Harvey Weinstein to Seek Dismissal of Criminal Case Based on What Grand Jury Wasn't Shown

Harvey Weinstein NY arraignment - Getty - H 2018
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Harvey Weinstein will be making his first bid on Friday to dismiss the criminal case. His legal team is currently preparing a motion to have the case thrown out on the basis that prosecutors didn't share allegedly exculpatory emails with the grand jury that returned an indictment.

The embattled movie mogul is facing charges of sexually assaulting three women. One of the charges, predatory sexual assault, carries a maximum sentence of life in prison.

Weinstein is now looking to take advantage of how New York state court is one of the few forums in the nation where, in some instances, prosecutors must present legally exculpatory evidence to a grand jury. Late Wednesday, Weinstein's lawyers teased the defense in an emergency motion in Delaware bankruptcy court, which is administering the Chapter 11 of The Weinstein Co.

Previously, the bankruptcy judge allowed Weinstein to obtain emails and personnel files for the purpose of aiding his defense. His attorneys now say they have uncovered relevant emails.

According to Weinstein's latest bankruptcy court fling, "The emails are to be attached as exhibits to pre-trial motions — which must be filed in the Supreme Court of New York County no later than August 3, 2018 — seeking a dismissal of the indictment for, among other reasons, the failure of the prosecutor to advise the grand jury of the substance of exculpatory communications made by the one of three complaining witnesses underlying the counts of the indictment and contained in the emails sought for use here."

Those emails are currently governed by a protective order that makes them confidential. Weinstein would like a revised protective order so that he might use them in his criminal case.

The guidance for New York prosecutors to share exculpatory evidence to the grand jury has been articulated in various old cases in the state, including People v. Valles (1984) and People v. Lancaster (1986), that set the test for sharing on the potential of the exculpatory evidence to eliminate a "needless or unfounded prosecution."

However, in more recent years, there's been some narrowing of the rules, with not all judges agreeing that everything exculpatory needs to be reviewed by the grand jury.

For example, in the fraud case against Zachary Warren, a former partner at the collapsed law firm Dewey & LeBoeuf, a New York judge in 2014 found that the grand jury was correctly charged on the law. Warren had made a similar contention as Weinstein's, but New York Supreme Court Justice Robert Stolz wrote that his review is limited to whether the grand jury could have rationally drawn an inference of guilt from the evidence and that prosecutors "enjoy wide discretion in presenting their case to the grand jury. They are not obligated to present all evidence in their possession that is favorable to the accused even though such information would allow the grand jury to make a more informed determination."

A spokesperson for the Manhattan D.A. office had no immediate comment on Weinstein's bid to dismiss the case.