The third day of Harvey Weinstein‘s rape trial was as bizarre and dramatic as the first two. The disgraced movie mogul’s legal team filed a motion asking Judge James Burke to step down after he threatened to throw Weinstein in jail the day before over his cell phone use.

“We write to seek recusal of Your Honor from this case based on the prejudicial and inflammatory comments made by the Court to Mr. Weinstein yesterday morning, which received widespread press attention,” reads the motion, obtained by USA TODAY.

Here’s what Burke said Tuesday: “Mr. Weinstein, I could not implore you more to not answer the following question. Is this really the way that you want to land up in jail for the rest of your life? By texting in violation of a court order? Is it?”

His lawyers claim that Burke’s criticism reflects his “animus” toward Weinstein and have “created a situation in which the Court's 'impartiality might reasonably be questioned,' in violation of New York State's Rules of Judicial Conduct.”


Also on Wednesday, Burke shot down a motion by Weinstein’s team requesting that attorney Gloria Allred be barred from court as she may be called to be a witness. She also represents several of Weinstein’s accusers.

Burke said: “The court is not going to exclude her because while it is possible, it is unlikely that she would be called as an impeachment witness,” meaning she would be called to testify as a means to question the credibility of a witness. Even so, he said, “there would be no actual harm for impeaching her. She may remain; she will certainly be on the witness list.”

Weinstein is accused of five sex crimes with two women in N.Y. On the day his trial in N.Y. kicked off, he was formally charged with crimes, including rape, against two women in L.A.

The jury selection process for the trial is expected to last until at least January 21st.