For Weinstein, a Brush With the Police, Then No Charges
Jane Manning, director of advocacy at the National Organization for Women New York, at a rally and news conference Friday protesting the Manhattan district attorney’s office’s decision not to prosecute Harvey Weinstein in a 2015 sexual assault case.
Holly Pickett for The New York Times
For decades the film producer Harvey Weinstein succeeded in hiding from public view complaint after complaint of sexual misconduct against him. But on the evening of March 28, 2015, at a rendezvous at the TriBeCa Grand, his longtime pattern of cover-ups was coming to a dramatic end.
Meeting with him at the hotel was Ambra Battilana, a 22-year-old model from Italy, who had reported to the police the night before that Mr. Weinstein had groped her during a business meeting. She was wearing a wire. As Ms. Battilana asked Mr. Weinstein why he had touched her breasts at his office, undercover police officers monitored the exchange, eager to capture his every word.
“Oh, please, I’m sorry, just come on in,” Mr. Weinstein said as he tried to usher her into his hotel room, his tone alternating between threatening and cajoling, according to the recording. “I’m used to that. Come on. Please.”
“You’re used to that?” she replied.
“Yes,” he said, adding, “I won’t do it again.”
The investigation that unfolded over the next two weeks was perhaps the biggest threat ever faced by Mr. Weinstein, one of the most prominent figures in American entertainment. He immediately went on the attack.
As the police and prosecutors investigated the model’s allegations, the movie mogul set in motion a team of top-shelf defense lawyers and publicists to undermine her credibility. They gathered court records from Italy about a previous sexual assault complaint she had filed and then dropped. Stories questioning her motives popped up in the tabloids with anonymous sources. Mr. Weinstein’s team even enlisted the help of a former Manhattan sex crimes prosecutor turned novelist with influential ties.
In the end, the Manhattan district attorney, Cyrus R. Vance Jr., announced he would not press charges. Once the criminal case was closed, Mr. Weinstein silenced Ms. Battilana with a substantial payment.
The case demonstrates how Mr. Weinstein, with ample funds and influence, was able to assemble a counterstrike against the sex crime investigation using the weapons available to the powerful. It also highlights the challenges such cases pose, even for the vaunted Manhattan district attorney’s office, made famous by the television show “Law & Order.”
Little of what happened in the case emerged before this month, when The New York Times reported claims of rampant sexual harassment and unwanted touching by Mr. Weinstein, and The New Yorker reported sexual assault allegations — as well as the audio recording of the hotel encounter with Ms. Battilana. Since then, the New York police have begun looking into an actress’s claim that Mr. Weinstein sexually assaulted her in TriBeCa in 2004. On Sunday, the police said detectives were investigating several other new allegations made in recent days.
The London police are also investigating complaints against Mr. Weinstein: A woman came forward over the weekend saying that he had sexually assaulted her three times there between 2010 and 2015, and officers in Merseyside, England, referred them to a sexual assault claim from the 1980s.
British protocol dictates that suspects are not identified until formally charged, but a London police statement on the accusations released on Sunday was sent in response to a Times inquiry about him. The British news media, including the BBC, reported that he was the subject of the investigation.
Mr. Weinstein has repeatedly denied “any allegations of non-consensual sex.”
As more and more women have come forward with accusations, and public outrage has grown, those in the New York Police Department and the Manhattan district attorney’s office have blamed each other for the failure to prosecute Mr. Weinstein in 2015.
Mr. Vance, who is running unopposed for a third term, said the evidence was not strong enough to win a conviction, despite the audio recording. “If we had a case that we felt we could prosecute — that my experts felt we could prosecute — we would have,” he said.
Prosecutors concluded Ms. Battilana would have been a problematic witness because she had given them shifting accounts of her previous sexual assault complaint in Italy, three officials familiar with the investigation said, speaking on the condition of anonymity to discuss a closed case. Mr. Vance’s assistants also feared they could not prove that Mr. Weinstein had touched Ms. Battilana for sexual reasons because the advance came as they were discussing her desire to be a lingerie model and whether her bosom appeared to be surgically enhanced.
While police officials acknowledged that prosecutors would be hard-pressed to win a conviction, they thought the tape recording of the exchange at the hotel was sufficient to arrest him on third-degree sexual abuse, a misdemeanor that carries a maximum of three months in jail. “We brought them a very good case,” said a senior police official, speaking on the condition of anonymity to discuss an investigation that was closed without charges being filed. “He admitted, twice, doing it. That’s probable cause to make an arrest.”
