The case against Harvey Weinstein is headed for a moment of truth on Thursday, as the disgraced producer’s attorney is set to urge a Manhattan judge to dismiss five charges of rape and sexual assault.
Weinstein’s lead attorney, Ben Brafman, has been hammering away at the case in 234 pages of legal filings submitted over the last six weeks. Brafman has accused the alleged victims of lying and alleged that the D.A.’s office and the NYPD withheld evidence from the grand jury. The whole case, he argues, has been tainted by misconduct and should be thrown out.
Brafman has kicked up a lot of dust and made a lot of headlines, creating a sense that the prosecution is in serious jeopardy. But the Manhattan D.A.’s office seems confident that the five charges against Weinstein will proceed to trial, and some New York defense attorneys seem to agree.
“The indictment will not be dismissed,” predicted Steve Raiser, a criminal defense attorney in New York, who reviewed the pleadings. “While I disagree with the standard in New York, a prosecutor is generally not obligated to present evidence favorable to the defendant at the grand jury.”
Daniel Hochheiser, another criminal defense attorney, said that Brafman’s chance of success is “small.”
“The grand jury is traditionally a one-sided legal mechanism, in which the prosecutor is judge and jury,” Hochheiser said. “I don’t know that the defense is going to gain traction in terms of a dismissal.”
Judge James Burke is hearing the case and will rule on the motion. Burke was a prosecutor in the Manhattan D.A.’s office for 12 years before being appointed to the bench by Mayor Rudolph Giuliani in 2001. He has since been reappointed twice.
Defense attorneys who have appeared before him describe him as “tough,” and some say he tends to see issues from the D.A.’s point of view.
“His reputation is someone who is probably a little more prosecutorial leaning, because of his background,” said attorney Lori Cohen. “I’ve always found him to be someone who will consider the issues. He won’t discard them out of hand… He’s straight-up.”
Jeffrey Lichtman, who has represented a number of high-profile defendants in New York, said that Burke is “tough and fair,” and an “independent thinker.” He said that Burke may be taken aback by the alleged misconduct in the D.A.’s office.
“It’s going to take a strong judge to do what’s right and dismiss the case,” Lichtman said, adding that Weinstein “has been pretty badly abused here.”
Asked to make a prediction about the ruling, Lichtman said, “You have to assume the case will not be tossed. I think the case deserves to be tossed, but I wouldn’t hold your breath.”
Cohen said the failure to turn over exculpatory evidence — known as a Brady violation — is “more common than you would think,” and that courts rarely issue stiff penalties for it.
“These kinds of Brady violations happen over and over and over again to people who you guys never write about,” she said. “I love when some rich famous guy gets arrested, and there’s exculpatory material (that isn’t turned over). I’ve been dealing with that with poor people for years.”
Should Brafman beat the odds and prevail, the judge may allow prosecutors to present the case all over again to the grand jury. If he does not persuade Burke to dismiss the case, Brafman may still be able to plant the idea among future jurors that the case has been tainted.
In his pleadings, Brafman has given a preview of a trial argument that Weinstein and his accusers had consensual affairs. In a trial, Brafman would also be able to cross-examine Det. Nicholas DiGaudio, who prosecutors say dissuaded a witness from giving exculpatory testimony, and who has been removed from the case.
Attorneys say the judge will likely want to defer those issues to jurors rather than decide the case himself.
“It’s unlikely a judge is going to dismiss a high-profile rape case and effectively make himself the finder of fact,” Hochheiser said. “The judge may chastise the prosecution for it, or the police, but I don’t see him dismissing it.”