Posted on 10/15/2017 4:25:04 PM PDT by Behind Liberal Lines
In the public furor over revelations that Manhattan District Attorney Cyrus Vance Jr.’s office declined to pursue groping charges against Hollywood producer Harvey Weinstein, the office’s defense has rested largely on insufficiency of evidence claims.
In a statement released on Oct. 10, Chief Assistant DA Karen Friedman Agnifilo said that while the recording of Weinstein made by a victim working with the New York Police Department was “horrifying to listen to,” the office was ultimately unable to bring charges because “what emerged was insufficient to prove a crime ... which requires prosecutors to establish criminal intent.”
The following day, Vance, speaking to reporters, stated his office would have prosecuted Weinstein “if we had a case.”
"[O]ur sex crime prosecutors made a determination that this was not going to be a provable case and so the decision was made not to go forward," Vance said, according to a transcript provided by the DA's office. Despite these claims, some criminal defense attorneys who deal with the Manhattan DA’s office, as well as legal observers, find Vance’s arguments specious.
“Anyone who practices—or, by the way, who doesn’t practice—knows that the controlled call makes their case stronger,” said private attorney Julie Rendelman. “To use that as a basis for not going forward is ludicrous, and everyone knows that.”
While reactions vary—including some attorneys who expressed sympathy for the position the office was in—cases with charges similar to what Weinstein was likely exposed to show prosecutors able to bring charges with little evidence, secure convictions and, perhaps most importantly, see appellate courts back those convictions.
In 2015, Italian model Ambra Battilana Gutierrez went to the NYPD after a meeting with Weinstein at his office. She told them that the producer had lunged at her and grabbed her breasts. The next day, she participated in a sting with officers that generated the audio tape that The New Yorker published on its website.
In it, Weinstein is heard pressuring Gutierrez into coming up to his room. She is heard resisting.
"Why yesterday you touch my breasts," she asked.
“Oh, please, I’m sorry, just come on in,” Weinstein can be heard saying. “I’m used to that. Come on. Please.”
According to The New Yorker article, police sources said they believed they had “more than enough” evidence to bring charges. However, Vance’s office reportedly felt Gutierrez’s past—she was involved in a number of high-profile prior incidents—“complicated” the matter. Agnifilo’s statement said prosecutors 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.”
Weinstein, according to the article, would have likely faced misdemeanor sexual abuse charges. Legal observers note that these kinds of charges are regularly brought by Vance’s office, and regularly convicted. Evidence, they note, is often scant, but often enough to secure a conviction, let alone bring charges.
In a joint statement, the Legal Aid Society, New York County Defender Services and the Neighborhood Defender Service of Harlem cast the decision of not bringing charges against Weinstein as a double-standard by Vance's office.
“As public defenders, we know how important it is not to jump to conclusions and pre-judge matters. However, it appears to us that our clients are regularly prosecuted for allegations of sexual abuse or forcible touching with far less evidence and often in very ambiguous circumstances," the groups statement read. "Prosecutors must apply the same standards across the board regardless of privilege, income, race or class.”
To prove these sorts of charges, the touching needs to be to degrade or for sexual gratification. A police officer’s statement or that of a witness is very often enough to do both.
“There are many cases where the only evidence the police have, or that they take to the District Attorney’s Office, is the individual’s word,” said private attorney Patrick Joyce, who added that he was surprised by the statements from Vance’s office. “Many, many people are convicted on the testimony of one individual and they’re doing a significant amount of jail time.”
The office’s track record of proving intent, often inferred through defendants' actions, in cases that don’t involve powerful Hollywood producers appears well established. In 2014’s People v. Helm, for example, a lower court found it reasonable to infer gratification based on the actions. “[I]t is generally true that intent, including this particular form of specific intent, can be inferred from the nature of the acts committed and the circumstances they occurred,” New York Criminal Court Judge Steven Statsinger wrote.
Appellate courts have likewise upheld intent through inference. In 2016, the Appellate Term, First Department, found that Vance’s office, three years prior, properly secured a third-degree sexual abuse conviction—the same potentially faced by Weinstein—against the defendant, Gary Ross. Ross was lying on a hospital stretcher when he rose up and grabbed the victim’s right breast.
