NEW YORK (AP) — New York’s governor put unusual — and potentially problematic — pressure on Manhattan’s district attorney to bring a criminal case against Harvey Weinstein this week when he ordered the state’s attorney general to investigate the prosecutor’s handling of an earlier sex abuse probe involving the film producer, legal experts said.
On Monday, Gov. Andrew Cuomo, the state’s most powerful Democrat, directed Attorney General Eric Schneiderman to look into whether Manhattan District Attorney Cyrus R. Vance, Jr. bungled a 2015 investigation in which a model accused Weinstein of groping her breast. Vance decided not to bring charges in the case, citing a lack of proof.
The move put a harsh spotlight on Vance, who is already under fire from women’s groups and others who have questioned why no criminal charges have been filed against Weinstein, despite rape or sexual assault claims by several other women.
Putting Vance under scrutiny for his handling of Weinstein in the past, while he is still trying to decide whether to bring a separate criminal case against Weinstein now, could create questions about fairness, lawyers said.
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Weinstein’s attorneys have said he denies any non-consensual sexual contact with anyone.
If Weinstein does get charged criminally, “it’s going to look like they bowed to pressure,” even if their case is solid, said Ellen Yaroshefsky, a legal ethics professor at the Maurice A. Deane School of Law at Hofstra University.
“This smacks of pure politics in a primary election season,” Yaroshefsky said, noting Cuomo’s directive came just hours after the actor Cynthia Nixon announced she was challenging the governor in the Democratic primary election.
“Prosecutors are accountable to electorate — if they do a bad job they get voted out. Their discretion on cases is not meant to be questioned by other elected officials,” said Bruce Green, a law professor at Fordham University. “To me, there’s something problematic about the attorney general looking over the shoulder of a D.A., and then reporting it to the governor.”
The governor’s office didn’t respond to requests for comment.
Vance declined to comment, but he has said repeatedly that his investigation of Weinstein will be driven by facts and the law, not political considerations.
Schneiderman said his office is committed to a “full, fair and independent review.”
There isn’t much precedent for the type of investigation Cuomo has asked Schneiderman to conduct.
The authority to order the investigation likely comes under a state executive law that allows the attorney general, with the governor’s OK, to inquire into matters of “public justice” and recommend changes. Those investigations typically result in the release of an investigative report, but not disciplinary action or a prosecution.
It isn’t clear when the attorney general’s office might start its investigation, or what steps it might take to avoid interfering with the prosecutors’ ongoing criminal investigation of allegations that Weinstein raped a different actress in 2010. Cuomo said Vance’s office expected to complete the criminal probe of the 2010 case, one way or another, in about 45 days.
Schneiderman’s review would focus on Vance’s handling of a complaint made in 2015 by Ambra Battilana Gutierrez, a model who accused Weinstein of groping her during a meeting. Police conducted a sting at the time in which they recorded Weinstein apologizing for his conduct.
Vance, however, split with police and decided there wasn’t enough evidence.
On Monday, Time’s Up, an anti-sexual misconduct campaign started by group of Hollywood industry women, asked Cuomo to order an investigation after a story in New York magazine questioned whether the district attorney’s office had been influenced improperly during its probe.
Hours later, Cuomo announced that he would order Schneiderman to look into it.
“It’s a very fraught situation,” said attorney Joel Cohen, whose firm has represented Vance’s political campaign organization before, but does not represent him now. “Just the notion of the AG’s investigation is bizarre enough,” he said, but now “there is a pending investigation related to the same person.”
He said “a courageous prosecutor” wouldn’t let an outside investigation factor into the decision, and he said he was confident Vance fell into that category.
The Associated Press does not typically identify people who say they are victims of sexual assault unless they speak publicly, as Battilana Gutierrez has done.