The number of women accusing former Hollywood kingpin Harvey Weinstein of sexual harassment or assault surpassed 50 this week, with more stories emerging every day. But a career prosecutor running as a write-in candidate in New York says Weinstein probably would have been exposed sooner if the Manhattan DA’s office had handled earlier allegations differently. Specifically, the case of Amra Battilana Gutierrez.
The Italian model went to the NYPD in March 2015 saying Weinstein had grabbed her breasts and reached up her skirt during a supposed casting meeting. They set up a sting operation with her the next day, yielding an audio recording of Weinstein admitting he groped her. But despite the recording, which also captured his peculiar demand that she wait in his hotel room while he showered, DA Cy Vance didn’t bring charges. His office said there wasn’t enough evidence to win in court on what would likely have been a charge of sexual abuse in the third degree — a misdemeanor on which the statute of limitations has since run out.
That first point is simply not true, says Marc Fliedner, a former prosecutor who headed the Brooklyn DA’s sex crimes unit and is now campaigning to take Vance’s job.
For one thing, Fliedner says, the tape had evidentiary value. And a New York doctrine that permits prosecutors to use other crimes’ evidence to establish a defendant’s state of mind would have allowed them to use as witnesses other survivors with similar accounts — dozens of whom have come forward in the last month.
A survivor who did all the right things
“They had a survivor who did all the right things. She reported it to the police. She cooperated with the police in furtherance of the investigation, which yielded this audio. The audio itself was very impactful, and certainly of evidentiary value in terms of the state of mind of the alleged perpetrator,” Fliedner said. “And in Pennsylvania for example, they had the courage to do it with Bill Cosby, to bring in other crimes’ evidence and things like that.” Plus, by the time of the Gutierrez case, Weinstein’s behavior was already infamous enough that it was used as a punchline during the 2013 Oscars.
Fliedner says he’s even pursued cases with a lot less evidence, sometimes proceeding exclusively based on the testimony of the survivor.
“With any investigative energy, the Manhattan DA’s office would’ve been able to produce witnesses who would talk about how they were similarly victimized by Harvey Weinstein,” he said.
But besides contending insufficient evidence, Vance’s office also reportedly believed Gutierrez had credibility problems — three officials “familiar with the investigation” told the New York Times the office considered a previous accusation of sexual assault in Italy of which she gave their investigators “shifting accounts,” and noted that Vance’s assistants worried her job as a lingerie model might give Weinstein a defense for grabbing her breasts, because they would have to prove it was done with sexual intent.
“The recording did not establish criminal intent under New York statute based on the totality of credible facts known to the District Attorney’s Office,” Manhattan DA communications director Joan Vollero said.
Chief Assistant DA Karen Friedman-Agnifilo also blamed the NYPD for screwing up the sting operation by not consulting with her office, calling the audio “insufficient to prove a crime under New York law.”
Fliedner says he’s also worried about the message Vance’s office is sending to survivors of sexual assault, and the chilling effect it might have on survivors reporting the assault to police.
“When cases like the Dominique Strauss-Kahn case and the Manhattan Harvey Weinstein case play out the way they do, we are sending a message to survivors of sexual assault that they should stay home. That they should not pursue it because ultimately their voices will not be heard, and we need to turn that around immediately, and dramatically,” Fliedner said.
Vollero, the Manhattan DA spokesperson, disputed that conclusion, saying any chilling effect is coming from uninformed criticisms of the office’s decision.
“When our office’s ability to prosecute these types of cases is inaccurately called into question, it serves to dissuade potential victims from coming forward and reporting crimes to law enforcement,” she said, noting the sex crimes unit is helmed by a prosecutor with 38 years of experience, and highlighting a $38 million allocation made by Vance to process tens of thousands of untested rape kits nationwide.
