Case against Kevin Spacey may come down to alleged victim's testimony: Experts

PHOTO: Kevin Spacey arrives to face a sexual assault charge at Nantucket District Court in Nantucket, Mass., Jan. 7, 2019. PlayBrian Snyder/Reuters
WATCH Kevin Spacey pleads not guilty to indecent assault and battery

It's been more than six months since Kevin Spacey was charged with felony sexual assault by the district attorney on Massachusetts' Nantucket island, and as the case moves towards its latest pretrial hearing next week with no signs of plea negotiations or other proposed resolutions, the prospect of another high-profile celebrity sexual assault trial is beginning to take shape.

So, how strong is the case against Spacey?

In a series of interviews this week with ABC News, a gallery of current and former sex crimes prosecutors, high-profile defense attorneys, sex assault experts and lawyers who practice on Nantucket all agreed on one thing: The strength of the case is impossible to determine until the key witness -- the alleged victim -- takes the witness stand.

"It's one of the great risks of all time in a trial," said Peter Kyburg, an attorney on Nantucket. "You never know what's going to happen in a trial with six to 12 random people."

"You never know what's going to get to them, to push their buttons. It is the risk of going to trial -- the star witness," he added.

PHOTO: The Club Car in Nantucket, Mass., Jan. 6, 2019. Chris Francescani/ABC News
The Club Car in Nantucket, Mass., Jan. 6, 2019.

One of the trio of Pennsylvania prosecutors who convicted Bill Cosby of sexual assault last year agreed with Kynburg's assessment.

"In the context of a jury trial, there is nothing that is more important than the [alleged] victim being able to look the jury in the eye[s], and the jury being able to look [the alleged victim] in the eye," said Stewart Ryan, a former Montgomery County assistant district attorney who, with District Attorney Kevin Steele and assistant DA Kristen Gibbons Fedden, won guilty verdicts on all three counts of aggravated indecent assault against Cosby -- one of the most beloved performers of his generation -- in April 2018.

"That common sense, gut feeling when you look someone in the eye and decide whether they are telling the truth is paramount in these cases," said Ryan, who left the Montgomery County DA's office after the Cosby case to join the Philadelphia-based personal injury law firm Laffey, Bucci & Kent.

Still, most experts agreed, there's plenty of room for reasonable doubt in this vexing case.

'A little fuzzy'

In the fall of 2018, Heather Unruh, a former New England television news anchor from ABC's Boston affiliate WCVB, held a press conference to allege that Spacey had forcibly stuck his hand down her 18-year-old son's pants and groped his genitals at a Nantucket bar in July 2016, tearfully calling the actor a "sexual predator."

Her son reported the alleged incident by phone to local police in October 2016, and in a subsequent face-to-face meeting with police a year later he told them that the alleged sexual assault took place after he drank eight to 10 total beers and whiskeys with the actor before being groped, according to court records.

A civil attorney for the Unruh family did not immediately respond to a request for comment.

The Cape and Islands State Police Detective Unit launched an investigation into the former "House of Cards" actor after a young man contacted them by phone, according to a criminal complaint filed in Nantucket District Court "against Kevin S. Fowler, also known as Kevin Spacey." Cape and Islands District Attorney Michael O'Keefe filed the felony charge on Christmas Eve in 2018, and Spacey pleaded not guilty as part of an arraignment hearing in January.

The young man making the accusation -- ABC News isn't naming him because he's an alleged victim of sexual assault -- said that he was working as a busboy at the Club Car bar and restaurant on Nantucket when Spacey came in the night of July 7, 2019. The man told police he hung around the bar after getting off his shift at midnight and got an autograph from Spacey and began drinking with him.

PHOTO: Kevin Spacey stands in district court as his attorney Alan Jackson, right, addresses the judge during an arraignment hearing, Jan. 7, 2019, in Nantucket, Mass. Nicole Harnishfeger/The Inquirer and Mirror via AP
Kevin Spacey stands in district court as his attorney Alan Jackson, right, addresses the judge during an arraignment hearing, Jan. 7, 2019, in Nantucket, Mass.

The alleged victim, who told police that he lied to Spacey about his age, saying he was a 23-year-old college student at Wake Forest University, also told investigators he "had at least four or five beers before Spacey allegedly suggested that they should switch to whiskey," according to court records.

Spacey, according to the complaint, also allegedly told the busboy, "Let's get drunk."

This guy's hand is in your pants, groping you, and you're videotaping it and texting it to your girlfriend?

