Prosecutor Joan Illuzzi-Orbon told the court she would drop count six of the indictment, which involves Lucia Evans, an actress who accused Weinstein of forcing her to perform oral sex on him in 2004.
Evans’ lawyer blasted the move, saying in a statement that the DA’s office made the decision to “abandon” her client.
"Let me be clear: the decision to throw away my client's sexual assault charges says nothing about Weinstein's guilt or innocence. Nor does it reflect on Lucia's consistent allegation that she was sexually assaulted with force by Harvey Weinstein," said attorney Carrie Goldberg. "It only speaks volumes about the Manhattan DA's office and its mishandling of my client's case."
Prosecutors said in a Sept. 12 letter to the defense unsealed today that they discovered an account after Weinstein's arrest that could suggest the encounter was consensual.
"According to the Witness...the Complainant [Evans] told the Witness that...the Complainant had gone to the defendant's office, where the Defendant told her, in substance, that he would arrange for the Complainant to receive an acting job if she agreed to perform oral sex upon him. According to the Witness, the Complainant told her that she thereupon performed oral sex on the defendant." The letter goes on to say that during this discussion Evans "appeared to be upset, embarrassed and shaking."
Weinstein defense attorney Benjamin Brafman accused Evans of committing perjury when she testified to the grand jury.
Brafman said prosecutors discovered Evans’ written account about her encounter with Weinstein from a fact-checker with The New Yorker, and said he would subpoena the magazine.
“When you do your homework after the arrest bad things happen,” Brafman said.
In a statement, a spokesperson for The New Yorker said that the magazine stands by their reporting and fact-checking process, adding that "Any assertion by lawyers for Harvey Weinstein that The New Yorker had information that contradicted Lucia Evans’s account is patently incorrect."
Weinstein’s defense team called the case “permanently and irreparably damaged” and Brafman said he would use the development to dismiss the whole case.
Prosecutor Joan Illuzzi-Orbon, however, said the rest of the case is “full steam ahead.”
“Nothing in the disclosure relating to count six impacts the strength of the remaining case and the remaining counts in the indictment, all five of them, including predatory sexual assault,” she said.
Evans is one of three women whose allegations form the backbone of the criminal case.
The defense said it would also subpoena police interview records after claiming an NYPD detective “may have unfairly tainted these proceedings” when he prepared Evans for her testimony.
The detective has been removed from the case, Brafman said.
The NYPD has said it stands by the criminal case against Weinstein but has not directly addressed the alleged conduct of the investigator.
Weinstein has pleaded not guilty and denied all allegations of rape and sexual assault that have been made against him both in court and in the media.
He is due back in court on Dec. 20.