National News

Movie Mogul’s Arrest Sets Stage For Prosecutor’s Defining Hour

Posted May 27, 2018 9:01 p.m. EDT
Updated May 27, 2018 9:05 p.m. EDT

NEW YORK — Cyrus R. Vance Jr. ran for Manhattan district attorney nine years ago on a promise to aggressively prosecute sex crimes — and now, with Friday’s arrest of Harvey Weinstein, he faces a defining moment in a career shadowed by his earlier decision not to prosecute him.

One paradox of Vance’s tenure is that his treatment of sex crimes has both enhanced and tarnished his reputation. He made a name as the scourge of men who traffic in underage prostitutes and reduced the national backlog of untested rape-evidence kits. But he also faced withering criticism for dropping the prosecution of a French politician on sexual assault charges in 2011 and steadily mounting outrage over his decision in 2015 that there was a lack of sufficient evidence to make a case against Weinstein, the movie producer.

On Friday, Vance brought charges of rape and criminal sexual acts against Weinstein in cases involving two women, the first prosecutor to do so. The arrest has appeased some critics of Vance, but it is also a moment fraught with political peril. If he wins a conviction, he will restore his reputation as a progressive champion for women’s issues. A loss, however, could seal his political fate, especially among his liberal base in Manhattan.

“The world will be watching to see if any lessons have been learned,” said Jane Manning, director of advocacy for Women’s Justice NOW, a group that helps rape victims navigate the criminal justice system. “We want to see if there is a different approach going forward not only in Harvey Weinstein’s case but in all the cases that don’t make headlines.”

Sexual assault cases are notoriously challenging to prove in court; indeed, Vance dropped both earlier cases because of questions about whether witnesses would be believed. There is no doubt that the ground has shifted since complaints about Weinstein touched off the global #MeToo movement, but Vance’s office will face a long legal battle against a wealthy defendant and one of the city’s best defense lawyers, who will spare no effort to portray Weinstein as someone who behaved badly but did not break the law by having consensual sex with women seeking to further their careers.

Vance’s assistants must first present the case to a grand jury and obtain an indictment. The prosecution will have to prove Weinstein used physical force or threats of harm to get what he wanted, a high bar in cases with little or no physical evidence. The woman in the rape case has not been publicly identified, but prosecutors have said the attack occurred in Manhattan more than five years ago — a gap in time that creates an additional hurdle for prosecutors. Vance himself was careful not to crow Friday, saying, “We are at the beginning, not the end.”

A year ago, Vance could make a case that he was a champion for victims of sexual violence, domestic abuse and sex trafficking. He had spent more than $38 million in forfeited funds to clear a backlog of rape-evidence kits across the country and had successfully convicted many people charged with the trafficking of underage prostitutes. His sex crimes unit had won convictions in difficult rape cases and had successfully pioneered strategies for pursuing cold cases with DNA evidence. Since 2010, when Vance took office, through 2017, his sex crime prosecutors have won 83 percent of their felony trials.

Vance also established the city’s first Family Justice Center in his office, improving how victims of domestic abuse and their cases were handled. His prosecutors had convicted men who assaulted their domestic partners even when the victims were not willing to cooperate. His long list of supporters included feminists like Gloria Steinem.

Still, there was grumbling among advocates for rape victims about his office’s grueling questioning of women raped by acquaintances before an arrest was made. Several critics, speaking on the condition of anonymity to avoid antagonizing prosecutors, said the questioning of rape victims in Manhattan was unnecessarily harsh.

Former members of the sex crimes unit said it is standard procedure to rigorously vet a victim’s credibility to avoid surprises at trial. “You better know everything that might come out,” one said. “It’s not personal.” Manhattan prosecutors were also known for nixing arrests they felt would not stand up in court. As a result, police closed proportionately fewer rape cases in Manhattan than other boroughs, but prosecutors had a high conviction rate.

“They spend an exorbitant amount of time doing those kinds of investigations, working with victims, going through the facts and screening out cases that don’t fall within the penal law,” said one former Manhattan prosecutor, speaking on the condition of anonymity because he still has professional dealings with the office.

The advocates’ complaints about the sex crimes unit remained muted until last October, when exposes in The New York Times and The New Yorker revealed that numerous women had made sexual harassment complaints about Weinstein. The reports led to a cascade of sexual misconduct accusations against other powerful men.

