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Harvey Weinstein's lawyers try again to get sex assault case tossed

Weinstein's attorneys argued that his sexual assault case had been "irreparably tainted" by police misconduct and should be thrown out.
Image: Harvey Weinstein
Harvey Weinstein arrives at The Weinstein Company and Netflix Golden Globes after-party on Jan. 8, 2017, in Beverly Hills, California.Chris Pizzello / Invision/AP file

Harvey Weinstein's attorneys asked Monday for a chance to question in court the former lead detective in his sexual assault case and the head of the New York police special victims division, arguing that the case has been "irreparably tainted" by police misconduct and should be thrown out.

The former Hollywood producer's attorneys singled out police Detective Nicholas DiGaudio — whose alleged witness coaching led prosecutors to abandon part of the case last month — as they renewed their push to have five remaining counts dismissed.

The attorneys decried DiGaudio in court papers as "a serial obstructor" who was "singularly hell-bent on concealing the truth." They proposed that an evidentiary hearing be held to "determine the extent of misconduct."

They asked that Deputy Police Chief Michael Osgood, commander of the Special Victims Unit, also be called to testify because he has said he and DiGaudio interviewed all potential witnesses together.

The Manhattan district attorney's office declined to comment.

The New York Police Department reiterated its statement that "the evidence against Mr. Weinstein is compelling and strong" and that it will continue to work with prosecutions "to deliver justice for the courageous survivors who have bravely come forward."

The union representing DiGaudio, the Detectives' Endowment Association, didn't immediately respond to a request for comment. It has previously said DiGaudio "was simply trying to get to the truth" and wasn't trying to influence the investigation.

Three of the five remaining criminal charges against Weinstein stem from allegations that he raped a woman in a hotel room in March 2013. They are also tainted by allegations that DiGaudio behaved improperly. The two other charges allege that Weinstein forcibly performed oral sex on the woman in 2006 at his apartment in Manhattan.

Prosecutors last month dropped a sixth charge, alleging that Weinstein forced Lucia Evans to perform oral sex in 2004 when she was a college student and a fledgling actress, after evidence surfaced that DiGaudio told her friend to keep quiet when she raised doubts about the veracity of the allegations.

Assistant District Attorney Joan Illuzzi-Orbon said in a letter to Benjamin Brafman, an attorney for Weinstein, that was unsealed on Oct. 11 that DiGaudio had advised the witness that "less is more."

Days later, Illuzzi-Orbon disclosed an allegation that DiGaudio urged Weinstein's 2013 rape accuser to delete material from her cellphones before handing them over to prosecutors. She said that the material didn't pertain to Weinstein and that the woman wound up not deleting anything.

Weinstein, 66, denies all allegations of nonconsensual sex.

His attorneys, in their filing on Monday, also again knocked prosecutors for failing to show the grand jury that indicted him evidence that they contend undermined the remaining allegations.

Repeating an earlier argument, Weinstein's attorneys cited warm emails that they said the 2013 accuser sent after the date of the alleged attack in which she welcomed plans to get together with Weinstein, sought advice and told him that no one "understands me quite like you."

In a new revelation, Weinstein's attorneys said the 2006 accuser had also been in contact with him after the date on which she later told authorities that she was assaulted. That accuser sent a text message about seven months later seeking to meet with Weinstein, the lawyers said.

The accusers "had the temerity to reach out to [Weinstein] and try to engage him in social relationships — 'after' they now claim he viciously sexually assaulted them," the lawyers wrote. "The sheer hypocrisy of the indictment is simply stunning."

Gloria Allred, an attorney for the 2006 accuser, said by email that the filing was "replete with unjustified speculation" that is "completely contradicted by the facts."

"If they are engaging in speculation as to my client, I believe that they are lacking in facts which would exculpate their client Mr. Weinstein," Allred said. "Their defense of Mr. Weinstein as to my client appears to be built on quicksand rather than on a strong factual foundation."

After Allred's client, a former film production assistant, went public with her allegations, she said she wanted to maintain her privacy and preferred that her name not be used.

In another wrinkle, Weinstein's attorneys argued that by dropping the Evans-related charge, prosecutors washed away the legal foundation for another charge, predatory sexual assault, which carries a maximum sentence of life in prison upon conviction.