press
conferences denouncing the Defendant occur on the courthouse steps, and protests and
demonstrations are audible inside the courtroom during proceedings. Third, an alarmingly high
percentage of prospective jurors in New York County have already shown an unwillingness to
give fair and impartial consideration to the case. This is evident in the express admissions of
jurors thus far during the proceedings, as well as clear biases that jurors have withheld from the
Court but disclosed on social media. Fourth, in the face of this perfect storm of prejudice to the
Defendant, the Trial Court has been unwilling to implement basic procedural safeguards to
increase the chances Defendant receives a fair trial. The Trial Court’s continued intransigence
on these issues compounds the prejudice to Defendant and further counsels in favor of moving
this case to a different venue.
15. If Mr. Weinstein’s first motion to this Court was a cautionary statement to
“expect the unexpected” from the media when Mr. Weinstein’s trial got underway, this Motion

5

 serves as a resounding confirmation of that caution and a report of the spectacle that has
developed in this trial over the course of the first week alone.
16. And if this case, in its current form, does not present the strongest example of a
criminal trial in desparate need of a change of venue to preserve the constitutional rights of the
defendant, when would a change in venue ever be appropriate out of New York County?
17. This Court has an obligation to step in at this point and halt the media frenzy
that has plagued the New York Supreme Court courthouse and its surroundings on Centre Street
since the trial proceedings began on January 6. It is undoubtedly the case that prejudicial media
coverage has lit the “fires of prejudice” (Groppi v. Wisconsin, 400 U.S. 505, 510 (1971)) in New
York County, thus preventing Mr. Weinstein from receiving a constitutionally fair trial here.
18. The right to a fair trial is a bedrock principle of American democracy. It
requires that “the conclusions to be reached in a case will be induced only by evidence and
argument in open court, and not by any outside influence, whether of private talk or public
print.” Patterson v. Colo. ex rel. Attorney Gen. of Colo., 205 U.S. 454, 462 (1907). Mr.
Weinstein’s right to a fair trial in New York County is threatened by the prejudicial media
coverage and the community’s wave of public passion.
19. It is an axiom of American law that criminal defendants have the right to be
tried in a forum “free of prejudice, passion, excitement, and tyrannical power.” Sheppard v.
Maxwell, 384 U.S. 333, 350 (1966); see also People v. Boss, 261 A.D.2d 1, 3-4 (1st Dep’t 1999)
(“A criminal defendant has the right to a fair trial, and a trial that is not dominated by a wave of
public passion, that is not overwhelmed by press coverage, and that is not conducted in a
carnival atmosphere.”) (internal citations and quotation marks omitted).

6

 20. Where prejudicial pretrial publicity has tainted the venire, the United States
Supreme Court has held that a defendant is entitled to a change of venue to ensure his or her
Sixth Amendment right to an impartial jury and Fourteenth Amendment due process right to a
fair trial. See Rideau v. Louisiana, 373 U.S. 723 (1963); Estes v. Texas, 381 U.S. 532 (1965). In
cases such as this one, where the jurors’ community has “been exposed repeatedly and in depth
to . . . prejudicial pretrial publicity,” that has charged the emotions of the community, the
Supreme Court has held that “only a change of venue [is] constitutionally sufficient” to ensure
“an impartial jury.” Groppi, 400 at 510-11 (describing Rideau, 373 U.S. 723).
21. If jury selection is allowed to proceed in New York County, we have no doubt
that 12 living breathing human beings will be seated in the jury box at the commencement of the
trial. But that will not constitute the fair and impartial jury to which Mr. Weinstein is
constitutionally entitled. It will just be the 12 people we could find under these unreasonable
circumstances. The Constitution requires more.
22. For the reasons that follow, this Court should grant Mr. Weinstein’s motion to
change venue to the superior court of another county in New York state. For the same reasons,
this Court should stay the trial in New York County until it has had such opportunity to rule on
Mr. Weinstein’s present motion.
CPL 230.20(2)(A) AND RELEVANT CASE LAW SUPPORTS THE
PROPRIETY OF REMOVING THIS CASE AT THIS TIME
23. Pursuant to CPL 230.20, the First Department is authorized with the discretion
to order a change of venue for this case, which is currently pending before the Supreme Court of
New York County, to the superior court of another county, if Mr. Weinstein can show
“reasonable cause to believe that a fair and impartial trial cannot be had in such county.” CPL
230.20(2)(a).
7

