Weinstein Seeks Dismissal Of Sexual Assault Case In Possible #MeToo Setback

Dec 17, 2018
Originally published on December 17, 2018 11:35 am

Harvey Weinstein's arrest in May marked a watershed moment for the #MeToo movement. Weinstein was charged with sexually assaulting three women after dozens came forward to accuse the movie mogul of rape and sexual misconduct.

But six months after his dramatic arrest, the criminal case against Weinstein hasn't turned out to be the slam dunk that many people expected.

One of the assault charges against Weinstein has been dropped. And the rest of the case may be in jeopardy. Police and prosecutors are blaming each other for undermining the case. And his defense lawyers are using that finger-pointing to their advantage.

Weinstein always has denied sexually assaulting anyone; he says the encounters were consensual. And this week, his lawyers will be in court trying to get the entire criminal case against him thrown out.

The detective

Weinstein turned himself in to police in Lower Manhattan in May.

It was a chaotic scene. News helicopters hovered overhead while photographers and videographers jostled for position outside the station house in Tribeca. Weinstein arrived in an SUV and a detective led him inside.

That detective, Nicholas DiGaudio, is now one of several people being blamed for problems with the case.

Joseph Giacalone, a former NYPD detective sergeant who has written a textbook for investigators, points to several missteps identified by prosecutors and disclosed to the defense team.

"I believe the case is going nowhere," Giacalone said.

For one thing, prosecutors say DiGaudio encouraged one of the accusers to delete some personal data off her phones before she turned them over to police. Giacalone says that makes it look like there might have been evidence on the phones that could make her look bad.

"You can't tell somebody 'Just delete this, and we won't tell anybody,' " Giacalone said. "Because it just gives a bad impression about what you're trying to do. Like you're trying to almost manipulate what the outcome of this is going to be."

Prosecutors say DiGaudio made other mistakes too.

The detective had interviewed one of Weinstein's accusers, Lucia Evans, who says the film producer assaulted her in 2004. (Evans told her story to The New Yorker last year.) DiGaudio also interviewed one of Evans' friends, who says she remembers Evans describing her encounters with Weinstein differently.

But then, according to prosecutors, the detective failed to inform them about key differences in their stories — and told the friend that "going forward, 'less is more' " and that she had no obligation to cooperate with law enforcement.

The NYPD called the evidence against Weinstein "compelling and strong" and declined to make DiGaudio available for an interview. The police union disputes the district attorney office's version of this story, saying the information was handed over but was "forgotten or ignored" by prosecutors.

The district attorney

This is not the first time Manhattan District Attorney Cyrus R. Vance Jr. has come up against Weinstein.

In 2015, police in New York thought they had enough evidence to prove that Weinstein had groped an Italian model. They had her wear a wire and got Weinstein to admit to it in the recording that was later published by The New Yorker.

But Vance declined to bring charges in that case. Some in the NYPD still don't agree with that decision.

"I understand that folks are outraged by his behavior," Vance explained two years later, when more women had come forward to accuse Weinstein of sexual misconduct. "I understand there are many other allegations that have surfaced. But in our case, we really did what the law obligates us to do."

Fast-forward to 2018, and Vance filed charges against Weinstein. But then prosecutors started to have doubts about part of the case.

In October, they disclosed their concerns about DiGaudio to the defense. Weinstein's lawyers pushed to have the charge relating to Evans' allegations dismissed. And in an unusual move, prosecutors agreed to drop that count.

But the lawyer for Evans, the woman who accused Weinstein of sexual assault, is furious.

"I'm baffled by the D.A.'s decision," said attorney Carrie Goldberg. In Goldberg's view, her client's case isn't weak; the district attorney is.

"You've got prosecutors who are more concerned about whether they win or lose than trying to hold one of these people accountable," Goldberg said.

The district attorney, Vance, has been painted in the New York press as someone who won't go after the rich and powerful. Goldberg thinks that's what's happening in the Weinstein case.

Weinstein "is a man with outrageous amounts of power and access who, you know, thought he could have anything he wanted," Goldberg said, "including every single woman that basically he came into contact with that he found attractive."

The district attorney's office declined to comment. But Vance's defenders reject the idea that he's afraid to take Weinstein to court.

"The likeliest reason they dismissed that count is because they no longer believe in that count beyond a reasonable doubt," said Daniel Alonso, a former federal prosecutor and chief assistant district attorney under Vance. Alonso is now managing director of the New York office of Exiger, a compliance firm.

Prosecutors have said in court that they are moving "full-speed ahead" with the remaining five charges, and that they will fight efforts by the defense to have the rest of the case thrown out.

The defense lawyer

In Benjamin Brafman's law office, there is a wall covered with photographs of him with the high-profile men — and they are mostly men — that he's defended over the past four decades.