A Model’s Encounter
Ms. Battilana, a finalist in the Miss Italy pageant, caught Mr. Weinstein’s eye at a reception for a show he was producing at Radio City Music Hall. He told her she looked like the actress Mila Kunis and invited her to bring her modeling portfolio to his office at the Tribeca Film Center.
When she arrived at his office, an assistant showed her a promotional video about his entertainment company before ushering her into his office, said Mark Jay Heller, a lawyer who briefly represented the model in the criminal case.
They took a seat on the couch, and Ms. Battilana began showing Mr. Weinstein her modeling photos on a tablet computer as they discussed the possibility of her working as a lingerie model, according to the account she later gave police. When the topic turned to whether her breasts looked real, Mr. Weinstein lunged forward and grabbed them. She protested and pushed his hands away, but Mr. Weinstein was persistent, putting his hand up her skirt and asking to kiss her, the police report says.
Ms. Battilana reported the encounter to police within hours of leaving Mr. Weinstein’s office, and quickly detectives from the Special Victims Unit were brought into the investigation. The model was going over the details of her allegation with them when her phone rang. It was Mr. Weinstein, asking to meet her for a drink, and the investigators seized the moment, whispering to her to accept an invitation to see him the following night at the bar of the TriBeCa Grand Hotel. They would fit her with a recording device.
Mr. Weinstein showed up at the bar the next night seemingly eager for a reunion, according to the audio recording. He had no idea that the TriBeCa Grand, which has since been renamed the Roxy Hotel, was swarming with undercover detectives.
Mr. Weinstein invited her up to his room, saying he needed to take a shower, the police said. Ms. Battilana went upstairs, but refused to enter the room. In a tense exchange in the hallway, she asked him why he had touched her breasts the day before.
As his tone grew belligerent, a detective, concerned for Ms. Battilana’s safety, intervened. Pretending to be a reporter from TMZ, he loudly badgered Mr. Weinstein for an interview, causing enough of a scene for Mr. Weinstein to retreat from the hallway, investigators said.
Once they were back downstairs, Ms. Battilana slipped out a side door, and Mr. Weinstein was once again confronted by a detective. This time, the detective made it known he was from law enforcement, and that the police wanted to talk to him.
Undermining an Accuser
Mr. Weinstein, 65, had faced allegations of sexual misconduct before, the investigations by The Times and The New Yorker found, but this was the first time police were known to have been involved. The Times found that in at least seven other cases, he had quietly made payments to female accusers in exchange for their silence, effectively preventing them — and their accusations — from emerging in the public eye.
Mr. Weinstein, who is married with five children, agreed to go to a police station for questioning, but as soon as the groping allegation came up, he halted the interview and asked for a lawyer, the police said.
The accusation came at a time when his faltering company was in talks to sell its television division to ITV, and he was coming under mounting scrutiny from its board.
The day after the sting operation, Ms. Battilana hired Mr. Heller, a splashy lawyer who had represented Lindsay Lohan and other celebrities. She met with him at his townhouse on Park Avenue that Sunday wanting to push forward with the criminal case, he said.
“She felt reduced to dirt, that somebody would have such low respect for her, that they would conduct themselves like that,” Mr. Heller said. “She was very determined to have her day in court.”
Mr. Weinstein, meanwhile, appeared determined to stay as far away from court as possible. He denied any wrongdoing and quickly retained Elkan Abramowitz, a former law partner of Mr. Vance, as well as Daniel S. Connolly, another former prosecutor turned white-collar defense lawyer.
Linda Fairstein, a former Manhattan sex crimes prosecutor who had once written an article in Vanity Fair about her dream of doing a movie deal with Mr. Weinstein, agreed to consult. She was a close friend of Martha Bashford, head of the district attorney’s sex crimes bureau, and facilitated an introduction for Mr. Abramowitz. It was, she said, the type of thing she does for fellow lawyers.
“Calling Ms. Bashford to tell her who Elkan was and to ask her to consider meeting with him is the kind of thing I do four to six times every year,” said Ms. Fairstein, who said she had determined Ms. Battilana’s complaint was unfounded.
Ms. Bashford declined a request for an interview.
Private investigators rapidly went to work collecting records from two cases in Italy involving Ms. Battilana. As a teenager, she had made a sexual harassment complaint against a 70-year-old man, but later declined to cooperate with prosecutors, law enforcement officials said. Then, in 2011, she had testified for the prosecution at the trial of Silvio Berlusconi, the former Italian prime minister who was charged with abusing his power and with patronizing an underage prostitute. Ms. Battilana described a sex party with teenage girls at his house in which she had refused to participate in lewd acts. On cross-examination, she denied the facts in a previous sworn affidavit about the older man, suggesting a lawyer had written it.