 24. This Court has specifically applied CPL 255.20(3) to govern the time in which
venue motions should be made, since the timeframe contemplated by CPL 255.20(1) and
(2) would result in the motion having to be filed prematurely. Boss, 261 A.D.2d 1. Pursuant to
section CPL 255.20(3), the Court “must entertain and decide on its merits” any appropriate
motion made before the conclusion of trial based which, for good cause, could not reasonably
have been raised prior to trial.
25. The conditions that warrant a change of venue must be evaluated at the time of
trial because, while pre-trial conditions may run hot, it is possible for the conditions meriting a
change of venue to abate over time and for “passions [to] have cooled.” Boss, 261 A.D. at 4.
The merits of the motion are best determined after jury selection has commenced. See People v.
Porco, 30 A.D.3d 543, 543 (2nd Dep’t 2006) (noting that change of venue motions are more
usually granted after voir dire has commenced). This motion is predicated upon the activity
which occurred during the seven days of Mr. Weinstein’s trial, January 6 – January 14, 2020.
26. There are multiple examples of cases in New York being transferred to other
courts where there was substantial pretrial publicity or where the local sentiment might affect the
defendant’s right to a fair trial. See, e.g., People v. Barr, 64 Misc. 2d 94 (Sup. Ct. Nassau Cty.
1970) (granting motion to transfer case to Nassau County District Court because of, among other
reasons, local publicity); People v. Graydon, 59 Misc. 2d 330 (Sup. Ct. Nassau Cty. 1969)
(granting motion to transfer case to Nassau County District Court to ensure defendant right to a
fair trial by an impartial jury where the local population was “controversially charged with
emotion in respect to this case”).1

1

See also People v. Roberts, 95 Misc. 2d 41, 45 (Tompkins County Ct. 1978) (in construing
C.P.L. § 170.15(3), holding that provisions permitting transfer of cases should be interpreted
8

 27. Furthermore, the New York Appellate Courts have found removal of cases
appropriate where there was substantial pretrial publicity. See People v. Pratt, 27 A.D.2d 199,
202 (3rd Dep’t 1967) (granting removal of a case from County Court to the Supreme Court
following the pretrial publicity); Porco, 30 A.D.3d at 543 (granting change of venue motion
based on “the identity of the victims, the nature of the crime, and the intense, localized, and
prejudicial pretrial publicity. . . .”); People v. Luedecke, 22 A.D.2d 636 (4th Dep’t 1965)
(granting motion for an order removing from the County of Monroe to another county where
prejudicial news telecasts rendered defendant unable to receive a fair trial in the area); People v.
Sawyer, 94 A.D.2d 978, 979 (4th Dep’t 1983) (granting motion for change of venue where
newspaper and media was “extensive and prejudicial”).
28. Mr. Weinstein’s case was already imbued with the indicia of ripeness for
removal at the time of his original motion. Mr. Weinstein is charged with rape, one of the most
serious crimes in the New York Penal Code. Overwhelmingly, motions of this nature have been
granted, in part, based on the seriousness of the crime alleged to have been committed. See Boss,
261 A.D. (murder); People v. Acomb, 94 A.D.2d 978 (4th Dept. 1983) (same); Porco, 30
A.D.3d; People v. Boudin, 90 A.D.2d 253 (2nd Dep’t 1982) (same); People v. Pardo, 107
A.D.2d 1090 (4th Dep’t 1985) (same); People v. Marturano, 24 A.D.2d 733 (4th Dep’t 1965)
(same).
29. In addition, Mr. Weinstein’s celebrity status and the salacious nature of the
uncharged allegations resulted in an unprecedented amount of negative publicity directed at Mr.
Weinstein. There has been nothing objective in the coverage of this case from its inception in

broadly to “uphold constitutionality” and to protect a defendant’s constitutional right to “a panel
of impartial jurors”)
9

 October 2017. This case would have more than enough media attention if the only celebrity
involved was Mr. Weinstein; instead, it has received practically double the media attention
because many of his accusers are also celebrities (albeit not complainants in this trial). See
Exhibit A (sampling media coverage since inception of case).
30. Knowing of the multitudes of allegations against Mr. Weinstein besides those
contained in the indictment is precisely the type of knowledge which warrants a change of venue.
See People v. Cahill, 2 N.Y.3d 14, 40 (2003) (“Merely having heard of the case is not enough, if
the jurors come into the courtroom knowing no more than they learn when they are told of the
charge in open court.”).
31. In 1976, the Supreme Court of the United States recognized that “the speed of
communications” and “the pervasiveness of the modern news media” exacerbated the manner in
which pre-trial publicity interfered with a defendant’s Sixth Amendment right to a fair and
impartial jury. See Neb. Press Ass’n v. Stuart, 427 U.S. 539, 549 (1976) (“The speed of
communication and the pervasiveness of the modern news media have exacerbated those
problems, however, as numerous appeals demonstrate.”). Of course, the “speed” and
“pervasiveness” of 1976 are nothing compared to how rapidly and deeply news spreads in 2020.
But technology has outpaced human evolution and jurors are as susceptible as ever to the
influences of constant negative media attention surrounding a sensational case, which are only
magnified by online reporting and social media.
32. This case gave rise to a social movement, involves high-ranking politicians and
celebrity activists, and has lead to the production of movies, books and so-called documentaries.
In short, the system was already “deluged by a tidal wave of prejudicial publicity to such an
extent that even an attempt to select an unbiased jury would be fruitless.” Cahill, 2 N.Y.3d at 39.

