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Hear some of Harvey Weinstein's accusers
03:04 - Source: CNN
CNN  — 

A New York judge dismissed count six of Harvey Weinstein’s criminal indictment Thursday, which was a criminal sexual act in the first degree.

The count stems from charges brought forth against the disgraced movie producer in May and July by the Manhattan District Attorney’s Office.

A source familiar with the investigation told CNN at the time that the criminal sex act charge was from a case involving aspiring actress Lucia Evans, who alleged Weinstein forced her to perform oral sex on him in his Tribeca office in 2004. She first spoke out about the alleged incident to Ronan Farrow in the New Yorker last fall.

The reason that count was dropped today was due, in part, to a newly unsealed letter that prosecutor Joan Illuzzi-Orbon sent to defense counsel Benjamin Brafman in September.

It cites alleged inconsistencies in Evans’ story.

Although the letter does not specifically name Evans, Brafman named her in court, and her attorney, Carrie Goldberg, spoke to reporters after the hearing ended. Goldberg said that the decision “does not invalidate the truth of her (client’s) claims.”

According to the letter, when Evans first met Weinstein at a restaurant in the summer of 2004, she says she was accompanied by a friend. That friend was interviewed by detective Nicholas DiGaudio in February of 2018.

The friend allegedly said during that interview that Evans told her she had engaged in consensual contact with Weinstein: oral sex in exchange for a job.

The friend also told the detective she was contacted by The New Yorker and only told them “something inappropriate happened.”

According to the letter, Detective DiGaudio responded to the friend’s claims by saying that, going forward, “less is more,” and that the witness had no obligation to cooperate. He never went back to the DA with this information.

Evans’ friend subsequently contacted the district attorney’s office in August of 2018, after Weinstein was indicted, to reiterate that Evans had told her she willingly engaged with Weinstein.

Evans was again interviewed by the district attorney’s office in August 2018. She stated she “never consented to any form of sex with the defendant,” contradicting her friend’s account.

The District Attorney’s office additionally states in the letter that they interviewed Detective DiGaudio concerning the inconsistencies. He acknowledged speaking by phone with the friend and her attorney, along with failing to inform the DA’s office of the important details of that discussion. DiGaudio also denied telling the friend she did not have to come forward and that “less is more.”

The DA says they obtained a draft email from Evans to her now-husband recounting the incident with Weinstein. According to the letter, that account differs from what she told the DA. Evans says the inconsistencies come from her flawed memory, and that she never disclosed the details of the sexual assault to her husband.

Goldberg said the prosecution “jumped ship” and “ultimately she was caught between the middle of a feud between the NYPD and the DA’s office.”

Related: Harvey Weinstein is charged with rape and sex abuse in cases involving 2 women

Goldberg added that despite District Attorney Cy Vance not opposing the motion to dismiss the charge against Weinstein, her client’s claims remain and this “does speak to a system desperate in need of reform.”

“People always ask why don’t sexual assault survivors come forward, this is why. Today is why,” Goldberg said. Goldberg detailed how prosecutors used Evans for months and “put her through needless torture.”

The attorney said her client will continue her fight in other venues.

“Victims are becoming warriors and this is just the beginning,” she added.

Weinstein had previously pleaded not guilty to the six sex crimes he’s been charged with in New York, including two counts of rape. The charges are based on claims from three accusers.

Benjamin Brafman, Weinstein’s attorney, has filed a motion to dismiss the case and told reporters Thursday that he intends to refile that motion for the five remaining charges.

“What troubles me is that when you are vilified in the media, as has Mr. Weinstein, there is a rush to judgment, which is offensive to the concept of fairness and due process,” Brafman said. “There is a rush to arrest, there is pressure to arrest, and what we see is that happened in this case.”

Prosecutor Joan Illuzzi-Orbon told reporters she remains confident in the case against Weinstein.

“Nothing in this disclosure of count six impacts the strength of the case,” Illuzzi-Orbontold said. “We are moving full steam ahead.”

The next hearing in the case is scheduled for December 20.

CNN’s Jean Casarez, Tony Marco, Melanie Schuman, Brynn Gingras and Elizabeth Joseph contributed to this report.