The influential public relations strategist, Ken Sunshine, known for his bare-knuckled tactics, put out statements on Mr. Weinstein’s behalf. And the tabloids ran stories suggesting she was selling her story for $100,000 and had tried to use the groping allegation to blackmail him. Mr. Weinstein planted stories to sow doubts about her credibility, said someone familiar with the efforts who spoke on the condition of anonymity.
“These types of matters are considered in two forums; one is the court of law, but probably the more important forum is the court of public opinion,” said Mr. Heller, who represented Ms. Battilana for a few days before being replaced by another lawyer, David Godosky. “They tried to spin an opinion in court of public opinion in a way that would break her down and make her go away.”
Mr. Sunshine said, “I categorically deny having anything to do with planting stories on anyone.”
Declining to Prosecute
Days after the encounter at the TriBeCa Grand, the detectives brought the district attorney what they considered to be a case wrapped up with a bow, police officials said.
It arrived several years after Mr. Vance had drawn criticism for the way he handled a case involving another powerful man, Dominique Strauss-Kahn, the managing director of the International Monetary Fund, who was accused of sexual assault of a hotel maid in 2011. Mr. Vance initially appeared intent on charging Mr. Strauss-Kahn, but the investigation fell apart after prosecutors discovered evidence undermining the woman’s credibility.
In the case of Mr. Weinstein, police recording equipment had failed, but Ms. Battilana had captured the entire conversation on her telephone, including his admission that he had grabbed her breasts, investigators said. Security cameras had caught video of Ms. Battilana leaving Mr. Weinstein’s office looking distraught, they said. The police saw it as more than enough to warrant an arrest.
But prosecutors were disappointed in the content of the audio recording, three officials familiar with the investigation said, speaking on the condition of anonymity to discuss a closed investigation. The police had moved quickly without giving them an opportunity to help steer the secretly recorded encounter with Mr. Weinstein, these officials said.
Police officials denied this, saying Ms. Bashford, the prosecutor, was kept in the loop all weekend. “Why would we not call about Harvey Weinstein?” the senior police official who thought the case was strong said.
Ms. Battilana had gotten Mr. Weinstein to acknowledge that he had touched her breasts, but she had not brought up her claim that he put his hand up her skirt. Prosecutors saw this as a problem, the officials said.
Ms. Bashford met with Mr. Weinstein’s lawyers on three separate occasions, with Mr. Weinstein present at one of the meetings. The defense team claimed that he had touched her breasts for a legitimate reason — to see if they were real for the purposes of a lingerie advertisement — and denied that he had touched her thighs.
To prove sexual abuse or forcible touching in New York State, prosecutors needed to prove the motive was sexual gratification or to humiliate the victim, and had Mr. Weinstein admitted he slid a hand up her skirt, it would have been unequivocally sexual, the officials said.
The defense lawyers also brought to Ms. Bashford’s attention Ms. Battilana’s sworn statements in Italy, arguing they suggested she was not credible, two people with knowledge of the meetings said, speaking on the condition of anonymity to discuss private conversations.
Ms. Bashford interviewed Ms. Battilana at least four times, pressing her on her story, the officials said. During those meetings, she disavowed the sworn statements she had made in the Berlusconi trial, as well as her affidavit about the previous sexual assault, they said.
By April 10, 2015, Ms. Bashford had reached the conclusion she could not prove every element of a crime with the evidence she had.
Mr. Vance said he discussed the case with Ms. Bashford and his chief assistant at least three times and finally accepted Ms. Bashford’s recommendation to drop the case. “I didn’t have any pushback on Martha’s opinion, mindful that Martha has greater expertise in sex crimes than I do,” he said.
But as some former prosecutors see it, Mr. Vance could have moved forward with the case. “The idea that Weinstein’s criminal intent was unprovable because of his stated ‘professional need’ to personally inspect her breasts doesn’t pass the laugh test,” said Mark Bederow, a former Manhattan prosecutor who is now a defense lawyer.
With the criminal case behind him, Mr. Weinstein moved forward with a private settlement with Ms. Battilana. He paid her a sizable sum, according to two people familiar with the confidential payment. In exchange, she made a legally binding promise to never speak of their encounter again.
Ms. Battilana, who declined an interview request, recently told Italy’s La Repubblica newspaper that she struggled to get work after the case was over and that the fashion world closed its doors on her.
“What happened to me really put my view of the world to the test,” she said.
With a flood of accusers coming forward, she said she hoped that it “will bring me justice.”