10

 It is difficult to conceive of a similar case in recent memory that generated more pre-trial
inflammatory negative press coverage.
33. Since Mr. Weinstein’s original motion was made, the media conditions have
only worsened. Mr. Weinstein’s position in favor of venue change has only been strengthened
based on the cases from the U.S. Supreme Court and the New York courts. Indeed, the Supreme
Court has identified a media-generated “carnival atmosphere” in the courtroom as precisely the
circumstance a change in venue. See Sheppard v. Maxwell, 384 U.S. 333, 358 (1966); People v.
Boudin, 90 A.D.2d 253, 259 (2nd Dep’t 1982) (finding that the publicity and media coverage had
already resulted in a “carnival atmosphere” that aroused “a deep and abiding resentment” in the
county).
34. In Cahill, the Court of Appeals held that “the test for removal is not based on
the number of prospective jurors who have heard of the case, but whether the media or other
accounts have been so inflammatory as to thwart the selection of a fair-minded jury.” Cahill, 2
N.Y.3d at 39. To meet this standard, the Court noted that the media coverage had to be “so
sensational or prejudicial as to taint the jury pool.” Id. See also id. at 15 (“[W]hat counts is not
the knowledge of the accusation, but whether that knowledge has shaped the jurors’ attitudes and
predispositions.”). And in Boudin, the Second Department granted a defendant’s motion for a
change of venue pursuant to C.P.L. § 230.20 after it determined that there had been “intensive,
localized, continuing and prejudicial publicity” regarding the defendant’s prosecution. Boudin,
90 A.D. at 258.
35. Now that jury selection has commenced, we have information from the
prospective jurors showing that the overwhelming majority of prospective jurors were exposed to
the negative news about Harvey Weinstein. Out of 142 prospective jurors who filled out juror

11

 questionnaires in the case thus far, 130 of them reported having already heard about the case
before ever entering the courtroom.
36. In an interview with the New Yorker on January 13, 2020, Ronan Farrow, the
author of Catch and Kill, acknowledged that it is unrealistic to find jurors with zero exposure to
the idea that there have been many, many allegations of rape and harassment against Mr.
Weinstein:
Last week, we saw a number of jurors sent home because
they said they’d read my book—ideally, you don’t want a
juror in a case like this to be familiar with any prior
reporting, however fair. But it’s going to be pretty
unrealistic to find anyone with zero exposure to the idea
that there have been many, many allegations of rape and
harassment against Harvey Weinstein. So you may wind
up with a jury that’s receptive to the charge with the
greatest maximum sentence—the predatory-sexual-assault
charge, which rests on his behavior being part of a course
of conduct or a pattern.
https://www.newyorker.com/news/q-and-a/ronan-farrow-on-what-the-harvey-weinstein-trialcould-mean-for-the-metoo-movement (emphasis added).
37. The situation here stands in stark constrast, for example, to the situation in
Skilling v. U.S., 561 U.S. 358, 390-91 (2010), a case involving the prosecution of a former Enron
executive where jurors “specifically stated that they had paid scant attention to Enron-related
news.”
38. The Supreme Court found no prejudice existed among the Skilling jurors
because their answers on the prospective juror questionnaires indicated no animus toward the
defendant in that case, Jeff Skilling. See id. at 391-92 (“When asked whether they ‘ha[d] an
opinion about . . . Jeffrey Skilling,’ none of the seated jurors and alternates checked the ‘yes’
box. And in response to the question whether ‘any opinion [they] may have formed regarding

12

 Enron or [Skilling] [would] prevent’ their impartial consideration of the evidence at trial, every
juror--despite options to mark ‘yes’ or ‘unsure’--instead checked ‘no.’”).
39. Here, on the other hand, many jurors have come forward on the questionnaires
to state that they have opinions about Mr. Weinstein. In that respect, this case is similar to Irvin
v. Dowd, 366 U.S. 717, 727 (1961) (“370 prospective jurors or almost 90% of those examined on
the point . . . entertained some opinion as to guilt,” and “[8] out of the 12 [jurors] thought [Irvin]
was guilty.”) (internal quotation marks omitted).
40. And as for those who have responded otherwise, no matter how solemnly given,
a juror’s statement that he or she has not been influenced by prejudicial publicity and is capable
of affording the defendant a fair trial, is not necessarily dispositive. See, e.g., Marshall v. U.S.,
360 U.S. 310, 312 (1959); cf. Irvin, 366 U.S. 717.
41. In People v. Torpey, 63 N.Y.2d 361 (1984), the Court of Appeals held that there
is a heightened standard to rehabilitate a prospective juror’s credibility about their ability to be
fair when the prospective juror’s bias is “caused by a highly unfavorable impression of the
defendant’s over-all reputation or character,” including through media reports. Torpey, 63
N.Y.2d at 368. The reason for this heightened standard is that, in such cases, “the evidence at
trial might not address the basis of the juror’s impression and thus may not alter this impression.”
Id.
42. In Torpey, the defendant was convicted of criminal mischief, coercion,
attempted assault, and conspiracy. Id. at 362. The defendant had previously been the subject of
media reports which linked him to organized crime. Id. at 363. Importantly, these allegations
were not related to the incidents giving rise to the charged crimes. Id. The challenged
prospective juror acknowledged she had read these reports. Id. at 364. Under counsel’s

