Lemire LLC Interviewed by Law360 on Weinstein Probe
March 26, 2018

Law360—by Jody GodoyNew York Gov. Andrew Cuomo’s call for the state attorney general to review the Manhattan district attorney’s investigation into a sexual assault complaint against disgraced producer Harvey Weinstein was hailed by victims’ rights activists but left open questions about how the review will play out.

Activists called for the unprecedented review on Monday after a report in New York Magazine suggested that Martha Bashford, the head of the district attorney’s sex crimes unit, had worked to discredit Ambra Battilana Gutierrez, a model who reported a 2015 assault by Weinstein. The article also suggested attorneys who once worked with Manhattan District Attorney Cyrus Vance or donated to his reelection influenced the decision not to bring charges against Weinstein at the time.

New York law gives the governor broad authority to have the attorney general conduct investigations “into matters concerning the public peace, public safety and public justice.” The law compels public officials to cooperate, gives the attorney general subpoena power and makes it a crime for witnesses called by the attorney general to discuss the probe publicly without permission.

But Cuomo’s announcement surprised ex-prosecutors from the office, who saw potential problems with the Albany-ordered review.

Melissa Jampol, a former Manhattan assistant district attorney who worked in the sex crimes unit, said a key part of the job is interviewing sexual assault claimants multiple times and asking hard questions to elicit all of the facts in a case. One of the reasons for doing this is that victims are often the only witness to an assault and face the brunt of a defense that seeks to undermine their credibility at trial, Jampol said.

“In that context, to then second-guess the decisions made by the experienced chief of the sex-crimes unit is completely shocking,” Jampol said.

While this particular review is unique, past governors have intervened in a few cases.

In the 1990’s, Gov. George Pataki had the attorney general take over a murder case from a district attorney who opposed the death penalty.

In 2015, Cuomo appointed Attorney General Eric Schneiderman as a special prosecutor to investigate police shootings where the victim was unarmed, and Schneiderman indicted the Rensselaer County district attorney in December for alleged misconduct in one shooting incident.

Andrew Lankler, a prosecutor in Manhattan in the 1990s, said the unusual review of Vance’s investigation suggests a “troubling” lack of faith by the governor in the city’s seasoned sex crime prosecutors.

“The notion that the district attorney’s office would make a decision based on anything other than the merits is absurd,” Lankler said. “Anyone who knows Cy Vance knows how absurd that is.”

The review itself could affect the ongoing investigation into Weinstein in unforeseen ways, said Jampol. The governor’s office directed the attorney general to conduct a full review only after Vance’s office completes a separate investigation into Weinstein, which is expected to happen in early May. The New York Times reported last fall that police were probing allegations that Weinstein raped actress Paz de la Huerta.

But now, any charges resulting from that probe could potentially be seen as an attempt to please the governor. Ex-prosecutors also predict that if a report is made public, Weinstein’s defense attorneys would try to use any unfavorable findings from the review of Vance’s office to undermine the case.

With the review being new territory, there are also questions about who will carry it out and how.

Former Manhattan sex crimes prosecutor Katie Lemire said it’s important that someone with experience doing those types of investigations be heavily involved in the review.

“It takes that kind of experience to parse through the details and to assess the veracity of the parties involved,” Lemire said.

The attorney general’s office does not generally prosecute sex crimes but has staff experienced in the field.

They include Margaret Garnett, the criminal chief in the attorney general’s office, who was a federal prosecutor in Manhattan and led the violent and organized crime unit. Garnett won the conviction of a man charged with soliciting under-aged girls for sex in 2006. Former detective Tonya Cauley-Scott and former Bronx assistant district attorney Katie Wagner, both now at Schneiderman’s office, also worked sex crimes cases in their previous roles.

Some observers view the review as an attempt by Cuomo to score political points with women after activist and actor Cynthia Nixon announced she is running against him in the primaries.

Daniel Richmond, a former federal prosecutor and professor at Columbia Law School, said the case illustrates the tension between keeping prosecutors independent and holding them accountable.

Concerns of politicization are valid, Richmond said, given the rarity of such a review, the high-profile nature of the case and the current emphasis in public dialogue on preventing and prosecuting sexual assault.

However, the law professor viewed Schneiderman’s role in conducting the review as potentially helping balance concerns, given Schneiderman’s “good reputation for thinking through charging positions.”

“I wouldn’t imagine he would be quick to second-guess a close call by Vance’s office, but we’ll see,” Richmond said.

Cuomo spokeswoman Abbey Fashouer told Law360 the probe was motivated by the desire to “ensure public trust in our criminal justice system.”

“This is about people, not politics,” Fashouer said.

Sonia Ossorio, president of the National Organization for Women of New York, called any suggestion that the review was nothing but political theater “offensive.”

“It’s imperative to know if justice for women in New York City is working,” Ossorio said, urging a full public accounting of whether any undue influence, lack of resources or communication or other factor played a role in the district attorney passing on Gutierrez’s case.

“I don’t want it to be just about second-guessing the outcome. We would have then missed the forest for the trees,” Ossorio said.

NOW-NYC has met with Vance’s office to voice concerns and call for concrete measures, including public reporting of statistics on sexual assault complaints, increased training for prosecutors and enhanced commitment to prosecute sexual assaults committed by acquaintances of the victim.

The district attorney’s office announced in January that all its prosecutors would start training on interview techniques designed for trauma victims.

It remains to be seen how the review will affect Vance’s political career. In a little over eight years in office, Vance has weathered criticism over results in other high profile cases, including the aborted sexual assault prosecution of Dominique Strauss-Kahn, a multiyear case against former Dewey & LeBoeuf LLP executives that ended with one conviction and no jail sentences and the acquittal of local lender Abacus Bank on mortgage fraud charges.

Vance was elected to a third term in November, just after news broke that his office declined to bring cases against Weinstein and Donald Trump Jr. and Ivanka Trump — both of which involved lawyers who had donated tens of thousands of dollars to his reelection over the years. The news sparked eleventh-hour campaigns for write-in candidates.

Vance’s spokesman Danny Frost suggested in a statement on Monday that the office is meeting the review into its declined case against Weinstein head on and expects it to vindicate prosecutors’ work. Frost declined to comment for this story.