‘Intentional’ foul on DA
THE MANHATTAN district attorney’s office declined to bring criminal charges against movie mogul Harvey Weinstein who admitted to groping a model two years ago — though legal experts say suspects are routinely arrested on far less evidence.
The Daily News interviewed 10 legal experts — criminal defense attorneys, law professors and former prosecutors among them — about Cy Vance Jr.’s decision not to charge Weinstein after a model/actress claimed the disgraced Hollywood honcho sexually assaulted her.
The overwhelming majority of the experts, with over 200 years of combined experience, say the police complaint from Ambra Battilana Gutierrez and the subsequent recorded conversation in which Weinstein apologized for touching her breasts were enough to file charges.
The legal minds panned Vance, who argued there wasn’t enough evidence to prove intent — the legal standard for prosecution in such a case.
Vance’s decision has come under renewed scrutiny after reports surfaced alleging Weinstein sexually harassed more than two dozen women, including stars Ashley Judd, Angelina Jolie and Gwyneth Paltrow. Three women told the New Yorker he raped them.
Robert Gottlieb, a defense attorney who served on Vance’s transition team in 2009, told The News he’s “had countless clients who have been arrested and charged with crimes with substantially less evidence than has been reported in the Weinstein case.”
Gottlieb said he couldn’t follow Vance’s logic.
“The rationale as expressed doesn’t make sense because time and time again every day in the courts people have been charged on less evidence,” Gottlieb said.
Similar cases are charged every day with the same evidence or less and arrests are made on an accuser’s word alone, most of the experts agreed.
The absence of proof of “intent” evidence — as Vance’s office argued — was a non-issue, experts said, because Weinstein’s intent was obvious. Besides, it’s for a judge or jury to decide a defendant’s motive.
Former Brooklyn homicide prosecutor Javier Solano said the truth is clear.
“Prosecutors and defense attorneys all know that the reason … was because he was powerful, he was rich and he had people making the right calls,” Solano said.
“To say they couldn’t prove intent is just ridiculous,” he added. “It’s not even difficult.”
In March 2015, Filipina-Italian model Battilana Gutierrez went to the NYPD to report that Weinstein grabbed her breasts and had reached underneath her skirt in a brazen and unwanted advance during a meeting at his Tribeca office.
She told cops he asked if her breasts were real and groped her at what was supposed to be a meeting to discuss a lingerie shoot audition, sources told The News.
Police outfitted her with a wire for a second meeting with the “Pulp Fiction” producer during which he said he was “sorry” and wouldn’t “do it again.”
Weinstein’s team reportedly peddled the alibi that he was testing the authenticity of her breasts. After a two-week probe, Vance made his call.
The bombshell recording was made public last week by the New Yorker and Vance’s deputy Karen Friedman Agnifilo responded that it was legally “insufficient” and the law “requires prosecutors establish criminal intent.”
She said further efforts to “establish intent were not successful” and that “other proof issues” led to the decision.
“The recording did not establish criminal intent under New York statute based on the totality of credible facts known to the district attorney’s office,” Vance spokeswoman Joan Vollero said Wednesday.
But criminal defense lawyers in Manhattan were quick to slam Vance’s office.
“To talk about intent in that situation is laughable,” said defense lawyer Norman Williams, who has been practicing since the mid-1990s.
He said the idea that the DA apparently entertained a bogus breast test theory was outrageous, adding that Weinstein could have determined their authenticity by sight.
Weinstein could have been charged with third-degree sexual abuse and forcible touching — both misdemeanors. The latter requires proof of intent.
Lawyer Richard Southard is fighting those charges for a client in Manhattan in which prosecutors conceded that a defendant’s intent is a given.
The prosecutor, citing case law, wrote it was “not necessary to set forth the element of sexual gratification” in the criminal complaint and that it “can be inferred from the nature of the acts alleged and the context in which they were allegedly committed.”
“I think it’s completely hypocritical that they say that they can’t infer intent when someone’s a millionaire but when it’s an average person they have no problem inferring intent and putting it in motion papers,” Southard said.
Former Manhattan prosecutor Nathan Semmel called the DA’s statement “troubling.”
He said that because it would be an “absurdity” to expect a suspect to “spontaneously declare his reason for forcibly touching another,” juries are told that “intent can be inferred by (a person’s) words or actions.”
The recording bolsters her account, Semmel said, because of his aggressive tone and demand that she go to his hotel room while he showered.
“Is there any reasonable, innocent, nonsexual explanation for such conduct?”
Had Weinstein brought the “breast inspection defense” to trial, the DA would have an arsenal of admissible prior bad acts to throw back at him, others said.
Jane Manning, a former sex crimes prosecutor who works as director of advocacy for the National Organization for Women (New York) called the scenario “the the best birthday present you could have given the prosecution.”
Any dirt on the widely known secret of his casting couch habits turned up by the DA would go before a jury, Manning said.
“If these prosecutors can’t cross-examine their way out of the breast inspection defense, they have no business trying petty larceny cases let alone sex crime cases,” Manning said.
She said the DA’s treatment of Battilana Gutierrez, then 22, is indicative of a larger issue — that “acquaintance” sex crime victims face overly stringent scrutiny by Vance’s office.
“It’s like there are classes of victims, and victims of acquaintance rape are second class,” she said.
Attorney Xavier Donaldson questioned if Vance’s team — led by head of the sex crimes unit Martha Bashford — dug into Weinstein’s history.
“Here it doesn’t appear that they even did this because clearly they would have uncovered a wealth of possible prior (or) similar bad acts that may have indicated a pattern,” Donaldson said.
Cardozo School of Law Prof. Jonathan Oberman piled on, calling the DA’s “intent” rationale “patently self-serving.”
He said a jury would have found the required intent in this case.
“Why else would Weinstein grab this woman’s breast without her consent if not to degrade her — that is assert his power over her — or satisfy his sexual desire?”
Some legal experts sided with Vance.
Ronald Sullivan, a Harvard Law School professor, praised the “fine-tuned analysis” prosecutors did on the Weinstein case, adding that it should benefit all suspects.
Legal talking head Mark Geragos recently sided with Vance on CNN saying, “as a practical matters for hitting all of the elements, they didn’t have enough” despite the “horrifying” tape.
But a source in the DA’s office said assistants are saying among themselves what everyone knows: “I’ve had cases like this.”