13

 questioning, the prospective juror stated that she associated the defendant with the “mafia,” that
she had the impression for several years that he was a “hit man,” that she “probably” had a
negative opinion of him, and that it would “probably not” be fair to the defendant to have
somebody with her state of mind on the jury. Id. The trial court attempted to rehabilitate the
prospective juror by eliciting agreement from the prospective juror that reputations “are not
necessarily true” and further by eliciting the response “I think I can” to the question of whether
she was “willing to put aside whatever you may have heard and listen to this case and give both
sides a fair trial based on the evidence in this courtroom and nothing else?” Id. at 365.
43. The Court of Appeals held that this it was error to deny defendant’s cause
challenge. It reasoned that when juror bias comes from a defendant’s “overall reputation,” the
“the test for whether such bias has been overcome by declarations is even stricter than where the
juror has expressed an opinion as to the defendant’s guilt” and the juror “should be dismissed if
there appears to be any possibility that his impressions might influence his verdict.” Id. at 368
(emphasis added). See also People v. Johnson, 94 N.Y.2d 600, 614 (2000) (finding that “where
a juror’s predisposition related not to the particular facts of the case but to a party—as in
Torpey—the evidence at trial might not address the basis of the juror’s impression and thus may
not alter this impression.”) (internal quotations and citations omitted).
44. This heightened standard is precisely the lens through which this Court must
consider the present Motion. While there admittedly would be attenuated risk to prospective
jurors if the press only covered the allegations being presented at this trial, the press coverage of
Mr. Weinstein goes far beyond those allegations and delves into the scores of women who have
accused Mr. Weinstein of improper conduct over the last two years. See People v. Wlasiuk, 90
A.D.3d 1405, 1411 (3rd Dep’t 2011) (where prospective juror had worked with victim and was

14

 aware of past allegations that defendant had abused the victim, holding that because prospective
juror’s bias arose from his “knowledge of defendant’s reputation for committing domestic
violence against the victim,” the prospective juror’s assurances that she could be impartial were
insufficient).
45. In short, “the pattern of deep and bitter prejudice” in New York County “was
clearly reflected in the sum total of the voir dire.” Irvin, 366 U.S. at 727. Although the jurors
who remain have declared they could be impartial, with Mr. Weinstein’s life and liberty at stake,
it would not be requiring too much for Mr. Weinstein be tried “in an atmosphere undisturbed by
so huge a wave of public passion and by a jury other than one in which two-thirds of the
members admit, before hearing any testimony, to possessing a belief in his guilt.” Id. at 728.
THE UNPRECEDENTED MEDIA SPECTACLE THAT IS
THE WEINSTEIN TRIAL
46. In New York County, Mr. Weinstein faces a daily gauntlet of reporters,
gawkers, and negative backlash as he makes his way to Court each day. The press arrive in their
various perches as early as 5 a.m. each morning. The courtroom has been filled to capacity with
press. Reporters line the streets as Mr. Weinstein makes his way to Court. Reporters and
cameramen fill the entrance to the courthouse and line the hallways leading into the courtroom.
And cameramen film every moment, with reporters typing up stories on laptops in the courtroom
during proceedings. See Exhibit B (photographs detailing the scene at the courthouse during the
first week of trial).

15

 47. A new wave of negative press emerged at the exact moment the trial began,
with new charges being announced by the Los Angeles County District Attorney. On January 6,
16

 2020, just as the trial was about to start in which Mr. Weinstein is charged with the most
egregious sexual offenses, the Los Angeles County District Attorney, Jackie Lacey, announced
that her office had filed new criminal charges against Mr. Weinstein for forcible rape, forcible
oral copulation, sexual penetration by the use of force and sexual battery by restraint. See
http://da.lacounty.gov/media/news/hollywood-producer-harvey-weinstein-charged-sexuallyassaulting-two-women-2013 (L.A. District Attorney announcing, “Harvey Weinstein has been
charged with raping one woman and sexually assaulting another in separate incidents over a twoday period in 2013”).
48. Commentators observed that something like this had never been observed
before in a criminal proceeding, where two separate jurisdictions coordinate on the timing of
filing charges so that the filing of later charges coincides directly with the beginning of the trial
on the earlier charges. See https://www.law.com/newyorklawjournal/2020/01/07/piling-onharvey-weinstein/.
49. The New York press frenzy has been stirred up even more by the California
action. Indeed, a victim in the L.A. case will be a witness in the present New York case. The
only antidote to this problem is to remove the case from the spotlight of the country’s two largest
media markets and move the trial to a quieter jurisdiction.
50. Most certainly, the ability to empanel a fair and impartial jury will not be aided
by the Los Angeles announcement. The New York County court now faces an even more
daunting task of empaneling a jury that hasn’t heard about Mr. Weinstein, hasn’t heard about the
new charges, and hasn’t formed an opinion, even subconsciously, that Weinstein is a notorious
sexual predator.