“We had the evidence”
NYPD officers, speaking anonymously to a number of outlets, agree with Fliedner’s assessment. “We had the evidence,” one police source told Ronan Farrow, who wrote the damning New Yorker article published Oct. 10. “It’s a case that made me angrier than I thought possible, and I have been on the force a long time.”
“We brought them a very good case,” a senior police official, speaking anonymously, told the New York Times. “He admitted, twice, doing it. That’s probable cause to make an arrest.”
Another police source told the Times that, contrary to Friedman-Agnifilo’s statement, the DA’s office was looped in the whole time, saying incredulously, “Why would we not call about Harvey Weinstein?”
The Manhattan DA’s office says that report was “inaccurate.”
Vance’s decision not to pursue charges in the case has generated outcry that intensified into public demonstrations after reports revealed he accepted a $10,000 donation from Weinstein’s defense attorney, David Boies. Also under scrutiny is a $35,000 donation he accepted from Donald Trump’s attorney, Marc Kasowitz, after he declined to pursue fraud charges against Ivanka and Don Jr.
Vance has since returned the donations from both Weinstein’s and Trump’s lawyers, and established a committee to examine his finances in the wake of the Weinstein scandal and Trump scandals, which Fliedner says is also deeply concerning.
“Anybody with common sense and a responsibility to avoid even the appearance of impropriety should be able to look at who a donor is, what their relationships are with the office, and make a reasoned decision on their own,” Fliedner said. “The thought that you have to turn to an independent committee to make that determination is really kind of an embarrassing position for him.”
The reports came out too late for an official challenger to mount a campaign against Vance, who is running for his third term unopposed. But Fliedner — who is now in private practice — has been gaining traction as a write-in candidate, thanks to support from activist New Yorkers like Shaun King, Guardian Angels CEO Curtis Silwa, and actor/restaurateur Piper Perabo.
Fliedner says the campaign began when an anonymous Twitter user using the handle @showusyourwork suggested him as a write-in alternative to Vance on Oct. 10. Fliedner responded, “Have at it,” and things ballooned from there.
“I was sitting at a book-launching event and my phone started blowing up. It was on vibrate, but it was just boom, boom, boom, boom, boom, and it was all Twitter,” Fliedner, 55, said of his campaign’s inauspicious start, much of which appeared to be fueled by the Weinstein and Trump news.
“These are crazy, fun things that are happening,” Fliedner said. “And it’s so exciting. The reason why I was like, ‘Yes, I will absolutely play this role’ is because I do think it’s so amazing that people would think of this.”
This month, Fliedner — who mounted an unsuccessful campaign for the Brooklyn DA’s office earlier this year — moved from Brooklyn to Manhattan to ensure his eligibility in the write-in race. He is accepting donations, though he says never from people who have an active interest in an ongoing investigation before the office.
He also acknowledges he’s accepted money from criminal defense attorneys in the past — most recently for an unsuccessful run for the Brooklyn DA’s office — but says it’s not a comparable situation because “we’re talking about hundred-dollar donations in my tiny little campaign, as opposed to thousands and thousands of dollars.”
“Really, my donations fall into the category of people basically saying, ‘I believe that you would be a good district attorney.’ But I mean, literally, on the phone, I would say this to them, ‘No special knocks at the door,’” Fliedner said.
To that end, his write-in campaign has a distinctly grassroots feel that many of his supporters say was prompted by Vance accepting donations from high-profile would-be defendants.
Actor Piper Perabo, one of Fliedner’s most visible and vocal proponents, said she began stumping for him after the Weinstein news broke.
“I know how difficult it is for survivors to speak up, and I think we’re still trying to figure out how to support women who make that brave decision. And so getting behind a candidate who supports them is kind of a no-brainer for me right now,” Perabo said.
After learning write-in candidates’ names have to be spelled correctly to count in the election, Perabo had a thousand pencils made with Fliedner’s name printed on them. She’s been handing them out around town and plans to be outside polling places with them on voting day, Nov. 7.