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Judge: Kevin Spacey groping case 'may well be dismissed' as accuser pleads the 5th

  • July 09, 2019

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A lawyer for Kevin Spacey is accusing prosecutors of withholding information that could help the actor’s case. Attorney Alan Jackson accused prosecutors of falsely denying they had access to information about the accuser’s cellphone. (June 3)
AP, AP

NANTUCKET, Mass. — The criminal groping case against Kevin Spacey, back in court here on Monday for a pretrial hearing on a missing cellphone believed critical to both sides, was thrown into confusion when the accuser suddenly pleaded his 5th Amendment right against self-incrimination.

That led Judge Thomas Barrett to immediately strike the accuser’s testimony at Monday’s hearing where he appeared for the first time in public. William Little, 21, and his family were ordered by Barrett to be there to testify about what happened to his cellphone, missing for months.

Spacey, facing a felony indecent assault charge, was not required to be there. After the accuser’s testimony was struck, Spacey’s legal team, led by Los Angeles defense attorney Alan Jackson, demanded the case against Spacey be dismissed immediately.

“This entire case is completely compromised,” Jackson told the judge. “This case needs to be dismissed, and it needs to be dismissed today.”

The hearing concluded without a decision on whether the case would be dismissed. Barrett scheduled the next hearing for July 31.

Barrett said the case “may well be dismissed” if the accuser refuses to testify. “The case revolves around this individual, and without him the Commonwealth will have a tough row to hoe.”

Jackson told reporters later he plans to file the motion to dismiss the case later this month.

Little’s invoking the 5th Amendment came immediately after a recess. Just before that recess, Jackson was questioning the accuser about whether he or anyone else had deleted text messages from his cellphone before handing it over to police.

The accuser denied deleting anything from his phone. Then Jackson asked him whether he’s aware that destroying evidence is a felony under Massachusetts law.

“I am now,” the accuser said.

Jackson had asked him to look at screenshots from his phone that he turned over to police. The accuser acknowledged that they didn’t contain all the text messages between him and his girlfriend from the night of the alleged assault – a key reason why the defense wants access to the missing cellphone. 

Jackson also argued that in addition to the deleted texts, a group text with seven friends of the accuser was not turned over to investigators. 

“We know that somebody deleted it,” Jackson said, suggesting it was the accuser’s mother, who told police she had deleted her son’s “frat-boy” texts from the phone before turning it over to police. 

“Will Little is the central witness of this entire case,” Jackson said. “If she’s gone through and scrubbed that phone to make him look like a little choir boy,” then she’s committed a crime and could be prosecuted. “That’s not fair to us.”

The accuser was accompanied by his father, Nick Little, and his mother, former Boston TV anchor Heather Unruh, both of whom testified.

Taking the stand to answer questions, the accuser denied making deletions. Dressed in a blue blazer, pink shirt and khaki pants, his face slightly red perhaps from a sunburn, the accuser said he texted with his then-girlfriend and to a group of seven friends on the night of the alleged assault, July 7, 2016. 

He acknowledged not reporting the alleged crime until a year and three months after the incident. He said he could not recall how many times he talked about the assault with his mother during that period, but said it would have been likely more than five. 

“I’m really not sure,” he said. “Like I said earlier, it was a long time ago.” He was composed throughout his testimony.

When he was asked by Jackson whether he “in any way” altered any of the text messages about the alleged assault prior to informing law enforcement about it, the accuser responded, “I provided what I had available to me” at the time.

He said a “half a screen shot” is missing from the screenshot texts from the phone but that he did not delete anything. 

Jackson said, “Text messages don’t just disappear from a phone.”

The accuser responded: “Unless there was some kind of error with the phone.” He added, “I have no knowledge of any deletions on my phone.”

Mitchell Garabedian, the accuser’s attorney, told the judge the cellphone has still not been located but that his team collected data from the accuser’s MacBook computer which has information from his phone on a thumb drive.

“Your honor, we could not locate the phone,” he said. “My clients do not recall ever receiving the phone.

“Are there any deletions on it? I don’t know,” Garabedian said. 

He said the defense is concerned about two videos, one of which he tracked down. He called that video “irrelevant to the case.” 

A prosecutor told the judge there was a report generated to the accuser’s family and the data was handed to Spacey’s legal team in December. He said there’s no protocol for turning back evidence – a point Spacey’s team rejected. 

