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Harvey Weinstein trial jury begins deliberating, told to use 'common sense'

Patrick Ryan and Maria Puente, USA TODAY

NEW YORK – The jury in the Harvey Weinstein sex-crimes trial was told to use "common sense" in its instructions from Judge James Burke on Tuesday, before retiring to begin their deliberations on the formerly powerful movie producer's fate. 

At about 4.30 pm, after a half-day of deliberations, the jury was dismissed for the evening and instructed to return Wednesday morning to continue. 

"You and you alone are responsible for deciding whether the defendant is guilty or not guilty," Burke told the seven men and five women of the jury in his opening remarks.

"I’m going to submit this case to you for final determination," he concluded. "The law requires that you render an impartial verdict."

Burke spent about an hour explaining the three parts of his instructions, including a general statement of the law, a statement of the law specific to the case, and the conduct of deliberations.

He explained the meaning of the "presumption of innocence," the "burden of proof," and "proof beyond a reasonable doubt."

"You must base your verdict solely on evidence received in this trial," Burke said, reminding them that opening and closing statements by both sides are not evidence.

He said they may consider whether witnesses made statements on the stand that are inconsistent in this trial, or whether previous statements are inconsistent with their testimony.

"Further, you may consider whether a witness made statements that are consistent in this trial," Burke said. "The bottom line is that you should apply the same common sense in the jury room that you are called on to use in the rest of your lives." 

Harvey Weinstein greets reporters as he arrives at court for jury instructions in his sex-crimes trial in New York, Feb. 18, 2020.

Another bottom line, Burke said: "A witness’ interest or bias is another factor that you should consider when determining a witness’ credibility."

The judge's reference to "common sense" was notable in that it was a theme of the closing argument by Weinstein's lead lawyer, Donna Rotunno, who called on the jury to use its "New York common sense" to acquit her client.

Burke defined for the jury what some of the legal terms mean, such as "forcible compulsion" and "intent." 

"Intent means conscious objective or purpose," he said. "Intent does not require premeditation, nor is it necessary that the intent be in the person’s mind for any period of time" because it can be in the moment.

He went into some clinical detail about the definitions of forcible sexual intercourse, which can mean "any penetration, however slight."

Their findings also have to make internal sense according to how the counts are arrayed against Weinstein: "If you find the defendant not guilty of count 1, predatory sexual assault, then you must also find the defendant not guilty of count 3, predatory sexual assault," Burke said. 

He stressed that the jury must vote unanimously, whether to convict or acquit, on each of the five charges. He said they can refer to notes they took in the courtroom, and can also ask to hear or read any part of the testimony again. Once they reach a verdict, they will send the judge a written note with the date and time the verdict was reached.

In this courtroom sketch, Harvey Weinstein sits in a Manhattan court room as the judge instructs the jurors before they begin deliberating on charges he faces in his sex-crimes trial, Feb. 18, 2020, in New York.

He said they would be sequestered while they are deliberating in the courthouse (no phones or other devices allowed) and can discuss the case only among themselves.

With that, the jury rose and went into the deliberation room. 

About 40 minutes into deliberations, the jury sent a note asking for the legal definition of terms like consent and forcible compulsion, and sought clarity on why Weinstein wasn't charged with other crimes stemming from actress Annabella Sciorra’s account of an alleged 1993-94 rape.

Before the jury was brought into the courtroom in the morning, defense lawyers sought to discharge one woman juror and replace her with an alternate, on the grounds she has been reading a French book about consent and predatory behavior. But the judge ruled against it. 

In another back-and-forth between the lawyers without the jury present, prosecutors objected to an op-ed that Rotunno published in Newsweek, in which she "implored" the jury to acquit her client using similar words she used in her closing argument last week. 

Prosecutors claimed the op-ed violated the court's order about not addressing the jury outside the courtroom. They argued that Weinstein should be locked up during deliberations as punishment and asked the judge to warn the jury in his instructions of the defense team's alleged bad behavior. 

Judge Burke did not agree; he reminded Rotunno not to speak to the media and moved on. 

Weinstein is charged with five sex crimes, including rape and predatory assault, involving two accusers, Miriam "Mimi" Haleyi and Jessica Mann, who say he sexually assaulted them in 2006 and 2013 respectively. 

Harvey Weinstein departs his sex-crimes trial with his lawyer Donna Rotunno on Feb. 14, 2020 in New York City.

This final stage of the trial, which opened Jan. 6, comes after two weeks of jury selection and four weeks of testimony, plus opening and closing arguments by prosecutors from the Manhattan District Attorney's Office and lawyers from Weinstein's defense team. 

On Thursday, Rotunno spent about five hours summing up the defense, arguing that prosecutors failed to prove guilt beyond a reasonable doubt and calling on jurors to use their "New York City common sense" to acquit Weinstein.

Too many holes in the accusers' stories, too much passage of time and extensive evidence of continuing friendly contact between the powerful producer and his accusers add up to reasonable doubt, she said.  

"Every time you feel emotion taking over, let common sense guide you," she said. 

On Friday, Assistant District Attorney Joan Illuzzi spent about three hours summing up the prosecution's case, arguing that Weinstein was an "abusive rapist" and that faltering memories, friendly exchanges and even consensual sexual relationships with his accusers did not erase his guilt in the specific charges against him.

She said Weinstein sees himself as “the master of his universe, and the witnesses here were really ants who he could step on without consequences.”

The trial has been closely watched as the first and so far only major celebrity criminal trial of the #MeToo era. It is concluding more than two years after media exposes accused Weinstein of sexual misconduct dating back decades and involving allegations by more than 80 women in multiple jurisdictions.

Manhattan Assistant District Attorney Joan Illuzzi, right, followed by ADA Meghan Hast, arrive for defense closing arguments at the Harvey Weinstein sex-crimes trial in New York, Feb. 13, 2020.

In addition to the two main accusers, the trial featured testimony from four other accusers whose allegations were either too old to prosecute or did not occur in New York, including Sciorra. Their testimony was offered by prosecutors to bolster their case that Weinstein demonstrated an alleged pattern of "prior bad acts."

Weinstein also is accused of four similar sex crimes in Los Angeles County in 2013. That case, which was announced as the trial opened in Manhattan in January, has been on hold until the New York case is concluded. 

Contributing: The Associated Press

This article originally appeared on USA TODAY: Harvey Weinstein jury deliberating on fate, told to use 'common sense'