For a prosecutor, Manhattan District Attorney Cyrus Vance Jr. has been playing a lot of defense lately: Since the #MeToo movement began, he has been slammed by women's rights advocates for having passed on a 2015 groping case against Hollywood mogul Harvey Weinstein. Vance was exposed last year for overruling his staffers who wanted to press fraud charges against Ivanka Trump and Donald Trump Jr. after meeting with a Trump family lawyer who is one of Vance’s largest donors. Separate from the scrutiny on his treatment of A-listers, Vance also got panned in the press this year for bail practices that are unusually punitive towards poor defendants. On Monday, sexual assault survivor and victims advocate Marissa Hoechstetter, who had previously complained that the DA mishandled her and other women’s allegations against a Columbia University gynecologist, told Medium that Vance’s office “has a pervasive culture of discounting survivors.”
So, is this the beginning of the end for the three-term incumbent, who is up for reelection in 2021? Or will he change his ways – especially if he wants to fend off a potential progressive challenge and win reelection?
In a sit-down interview with City & State, Vance said he plans to run but that the way he leads the office will not be influenced by a need to shore up the support of Manhattan’s left-leaning Democratic primary voters. “I’m not going to run this office worried about losing,” he said.
But Vance is still offering some olive branches to liberals and criminal justice reformers. During his interview with City & State, he emphasized that he is prosecuting far fewer cases than he used to, thanks, in part, to his directives to his staff not to press charges in some minor cases. Vance also cited the funding from approximately $2 billion in forfeiture dollars that he has poured into progressive priorities. The DA’s office has spent $38 million to fund the review of previously untested rape kits across the country and put up $7 million for the state’s initiative on prison education.
Regarding bail reform, Vance said that in January his office adopted a policy of not requesting bail, and allowing defendants to be released on their own recognizance, in misdemeanor and violation cases. There are exceptions. For example, the policy doesn’t apply to defendants accused of crimes where there’s a victim, or those who have lengthy rap sheets or are on parole or probation. The result has been a 33.5 percent decrease in bail requests since January. Manhattan prosecutors arraigned over 100,000 cases in 2009. Last year, they arraigned over 66,000 and Vance said the number would drop even further because of his new policies of not prosecuting most instances of marijuana possession and turnstile jumping.
The DA contended, however, that the criticism he has endured played no role in any of his policy shifts. Rather, he attributed it to a “peace dividend.” With crime having steadily decreased for two more than decades, prosecutors don’t need to be as overbearing, Vance concluded. “None of this we’re doing because we’ve been chased into the position,” he said.
Vance knows there’s an intense spotlight on the office. The 2015 Weinstein case was not the first time Vance, 64, decided not to prosecute a powerful man accused of sexual assault. In 2011, Vance’s officedropped sexual assault charges against Dominique Strauss-Kahn, the International Monetary Fund’s former managing director, when prosecutors became unsure about the complaining witness.
Of course, Vance is going after Weinstein now. While Weinstein’s alleged serial sex offenses occurred all over the globe, his sole indictment right now is for rape, a criminal sex act and predatory sexual assault in Manhattan. Weinstein didn’t have to wait around for 18 hours like an average arrestee, though: He got out swiftly on a pre-arranged $1 million bail.
Vance may have other opportunities to prosecute wealthy white men who have been accused of sexual misconduct by multiple women, as many of the high-profile incidents allegedly occurred in Manhattan. Whether Vance will prosecute in any of those cases – which are often difficult to prove in court – is unclear.
One woman alleges in 2005 she had a glass of wine with celebrity chef Mario Batali at a Manhattan restaurant and later woke up on the floor feeling that she had been drugged and sexually assaulted. Police were reportedly looking into the claims, which Batali denies. Meanwhile, the disgraced NBC “Today” host Matt Lauer allegedly sexually assaulted a producer in 2001, inside his Rockefeller Center office.
Vance told City & State he couldn’t discuss particular investigations. “We have made the decision to prosecute individuals that no one else has prosecuted,” he said. “We prosecute very difficult sex crime cases all the time. You just don’t write about them.” The initial pass on Weinstein was based on a call he made on the particulars of the case, informed by his sex crimes chief, Vance said.
Pointing to the $38 million his office has put towards the review of some 60,000 rape kits in 20 states, Vance added, “I don’t know how you would confuse the effort that went into that to say this is an office that doesn’t focus on sex crime.”
As for the fizzled Trump case, Vance noted he had to contend with a related civil settlement where buyers said they were not victimized and would only cooperate under subpoena. “You have to decide what resources you’re going to continue to invest in what cases. This was five years ago. It was not foreseen that Trump would be president in 2016, so I think evaluation of that case was perhaps looking in the rearview mirror.”
Though defense attorneys contributing to prosecutors’ campaigns are normal and legal, Vance vowed in January to follow self-imposed limits and restrictions on defense lawyer donations. “Is there any other D.A. who has agreed to these restrictions? I think the answer is no.”
Will all of those measures mollify Manhattan’s liberal Democratic primary electorate?