17

 51. Stories are constantly published going into detail regarding the new charges,
including discussing the scene inside and outside of the New York courtroom. The coverage
also constantly rehashes the allegations of the last two years, including the fact that Mr.
Weinstein has roughly 80 accusers. And, most importantly, we know that this constant coverage
is affecting prospective jurors. Over 91% of respondents on the prospective juror questionnaire
have indicated that they’ve been exposed to the media coverage of Mr. Weinstein and this case
in some way already. This fact alone says everything.
52. Indeed, this is more than just press. It is a media and entertainment circus, with
many non-press attendees outside the courthouse. The atmosphere inside the courtroom is
frenzied. According to one prospective juror who was dismissed, tweeted about his experience,
and then was interviewed by BuzzFeed, the mood immediately shifted when the Court
announced that the case at issue was the Weinstein case: “It was so palpable . . . . Right off the
bat I already knew people felt a certain way.” This prospective juror admitted that “You can
kind of see people were uncomfortable. . . . It really was one of those [things] where you feel
tension in the room, and no one quite knows . . . how to be at ease.” See Exhibit C (available at
https://www.buzzfeednews.com/article/clarissajanlim/potential-juror-harvey-weinstein-rapetrial-viral-tweets).
53. Another prospective juror purportedly exclaimed “he’s such a monster” upon
hearing the case name and another “just shook her head and kind of just threw her hands up in
the air.” See id.
54. On January 13, 2020, the model and celebrity Gigi Hadid was called as a
prospective juror in this case. See https://variety.com/2020/biz/news/gigi-hadid-harveyweinstein-trial-1203464950/. The presence of Ms. Hadid, who informed the Trial Court that she

18

 is able to to be a fair juror even though she has met Mr. Weinstein before and is a noted friend of
Weinstein accuser Cara Delevingne, only contributes to the carnival-like atmosphere. Ms. Hadid
attracts her own press and her presence also increases the number of spectators and protestors
outside of the courthouse.
55. Another prospective juror, a senior editor at Yahoo Lifestyle, published an
article on the Yahoo entertainment page on January 13, 2020 entitled, “I was rejected as a juror
for Harvey Weinstein’s trial. Here’s what happened inside the courtroom.” See Exhibit D
(available at https://www.yahoo.com/entertainment/i-was-rejected-juror-harvey-weinstein-trial222720597.html). The article confirms the details contained herein regarding the atmosphere in
and around the courtoom, and describes the prospective juror’s inner struggle over whether she
could act impartially. See id. (“I felt sick as I left the courtroom, jamming myself into an
elevator with other prospective jurors. I wanted to call out, ‘That was surreal!’ but everyone was
so stunned and silent that I just kept quiet, too. I walked to the subway, my nerves jangled.
What if I got picked? What if I should get picked? Could I really be fair and impartial?”). This
prospective juror ultimately recused herself.
56. Protests are another daily source of distraction from courtroom proceedings.
Audible chanting and drums, as well as banging from pots and pans, can be heard during jury
selection, despite the fact that the courtroom is on the 15th floor, from crowds which have
gathered in the hundreds. Protesters can be seen holding signs, including “Justice for Survivors”
and “Coercion is Not Consent.” See https://www.nytimes.com/reuters/2020/01/13/us/13reuterspeople-harvey-weinstein.html; https://www.law.com/newyorklawjournal/2020/01/07/piling-onharvey-weinstein/.

19

 57. The front of the courthouse has also seen “flash mob” protests, which is where a
group of people assembles suddenly, performs for a brief time, then quickly disperses. In this
case, dozens of women from the Chilean feminist organization Las Tesis performed “A Rapist in
Your Path,” a feminist performance piece that protests violence against women. See
https://www.dailymail.co.uk/news/article-7875379/Potential-juror-Weinsteins-trial-said-friendencounter-disgraced-movie-mogul.html. The group danced in formation and sang on the
sidewalk outside the courthouse, with lyrics in English and Spanish including “the rapist is you,”
“it’s not my fault, not where I was, not how I dressed,” “patriarchy is our judge,” and “our
punishment is the violence you can see.” See id.; https://www.nydailynews.com/new-york/nyharvey-weinstein-trial-20200110-6n2lwi6lpnb5pcjxqsswizr4n4-story.html;
https://www.thestar.com/news/world/us/2020/01/10/challenges-distractions-stymie-weinsteinjury-selection.html.

