The movie mogul's lawyer argues that the D.A.'s failure to show exculpatory emails tainted the entire Grand Jury proceedings, and that as a result, the indictment is improper.
On Friday, Harvey Weinstein made his first bid to get a New York judge to reject the criminal case brought against him. In a 159-page court brief, the movie mogul takes aim at a "flawed" prosecution that could send him to jail for the rest of his life. He presents Manhattan D.A. Cy Vance as bowing to political pressure and not allowing him sufficient opportunity to testify before a grand jury, as well as misrepresenting his relationship with one of the three women accusing him of rape.
The dismissal motion comes after Weinstein earlier this week teased his strategy and secured emails to use in his criminal defense.
"In the face of outside pressure and political influences, the District Attorney presented the Grand Jury with an alleged rape victim who claimed to have been forcibly raped by Mr. Weinstein on March 18, 2013 in New York City, but the District Attorney likely did so without presenting the actual and complete communications between the parties," writes his criminal attorney Benjamin Brafman. "This flawed presentation, we submit, knowingly allowed the Grand Jury to receive a materially incomplete picture of the evidence known to exist in this case, namely the long-term, consensual, intimate relationship between CW-1 (the alleged victim) and Mr. Weinstein."
Weinstein is charged with six counts including predatory sexual assault, criminal sexual act in the first degree and rape in the first and third degrees. The indictment came after an eight-month investigation.
The movie mogul denies non-consensual sex with the three women — Lucia Evans, Mimi Haleyi and a third woman described in the brief as "CW-1" — and Brafman stresses that he sought adjournment of Weinstein's scheduled appearance before the grand jury so as to obtain the exculpatory email.
Weinstein didn't obtain all the delays he sought, and in May, Weinstein was charged in a criminal complaint. He would later be indicted, and then again with a superseding indictment charging him with raping Haleyi. Weinstein's brief recounts various news articles and discusses some of the political dynamics at the time.
The bulk of Weinstein's brief (read in full here) is directed at the first indictment related to accusations from CW-1. He argues that it should be dismissed because the D.A. withheld exculpatory evidence from the grand jury. Weinstein is asserting that prosecutors had emails undercutting the allegation of a March 2013 rape.
Specifically, in the weeks following the alleged rape, Weinstein details various emails. One stated, "[I] hope to see you sooner than later." Another, "I appreciate all you do for me, it shows." A third: "It would be great to see you again, and catch up!" Yet others: "It would mean a lot if we could catch up over a drink then," and "Miss you big guy."
Brafman writes: "Certainly, the Grand Jury should have been given the opportunity to review the messages that CW-1 emailed Mr. Weinstein within a month of the alleged rape and also to learn that, only months after the alleged rape, CW-1 was looking for some private time with Mr. Weinstein to discuss her life and 'catch up,' writing: 'I was hoping for some time privately with you to share the direction I am going in life and catch up because its been awhile.'”
As discussed earlier, New York state court is one of the few forums in the nation where, in some instances, prosecutors must present legally exculpatory evidence to a grand jury. However, in recent years, there's been some narrowing of the rules, with not all judges agreeing that everything exculpatory needs to be reviewed by the grand jury.
Weinstein certainly believes all these messages are relevant — "the District Attorney’s violation tainted the entire Grand Jury proceedings," Brafman writes — and trumpets further emails allegedly demonstrating how CW-1 arranged to meet with Weinstein after the rape. He also discusses her mind state. For example, there's a communication detailed between the two on July 26, 2014.
"In this exchange, the alleged rape victim writes she is 'laughing out loud' ('Lol') because her alleged rapist was making her think about him," the brief states. "It was fundamentally unfair that the Grand Jury was prevented from making any inquiry of CW-1 as to her direct and seemingly solicitous and complimentary communications with her alleged rapist immediately after and consistently for years after the alleged rape."
Other emails came as late as early 2017.
The brief continues: "For example, on February 8, 2017, CW-1 emailed Mr. Weinstein saying 'I love you, always do. But I hate feeling like a booty call. :).' Although reflecting neither Mr. Weinstein’s words nor feelings, by using the term 'booty call,' the complaining witness appears to acknowledge the consensual, intimate nature of her relationship with Mr. Weinstein and perhaps, most importantly, signaled her desire for a fuller and more emotionally committed relationship. This evidence should not have been kept from the Grand Jury."
Weinstein cites other reasons why the charges should be dismissed. He says the indictment was improper because he didn't get adequate notice that the D.A. was presenting "new, far more serious charges" to the grand jury, plus faults the first-degree criminal sexual act count for not sufficiently indicating when the alleged crime occurred. The third-degree rape charge is alleged to be outside the five-year statute of limitations as well. He also takes aim at the overall weight of evidence as insufficient, citing among other things, the passage of time and how Evans couldn't specifically remember when during 2004 she was sexually assaulted.
Prosecutors will, of course, have opportunity to respond to these arguments.