“The court could rationally infer that defendant's conduct was for the purpose of sexual gratification ... and was not inadvertent,” the panel of Presiding Justice Richard Lowe III, and Justices Martin Schoenfeld and Doris Ling-Cohan found.
Likewise and more recently, the same appellate court upheld the conviction of a subway groper in People v. Colon from earlier this year. Testimony established that the defendant “brushed the victim's buttocks with the back of his hand” on the subway.
“The court could rationally infer that defendant's conduct was for the purpose of sexual gratification,” the panel again found. Given the threshold for an arrest, charges and a conviction in Manhattan, private attorney Scott Fenstermaker said the decision in the Weinstein case appeared abnormal based on his experience.
“The DA’s office takes what the witnesses say at face value and charges people and indicts them and lets the system play out,” he said. In a statement, Vance spokeswoman Joan Vollero defended the office's pursuit of sex crime cases, calling its efforts "unmatched."
"DA Vance has assembled one of the strongest sex crimes units in the country, headed by a 38-year veteran prosecutor and nationally recognized expert in her field," she said, referring to sex crimes chief Martha Bashford, who handled the Weinstein allegations.
Vollero said the office vowed to work with the NYPD on any new investigation to develop from allegations against Weinstein.
"When our office's ability to prosecute these types of cases is inaccurately called into question, it serves to dissuade potential victims from coming forward and reporting crimes to law enforcement," she said.
Observers noted that there remains substantial information about the 2015 case that is not public. On top of that, there are numerous factors that should be considered to understand why the Manhattan DA’s office took the course it did.
Private attorney Jeffrey Chabrowe said prosecutors will “rake a complainant over the coals” to make sure a case will hold up. Questions about Gutierrez’s credibility, and the statements on the tape were issues that prosecutors faced and may have ultimately had good reason to believe wouldn't hold up.
To look at the Weinstein situation through today's lens, rather than what was known in 2015, is an exercise in armchair prosecuting, according to Chabrowe.
“We don’t know how credible the victim was, and we don’t know if there were witnesses and video or what,” he said.
Chabrowe said that Weinstein's remarks on the tape, while reprehensible, also raise legitimate questions.
“What he says about the groping the day before, he’s somewhat equivocal,” Chabrowe said. “What is he saying? It’s not really cut and dry: ‘Yes, I did this, I touched you without your consent, sorry.’”
Beyond whether Vance could have brought a case, Chabrowe argued that there was reason to question that course as well. A felony sexual charge would have meant years in prison hanging over Weinstein’s head. A misdemeanor, by contrast, could have resulted in as little as probation—even after a trial conviction.
“So why wouldn’t he roll the dice?” Chabrowe said of Weinstein.
Despite her belief Vance’s office had more than enough to proceed with a case against Weinstein, Rendelman said she, too, understood that the DA’s office alone knows what the full scope of the case looked like and that there are “so many factors that could have happened that we don’t know about” that could have legitimately made bringing the case problematic.
For her, the problem is that Vance is unwilling—or, some might argue, unable given the current climate—to make the more sound argument that the case hung on a questionable witness, not on insufficient or bad evidence.
“I think everyone would agree that that response—that that's the way they didn’t go forward—is not truthful,” she said. “I’m not saying they should have gone forward. If you didn’t go forward, then just own why.”
...referring to sex crimes chief Weinstein pimp-girl Martha Bashford, who handled the Weinstein allegations.
Fixed it...
I hope internal affairs or whoever else is all over this Vance cover up. I am not holding my breath though. He has a D next to his name.
That would be Hillary and her associates violating national security law. Intent is actually not part of that law. Unintentional violation is a crime.
This topic was posted , thanks Behind Liberal Lines.
Alleged Sex Pest Andrew Cuomo Hires [Elkan Abramowitz]Abramowitz, who represented Cuomo during a federal investigation into the governor's decision to prematurely dismantle an anti-corruption panel he created in 2013, will have his work cut out for him. The lawyer has certainly made a name for himself as the go-to legal counsel for celebrity sex pests. In 2015, Abramowitz made a $2,100 campaign contribution to Manhattan district attorney Cy Vance after Vance dropped groping charges against his client, Harvey Weinstein. The charges were dropped despite a police recording of Weinstein apologizing to the alleged victim and promising he "won't do it again."
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