Harvey Weinstein (left) arrives to court at 100 Centre St. in Manhattan in June 2018. (Photo: Seth Wenig/AP)

Manhattan Supreme Court Justice James Burke ordered the courtroom closed over concerns that “highly inflammatory” evidence to be discussed during the Molineux/Sandoval hearings in the Harvey Weinstein criminal trial had the potential to undermine the former Hollywood producer's Sixth Amendment right to a fair trial.

“The dissemination of highly prejudicial evidence at this stage, which may never be admitted or heard at trial, would not serve to ensure the defendant received a fair trial,” Burke said moments before clearing the courtroom of dozens of members of the public and media.

According to Burke, the submissions by the DA's office “consisted entirely of information which is prejudicial to the defendant and are highly inflammatory,” and included testimony by witnesses—some of whom have not been publicly named—of sexual assault and rape allegations against Weinstein.

The government seeks to be allowed to introduce alleged bad acts and uncharged criminal behavior at Weinstein's trial, necessitating so-called Molineux and Sandoval pretrial hearings. Both hearings deal with whether the evidence will be allowed, with the Sandoval hearing specifically focused on cross-examination material to be used in the event Weinstein were to take the stand.

Both Weinstein's legal team, led by criminal defense attorney Jose Baez, Harvard Law School professor Ronald Sullivan Jr. and Aidala Bertuna & Kamins name attorney Arthur Aidala, as well as the office of Manhattan District Attorney Cyrus Vance Jr., opposed allowing the hearings to remain open to the public before Friday's hearing.

During the hearing, Weinstein's legal team took the lead in arguing for the courtroom to be cleared.

Aidala Bertuna name attorney Marianne Bertuna claimed that, were the court to allow members of the media to be present, “Mr. Weintein's Sixth Amendment right to a fair trial will be irrevocably damaged by the unprecedented media attention.”

According to Bertuna, the state of media today, with real-time updates of events available across numerous platforms creating “an insatiable media frenzy,” will only serve to taint the juror pool of more than 1 million residents in Manhattan.

“The accused should not be required to face trial in open court after he has largely been convicted by a newspaper,” she told the court.

Assistant DA Joan Orbon-Illuzi said the burden was on the defense to show the need to close the courtroom, even as the DA's office supported such a move. She specifically stated that not all the potential witnesses the government may seek to produce have been made public.

Speaking on behalf of about a dozen news organizations, Davis Wright Tremaine partner Robert Balin said Weinstein's team did not meet the substantial burden needed to defeat the presumption of open proceedings.

“I listened closely, and what I heard is that somehow it is improper for the press and the public to be sitting here and reporting news in real time. That is what our Constitution envisions,” he said.

While acknowledging not knowing the specifics of the information the government sought to introduce, “the vast majority” of the material contained the same kinds of actions Weinstein has been publicly accused of by dozens of women over the past 18 months.

From the bench, Burke agreed that the information was of a similar sort to what had been previously in the public record. Still, the disclosure of the information would play “a negative role in the functioning of the criminal process by exposing the public generally, as well as potential jurors, to evidence that is inflammatory in nature, personal, and possibly embarrassing to witnesses.”

“In a case that has received as much media attention as this one has, the only result of the dissemination of such inflammatory information, or nonadmitted information, would be to create an acute risk that the media coverage of highly prejudicial information contained in these motions could overrun the covering of the court proceedings of record,” Burke said.

Weinstein, who appeared at the hearing, faces multiple counts of predatory sexual assault, criminal sexual acts, and rape. He is now expected to go to trial on Sept. 9.

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