The prosecution of Harvey Weinstein in New York is not going very well. You may remember that last month the lead detective was removed from the case after prosecutors learned he had told a witness she could delete information on her phone that she didn’t want investigators to see. Prosecutors also dropped one charge against Weinstein when a witness contradicted what the accuser had told Ronan Farrow last year. At present, there are five counts remaining but Weinstein’s lawyer claims to now have evidence that could impact three of those charges. from the Associated Press:

Three of the five remaining charges stem from the allegations at the heart of Brafman’s latest filing, that Weinstein raped a woman in a hotel room in March 2013. The two other charges allege that Weinstein forcibly performed oral sex on another woman in 2006 at his Manhattan apartment.

Brafman said the rape accuser called the friend out of the blue after they hadn’t spoken since a falling-out two years before. She discussed the alleged assault and asked for the friend’s help, “presumably so as to serve as a prompt outcry witness,” Brafman wrote.

An “outcry witness” is a term for the first person or people who were told about an alleged attack. Such testimony can be powerful in a sexual assault case.

The friend responded that she’d never been told about the allegation and didn’t want to get involved, according to the filing. But sometime after, a New York City police detective approached her about the matter.

She told the detective that the accuser, who has never been publicly identified, and Weinstein had an intimate relationship and that she’d never heard the assault allegation at the time, according to the court papers. Brafman blasted authorities for not passing the information to the defense.

In addition, Brafman claims that a collection of emails shows Weinstein had a friendly relationship with one of the women now accusing him of sexual assault. From the Daily Beast:

Brafman also cited two threads of text and email exchanges between Weinstein and two accusers: actress Mimi Haleyi and a unnamed woman. He claimed the emails, which he described as “friendly” exchanges, proved good will between Weinstein and the two women.

In February of 2007, Haleyi sent Weinstein’s assistant “Hi! Just wondering if u have any news on whether harvey will have time to see me before he leaves? x Miriam.” (The actress also goes by the first name “Miriam”). Four months later, when Weinstein invited her to a movie premiere, Haleyi wrote that she could not attend but to “please let Harvey know the gesture was most appreciated.” In other exchanges, the actress signed off “lots of love.”

I don’t think a few friendly emails necessarily undercut these allegations. After all, for most of these women, this was their career or the career they wanted and Harvey was the guy that could make them or not. Weinstein took advantage of that power, allegedly offering movie roles for sex. If anything, an actress turning down an invitation from Weinstein, however polite it sounded, suggests to me that something was wrong. You don’t tell the guy who can make you a star you’re too busy to see him without a damn good reason.

All of this was part of an 85-page motion to dismiss which Brafman filed today. From USA Today:

The only solution to all this “chaos,” Brafman contended, is to dismiss the remaining indictment against Weinstein, or at least hold a hearing to present all of Brafman’s many objections to the case, which he said “is now falling apart under a cloud of serious official misconduct.”

“We submit that fundamental fairness requires a dismissal of this tainted case that quite frankly portends a doomed prosecution that will be preceded by an ugly and embarrassing public hearing that simply cannot be avoided,” Brafman said. “With the additional evidence we have now gathered, no fair Grand Jury would ever again indict Mr. Weinstein for the crimes for which he is now wrongfully charged.”

The NYPD maintains that “the evidence against Mr. Weinstein is compelling and strong” and promises to continue to pursue the case. But it certainly sounds as if Brafman has turned up something, in the form of the accuser’s friend, which could undercut the credibility of one of his accusers. That’s a shame as far as I’m concerned because I think he belongs behind bars.