Movie mogul Harvey Weinstein, in handcuffs, is taken from the NYPD First Precinct in lower Manhattan on May 25. Photo: David Handschuh/NYLJ

The attorney for Harvey Weinstein said the indictment accusing the disgraced film producer of rape and other charges should be dismissed, because prosecutors did not present a grand jury with evidence that Weinstein had a consensual relationship with one of his accusers.

In papers filed on Friday, Weinstein’s lawyer, Benjamin Brafman of Brafman & Associates, argued that the Manhattan District Attorney’s Office did not present emails between Weinstein and one of three alleged victims, tied to his indictment that Brafman said could be read as “consistent with an ongoing, warm, friendly relationship” that carried on after his alleged 2013 attack, and not that of a rapist and his victim.

The accuser in question, who is not named in court documents, is one of three alleged victims associated with the indictment against Weinstein, in which he is charged with two counts of predatory sexual assault, two counts of first-degree criminal sexual act, first-degree rape and third-degree rape.

Production of the emails required a separate legal effort in the U.S. Bankruptcy Court for the District of Delaware, the venue for the bankruptcy for The Weinstein Co. U.S. Bankruptcy Judge Mary Walrath of the District of Delaware ruled on Thursday that emails from two accounts associated with Weinstein, which were in a trustee’s possession, could be used for his criminal defense.  

Brafman also used the motion to characterize Manhattan DA Cyrus Vance Jr. as being under “unprecedented” pressure to indict Weinstein, noting that his office has not brought charges against Weinstein for the alleged sexual assault of actress Paz de la Huerta, despite the fact that New York City Police Department sources told media outlets that they were ready to make an arrest.  

The pressure on Vance was further compounded, Brafman argued, by the fact that Gov. Andrew Cuomo ordered an investigation into the Manhattan DA’s handling of accusations by Italian model Ambra Gutierrez that Weinstein groped her during a meeting at his office.

The Manhattan DA’s Office declined to comment on the motion. Assistant District Attorneys Joan Illuzzi and Kevin Wilson are leading the prosecution.  

Three of the counts in Weinstein’s indictment pertain to the unnamed accuser. The remaining counts pertain to Lucia Evans, an aspiring actress who said Weinstein forced her to give him oral sex in 2004; and Mimi Haleyi, a production assistant who said Weinstein forced himself upon her in 2006.

Evans and Haleyi were identified in court papers and media reports.   

Weinstein, who faces maximum sentences of life in prison on the predatory sexual assault counts, has pleaded not guilty to the charges, denying that he ever had nonconsensual contact with anyone, much less the three accusers in the indictment.

In the motion to dismiss, Brafman argued that the third-degree rape count, which pertains to the unnamed accuser from 2013, should be time-barred by the five-year statute of limitations on the charge. The alleged conduct occurred in March 2013 and Weinstein was first indicted in May.   

With respect to Evans’ allegations, Weinstein argued that a grand jury would be skeptical of her claims because she cannot pinpoint which date in 2004 that the alleged conduct occurred.

As for Haleyi, whose allegations are the basis for the two counts of predatory sexual assault and who has retained Gloria Allred, Weinstein argued that those charges should be dismissed because the evidence presented to the grand jury did not prove forcible compulsion.  

Following Brafman’s announcement of his filing, Allred’s office issued a written statement in which Allred said that she doubts that any of the emails produced in the case will support his argument that Haleyi gave consent to Weinstein, and that his defense team appears “afraid” to allow the case to go to trial.

“Our client is very courageous and she is willing to testify under oath at a jury trial,” the statement reads. “Why is Mr. Weinstein seeking to avoid facing a jury in a criminal trial and why has he not indicated that he is willing to testify under oath at a trial before a Manhattan jury?”