Rapper Sean "Diddy" Combs, who was acquitted of gun charges. Dominique Strauss-Kahn, the former head of the International Monetary Fund, who was cleared of sexual assault.

Weinstein hasn't made the wall yet. But Brafman insists his latest client isn't a criminal either. An adulterer, yes — but not a criminal.

"Mr. Weinstein is, you know, embarrassed by the fact that he had these extramarital relationships at a time when he was married," Brafman said. "You know I'm not defending his behavior. I'm defending specific acts of criminal conduct."

Brafman argues that mistakes made by DiGaudio taint the entire case against Weinstein. He also says the accusers continued to text and email with Weinstein long after the alleged assaults — proof, Brafman says, that the women are lying, and that the sexual encounters were consensual.

The district attorney's office has called for Brafman to stop trying the case in public. But Brafman says he has no choice, because he's up against what he calls the "worldwide hysteria" created by the #MeToo movement.

"This is not about #MeToo being bad," Brafman said. "But when you have a #MeToo movement that pressures public officials to take certain action when perhaps it's not warranted, then it gets to be very, very scary. And I think that's what happened here."

Lawyers for Weinstein's accusers and women's rights advocates say it's not unusual for victims to continue to communicate with attackers they know. And they say they've seen these tactics before.

"The defense always wants everyone and anyone to be on trial other than their own client," said attorney Gloria Allred, who represented dozens of women who accused comedian Bill Cosby of sexual misconduct. Allred also represents one of the Weinstein accusers.

"Let's put the police on trial. Let's put the prosecution on trial. Let's put the whole #MeToo culture on trial," Allred said. "Anybody and everybody except Harvey Weinstein. But I'm not distracted from who the actual defendant is."

On Thursday, a judge in New York will hear arguments about whether the case against Weinstein can go forward. But for many people watching, it will be more than that. It'll be a test of how far the #MeToo movement has come.

Copyright 2018 NPR. To see more, visit https://www.npr.org.

DAVID GREENE, HOST:

Lawyers for Harvey Weinstein will be back in court this week, trying to get the entire criminal case against him thrown out. A year ago, the allegations against Weinstein became a catalyst for the #MeToo movement. Dozens of women have come forward to accuse the former movie mogul of rape and sexual misconduct. But the criminal case involving three alleged victims has not turned out to be as open and shut as many people expected. NPR's Joel Rose has covered law enforcement in New York City. And NPR's Rose Friedman covers the arts. They brought us this report.

JOEL ROSE, BYLINE: Harvey Weinstein turned himself in to police in Lower Manhattan in May. I was watching it on TV while my colleague ran downtown to cover the perp walk.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER #1: Harvey.

UNIDENTIFIED REPORTER #2: Harvey, what took you so long?

ROSE FRIEDMAN, BYLINE: It was a zoo. You can hear the news helicopters. There were so many reporters, I had to stand on the back of someone's stepladder. Harvey Weinstein got out of an SUV. And the detective took him inside. It was a big day for law enforcement in New York and for the #MeToo movement.

(SOUNDBITE OF NEWS MONTAGE)

ERIC THOMAS: A stunning fall for Harvey Weinstein tonight.

UNIDENTIFIED PERSON #1: Harvey Weinstein is in handcuffs. The disgraced Hollywood...

UNIDENTIFIED PERSON #2: Let's go live now to Manhattan Criminal Court, where Harvey Weinstein is being arraigned on sexual abuse charges.

ROSE: Harvey Weinstein has always denied that he sexually assaulted anyone. He insists the encounters were consensual. Now fast-forward six months from that scene in May. One of the assault charges against him has been dropped. And the rest of the case may be in jeopardy, too.

FRIEDMAN: We're going to walk you through what happened and this round robin of blame between the detectives, the DA and the defense. Police and prosecutors are accusing each other of undermining the case. Harvey Weinstein's lawyers are using all that fingerpointing to their advantage.

ROSE: Let's start with Exhibit A, the detective Nicholas DiGaudio. He's the guy who walked Harvey Weinstein into the police station that day. Now he's the guy being blamed for problems with the case. To understand why, we called Joseph Giacalone. He's a former NYPD detective who's written a textbook for investigators.

How bad is this for the case? I mean, is this case in trouble?

JOSEPH GIACALONE: Yes, I believe the case is going nowhere.

ROSE: Giacalone points to a couple of missteps. For one, prosecutors say Detective DiGaudio encouraged an accuser to delete some personal data off her phones before she turned them over to police. Giacalone says that makes it look like there might have been evidence on the phones that could make her look bad.

GIACALONE: You just can't tell somebody, hey, just delete this, and we won't tell anybody because it just gives a bad impression about what you're trying to do. Like, you're trying to almost manipulate what the outcome of this is going to be.

