‘Where are the 5s?” That’s the question from a senior law enforcement official, referring to detectives’ DD5s — reports expected to be filed of interviews with complainants, defendants and witnesses.
That issue concerns Nicholas DiGaudio, the former lead NYPD detective investigating movie mogul Harvey Weinstein for allegedly sexually assaulting three women. DiGaudio failed to file a DD5 of his interview with a friend/witness of one of the three women, and he might have filed an incomplete DD5 of his interview with a second.
His actions reveal how a detective’s selective approach can lead to slanted evidence and a possibly botched prosecution.
DiGaudio did not file a DD5 in his Feb. 2 interview with the unidentified witness who is a friend of Lucia Evans, one of three complainants against Weinstein. Evans told prosecutors he forced her to perform oral sex in his office in 2004. But the witness says Evans gave her a contradictory account, telling DiGaudio on Feb. 2 that Evans told her she agreed to perform oral sex in return for an offer of an acting job.
In a letter last month to Weinstein’s lawyer, Benjamin Brafman, Manhattan district attorney special counsel Joan Illuzzi-Orbon acknowledged DiGaudio’s failure to file a DD5 about the interview “prior to the indictment.”
Manhattan State Supreme Court Justice James Burke then threw out Evans’ charge against Weinstein.
Detectives Endowment Association president Mike Palladino said DiGaudio failed to file the DD5, but he said DiGaudio informed Illuzzi-Orbon of the substance of the interview in a phone conversation. But why didn’t DiGaudio file a DD5? “Where is your DD5 on a significant conversation?” asked the senior law enforcement official.
Last week, Illuzzi-Orbon wrote to Brafman about cellphone records of the second complainant and Weinstein, which DiGaudio told the complainant not to turn over to prosecutors. According to the letter, the complainant told DiGaudio she had personal messages she did not wish prosecutors to see and that he told her to delete them. “According to Complainant 2,” the letter read, “Detective DiGaudio then added, ‘We just won’t tell Joan.’ ”
Palladino said DiGaudio filed a DD5 of his interview with the second complainant. But he said he didn’t know whether the DD5 included DiGaudio’s telling her to delete the messages or the line, “We just won’t tell Joan.”