Harvey Weinstein Wants Evidentiary Hearing to Explore Prosecutorial Misconduct

Harvey Weinstein- Getty- H 2018
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Harvey Weinstein will be shooting for dismissal of the criminal charges filed against him at a hearing next month. The movie mogul, now facing 25 years to life in prison for allegedly sexually assaulting two women, believes dismissal is in order of what his lawyer characterizes as a "deeply flawed indictment." But if the judge doesn't wish to go so far, attorney Benjamin Brafman on Thursday suggested that an evidentiary hearing should commence that explores prosecutorial misconduct.

Defense attorneys already achieved dismissal of a criminal charge related to the alleged rape of Lucia Evans after prosecutors acknowledged that the lead detective in the case had failed to disclose exculpatory evidence. Brafman now claims additional Brady violations, meaning prosecutors failed to turn over evidence favorable to the defendant.

In particular, in an affirmation filed Thursday, Brafman discusses interviewing someone who was an "extremely close friend" of "CW-1," the anonymous woman who alleges being assaulted by Weinstein. In prior legal filings, Brafman has already attacked the story of "CW-1," presenting emails that he portrays as demonstrating a "long-term, consensual, intimate relationship."

The new witness is said to have told Weinstein's lawyers that "CW-1" and Weinstein had been "hooking up" for a "very long time" and that she never heard anything bad until this past year, when "CW-1" allegedly reached out to tell her about the now-charged assault.

"She then asked the witness to assist CW-1 with the accusation she was making against Mr. Weinstein, presumably so as to serve as a prompt outcry witness," writes Brafman. "The witness responded that CW-1 never ever told her that she was assaulted or raped by Mr. Weinstein. The witness further told CW-1 that she did not want to be involved with CW-1’s allegations against Mr. Weinstein."

A police detective, according to Brafman, later learned of the communication, but Weinstein's lawyer says that neither the New York Police Department nor the District Attorney's Office provided this "highly exculpatory information" to him.

"This evidence is particularly disturbing because it shows that CW-1 was possibly attempting to use this woman as a 'prompt outcry' witness to support her claim against Mr. Weinstein even though the woman was not an outcry witness to any allegation of sexual assault," continues Brafman. "Moreover, the fact that CW-1 did not tell the witness about the rape when it allegedly happened in March 2013 in New York, is even more telling because counsel can prove, through pictures taken days before and after the alleged rape, that CW-1 and the witness were both spending considerable time together in New York City while they both visited the city at that time."

Brafman then details an additional alleged Brady violation in that police detectives arranged a call between a victim and Weinstein.

"We have a good-faith basis to believe that Mr. Weinstein’s statements during the call were completely exculpatory," states the Brafman affirmation. "To date, however, we have not been provided with the facts surrounding this call or the recording of Mr. Weinstein’s exculpatory statement."

For the past few months, Brafman has been building the case that the prosecution is the result of overly zealous cops as well as political pressure. He will have a chance to argue all this warrants dismissal at a hearing on Dec. 20.

Meanwhile, in other Weinstein news, his lawyers on Thursday asked a New York judge to pause a class action civil lawsuit against him, The Weinstein Co., and his former studio's board members. The lawsuit comes from about a dozen women who also allege being victimized, and Weinstein's lawyers say that allowing discovery to proceed would present Weinstein with an untenable choice to assert Fifth Amendment rights. Weinstein also believes that prosecutors in the criminal case will attempt to use some of these women as "prior bad act" witnesses at a prospective trial.

The plaintiffs in the class action have yet to respond to the request for a stay, but in another lawsuit — Ashley Judd's case against Weinstein — her attorneys have made the suggestion that Weinstein has already waived his opportunity to seek a stay on proceedings by participating in other pretrial motions.