Weinstein lawyer seeks dismissal of sex abuse case he says is 'irreparably tainted by police misconduct'
Posted November 6, 2018 1:34 a.m. EST
(CNN) — Harvey Weinstein's defense team filed a motion Monday to have the five remaining sex crimes charges against him in New York's Supreme Court dismissed, saying in court documents that the entire case was based on a "defective Grand Jury proceeding" that was "irreparably tainted by police misconduct."
Weinstein's defense attorney Ben Brafman outlined a series of missteps he says the New York Police Department and the Manhattan District Attorney's office made in their attempts to convict the disgraced media mogul.
He also revealed a February 2007 text message from Mimi Haleyi, one of three original complainants in the superseding indictment. The text message was, according to the court documents submitted by Brafman, received by Weinstein seven months after he allegedly forced oral sex on her.
"Hi! Just wondering if u have any news on whether harvey will have time to see me before he leaves? x Miriam," says the text, which the defense documents say "make clear" that Haleyi wanted to continue seeing Weinstein after the alleged July 2006 assault.
"The defense's speculation is not a substitute for evidence," Haleyi's lawyer, famed women's rights attorney Gloria Allred said in a statement.
"If they are engaging in speculation as to my client, I believe that they are lacking in facts which would exculpate their client Mr. Weinstein," she said, adding that their defense of Weinstein as to her client "appears to be built on quicksand rather than on a strong factual foundation."
One of six felony charges dismissed
Judge James Burke granted a motion last month to dismiss one of six felony charges levied against Weinstein. That charge -- a criminal sexual act in the first degree -- involved aspiring actress Lucia Evans, who alleged Weinstein forced her to perform oral sex on him in his Tribeca, New York office in 2004. Her account was first made public by Ronan Farrow in the New Yorker last fall.
The charge was dropped, in part, because prosecutor Joan Illuzzi-Orbon cited alleged inconsistencies in Evans' story in a letter sent to Brafman. According to the letter, a friend of Evans allegedly told NYPD Detective Nicholas DiGaudio, the former lead investigator on the Weinstein case, that Evans told her she had engaged in consensual contact with Weinstein: oral sex in exchange for a job.
Detective DiGaudio, now the subject of an internal NYPD investigation and removed from the Weinstein case, responded to the friend's claims by saying that, going forward, "less is more," and that the witness had no obligation to cooperate, according to the letter from the prosecutor's office. He never went back to the DA's office with this information, according to Monday's motion.
Approximately a week later, it was revealed that Detective DiGaudio told an accuser to delete cell phone messages prior to turning her phones over to authorities, the Manhattan DA's office said, again in a letter to Brafman. DiGaudio advised the woman that she should delete "anything she did not want anyone to see before providing the phones" according to the DA's office.
Detective is a "serial obstructer," defense says
The court documents filed Monday describe DiGaudio as a "serial obstructer" and that his "effort to foster concealment of this vital information from the district attorney," coupled with his "less is more" comment "dramatically illustrates how DiGaudio was singularly hell-bent on concealing the truth as to all charges."
The documents depict DiGaudio as an overzealous detective fixed on a conviction against Weinstein, whose alleged sexual assaults sparked the international #MeToo movement.
Weinstein's defense team has a request for the DA's office to disclose all materials relating to DiGuadio's discussions with all "would be complainants or witnesses to be disclosed by the DA's office" at the time he was working on the case.
"I'm not surprised by Mr. Brafman's motion for an all-inclusive dismissal, but my response to him is 'not so fast.' Detective DiGaudio did nothing wrong and Mr. Brafman is simply trying to avoid a full blown examination of the facts at trial," Michael Palladino, president of the Detectives' Endowment Association, which represents DiGaudio told CNN in a statement late Monday.
Danny Frost, Director of Communications for the Manhattan District Attorney's office, declined to comment when asked for reaction to the motion to dismiss the criminal case against Weinstein and if the DA's office still felt they have a strong case against him.