58. It was clear to all of the people in the courtroom that the term “rapist” was being
directed at Mr. Weinstein. See Exhibit E (January 14, 2020 Affirmation of Diana Fabi Samson);
Exhibit F (tweet from Weinstein press corps member stating she clearly heard the word “rapist”);
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 https://www.yahoo.com/entertainment/i-was-rejected-juror-harvey-weinstein-trial222720597.html (“Just then, after a couple more screening questions, as the session was
wrapping up for the afternoon, a thunderous wave of women’s voices poured through the
windows of the courtroom from the street 15 floors below. It was chanting, fierce and powerful,
almost like a song, backed by the unwavering beat of a drum. Though it was nearly impossible
to make out the words being shouted, I did hear one statement — ‘And the rapist is you!’ — loud
and clear. And so, it seemed, did Weinstein, whose face, which was turned toward us in profile
in that incredibly chilling moment, looked stricken.”).
59. The Trial Court initially denied that the sounds that could be heard related to
this trial. Jan. 10, 2020 Tr. 348 (“[B]ut as I listened more and more, and given the musicality of
this particular group, I actually didn’t think it was for us. And it wasn’t until the attorneys went
into the back and looked at your cell phones that you also were able to determine, not until that
point, so just like you, the jurors and I were not able to determine that it was even for, at some
level, our benefit and about your client.”). See also Jan. 10, 2020 Tr. 347 (Trial Court stating
that “the reality is that people chant and protest outside of this courthouse more often than not”).
60. The Trial Court went on to state that the continued chanting and protests were
possibly a good thing because they make “a Manhattan juror in this case, that more conscious of
their duty to determine the testimony and evidence based on only what occurs inside of this
courtroom and not outside as I reiterate to them repeatedly.” Jan. 10, 2020 Tr. 348. See also id.
(Trial Court noting that there will “likely” be further protests).
61. Celebrities, including Rose McGowen, Louise Godbold, Lauren Sivan, and
Rosanna Arquette, have encouraged further protests by holding press conferences denouncing
Mr. Weinstein on the courthouse steps as a “super predator” and who will meet his fate through

21

 “Lady Justice.” See https://www.buzzfeednews.com/article/nishitajha/harvey-weinstein-trialbegins.

62. And protesters have shown no signs of slowing down. One protester who is a
candidate for State Assembly, upon hearing that the chants were heard by Mr. Weinstein, stated,
“I hope he hears it and I hope justice is served.” See https://www.nydailynews.com/newyork/ny-harvey-weinstein-trial-20200110-6n2lwi6lpnb5pcjxqsswizr4n4-story.html.
63. The media coverage is also not just constant, but also spreads instantaneously.
Virtually every day of the trial thus far has seen a “viral moment” that has blown up on social
media, including the California charges (January 6, see
https://www.latimes.com/california/story/2020-01-06/harvey-weinstein-criminal-charges-losangeles-prosecutors); the Court’s reaction about Mr. Weinstein’s use of his cellphone in court
(January 7, see https://www.cnn.com/2020/01/07/us/harvey-weinstein-cell-phonecourt/index.html); the presence of Gloria Allred, counsel for prosecution witnesses, in the
courtroom (January 8, see https://www.thewrap.com/harvey-weinstein-trial-gloria-allredallowed-to-remain-in-courtroom-despite-defense-motion/); and the media spinning Mr.
Weinstein’s motion for individual and sequestered voir dire as a ploy to kick the press out of the
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 proceedings (January 10, see https://deadline.com/2020/01/harvey-weinstein-rape-trial-mediashut-out-jury-selection-motion-1202826722/).
64. And there will undoubtedly be more vial moments to come if this case stays in
New York County. There are multiple A-list celebrities whose names are currently on the
witness list, or who at the very least will be mentioned at trial. This includes Rosie Perez, Salma
Hayek, Charlize Theron, David Boies, and Anabella Sciorra. See
https://www.bloomberg.com/news/articles/2020-01-07/weinstein-s-potential-jurors-asked-ifthey-re-sex-abuse-victims.
65. There have also been a high number of responses from prospective jurors that
were victims of or had exposure to sexual assault or domestic violence. While this fact alone
does not counsel in favor of changing venue, an example from the Trial Court’s questioning of
the venire thus far illustrates the problem with this case happening in New York County. During
questioning of the venire on January 8, 2020, prospective jurors were exposed to unfairly
prejudicial inadmissible evidence due to the statement made by prospective juror Ava Lim, when
she said in open court: “I have a close friend who had an encounter with defendant in his hotel
room, and I do not think I can be a fair juror in this case.” See Jan. 8, 2020 Tr. 173. The Defense
moved to strike the jury panel that was present when the statement was made, but the Court
denied the request.
66. Yet another example of a prospective juror making a prejudicial statement
occurred during the Trial Court’s questioning of the venire on January 14, 2020. After
introducing Mr. Weinstein and counsel for the parties to the venire, the Trial Court asked if
anyone knew Mr. Weinstein or the counsel for the parties. One prospective juror stated that he
knew Mr. Weinstein because he lives across the street from the Tribeca Film Center, where he

