Mel Gibson can testify about what he learned from one of Harvey Weinstein’s accusers, a judge ruled on Friday in the rape and sexual assault trial of the disgraced movie mogul.
The 66-year-old actor and director was one of many witnesses whose identities were revealed in Los Angeles superior court. The judge and attorneys took a break from jury selection for motions on what evidence will be allowed and who can testify. The witness list is sealed.
The judge, Lisa B Lench, ruled that Gibson can testify in support of his masseuse and friend, who will be known as Jane Doe No. 3.
Weinstein, 70, is accused of committing sexual battery by restraint against the woman, one of 11 counts of rape and sexual assault in the trial.
Prosecutors say that after getting a massage from the woman at a hotel in Beverly Hills in May 2010, a naked Weinstein followed her into a bathroom and masturbated.
Weinstein has pleaded not guilty and denied any non-consensual sexual activity. His attorneys argued against allowing Gibson to testify, saying what he learned from the woman while getting a massage does not constitute a “fresh complaint” under the law by which Gibson would take the stand.
A “fresh complaint” under California law allows the introduction of evidence of sexual assault or another crime if the victim reported it to someone else voluntarily and relatively promptly.
Prosecutors said that when Gibson brought up Weinstein’s name, the woman had a traumatic response and Gibson understood that 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 Lench said Gibson’s testimony will depend on how the accuser describes the exchange when she takes the stand, and she may rule against it at that time.
A Weinstein attorney, Mark Werksman, argued that the defense should be allowed to cross-examine Gibson about widely publicized antisemitic remarks during an arrest in 2006, and about racist statements publicized in 2010.
Lench said discussion of Gibson’s racism was not relevant to the trial but she would allow questioning of whether he had a personal bias and animus towards Weinstein.
Werksman argued that Gibson had such a bias both because Weinstein is Jewish and because Weinstein published a book that criticized the depiction of Jews in Gibson’s 2004 film The Passion of the Christ.
“Any evidence of Mr. Gibson’s racism or anti-Semitism would give rise to a bias against my client, who challenged him,” Werksman said.
The lawyer mistakenly said the movie won a best picture Oscar. Weinstein, whose films once dominated the Oscars, shook his head at the defense table.
“Sorry, my client would know better than I would,” 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 a champion of the #MeToo movement.
The prosecution argued that Gibson had made no such suggestions, and that at the time of the conversation with his masseuse he was discussing getting into a business deal with Weinstein, showing there was no bias.
Marlene Martinez, a deputy district attorney, called Gibson’s past comments “despicable” but said they had no relevance for why he would be called to the stand.
Gibson’s testimony raises the prospect of two men, once among the most powerful in Hollywood but who have undergone public downfalls, facing each other in court.
An email seeking comment from a representative for Gibson was not returned.
Lench also found that the Melrose Place actor Daphne Zuniga could testify in a similar capacity for a woman known at trial as Jane Doe No. 4, whom Weinstein is accused of raping in 2004 or 2005.
Weinstein is serving a 23-year sentence for a 2020 conviction for rape and sexual assault in New York. That state’s highest court has agreed to hear his appeal. He was brought to Los Angeles for the trial that began Monday, five years after women’s stories about him gave momentum to the #MeToo movement.
Friday’s arguments came a day after the premiere of the film She Said, which tells the story of the two New York Times reporters whose stories brought Weinstein down. Weinstein’s attorneys sought to have the LA trial delayed because publicity from the film might taint the jury pool. The judge denied their motion.
The trial is expected to last eight weeks. The judge and attorneys will return to jury selection on Monday. Opening statements are expected on October 24.