If the NYPD does build a case against Harvey Weinstein for allegedly sexually assaulting one of his accusers, where are the cops supposed to take it?
Do they go to the Manhattan district attorney’s office, which declined to prosecute a 2015 case where the complainant went directly to the police and subsequently recorded Weinstein making what was essentially a confession?
Any new case will likely involve a woman who waited a considerable time before coming forward. And she will not likely have a recorded confession.
How could the DA’s office proceed on a new case without appearing to make up for its earlier failure to proceed?
Should any new case go to another borough?
Should Weinstein go to the Bronx?
Is it crazy to think there should be a special prosecutor?
Speaking of crazy, the DA’s chief assistant, Karen Friedman Agnifilo, has asked in a tweeted statement for other possible Weinstein victims to contact directly the very office that gave him a pass in 2015.
“Mr. Weinstein’s pattern of mistreating women as recounted in recent reports, is disgraceful and a shock to the conscience,” Agnifilo said. “Any person who feels that she may have been a victim of a crime by this person in Manhattan is strongly urged to contact the office’s Sex Crimes Hotline at 212-335-9373.”
But in the same statement, Agnifilo then sought to explain why the DA’s office chose not to proceed against Weinstein two years ago, shocks to the conscience notwithstanding. She tried to shift the blame onto the detectives of the Special Victims Unit who put the case together.
“While the recording is horrifying to listen to, what emerged from the audio was insufficient to prove a crime under New York State law,” she contended.
Weinstein’s lawyers had reportedly told the DA’s office that he was discussing a career as a lingerie model with Ambra Battilana Gutierrez and touched her breasts to confirm they were real only for business purposes. He denied reaching under her skirt, which would have been harder to explain.
“She was going to play the part of a gynecological patient in a movie?” a cop asked on Monday.
But except where Manhattan District Attorney Cyrus Vance Jr.’s office crossed the line of decency and blamed the cops, he has not in truth done anything outside normal practice among prosecutors, be it with groping or guns or whatever, in New York or elsewhere.
Forget that Vance accepted a campaign contribution from Weinstein’s lawyer, just as he did from Ivanka Trump’s lawyer shortly before deciding not to prosecute her for fraud.
Nobody who knows Vance believes he would be influenced by money.
What does influence him is what influences prosecutors everywhere: the desire to win and the accompanying reluctance to bring a case you might lose even if there is probable cause to believe the suspect committed the crime.
“You owe the victim the right of the pursuit of justice,” a senior law enforcement official told The Daily Beast on Monday. “Beyond a reasonable doubt is for a jury. Probable cause is to make an arrest.”
The official added, “That means if you [have probable cause to] think Harvey Weinstein did this, you got to arrest him.”
The official noted that in the 2015 case, 22-year-old Gutierrez went directly to a friend and then straight to the police to report that Weinstein had groped her.
An immediate report of a sex crime is known by investigators as an “outcry” and it is generally given added credence. Gutierrez’s outcry was accompanied by tears, and detectives would later describe her as having been “upset, distraught.” Another word they would use is “credible.”
Cops at the 9th Precinct, where she made the initial report, and then at the 1st Precinct, where the crime allegedly took place, and then the Special Victims Unit that took up the investigation all found her to be convincing.
As was first reported in The Daily Beast, she began to discuss a plan with SVU detectives for her to make a “controlled call” to him with hope he would incriminate himself. But before they could do that, he called her. He offered her a ticket to the next day’s matinee of a Broadway show and arranged to meet her afterward in the restaurant area of a downtown Manhattan hotel.
The next day, Gutierrez attended the show and thought to corroborate her attendance with an Instagram photo of the ticket—showing the date and seat number—with the interior of the theater in the background. She then went to meet Weinstein at the hotel with the SVU detectives keeping protective undercover watch.
In the recording that she made at the detectives’ request, Gutierrez sounds exactly like a frightened young woman who was groped the day before and fears being groped again. She sounds nothing at all like a woman who is looking to shake Weinstein down or otherwise profit from the encounter.
As for Weinstein, he makes what amounts to a confession when he says, “I won’t do it again.” He also says, “I’m used to it.” The obvious suggestion is that he has done it before to Gutierrez, and on other occasions to other women.
One continuing mystery in the case is how the people at the Manhattan district attorney’s office could have listened to that tape and not think Gutierrez deserved at least a chance for justice.
Had the DA’s office authorized the arrest, there is a good possibility that numerous other women would have come forward. That is what happened after the recent pieces in The New Yorker and The New York Times, the latter having paid scant attention to the 2015 case.
Instead, the DA’s office hesitated, fretting over apparent inconsistencies regarding Gutierrez’s role as a witness in a big sex scandal in Italy and her earlier allegation that a well-to-do boyfriend had raped her. Agnifilo referred in the subsequent statement to “other proof issues.”
But all of that had to do with the chances of winning the case, not with whether there was probable cause to believe Weinstein had in fact groped Gutierrez in his Lower Manhattan office sometime after 6 p.m. on March 27, 2015.
As the case would have been a B Misdemeanor, there would not likely have been a jury. A judge would have listened to the evidence and heard the arguments of both sides and found Weinstein either guilty or not guilty.
Either way, Gutierrez would have had her day in court and the DA’s office would have done its job rather than just weighing the odds.
“They’re more batting average, win ratio instead of the justice ratio,” the police official said.
Instead, Gutierrez was left to wait day after day for the DA to authorize an arrest. She cannot be blamed if after a fortnight she grew tired of being doubted by the prosecutors and smeared in the press. Even her brilliant move of posting a picture of her ticket to the Weinstein show on Instagram was portrayed as proof that she had been happy to accept his favors after the supposed assault.
Who can blame her if she came to believe that nothing was going to happen to her alleged attacker anyway, if she succumbed to an offer from a Weinstein proxy to accept a cash settlement in exchange for staying silent and making herself scarce?
Her allegations have now resurfaced as other women have come forward, starting with those in The New York Times and The New Yorker.
And the NYPD is investigating any and all allegations against Weinstein, just as it did when a distraught Gutierrez entered the 9th Precinct stationhouse as a completely convincing outcry.
One question is what the detectives are supposed to do with a case if they make one.
A big issue that extends far beyond the jurisdiction of the Manhattan DA is how prosecutors can pick and choose which cases to undertake based solely on the chances of winning.
“It's like the Yankees won’t play the last game of the World Series because they’re down three games,” the police official said.
He quickly added, “Not that it’s a game.”