October has not been kind to Cyrus Vance Jr., the district attorney of Manhattan. On the 4th, a ProPublica, WNYC, and New Yorker investigation revealed that Vance had dropped a criminal investigation into Ivanka Trump and Donald Trump Jr. after meeting with Trump family lawyer and noted stranger-threatener Marc Kasowitz. Three months after that meeting, Vance overruled his assistant prosecutors and dropped the case; over the next few months, Kasowitz donated and fundraised tens of thousands of dollars for Vance’s re-election campaign. Vance deflected this move by insisting to the press that there wasn’t enough evidence to continue the investigation into the Trumps, and pledged to give the money back.
Then, on October 5, before the dust from the New York Times’s bombshell report about sexual assault allegations against Harvey Weinstein had even begun to settle, International Business Times reported that Weinstein’s lawyer, David Boies, had donated $10,000 to Vance’s re-election campaign in 2015 after Vance decided not to investigate those same sexual assault allegations. (He showed up again in the New Yorker exposé on Weinstein, with sources confirming that Vance’s office dropped the case despite a glut of evidence.)
Vance is up for re-election next month, and until now he’s had an easy go of it. Early on he received broad support from both Democrats and Republicans, and he ran unopposed in the Democratic primary, which in Manhattan is as good as running unopposed in the general election. But all good things must come to an end: Although Vance is still likely to win a third term in November, he’s facing a media firestorm, a number of calls for his resignation, and, as of October 11, a real-life challenger.
Marc Fliedner, who lost the Democratic primary for Brooklyn D.A. earlier this year, re-entered the spotlight this week when he tossed his hat in the ring against Vance, as a write-in candidate. Fliedner worked in the Brooklyn D.A.’s office under Ken Thompson as a sex crimes prosecutor before leaving to start a private civil rights practice; after the news about Weinstein broke, he says, a number of lefty New Yorkers on Twitter drafted him to challenge Vance in the general election. He tells the Voice he’s “humbled” and “grateful” to have received so much support on social media and in local and national news outlets alike.
Fliedner calls Vance part of an entrenched, male-dominated “good old boys’ club” that includes Weinstein, Trump, and Brooklyn D.A. Eric Gonzalez, and says he’s running to show that people are fed up with a criminal justice system that harms women and people of color. With less than a month left before the election, he says, his outreach will mostly be limited to social media, but he hopes his campaign itself will show Vance that the Manhattan D.A.’s questionable decisions have not gone unnoticed by the public.
Life wasn’t supposed to be this hard for Vance, who started out at the D.A.’s office in the early 1980s as a protégé of the legendary Robert Morgenthau, eventually succeeding Morgenthau when he finally retired in 2009. Morgenthau, who served an unrivaled nine terms as D.A., anointed Vance his scion on his way to retirement (“Good lawyer, fair,” he said of Vance on Charlie Rose), which all but ensured Vance’s victory.
As Vance sailed toward re-election earlier this year, he enjoyed the same broad support he got in his last re-election bid in 2013. But a closer look at his record shows that the rot pointed out by Fliedner and others is a lot more widespread than just Weinstein and the Trumps. Although Vance purports to be more progressive than your average district attorney (he opposes the death penalty, for instance), he’s still failed the public in all the ways prosecutors usually do, pursuing harsh sentences for the indigent and the vulnerable while letting rich and powerful people off the hook.
Although Vance was criticized as inept in the early years of his first term for botching a number of high-profile cases — the Post accused him time and time again of being “soft” — he has spent much of his tenure as D.A. creating or upgrading in-house technology to aid in what he calls “smart prosecution.” The New York Times Magazine compared this approach to Moneyball, but it’s more like Minority Report: Prosecutors have access to robust databases of security camera footage and recordings of phone calls from Rikers, as well as a registry of thousands of repeat offenders and alleged gang members.
This suite of new technologies, combined with what Vance calls “extreme collaboration” with the police, has apparently driven the office to become even more surgical in its prosecution of low-level offenders, even as other jurisdictions have taken their focus off misdemeanors and nonviolent crimes. Vance’s office prosecuted more marijuana arrests last year than any other borough, for instance, while every candidate in this year’s Democratic primary for district attorney of Brooklyn said they would not prosecute any such arrests. Vance proudly cites as inspiration for his reforms the discredited “broken windows” policing techniques championed by his longtime buddy and two-time New York City police commissioner Bill Bratton.
Public defenders who work in Manhattan say attorneys in Vance’s office often seek charges that are harsher than is necessary or reasonable. The defenders, who spoke on background to avoid repercussions for their clients, describe attorneys who refuse to make plea offers even when defendants have extreme mitigating circumstances, and who often seek felony charges and jail time for individuals who have made honest mistakes or committed crimes out of need; it’s prosecutorial decisions like these that make Manhattan the borough that sends the most people to Rikers, even though it has a disproportionately low percentage of the city’s crime. Sometimes, these defenders say, Vance’s attorneys choose to continue prosecuting cases where there’s no strong basis of evidence out of deference to their supervisors, forcing defendants to return to court over and over before their cases are eventually dismissed on speedy trial grounds.
These defenders said Vance’s decision not to prosecute Weinstein even after reviewing a police recording of him accosting Ambra Gutierrez was “absurd” and “utterly shocking,” and noted that the office’s Sex Crimes Unit regularly prosecutes instances of subway groping even without a cooperative victim and no evidence other than police testimony. In Weinstein’s case, there was not only a victim making the allegation but also a recorded admission of wrongdoing by Weinstein. As for Vance’s claim that he didn’t prosecute because he couldn’t prove Weinstein guilty beyond reasonable doubt, one defender characterizes that as “a blatant lie,” especially considering that the threshold of evidence for such a crime is only probable cause.
The dismissal of Weinstein’s case fits the pattern of Vance’s checkered record in prosecuting the powerful. In the aftermath of the 2008 financial crisis, for instance, Vance had a chance to live up to Morgenthau’s reputation for prosecuting white-collar crime by going after Wall Street misconduct, of which there was a great deal. But the only bank he chose to pursue was Abacus Federal Savings, a tiny community operation run by Chinese immigrants. Vance held up Abacus as an exemplar of the financial misconduct that had triggered the Great Recession, parading nineteen of the bank’s employees into court on a literal chain gang as he pursued an indictment for eighty counts of mortgage fraud, his office’s first indictment of a bank since 1991. Abacus was found not guilty on all the counts in 2015 after spending more than $10 million over the course of the legal process.
At other times, Vance’s Major Economic Crimes Bureau has brought in major settlements by prosecuting crimes like art fraud and securities fraud. But the Manhattan D.A.’s apparent distaste for pursuing powerful people (especially when they donate to his campaign) and his office’s overly punitive approach to prosecuting low-income, low-level offenders speak volumes about Vance’s ideas of justice. Unless turnout is very, very low in November, he’s likely to continue running the show until 2021, but these recent scandals, added to Vance’s larger record as district attorney, show just how high the stakes are for Manhattan and beyond.
This article from the Village Voice Archive was posted on October 13, 2017