23

 had seen Mr. Weinstein on the street several times. When the Trial Court inquired further
whether this would impact the prospective juror’s ability to serve, the prospective juror clarified
that he had seen Mr. Weinstein screaming at other people on the street. This statement is
particularly significant and unfairly prejudicial because the Defense expects that the People will
attempt to introduce evidence that Mr. Weinstein used bullying and intimidation tactics to
manipulate the alleged victims in this case.
67. In addition, widely-read media outlets, such as the New York Times, have
already published the name of a prospective juror and the responses the juror gave in open court
during the first day of jury selection. See
https://www.nytimes.com/reuters/2020/01/07/arts/07reuters-people-harvey-weinstein.html. To
be sure, publishing the names and responses of jurors in the newspaper is atypical for any
criminal case. We expect that this will have a chilling effect going forward, as jurors may not
want their voir dire answers published.
JUROR CONDUCT DEMONSTRATES WHY
A FAIR TRIAL CANNOT BE HAD IN NEW YORK COUNTY
68. During the first week of jury selection, there have been multiple instances of
problematic juror conduct and instances where prospective jurors have not been candid in their
written questionnaire responses.
69. For example, on the first day of jury selection, at 2:05 P.M. on January 7, 2020,
after jurors completed the written questionnaires in court, a prospective juror in this case tweeted
to his/her nearly 7,000 followers:
If anyone knows how a person might hypothetically leverage
serving on the jury of a high-profile case to promote their new
novel, [REDACTED], which [REDACTED] called “a darkly
funny book” and “a witty black comedy,” dm me, please.

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 70. Over the course of the day, the tweet prompted several comments, including: “I
don’t know if this counts as jury-tampering but he’s guilty.” This comment was “liked” by the
juror. This juror assured the Court and the parties in his questionnaire that s/he would be able to
decide the case exclusively on the evidence presented in Court, that s/he would be an impartial
juror, and that s/he would be able to follow the Court’s instruction to “avoid all media coverage
and not look on the internet for this case for any purpose.” Instead, this juror is already prepared
to find Mr. Weinstein guilty, has tweeted about the case, and is considering how to profit from it.
Redacted copies of these tweets have been provided herein as Exhibit G.
71. Another juror posted to Facebook about jury service in this case. When a friend
messaged the juror if s/he had been “paneled for Weinstein,” this juror reacted with a laughing
emoji –

. A redacted copy of the Facebook post is attached hereto as Exhibit H. Besides the

fact that the juror was discussing the case on Facebook, making light of jury service in a case
where the defendant faces life in prison suggests that this juror lacks the seriousness and
diligence required for jury service in this case.
72. We also learned that a juror authored a book, to be published in the Summer of
2020, about women who “negotiate fraught friendships, sexuality, class, and predatory older
men on the journey from innocence to independence.” (Emphasis added). But when asked in
Question #72 of the written questionnaire, “[i]s there anything else that you believe the Judge
and the parties should know about your qualifications to serve as a fair and impartial juror in this
case?,” the juror’s response was “No.” Clearly, the fact that the prospective juror has written a
book that involves women who negotiate “predatory older men” – the very accusation made
against Mr. Weinstein – is something the Court and the parties “should know about,” but the
juror omitted it from his/her questionnaire.

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 MR. WEINSTEIN’S CONSTITUTIONAL RIGHT TO A FAIR AND IMPARTIAL JURY
IS NOT BEING PROTECTED
73. The Trial Court been tasked with ensuring Mr. Weinstein’s constitutional rights
are protected during the course of his criminal trial. Unfortunately, at multiple junctures the
Trial Court has not been up to this task. The Trial Court’s continued intransigence on these
issues counsels in favor of moving this case to a more favorable venue.
74. Thus far, the Trial Court has: (i) refused to adjourn the case for a “cooling off
period” following the filing of the charges against Mr. Weinstein in California;2 (ii) publicly
reprimanded Mr. Weinstein for his use of a cellphone during a break in proceedings, including
asking Mr. Weinstein if he wanted to go to jail for the rest of his life for using his cellphone, and
then refused the defense’s motion that Justice Burke recuse himself on the basis of those
statements;3 (iii) held that counsel will have a mere 15 minutes to voir dire each panel of
prospective jurors;4 (iv) abruptly denied Mr. Weinstein’s motion for individual and sequestered

2

See Jan. 9, 2020 Tr. 241-42 (“And I would say that notwithstanding your photographs included,
that both outside the court and in the hallways, there has not been a carnival atmosphere even
though there has been a significant number of people outside the courthouse, and even in the
hallways as everybody has been very well behaved. And as to inside the courtroom, it has been a
very modest and moderate atmosphere. . . . There has to me, there seems to have been in fact a
cooling off period from the time of one year and two years ago when matters were more stirred
up.”).
3

See Exhibit I, attached hereto (January 8, 2020 letter from defense counsel to the Trial Court
asking Justice Burke to recuse himself in light of his prejudicial comments on January 7, 2020).
4