It could be a tough case for Vance to make. Gabriel Sayegh, co-founder and co-executive director of the Katal Center for Health, Equity, and Justice, said efforts like rape kit analysis funding or new bail request policies – if the bail requests do actually change in practice – are good, but they do not make up for other “counter reforms” or inaction that let the status quo hum along “like fine-tuned machinery.”
“It’s like setting up a park and getting touted for it, and meanwhile letting a couple buildings across street burn down,” he said.
Under Vance, the Manhattan District Attorney’s office didn’t operate with “an ethic of reform,” but seemed to be “trying to manage the politics of it,” according to Sayegh.
John Pfaff, a Fordham University School of Law professor, said many self-described progressive prosecutors, like Vance, are faulted for the perceived divide between their rhetoric and courtroom results – often in real time on social media, by public defenders and court watchers.
“If the (assistant district attorney) actions change, that will become known,” said Pfaff, the author of “Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform.”
Scaling down the prosecution of low-level cases was a start, said Pfaff, but, “we’ve been at that starting point in the country for 10 years now.” Harder questions surrounding different approaches to violent crime are still unanswered, the professor said. If, for example, Vance
pushed for leniency in the charges and sought-after sentences of domestic violence victims committing violent crimes against their abusers, that would be much bigger step forward, Pfaff argued.
Some criminal justice reform activists are impressed by Vance’s record. Melissa Sontag Broudo, the co-founder and co-executive director of the SOAR Institute, an advocacy and policy organization for sex workers and trafficking victims, credited Vance for pressing the Weinstein case and she praised Vance’s office for not prosecuting loitering for purpose of prostitution, while other boroughs make cases on the law, which she called vague and discriminatory. “As far as prosecutor’s offices go, I think they are on the right track in many ways,” Broudo said.
There are still other ways, though, in which Vance continues to frustrate advocates for black and Latino youth. The office has been a stickler enforcing a 1958 statute meant to bar switchblade-like knives. Advocates say police can deem just about any commonly-sold folding knife as a forbidden blade and Manhattan prosecutors press the cases like no one else.
The real victims are law-abiding minority men saddled with arrests and convictions for carrying tools sold openly at hardware stores and frequently used for common household repairs or various blue-collar jobs, according to advocates.
Vance opposed bills to reform the statute and Cuomo twice vetoed legislation that would have done so.
Vance’s objection was “outrageous,” Sayegh said.
According to one Democratic strategist who didn’t want to antagonize Vance, Assemblyman Dan Quart has his eyes on the job. Quart has clashed with Vance over the gravity knife statute and sponsored the reform bills. “Several people have stated Assemblyman Quart is seriously considering (running),” said defense attorney Arthur Aidala, who has spoken to Quart’s friends and advisers about the politician’s possible career plans. “The one thing is this,” he later added. “I never got the impression (Quart) was going to run against Vance and more like when the time comes, in terms of Mr. Vance leaving.”
Quart’s spokeswoman Amanda Wallwin didn’t shoot down ideas of a district attorney run but observed that “2021 is a while away.”
“Certainly we’ve been focused on criminal justice issues,” said Wallwin, “and we found (Vance’s) performance to be lacking. But right now, the focus is on reelection.”
Quart is on the appointed defense bar panel for misdemeanors and still sees small-time pot and turnstile jumping cases come to court, with many disposed at arraignment, according to Wallwin. “The biggest thing we’ve seen is a lot what of he’s doing is more PR than policy,” she said.
Vance countered he has the data to show his office isn’t just giving lip service to reform: A 22-page March report from the DA’s office laid out all sorts of diversion programs and policies meant to curb criminal cases.
New York City legal and political insiders have speculated that Vance may not seek reelection. Vance said, rather cautiously, that his current plan is to run. “I, by no means, have decided not to run. And if the voters continue to support me, my present intent is to run, and I think there is much left to do.” State campaign finance records show Vance has about $220,000 in his coffers as of July.
Beating an incumbent district attorney in the primaries is usually extremely difficult. Vance’s predecessor Robert Morgenthau served for nine terms.
But Vance may be especially vulnerable, as evidenced by a challenger’s last-minute write-in campaign that racked up votes. Former Brooklyn prosecutor Marc Fliedner announced a general election challenge as a write-in candidate in October 2017 in the wake of reporting on Vance’s initial pass on a Weinstein case. Fliedner was fresh off a Democratic primary loss for Brooklyn DA and had no funding, name recognition or campaign infrastructure, but he took in about 10 percent of the vote for Manhattan DA.
Though Morgenthau might have been around One Hogan Place seemingly forever, Vance doesn’t hold illusions about his own political permanence.
“No officeholder should think that he or she is indispensable to the running of their agency,” Vance said. “I serve here obviously at the pleasure of the voters. I think I need to have the data and information to earn their vote. And, thus far, I think I have.”
Correction: This article has been changed to reflect the fact that the 2015 groping accusations against Harvey Weinstein would not necessarily have met the legal definition of sexual assault in New York.