Actor Kevin Spacey has been charged with a felony count of indecent assault and battery in Nantucket, Massachusetts. He is accused of groping a then-18-year-old bus boy at a restaurant where the young man worked in 2016. Spacey has been accused of multiple allegations of sexual misconduct, but this is the only one that has yet resulted in criminal charges. The charges were only filed after publicity, including press conferences by the alleged victim and his mother, who is a former news anchor on Boston TV. The case is a problematic one, as the accuser lied about his age, returned to accept several drinks Spacey bought him, and even traded phone numbers with Spacey before the alleged unwanted advance. Prosecutors will have a very difficult time proving the charge beyond a reasonable doubt, a point that has been well explained elsewhere.
I write today to discuss an action that Spacey’s defense lawyers took this week that I think is clever. They filed a motion to ask the court to order preservation of records, specifically texts and other digital correspondence from the accuser in the case. Initially, I was surprised because a motion to preserve doesn’t have much effect on a criminal case: the government is bound to not only preserve evidence, but to turn it over to the defense in the discovery process. They even have to turn over evidence that is helpful to the defense, known as Brady material. So why would they bother filing such a motion.
Then, reading about the motion on CNN.com, it occurred to me that the thrust of the article was about the defense argument being put forth by the defense attorneys. The article lays out the arguments of the defense, then the State, and circles back around to reiterate the ‘highlights’ of the Defense motion. While the motion claims its primary purpose is to preserve the evidence, the real purpose of the motion was twofold: to rebut the filings of the State and start sharing facts positive to the defense in a public forum, and also to shift the discussion away from Spacey’s arraignment. The arraignment dominated the news cycle, but the most recent story, at least at CNN.com, counters the allegations and makes a cogent defense argument to the general public. A clever gambit by a defense team that is helping their client in the public forum as well as the legal forum.