See Jan. 9, 2020 Tr. 245-47 (“15 minutes for voir dire is in the first place enough time in this or
any other case. . . . The actual issues in this case are no different than any other case, with the
exception of the ones we are dealing with upfront, and it isn't really just 15 minutes because
there will have been a three part vetting, including first the initial pre-screening where we simply
are whittling down the pool to prospective jurors who can be fair and impartial and
accommodate the trial schedule. . . . You probably only need five minutes, and perhaps that will
be what you wind up doing as is frequently the case when attorneys are given a limitless amount
of time, they then choose to not take it.”) (emphasis added).
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 voir dire; (v) refused to strike the venire of potential jurors exposed to Ms. Lim’s prejudicial
statement on January 8;5 and (vi) prevented members of the public from entering the courtroom
during voir dire, while letting selected members of the press be in attendance.
75. During proceedings on January 10, 2020, as defense counsel was moving for
individual and sequestered voir dire, the Trial Court stated that individual and sequestered voir
dire is “against the law.” Jan. 10, 2020 Tr. 269. The highest courts in the land plainly hold
otherwise. See Skilling, 561 U.S. at 389 (noting that, at defendant’s urging, the trial court
“examined each prospective juror individually, thus preventing the spread of any prejudicial
information to other venire members”); People v. Camacho, 90 N.Y.2d 558, 561 (1997) (“Based
on the stipulated proposal, the trial court initially screened prospective jurors at the Bench, in the
presence of both counsel. Some jurors were excused, but those who expressed some doubts
concerning, or reason to question, their impartiality, were retained on an ‘Antommarchi list.’
That list was then used for individual, recorded questioning of such potential jurors in Chambers,
in the presence of defendant, by his counsel and the prosecutor.”).
A STAY OF TRIAL PROCEEDINGS IS NECESSARY AND PROPER AT THIS TIME
76. Pursuant to CPL 230.30, this Court is authorized to stay the trial currently
proceeding in New York County while considering the present Motion:
At any time when a timely motion . . . for a change of venue may
be made pursuant to section 230.20, . . . a justice of the appellate
division of the department in which the indictment is pending,
upon application of either the defendant or the people, may, in his
discretion and for good cause shown, order that the trial of such
indictment be stayed for a designated period, not to exceed thirty

5

See Exhibit J, attached hereto (January 10, 2020 letter from defense counsel to the Trial Court
moving for individual and sequestered voir dire and requesting that the Trial Court strike the 32
remaining prospective jurors from the January 8, 2020 venire on the basis of Ms. Lim’s
statement).
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 days from the issuance of such order, to allow the applicant party
to make a motion . . . for a change of venue.
CPL 230.30(1).
77. A stay is appropriate where, as here, the risk of allowing the trial to continue on
amid a vast media spectacle outweighs any expediency interests. See e.g., People v. Sekou, 45
A.D.2d 982, 982 (4th Dep’t 1974) (ordering stay in criminal trial arising out the 1971 Attica
Prison rebellion, pending hearing and determination of an application for a change of venue).
This Court should use its discretion to grant the stay of proceedings.
CONCLUSION
78. While a pretrial change of venue is considered an extraordinary measure, this
case presents the exception that most cries out for the relief sought.
79. While a change of venue will never fully rectify the damage done by the
bombardment of negative media attention that has already resulted in a rush to judgment, the
remedy sought herein does not presume to remove all taint and prejudice. Rather, this motion
seeks to provide the defendant with a jury pool that is less tainted; less likely to have prejudged;
less likely to be fearful of personal ramifications and denouncements by the media, their family
and friends and coworkers alike, should they consider the rendering of a not guilty verdict.
80. The enormity of the one-sided, biased information, devoid of objectivity, is
magnified tenfold by its dissemination in a city obsessed by news, politics and entertainment, the
trifecta that is the Weinstein story. It is publicity that appears generated in part by those seeking
financial gain while at the same time fulfilling an insatiable appetite to have one voice speak as a
chorus in condemnation of Harvey Weinstein.
81. As discussed above, it is the rare and extraordinary case that justifies a change
of venue. A case simply surrounded by extensive publicity is not alone enough, in and of itself,
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 to command such remedy. The Harvey Weinstein case is that exception where the deluge of
publicity adverse to Mr. Weinstein has engulfed the potential jury pool resulting in untoward
pressure upon jurors to convict a man demonized and prejudged guilty.
WHEREFORE, Mr. Weinstein asks for a change of venue to Albany or Suffolk County
and a stay of the proceedings until such time as this Court has had an opportunity to rule on the
within motion.

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 Dated: January ___, 2020
New York, New York

Respectfully Submitted,
________________________________
Arthur L. Aidala, Esq.
Attorney for Harvey Weinstein
Aidala, Bertuna, & Kamins, Esq.
546 Fifth Avenue
New York, New York. 10036
(212) 486-0011

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