Mel Gibson can be called to testify against Harvey Weinstein at the producer’s upcoming Los Angeles rape trial, a judge ruled on Friday.
Prosecutors want to call the actor to support the allegations of Jane Doe 3, who claims that Weinstein sexually assaulted her after she gave him a massage at his hotel in 2010. According to Deputy District Attorney Marlene Martinez, the woman later told Gibson about the incident during a massage, and Gibson’s testimony would help buttress her allegation.
Judge Lisa B. Lench allowed prosecutors to call Gibson to the stand. She also denied a defense request that they be allowed to ask Gibson about racist and antisemitic statements he has made over the years. But the defense will be allowed to ask whether Gibson holds a grudge against Weinstein.
The defense argued that Gibson has ill will toward Weinstein dating from the release of “Passion of the Christ,” which was widely seen to play on antisemitic themes. Weinstein later published a book, “Perspectives on the Passion of the Christ,” that challenged the film.
“This created a feud between Mr. Gibson and Mr. Weinstein,” argued Mark Werksman, Weinstein’s attorney.
When Werksman inaccurately claimed that the film won an Oscar for best picture, Weinstein gestured no with his arms with a look of disdain.
Werksman also argued that Gibson is “now trying to rehabilitate his image by becoming a champion of the #MeToo movement.”
According to the attorneys, Gibson told investigators that Jane Doe 3 had a “PTSD reaction” when he brought up the name “Harvey” during a massage. Gibson was talking about Weinstein in the context of a business deal. The woman stopped the massage, started crying and “gave the idea that Weinstein sexually assaulted or groped her,” Werksman said.
Werksman argued that he should be allowed to confront Gibson about his antisemitic tirade that followed his 2006 arrest, as well as an antisemitic comment he allegedly once made to Winona Ryder and other racist statements.
“How is it relevant if he’s racist toward African Americans or Latinos?” Lench asked.
“It goes to his unwillingness to grant equal status to someone who is not of his ilk. He has a white-supremacist view,” Werksman responded. “Someone with white-supremacist values might have no problem perjuring himself against a Jewish defendant.”
Lench ultimately permitted the defense to ask Gibson about any animosity toward Weinstein.
“I’m not going to allow you to get into his other comments that may indicate his general demeanor about, as you say, ‘people who are not of his ilk,’” she said. “I will allow you to question him about whether or not there is personal animosity between the two of them.”
The judge later allowed the defense to state the name of a book, “Naked Massage,” that Jane Doe 3 was trying to publish with Weinstein’s help.
The court spent the first half of the day discussing Jane Doe 1, an Italian model who alleges that Weinstein raped her at the Mr C. hotel during the Los Angeles Italia Film Festival in February 2013.
The defense argued against the prosecution’s intention to use so-called “fresh complaint” witnesses for each of the five alleged victims and four “prior bad acts” witnesses.
Weinstein’s lawyer Alan Jackson proposed that the prosecution limit its use of fresh complaints — statements made by a victim within a short period of time after a crime — to one per alleged victim, and none for the uncharged witnesses.
“I don’t believe there’s any case law that suggests they get to pile on fresh complaint witnesses in multiples,” Jackson said, later adding. “It dilutes the evidence. I think it’s a waste of time. I think it’s improper. I think it dilutes Mr. Weinstein’s due process.”
Describing it as “Energizer Bunny prosecution,” Jackson said the introduction of fresh complaints has “far more prejudice than value.”
Jackson referenced calls Jane Doe 1 made to one of the witnesses, Lubov Smirnova, saying “something terrible happened.”
The “vague statement” is not a fresh complaint, Jackson argued: “None of those have the specificity to rise to a fresh complaint. It’s prejudicial.”
Lench ruled that both complaints made to Smirnova are admissible, in addition to a complaint made to Jane Doe 1’s daughter Maria C.
Lench will allow the defense to present photographs into evidence of Jane Doe 1 posted on social media, including since-deleted kickboxing pictures that he argued could call into question her ability to overcome or escape a threat. Although Lench agreed with Deputy District Attorney Paul Thompson that the line of questioning could perpetuate a rape myth.
Jackson later argued that the prosecution claim that Jane Doe 1 “did not say anything about his scrotum or testicles in her first two interviews” was factually untrue. He cited three interviews with LAPD Detective Javier Vargas and Deputy District Attorney Lowrie Mendoza in which she is quoted as saying multiple times that she was forced to “suck his balls, put his testicles in her mouth.”
Weinstein doesn’t have testicles, Jackson said. Actress Jessica Mann testified in graphic detail during his New York trial about his “deformed” genitalia.
After three days of jury selection, the pool of potential jurors was narrowed to 160 by Friday.
Weinstein is facing 11 sexual assault charges for alleged attacks against five women between 2004 to 2013. The disgraced mogul is already serving a 23-year sentence after being convicted of rape and sexual assault in his New York trial in 2020. New York’s highest court has agreed to hear an appeal, but a conviction in Los Angeles — where he faces up to 140 years behind bars — could effectively guarantee that he’s behind bars for life.