Mel Gibson can testify about what he learned from one of Harvey Weinstein’s accusers, a judge who ruled Friday in the disgraced film mogul’s rape and sexual assault trial.
The 66-year-old actor and director was one of several witnesses whose identities were revealed in Los Angeles Superior Court. The judge and attorneys took a break from the jury’s choice of motions on what evidence would be allowed and who could testify. List of witnesses sealed.
The judge, Lisa B. Lynch, ruled that Gibson can testify in support of his masseuse and girlfriend, who will be known as Jane Doe No. 3.
Weinstein, 70, is charged with the crime of sexual assault by restraint against a woman, one of 11 counts of rape and sexual assault at trial.
Prosecutors say that after getting a massage from a woman at a Beverly Hills hotel in May 2010, Weinstein followed her naked into the bathroom and listened.
Weinstein has pleaded not guilty and denied any non-consensual sexual activity. His lawyers argued against allowing Gibson to testify, saying that what he learned from the woman while receiving a massage did not constitute a “new complaint” under the law under which Gibson would be taken.
A “new complaint” under California law allows evidence of sexual assault or another crime to be presented if the victim voluntarily and relatively quickly reported it to someone else.
Prosecutors said that when Gibson brought up Weinstein’s name, the woman’s response was shocking and Gibson realized she had been sexually assaulted. Gibson did not remember the timing of the exchange but the prosecution will use another witness, Allison Weiner, who remembers speaking to Gibson and the woman in 2015.
Judge Lynch said Gibson’s testimony will depend on how the defendant describes the tradeoff when she takes the stand, and she may rule against it at that time.
Weinstein’s attorney, Mark Werksman, has argued that the defense should be allowed to question Gibson about widely publicized anti-Semitic remarks during his arrest in 2006, and about racist statements made in 2010.
Lynch said the discussion of Gibson’s racism was not relevant to the trial but would allow for the question of whether he had a personal bias and hostility toward Weinstein.
Werksman argued that Gibson had such prejudice because Weinstein is Jewish and because Weinstein published a book critical of the portrayal of Jews in Gibson’s 2004 film The Passion of the Christ.
“Any evidence of Gibson’s racism or anti-Semitism would lead to prejudice against my client who challenged him,” Werksman said.
The lawyer wrongly said that the movie won an Oscar for Best Picture. Weinstein, whose films have dominated the Oscars, shook his head at the defense table.
“Sorry, my client would know better than me,” Werksman said. “But it was an award-winning movie.”
The defense also argued that Gibson was trying to whitewash his image by focusing on Weinstein and asserting himself as the champion of the #MeToo movement.
The prosecution argued that Gibson made no such suggestions, and that at the time of the conversation with his masseuse she was discussing entering into a business deal with Weinstein, which indicates no bias.
Deputy Attorney General Marilyn Martinez called Gibson’s previous comments “despicable” but said they had nothing to do with the reasons he was called to the stage.
Gibson’s testimony raises the prospect of two men, one of whom was one of the most powerful in Hollywood but had public meltdowns, facing each other in court.
An email requesting comment from a Gibson representative was not returned.
Lynch also found Melrose Place actress Daphne Zuniga could give similar testimony to a woman known at the trial as Jane Doe No. 4, whom Weinstein accused of raping in 2004 or 2005.
Weinstein is serving a 23-year prison sentence for his 2020 conviction for rape and sexual assault in New York. That state’s Supreme Court agreed to hear his appeal. He was brought to Los Angeles for a trial that began Monday, five years after women’s stories about him gave impetus to the #MeToo movement.
Friday’s arguments came a day after the premiere of She Said, which tells the story of two New York Times reporters whose stories brought Weinstein down. Weinstein’s lawyers sought to postpone the Los Angeles trial because publicity from the film might contaminate the jury pool. The judge rejected their motion.
The trial is expected to last eight weeks. The judge and lawyers will return to the jury selection on Monday. Opening data is expected on October 24.
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