ROSE: Prosecutors say Detective DiGaudio made other mistakes, too. And they disclosed all of those issues to Weinstein's lawyers. The NYPD wouldn't let us talk to DiGaudio. But his union rep says he did his job and that prosecutors didn't do theirs.

FRIEDMAN: Which brings us to Exhibit B, the district attorney. Cyrus Vance is the Manhattan DA. And this is not the first time he's come up against Harvey Weinstein. Back in 2015, police thought they had enough evidence to prove that Weinstein had groped an Italian model. But Vance declined to bring charges.

(SOUNDBITE OF ARCHIVED RECORDING)

CYRUS VANCE JR: I understand that folks are outraged by his behavior.

FRIEDMAN: This is Vance explaining his decision two years after the incident, when more women had come forward.

(SOUNDBITE OF ARCHIVED RECORDING)

VANCE JR: I understand that there are many other allegations that have surfaced. But in our case, we really did what I think the law obligates us to do.

FRIEDMAN: So here we are in 2018. Vance has charged Weinstein. But then prosecutors start to have doubts about parts of the case.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON #3: Today, what could be a huge blow to the criminal case against disgraced movie mogul Harvey Weinstein.

FRIEDMAN: Prosecutors dropped one of the sexual assault charges. As we've said, they think police ran a shoddy investigation. But the lawyer for the woman who accused Harvey Weinstein of sexual assault is furious.

CARRIE GOLDBERG: I'm baffled by the DA's decision.

ROSE: We sat down with attorney Carrie Goldberg at her boutique law firm in Brooklyn. She thinks the dropped charge should have gone forward. She says the case isn't weak. The district attorney is.

GOLDBERG: You've got prosecutors who are more concerned about whether they win or lose than trying to hold one of these people accountable.

ROSE: The district attorney, Cy Vance, has been painted in the New York press as someone who won't go after the rich and powerful. Goldberg thinks that's what's happening in the Weinstein case.

GOLDBERG: This is a man with outrageous amounts of power and access who, you know, thought he could have anything he wanted, including every single woman that he found attractive.

ROSE: The DA's office declined to talk to us. But Vance's defenders reject the idea that he's afraid to take Weinstein to court. They say he likely lost faith that he could prove that one charge beyond a reasonable doubt. And prosecutors have said in court they'll fight any efforts by the defense to have the rest of the case thrown out.

FRIEDMAN: And that brings us to Exhibit C, the defense lawyer.

ROSE: What's on the wall here? What are these?

BEN BRAFMAN: These are just some souvenirs.

FRIEDMAN: Ben Brafman has been one of the top criminal defense lawyers in New York for decades. He gave us a tour of his high-rise office in Midtown. One of the walls is covered with photographs of the high-profile men he's represented. And they are mostly men. Rapper Sean Diddy Combs - acquitted of gun charges. Dominique Strauss-Kahn, former head of the International Monetary Fund - cleared of sexual assault. Harvey Weinstein hasn't made the wall yet. But Brafman insists his latest client isn't a criminal, either. An adulterer, sure. But not a criminal.

BRAFMAN: Mr. Weinstein is, you know, embarrassed by the fact that he had these extramarital relationships at a time when he was married. You know, I'm not defending his behavior. I'm defending specific acts of criminal conduct.

FRIEDMAN: The DA's office has called for Brafman to stop trying the case in public. But Brafman says he has no choice. He says Weinstein's accusers are lying, pointing out that they continued to text and email his client. And Brafman says he's up against what he calls the worldwide hysteria created by the #MeToo movement.

BRAFMAN: This is not about the #MeToo movement being bad. But when you have a #MeToo movement that pressures public officials to take certain action when perhaps it's not warranted, then it gets to be very, very scary. And I think that's what happened here.

GLORIA ALLRED: The defense always wants everyone and anyone to be on trial other than their own client.

ROSE: Attorney Gloria Allred has been fighting for women's rights for decades. She represented dozens of women who accused Bill Cosby of sexual misconduct. And she represents one of the Weinstein accusers. Allred says she's seen this tactic before.

ALLRED: Let's put the police on trial. Let's put the prosecution on trial. Let's put the whole #MeToo culture on trial - anybody and everybody except Harvey Weinstein. But I'm not distracted from who the actual defendant is.

ROSE: This week, a judge will determine whether the case against Harvey Weinstein can go forward. But for many people watching, it'll be more than that. It'll be a test of how far the #MeToo movement has come in a year. Joel Rose...

FRIEDMAN: And Rose Friedman.

ROSE: ...NPR News, New York.

(SOUNDBITE OF JELLIS AND SUBSETS' "REBORN") Transcript provided by NPR, Copyright NPR.