Cyrus Vance needs a better explanation for not prosecuting Harvey Weinstein.

The Manhattan DA’s Explanation for Not Prosecuting Harvey Weinstein Doesn’t Make Sense

The Manhattan DA’s Explanation for Not Prosecuting Harvey Weinstein Doesn’t Make Sense

The law, lawyers, and the court.
Oct. 11 2017 6:57 PM

They Had the Goods on Him

Manhattan District Attorney Cyrus Vance needs a better explanation for why he didn’t charge Harvey Weinstein.

Manhattan District Attorney Cyrus Vance, Jr.
Manhattan District Attorney Cyrus Vance Jr. in New York on Nov. 18, 2015.

Andrew Burton/Getty Images

Two years and six months ago, the Manhattan district attorney had an opportunity to charge Harvey Weinstein with a sex crime. On Tuesday, reports by the New Yorker and the Daily Beast detailed the series of events that led to this opportunity—and what happened after Cyrus Vance Jr.’s office decided not to pursue it. That decision is now under scrutiny, as is Vance’s credibility as an elected official.

Leon Neyfakh Leon Neyfakh

Leon Neyfakh is a Slate staff writer.

“I’m not impressed by the decision to not go forward here,” said Matthew Galluzzo, who spent several years with the Sex Crimes Unit in the Manhattan DA’s office. “They’d prosecute 9 people out of 10 with the kinds of goods they had on him.”

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The case against Weinstein began on the evening of March 27, 2015, when Ambra Battilana Gutierrez walked into the 9th Precinct of the New York Police Department to report an assault. Just a few hours earlier, she said, Weinstein had groped her and put his hand under her skirt during a meeting in his office. An NYPD commander told the Daily Beast that Gutierrez, who was 22 at the time, looked “distraught” and “upset” as she made her report.

After hearing Gutierrez’s allegations, NYPD investigators came up with a plan that is common in sexual assault cases: The alleged victim would agree to meet Weinstein the following night and wear a wire, with the goal of getting him to say something incriminating and capturing it on tape. Gutierrez went along with the sting operation, known as a “controlled call,” setting up an encounter with Weinstein at a hotel in Tribeca. Weinstein begged Gutierrez to leave the hotel bar and watch him take a shower in his room. Although she agreed to go upstairs with him, she resisted his aggressive attempts to coax her inside his hotel room. The New Yorker published a two-minute excerpt of that hallway conversation alongside Ronan Farrow’s investigative story:

The recording contains two key exchanges in which Weinstein seems to acknowledge and apologize for the fact that he groped Gutierrez the day before.

The first:

Gutierrez: Yesterday was kind of aggressive for me.
Weinstein: I know—
Gutierrez: I need to know a person to be touched.
Weinstein: I won’t do a thing. I swear I won’t.
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And the second:

Gutierrez: Why yesterday you touch my breast?
Weinstein: Oh, please, I’m sorry, just come on in. I’m used to that.
Gutierrez: You’re used to that?
Weinstein: Yes, come in.
Gutierrez: No, but I’m not used to that.
Weinstein: I won’t do it again. Come on. Sit here.

“I know.” “I’m sorry.” “I won’t do it again.” These remarks sound like corroboration of what Gutierrez had told the NYPD. But when the evidence was submitted to the DA’s office, a decision was made not to file charges against Weinstein.

The question now is why. Even though the case is irrevocably closed—according to the Daily Beast, Weinstein’s charge would have likely been misdemeanor sex abuse, and the statute of limitations for prosecuting a misdemeanor in New York is two years—it’s important to understand the reasoning that led Vance’s office to spare Weinstein. That’s because it speaks to the kind of district attorney Vance is and will continue to be when he gets re-elected for a third term in November. (He is running unopposed, although former prosecutor Marc Fliedner has declared his intention to run as a write-in candidate)

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Speculation about what Vance and/or his subordinates were thinking when they let Weinstein walk has so far centered around two theories. The first, based on a report in the International Business Times, holds that Vance was essentially being paid by Weinstein Co. lawyer David Boies, who donated $10,000 to Vance’s re-election campaign in the months after the case was closed. This explanation resonates with another recent Cy Vance scandal: According to a ProPublica report, Vance decided not to bring fraud and larceny charges against Donald Trump Jr. and Ivanka Trump a month before receiving thousands of dollars in campaign contributions from a Trump family lawyer.

