Benjamin Brafman, right, attorney for Harvey Weinstein, speaks during Weinstein's arraignment in court, in New York, Monday, July 9, 2018. (Jefferson Siegel/The Daily News via AP, Pool)

One of six criminal counts against disgraced film producer Harvey Weinstein was dropped Thursday following the revelation that a New York City police detective failed to turn over a witness' account of an alleged 2004 assault by Weinstein that didn't match up with the accuser's story.

The dismissal of one count of first-degree criminal sexual act against Weinstein, which had stemmed from allegations from 2004 that Weinstein sexually assaulted aspiring actress Lucia Evans, deals a setback to Manhattan District Attorney Cyrus Vance Jr.'s office in its prosecution of Weinstein.

Vance's office has already weathered criticism over its handling of sexual misconduct allegations against Weinstein, and a lawyer for Evans faulted his office for mishandling the investigation into her client's accusations.  

According to a letter from Vance's office to Weinstein's lead counsel, Benjamin Brafman of Benjamin A. Brafman & Associates, dated Sept. 12 and unsealed on Thursday, a detective interviewed a witness who was a friend of Evans' who said the women were together at a restaurant bar one day in 2004 when Weinstein approached them and offered them cash to expose their breasts.

The witness, who was not named in the letter, refused and said she did not see Evans acquiesce to the offer, but said Evans told her later that she exposed her breasts to Weinstein.

Sometime later, the witness said, Evans told her that she eventually met Weinstein at his office, where he told her he could get her an acting job as quid pro quo for oral sex.

Evans told the witness that she then performed the act and the witness said that, as she recounted the incident, Evans appeared to be “upset, embarrassed and shaking.”   

The witness told a detective about this exchange in February, when the investigation into the current criminal charges against Weinstein was still underway.

The witness also told the detective that The New Yorker, which published a bombshell article one year ago detailing sexual assault allegations against Weinstein by numerous women that supercharged the #MeToo movement, contacted her about Evans' allegations but withheld some details, telling the magazine that “something inappropriate happened.”

The witness said the detective told her that what she told the magazine was more consistent with Evans' account, that “less is more,” and that the witness was under no obligation to cooperate; according to the letter, the detective denies saying this, but admitted to failing to inform the Manhattan DA's office of the conversation.

In an interview in August with investigators, Evans denied that the incident with Weinstein had been consensual.    

At a hearing on Thursday before Manhattan Supreme Court Justice James Burke, who dismissed the count against Weinstein without prejudice and without comment on the ruling, Brafman identified the detective as Nicholas DiGaudio, who led the investigation into allegations against Weinstein and who told Vanity Fair last year that the department had gathered enough evidence that Weinstein sexually assaulted actress Paz de la Huerta in 2010 but that Vance's office declined to prosecute him.  

At the hearing, Assistant District Attorney Joan Illuzzi did not oppose Brafman's motion to dismiss the count relating to Evans. Brafman told Burke that he will move to dismiss the remaining counts against his client.

“When you do your homework after the arrest, bad things will happen,” Brafman said during a news conference following the hearing.

Dismissal of the criminal sexual act count removes Evans as a complainant in the criminal case, but two accusers and more serious counts against Weinstein, including two counts of predatory sexual assault, which carry maximum sentences of life in prison, remain.

The remaining counts relate to Mimi Haleyi, a production assistant who said Weinstein forced himself on her in 2006; and an unnamed accuser who says that Weinstein assaulted her in 2013.  

But while the Manhattan DA's office has had to jettison a charge against Weinstein, Illuzzi expressed confidence at the hearing that prosecutors still have a strong case against Weinstein and that the loss of one count will not impact the remaining five counts.

Illuzzi also hinted that her office may try to pursue additional charges against Weinstein, saying that prosecutors are continuing to gather evidence and meet with witnesses.

“In short, your honor, we are moving full steam ahead,” Illuzzi said. “As we do with every case, we will follow the facts of law wherever they may lead, and protect those who are preyed upon as well as the integrity of the process. Those who place their trust in us and the justice system deserve no less.”

When asked if it could comment on Brafman's statements regarding DiGaudio, the NYPD said in a statement that it is “fully confident in the overall case it has pursued against” Weinstein.

“The evidence shows that the criminal case against him is strong,” the statement reads. “The NYPD will continue to assist the prosecution any way it can to ensure justice is achieved for these brave survivors.”

NYPD Chief of Detectives Dermont Shea said at a news conference on Thursday that it has launched an internal investigation into the allegations against DiGaudio.

Following the hearing, attorney Carrie Goldberg, who represents Evans and de la Huerta, blasted Vance's office at a news conference for its decision to “abandon” Evans and said her client maintains that Weinstein assaulted her.

“They used her,” Goldberg said, reading from a statement. “They had all the evidence they have now and they still put her through the torture of walking through the scene of the crime, handing over her therapy and medical records, undergoing their cross-examination for hours upon hours. Month after month. Lucia's case deserves to be heard.”

A statement from The New Yorker said the magazine stands by its reporting and fact-checking process, which is “assiduous and thorough.”

“Any assertion by lawyers for Harvey Weinstein that The New Yorker had information that contradicted Lucia Evans's account is patently incorrect,” the statement read.

 

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