Vance came under fire for his decision not to prosecute Weinstein in 2015 after an Italian model, Ambra Battilana, accused him of groping her breasts and trying to put his hand up her skirt during a business interview at his office.

Battilana had recorded Weinstein admitting touching her breasts, but Martha Bashford, chief of the sex crimes unit, determined the case could not be proven, in part because Battilana had given shifting accounts of sworn testimony in another sexual assault case in Italy. Vance agreed.

Weinstein had hired Elkan Abramowitz, a friend and campaign donor to Vance, to represent him and had paid for private investigators to dig up information about her statements in the Italian case.

Michael Bock, a former sergeant in the special victims division, said Bashford had questioned Battilana for hours about her statements in Italy, reducing her to tears. “The whole thing smells,” he said.

Vance’s press office said the questioning of Battilana was “a normal, typical interview” and pointed out “it is customary for prosecutors to discuss potential areas of cross-examination when meeting with complainants.”

Vance’s decision not to bring charges angered police and advocates for sexual assault victims. Onetime allies of Vance, like the National Organization for Women, staged protests. Advocates said it was time for prosecutors to take a different approach to victims of acquaintance rapes and sexual harassment.

Some critics in the Police Department said Vance had become gun-shy of taking on powerful men after being forced to drop a sexual-assault charge in 2011 against Dominique Strauss-Kahn, the former head of the International Monetary Fund, because his assistants had questions about the victim’s credibility. Vance has denied this and said his office regularly prosecutes wealthy defendants for rape. Still, the Weinstein case fed an impression that Vance’s office gave the wealthy preferential treatment. Public defenders pointed out poor defendants are often arrested and charged with forcible touching on nothing more than a woman’s complaint. “They are prosecuting our black and brown clients on sex crimes with far less,” said Justine M. Luongo, chief of the criminal practice of the Legal Aid Society.

Vance’s office also angered top police officials when his chief assistant suggested detectives had blown the Battilana investigation by not consulting with prosecutors before the sting operation. Police commanders insisted they did consult Bashford.

As women’s groups and police officials turned on Vance, Gov. Andrew M. Cuomo, facing his own challenge on the left, joined in. He called for the attorney general’s office to review Vance’s handling of the case, then blocked Vance from investigating allegations of physical abuse against the same attorney general, Eric T. Schneiderman.

Advocates for rape victims have met repeatedly with Vance and his top lieutenants, demanding that Bashford and her assistants adopt more modern, less confrontational interview techniques for sexual assault victims, which take into account that trauma often scrambles memories. They also urged prosecutors to employ more expert witnesses to explain why women sometimes do not fight with their attackers or report rapes right away.

Vance brought in outside consultants to review his office’s practices and to train his staff in the new interviewing techniques and hired a therapist to work with rape victims. At the same time, he impaneled an investigatory grand jury to dig into other complaints against Weinstein, expanding the inquiry to include financial crimes. He also put one of his most successful homicide prosecutors, Joan Illuzzi, in charge of the investigation, taking it away from a seasoned sex-crimes prosecutor. He had called on Illuzzi once before — to handle the investigation of Strauss-Kahn. The district attorney’s investigation faced many obstacles to making a viable case against Weinstein, people with direct knowledge of the inquiry said. His investigators and prosecutors interviewed dozens of potential witnesses in New York, Los Angeles and elsewhere, and subpoenaed hundreds of records related to Weinstein’s businesses.

Most of the complaints the investigators examined, however, were too old to be prosecuted under New York law, these people said. Some women with viable complaints did not want to testify, for fear of being torn apart by a defense lawyer.

Vance and his team hope more women will come forward now that Weinstein has been arrested. Some of the older cases in which he cannot be charged may yet come into play too, as evidence of a pattern of behavior.

“These things take time,” one senior official in the DA’s office said. “He’s not going to bring a charge just because it’s politically popular and people are demanding a head on a stake. That’s not how prosecutors make decisions and it’s not how Cy makes decisions.” For now, the arrest of Weinstein has given Vance some breathing room.

“Sexual predators are now on notice: No one is too rich or too powerful to fall,” said Sonia Ossorio, president of National Organization for Women-New York City. “What’s happening now is bigger than this case. Harvey Weinstein’s arrest really represents an era of new accountability.”