The other theory, floated in the Daily Beast, is that Vance was gun-shy about pursuing Weinstein because another attempt to prosecute a rich and powerful man, Dominique Strauss-Kahn, had blown up in his face a few years earlier. In that case, Vance charged the French politician with rape on the basis of an accusation leveled by a hotel maid. In August 2011, three months after Strauss-Kahn was pulled off an airplane and turned over to NYPD detectives, the DA’s office requested that charges be dismissed because the credibility of the accuser had come into question. This was a humiliating episode for Vance, this theory goes, one that could have made him overly cautious the next time he found himself in a similar situation.

Facing questions about the Weinstein case on Tuesday, the Manhattan DA’s office released a statement from Chief Assistant DA Karen Friedman Agnifilo. The takeaway from the statement: Vance’s office didn’t think there was enough evidence to successfully prosecute Weinstein, and that decision had nothing to do with the movie executive’s fame or connections. “If we could have prosecuted Harvey Weinstein for the conduct that occurred in 2015, we would have,” the statement said. “Mr. Weinstein’s pattern of mistreating women, as recounted in recent reports, is disgraceful and shocks the conscience.”

The statement went on to blame the NYPD for not coordinating with the DA’s office before carrying out its sting operation. “The seasoned prosecutors in our Sex Crimes Unit were not afforded the opportunity before the meeting to counsel investigators on what was necessary to capture in order to prove a misdemeanor sex crime,” the statement said. “While the recording is horrifying to listen to, what emerged from the audio was insufficient to prove a crime under New York law, which requires prosecutors to establish criminal intent.”

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Two former prosecutors told me it strains credulity to suggest the contents of the tape made the case against Weinstein impossible to prove.

“He didn’t explicitly acknowledge having [committed a crime], but he acknowledges doing something wrong—he apologizes,” said Galluzzo, who left the DA’s office before Vance’s first term. “That’s pretty good corroborating evidence of a complaining witness. It’s not an explicit confession, but you never get a confession where the guy says, ‘Oh yes, I apologize for having forcibly touched your breasts against your will.’ This is about as good as one of those controlled calls get.”

Galluzzo added that the tape didn’t have to be a slam dunk for the case to work. In fact, he said, it’s routine for a district attorney to win a conviction based only on the word of the complainant. “There are plenty of cases where people get convicted without recordings,” he told me. “To pretend like we can’t prove it unless the tape establishes every element, that’s not true. That’s nonsense.”

The DA’s statement did cite “other proof issues” besides the tape but did not specify what those issues were. According to Julie Rendelman, who prosecuted sex crimes in Brooklyn before going into private practice as a defense attorney, those other issues could center on the DA’s views regarding the credibility of the complainant. It’s possible prosecutors were concerned about certain aspects of Gutierrez’s past that were leaked to tabloids after the incident—including that, at 17, she had accused an Italian businessman of sexual assault before declining to cooperate with prosecutors. However, Rendelman said the fact that Gutierrez immediately told a friend about the incident and went to the police mere hours after it happened should have given her credibility with prosecutors. Weinstein’s reputation as someone who makes inappropriate advances on women could also have been taken into account, she said.

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“Could they use that at the actual trial? Probably not,” she said, “but certainly, if someone is believed to be a predator, one would think that’d be something the DA weighs in determining whether they should go forward with the case.”

Galluzzo echoed that point: “You can’t really use it in court or tell the jury that the guy’s [an alleged] sexual predator. … But, I mean, if you aren’t sure if the guy is guilty and 10 other women tell you he’s done the same thing to them, that should help you figure it out, right?”

With its statement, the DA’s office seems to be trying to have it both ways, showing a willingness to condemn Weinstein’s alleged behavior with words (“disgraceful”) while acting like the NYPD made it impossible for them to charge him for that behavior. As Rendelman told me, the DA’s office could’ve had a good reason not to go forward with the case against Weinstein. But the office’s stated reason makes no sense.

“At the end of the day, none of us knows whether or not they should have gone forward. I don’t know. I’m not telling you they should have,” said Rendelman. “I’m telling you that specific answer—that it was because of that controlled call—is not, to me, a logical basis for why they didn’t go forward.”

The NYPD, for its part, believes it put together a very strong case. “The recorded conversation with the subject corroborates the acts that were the basis for the victim’s complaint to the police a day earlier,” a department spokesperson said in an emailed statement. “This follow-up recorded conversation was just one aspect of the case against the subject.”

Was Cy Vance scared of going up against the great Harvey Weinstein? Did he go easy on him because a Weinstein lawyer had given his re-election campaign a bunch of money? We don’t know, and it’s probably not fair to jump to conclusions. It is hard, though, to look back and not see a missed opportunity—not only to punish Weinstein for his alleged abuse, but to bring the allegations about his behavior out into the open years sooner.

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