The alleged victim told investigators "things started to get a little fuzzy when he and Spacey went over to the piano" at the Club Car, according to the criminal complaint in the case. At one point during the night, he and Spacey were near the bar's piano when he alleges that Spacey started rubbing his thigh and then unzipped the victim's pants and began groping his genitals.

The busboy told detectives that "he wasn't sure if Spacey went into his pants through the open zipper" or if the actor groped his genitals over his pants and boxer shorts.

The alleged victim said while Spacey was touching him, he was texting and communicating with his girlfriend on Snapchat, and even sent her Snapchat video of Spacey groping him, according to the complaint. He alleged the inappropriate touching occurred for about three minutes, the complaint reads. Those texts and videos have been a key focus of previous hearings in the case.

The alleged victim told detectives that when Spacey went to the restroom after the alleged groping, a woman approached him and noticed that he was in distress, court records state. He said that when he told the woman that Spacey was "trying to rape" him, the woman told him to leave, according to the complaint, and that he ran to his grandmother's house nearby, where he was spending the summer, and woke up his younger sister to tell her what happened.

He said the next day he told his mother, Unruh, and she told him to report the incident to police, according to the complaint, though records indicate he did not do so until October, about three months later.

'Exculpatory text messages' deleted, defense claims

On Thursday, among a series of rulings on motions in the case, Nantucket District Court Judge Thomas Barrett granted access by Spacey's attorneys to six months of the alleged victim's text messages following the alleged incident, and the surveillance video from the Club Car from 5 p.m. July 7, 2016 to 3 a.m. July 8, according to court records. Barrett also denied a defense request for the text messages of Unruh herself during the same time period.

On Friday, defense attorneys for Spacey charged in a new court filing that the accuser deleted exculpatory text messages from the time surrounding his encounter with Spacey before turning over screenshots of text exchanges to the police -- and charged that the district attorney’s office knew this and “hid” it from the defense until now.

“Clearly, [the accuser] has gone to great lengths to remove text messages that he believes did not fit his narrative,” defense attorney Alan Jackson wrote in the filing. “The prosecution is aware of this and hid that information from the defense.”

A spokeswoman for the district attorney's office issued a statement on Friday afternoon saying that prosecutors were actually still waiting for a signed protective order from the defense. The statement did not address the claim that Spacey's accuser deleted exculpatory texts.

"On May 15th an email exchange commenced, initiated by our office, regarding many aspects of the issues involving the cell phone in question," spokeswoman Tara Miltimore said in the statement. "Because of privacy concerns with some of the data on the cell phone we sought from the defense a protective order."

"Notwithstanding several further emails back and forth suggesting additions and modifications to the protective order we have yet to receive from the defense the signed protective order. All of those emails will be available to the court on June 3rd," she wrote, referring to a scheduled pre-trial hearing in the case on Monday.

"Often times parties disagree with statements made in court filings. That is why we have hearings before judges."

The defense motion also seeks a “complete forensic copy” of the accuser’s phone so that a defense expert can “determine when [the alleged victim] deleted exculpatory text messages..”

Spacey’s attorneys are also seeking access to internal communications between one of the prosecutors, who disclosed to his office that his sister is a close friend of -- and vacationed together for years -- with Unruh and her family. Miltimore's statement did not address that request.

In a brief phone interview with the Boston Globe on Friday afternoon, O'Keefe told one of the newspaper's reporters that "as soon as we learned of that, we sent every bit of information we knew to the defense."

"If the defendant wasn't who he is, no one would care about this case," the district attorney commented, according to the newspaper.

Reasonable doubt

A Florida sex crimes prosecutor who has followed the case closely told ABC News that there are potential strengths on both sides of the case.

"I've been doing this for many years, and in a case like this you can make an argument either way," said Stacey Honowitz, an assistant state attorney in the Sex Crimes & Child Abuse Unit of the State Attorney's office in Broward County.

"You can say, 'He's a predator: He plied him and plied him with drinks, knowing what he wanted to do, for whatever sexual gratification. This guy is a predator, knew what he was doing, saw a star-struck fan who asked for an autograph, and got him drunk to see what happens.'"

PHOTO: Kevin Spacey arrives to face a sexual assault charge at Nantucket District Court in Nantucket, Mass., Jan. 7, 2019. Brian Snyder/Reuters
Kevin Spacey arrives to face a sexual assault charge at Nantucket District Court in Nantucket, Mass., Jan. 7, 2019.

