Challenges Mounting for Manhattan DA in Harvey Weinstein Prosecution

Harvey Weinstein, left, and his lawyer Benjamin Brafman, right, arrive to court at 100 Centre St. Photo: Seth Wenig/AP

The criminal prosecution of former movie mogul Harvey Weinstein for allegations of sexual assault appears to have encountered turbulence.

In the span of less than a week, the case against Weinstein lost one of three accusers after it was revealed that the New York City Police Department detective leading the investigation didn’t turn over witness testimony that contradicted the accuser’s allegations that Weinstein assaulted her in 2004.

Several days later, the Manhattan District Attorney Cyrus Vance Jr.’s office disclosed that the detective, Nicholas DiGaudio, who in May was given his own star turn when he was photographed leading a handcuffed Weinstein out of an NYPD precinct house during the disgraced producer’s highly publicized arrest, told another accuser who says Weinstein assaulted her in 2013 to delete certain information from phones that were being submitted into evidence.

Meantime, prosecutors are bracing for a broadside from lead defense counsel Benjamin Brafman of Benjamin A. Brafman & Associates, who said last week he will file to dismiss the full indictment against Weinstein based on DiGaudio’s alleged misconduct with handling the accuser from 2004, aspiring actress Lucia Evans.

Also in the past week, media outlets reported that the FBI has looked into any connections between how Vance’s office handles cases involving powerful figures and political donations to Vance; and that two prosecutors working on the Weinstein case have recently left the office.

According to a letter from Assistant District Attorney Joan Illuzzi, the lead prosecutor in the case, to Brafman that was made public by Vance’s office, a woman who says Weinstein attacked her in 2013, who is not named in court papers, told DiGaudio that she had several cellphones in her possession that she used to interact with Weinstein but expressed concern that the phones may contain personal information.

The accuser said that DiGaudio told her to delete anything from the phones that she wouldn’t want others to see and that “we just won’t tell Joan,” referring to Illuzzi.

When asked to comment on how confident the Manhattan DA’s office is in its case moving forward, Danny Frost, a spokesman for the office, referred to remarks by Illuzzi, who told Manhattan Supreme Court Justice James Burke at a hearing last week that her office is continuing to talk to witnesses and gather evidence.

“We look forward to, over the next few weeks, continuing to meet with witnesses and gather evidence, not only to prepare for trial, but also to determine whether there are additional complainants or incidents for which the defendant can be charged,” Illuzzi said on Oct. 11 at a hearing in which one count of criminal sexual act against Weinstein was dismissed.

A spokesman for Brafman’s firm did not respond to a request to comment for this article.

“While the crime of sexual assault is certainly serious, to falsely accuse someone of sexual assault is equally serious,” Brafman said last week to reporters gathered outside a Manhattan courthouse.

Weinstein is charged with one count of predatory sexual assault, which carries a maximum sentence of life in prison; one count of first-degree rape and one count of third-degree rape pertaining to his alleged assault on the accuser from 2013.

The remaining charges, one count of predatory sexual assault and one count of first-degree criminal sexual act, pertain to Mimi Haleyi, a production assistant who says Weinstein forced himself on her in 2006.

Brafman has previously attacked the credibility of the accusations from the 2013 accuser, arguing that emails between Weinstein and the accuser following the alleged attack show that the two had a consensual, romantic relationship.

Last week, NYPD Chief of Detectives Dermot Shea said the department is conducting an internal investigation into the allegations against DiGaudio.

When asked for comment on the progress of the internal investigation, the department issued a statement expressing confidence in its investigation into Weinstein.

“The evidence against Mr. Weinstein is compelling and strong,” said NYPD Det. Sophia Mason. “The NYPD will continue its work with the prosecution to deliver justice for the courageous survivors who have bravely come forward.”

Veteran criminal defense attorneys who have clashed with Vance’s office in the past said they wouldn’t go as far to say that the prosecution against Weinstein is unraveling.

But high-powered Bronx attorney Murray Richman said that the recent developments indicate that, following criticism that Vance’s office didn’t bring cases against Weinstein in the past when other accusers came forward, prosecutors face considerable pressure to get a conviction on Weinstein and that they may have “bent over backwards” to bring charges.

“I’m not saying that Mr. Weinstein is innocent or guilty,” Richman said. “I’m just saying that in the attempt to get him they may have cut a few corners.”

Ronald Kuby of the Law Office of Ronald L. Kuby said new developments in the Weinstein case have revealed a broader issue with the way that Vance’s office brings cases that may not come to the fore when it’s going after defendants without deep pockets: a “don’t ask, don’t tell” culture in which prosecutors don’t hold police accountable for improper investigative tactics.

“Most defendants don’t have the resources that Harvey Weinstein has,” Kuby said. “Most of them don’t have Ben Brafman. As a result, generic misconduct by the police doesn’t get caught, Vance gets his conviction and injustice gets to continue to sail forth.”

With respect to a report from the New York Daily News that Vance’s office is under investigation for allegations that his office has dropped cases against well-heeled defendants after their attorneys make donations to Vance’s campaign fund, the FBI did not respond to a request for comment and Frost said Vance’s office was not aware of a federal investigation.

Earlier this year, following a study by Columbia Law School’s Center for the Advancement of Public Integrity into Vance’s fundraising practices at the DA’s request, Vance’s campaign announced that it would implement several reforms to his fundraising practices, including a “blinding” procedure that conceals the names of donors as well as caps on donations from attorneys with business before the DA’s office.

Also this week, the New York Post reported that Rachel Hochhauser and Jennifer Gaffney, who were working on the Weinstein prosecution team, both left the Manhattan DA’s office in September for new positions.

“Their departures were long planned and had nothing to do with the case,” Frost said of Hochhauser and Gaffney. Following their departures, Assistant District Attorney Brendan Tracy has joined the Weinstein prosecution team.

Read more:

Court Tosses Charge Against Harvey Weinstein as Brafman Faults NYPD Handling of an Accuser's Account

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Vance to Eschew Donations From Lawyers With Business Before DA's Office