(UPDATED with unsealed D.A. letter to defense lawyer) Harvey Weinstein appeared without handcuffs in New York Supreme Court this morning and even flashed a faint smile, a big change from his previous sober and shackled appearances in his sexual assault trial.
The fallen mogul’s more upbeat demeanor suited the outcome of the day. Judge James Burke dismissed one of the six counts against him after the Manhattan D.A. agreed to drop it, and also pushed a key ruling to December, giving the defense more time to fight the charges.
The ditched sexual assault count stemmed from allegations by Lucia Evans, who told the New Yorker a year ago that Weinstein forced her to perform oral sex in his office in 2004. At the time, Evans was a 21-year-old student and aspiring actress.
Weinstein’s legal team will have until November 16 to file further motions attacking the remaining charges against him. The judge called a hearing for December 20, when he is expected to rule on those motions, meaning the flagship trial of the #MeToo era will not see serious courtroom action until well into 2019, if indeed it does proceed to trial.
Assistant District Attorney Joan Illuzzi-Orbon, the lead prosecutor in the case, insisted that the agreement to drop the count would have no bearing on the case’s resolution. “Nothing in this disclosure impacts the strength of the remaining case and the other five counts,” she said, including the most serious count, for predatory sexual assault. “We are moving full steam ahead.” The ruling today does allow Manhattan D.A.’s office to present the now discarded count back to the Grand Jury in the future if they decided to, which seems unlikely right now.
Weinstein’s lawyer Benjamin Brafman maintained the jettisoned count is a sign the entire case is built on a weak foundation, one he and the legal team intend to spend the next several weeks undermining. “Some of the most vocal, outspoken critics of Mr. Weinstein have put their opinions into the media” without a legitimate legal claim, he argued. Although Brafman said he has “great respect” for the D.A.’s office, “I have deep regret that the thoroughness of the investigation did not prevent them from charging Mr. Weinstein with a crime he did not commit.”
An attorney for Evans told media that the dropping of the count “says nothing about Weinstein’s guilt or innocence.” Rather, “it only speaks volumes about the Manhattan D.A.’s office and its mishandling of my client’s case.”
Unsealed Thursday by the court, a pivotal September 12 letter from Illuzzi-Orbon to Brafman describes the Evans-Weinstein encounter as now appearing to be consensual and added that “our office’s review of the above facts is ongoing (read it here).
“As is described more fully below, a third-party witness (the “Witness”) has recently described to the People an account by the complainant in Count Six of the Indictment (the “Complainant”) that is at odds with the factual account the Complainant previously provided to our Office, the detailed letter from last month to the defense attorney from Cyrus Vance’s office noted in its introduction. “The People have recently obtained a draft email that the Complainant wrote to her husband (then her fiance) in 2015, which recounts the incident that is the subject of Count Six of the Indictment,” the correspondence adds. “The account describes details of the sexual assault that differ from the account the Complainant has provided to our office. The Complainant has told our office that the inconsistencies may be the product of a flawed memory. The Complainant has also told our office that she permitted her husband to read the email sometime after it was drafted. The Complainant had previously told investigators in this case that she never disclosed to her husband the details of the sexual assault at issue.”
Today in court, Deputy D.A. Iluzzi-Orbon cited the letter as the key factor in dropping the count.
The actions in court Tgursday by Justice Burke follows a decision in September to delay trial activity so as to minimize potential interference with the midterm elections.
Out on $1 million bail after having entered a not-guilty plea to the first round of indictment and surrendering his passport earlier this year, Weinstein was last in court July 9 to enter another not-guilty plea. That came after the Manhattan D.A.’s office slapped him with additional and more damning sex crime charges on July 2.
Those follow-on charges marked an additional count of criminal sexual act for a forcible sexual act that allegedly occurred in 2006. If found guilty, the much accused co-founder of The Weinstein Company could spend the rest of his life in prison.
Brafman asserted again that Weinstein has not committed any crime and said he planned to file an application with the New York Police Department asking the detective who interviewed Evans to be banned from the case. He promised a “very complicated investigation” would be undertaken to review prosecutors’ remaining charges.
The New York Post, never known for its restraint, blasted out a headline just before the judge dismissed the sexual assault count, wondering if the D.A.’s case is “in danger of falling apart.” It hasn’t gotten to that point just yet, but for now the momentum appears to be on the side of Harvey Weinstein for the first time.