"The flip side," she continued, "is this: Why in the hell didn't the [alleged] victim do something? Let me get this straight," she continued, channeling a hypothetical cross examination. "'This guy's hand is in your pants, groping you, and you're videotaping it and texting it to your girlfriend?'"

"The delay in [making the] report -- I don't think -- is as crucial as standing there taking the time to text and videotape and not walking away," Honowitz said.

"And why did he lie about his age?" Honowitz wondered. "What was the purpose of [the alleged victim] lying about [his] age? So the guy would buy you a drink?"

"There are plenty of factors in this case that could raise reasonable doubt in the minds of jurors," she concluded.

O'Keefe, who is overseeing the Nantucket case, did not immediately respond to a request from ABC News to discuss the case.

Untested witness

High-profile defense attorney Mark Geragos said that for all the value of a good star witness, there is a potentially equal value in a powerful cross examination.

"I've tried cases against [Spacey defense attorney] Alan [Jackson] when he was a prosecutor and he's a very able cross examiner," said Geragos, who for a time defended Michael Jackson against child molestation charges.

The veteran defense attorney suggested Spacey would be facing a jury at trial long after the initial public fury had settled over rape and sex assault allegations against Los Angeles movie mogul Harvey Weinstein that first surfaced in October, 2017.

In the weeks and months following the bombshell publication of reports in The New York Times on Oct. 5 and The New Yorker on Oct. 10 of a raft of graphic, on-the-record allegations of sexual assault by Weinstein from numerous women, a frenzied cascade of fresh, shocking sexual misconduct accusations against powerful, high-profile men in America spilled forth. Weinstein has vehemently denied all the criminal allegations.

Delayed reporting is actually the norm. It's to be expected. It's consistent with what the majority of sex assault victims do.

An earlier allegation of sexual misconduct against Spacey, from actor Anthony Rapp, came in an article published by BuzzFeed on Oct. 29. Because the alleged incident occurred in 1986, it fell outside of the statute of limitations and Spacey was never investigated or prosecuted.

After Rapp went public, Spacey posted a statement on Twitter saying he is "beyond horrified" by the story but did not remember the alleged incident. He also apologized for "what would have been deeply inappropriate drunken behavior."

He later sought unspecified "evaluation and treatment," according to a statement at the time from his spokesperson.

The story of the alleged victim in the Nantucket case first fully surfaced 10 days after the Rapp allegation with his mother's press conference, after she had hinted at her allegations in an Oct. 13 tweet. The alleged victim himself has never spoken publicly about the alleged incident with Spacey.

But that was 18 months ago, and the heady rush of unseemly revelations has slowed since then, Geragos pointed out.

"I think it's interesting," he said. "The #MeToo movement cuts both ways."

"The pendulum swung hard in one direction, [and] it tends to, in some demographics, swing back -- and that I think you can cure in jury selection," he added, counseling extraordinary caution and care in selecting jurors in the Spacey case.

"The problem with a witness is you don't know how they're going to do on the stand," he said. "They can do great at grand jury where there's no cross examination."

"But the witness stand is a different thing."

Both Ryan, the former Cosby prosecutor, and National Sexual Violence Resource Center chief spokeswoman Kristen Houser said that while Spacey's celebrity and estimable theatrical talents present a daunting challenge to convicting him at trial in a case so reliant on the credibility of a single witness, it may not prove to be as powerful a deterrent to conviction as it once may have been to an average American juror.

"I believe that we are in a place right now where the cult of celebrity is not as powerful as it once was," Ryan said. "When you hear the facts in a case like this, the aura of celebrity is very easily stripped away."

Houser said that, as was the case with Cosby's main accuser, Andrea Canning, delayed reporting of a sexual assault is statistically more common than not.

"Delayed reporting is actually the norm," Houser noted. "It's to be expected. It's consistent with what the majority of sex assault victims do."

"I think there are a lot of potential jurors who will be able to relate to the allure of certain celebrities -- that they're getting to have a personal experience, a personal interaction with someone you revere," she continued. "I think it could be very likely that you'll get jurors who can understand that, because most Americans have a weird celebrity hang up that we believe these celebrities are the good people we see on TV and in the movies."

"I certainly do think that there are more and more people in America realizing how common these [sexual assaults] are and I think we're seeing a lot more of them because of that," Houser concluded.

"It may not be as shocking as it would have been before to learn that a celebrity would do something like this."

Spacey, through a representative, declined an ABC News request for comment.

ABC News' Aaron Katersky contributed to this report and Alexandra Smith contributed research to this report.