“Of course, there’s a protocol that should be in place,” Jackson said. “And if there’s not one, we end up with a disaster like this.”

“Guess who loses because of this?” Jackson said. “That would be us because we are entitled to the phone.”

“At some point, the phone was turned back over to somebody,” Judge Barrett said.

Unruh took the stand, waiving her 5th Amendment rights. “I have nothing but the truth to tell,” she said to the judge, starting to cry. 

She denied she had the phone thrown away. “Absolutely not. No wants that phone more than we did,” she said. 

“I beg to differ, mam,” Jackson said. 

She said she has “no idea where the phone is.”

Unruh acknowledged seeing both sets of her son’s conversations – the texts with his girlfriend and group text with friends – before they were turned over to law enforcement. She denied deleting any of the texts in the two exchanges.

Jackson also had Unruh look at photos of her son drinking (he was underage at the time) that she had deleted. He said the photos didn’t fit with the narrative the family told police about Spacey’s interaction with her son. 

“That was not my motivation,” she said in response. “I was a mother looking through my son’s phone for the first time and there were things that concerned me. It was not relevant to the case.”

“Not to you,” Jackson said, but added that she doesn’t get to decide that.

The accuser’s father, Nick Little, took the stand on Monday already visibly frustrated, and became increasingly irritated by Jackson’s questions, prompting the judge to threaten to hold him in contempt multiple times. 

Nick Little admitted he and his wife looked at the text messages that his son sent to his girlfriend. “I looked at the message that said, ‘Help me.’ Does that help you?” I think this has gone way too far,” Nick Little said.

At one point, he started talking about the alleged assault, prompting the judge to say, “This is not about that at this moment. It’s about what you know. You continue to go beyond the limits of the question,” the judge said, raising his voice. 

Spacey faces a felony indecent assault charge that he groped Little, then an 18-year-old busboy in a bar on the Massachusetts resort island in July 2016.

The accuser’s cellphone, which he used to send texts and videos to his girlfriend and to friends during the alleged three-minute assault, could be used by either the prosecution as potential evidence bolstering the accuser’s story, or by the defense, which believes there are exculpatory texts on the phone that would exonerate him.

But the cellphone has somehow disappeared or been misplaced, and there is a dispute about who last had custody of it, the police or the accuser’s family.

According to court documents, the police say they gave the cellphone to the accuser’s father. Garabedian said they don’t remember that and failed to find the phone after looking for it. He said the family was trying to find backup copies of its contents.

State Police Trooper Gerald Donovan, who beginning in November 2017 investigated the sexual assault allegations after it was reported by the family, said that when he wanted to access information from the cellphone, Unruh, the accuser’s mother, provided it as well as a password to access it.

Jackson hammered this point, saying that it means Unruh had access to do what she pleased with the phone before it was given to law enforcement. 

“And she could delete things from the phone if she wanted,” Jackson said.

Donovan replied, “She could do anything she wanted.”

Donovan said the mother told him she deleted “frat boy activities” that were on the phone. Jackson asked why Donovan didn’t tell the family to not delete any material from the phone. 

“In retrospect, do you think that would have been a wise decision?” Jackson said. 

“Sitting here now? Sure,” Donovan said. 

Jackson asked Donovan if he thought Unruh would “fib a little bit” about the contents of the phone. 

“I didn’t think Heather Unruh would be lying to me, so yes, I did take her by her word.”

Jackson asked the accuser if his mother ever told him to “get rid of any (text messages)?”

“I don’t remember,”  he responded. 

Jackson asked it in a different way – whether he followed any instructions to delete any texts from his phone.

“Had she done that, I would have acted on my own free will, if that’s what you’re asking,” the accuser said.

Barrett ordered the hearing, already delayed once due to the missing phone, to discuss what happens next in the case if the cellphone is not found.

If there is no cellphone, a trial of Spacey then becomes more of a he said-he said case, because there is no video surveillance tape from the bar showing what happened, nor any other witnesses who have come forward to say they saw Spacey grope the accuser.

The case hit headlines in November 2017 after Unruh called a press conference in Boston with Garabedian to accuse Spacey of molesting her son on Nantucket.

It was more than a year after the encounter at the Nantucket bar but immediately after Spacey became one of the first Hollywood men to be caught up in the surge of #MeToo allegations by women and men against powerful entertainment figures. 

So far, this is the only criminal case pending against Spacey, although he remains under investigation in Los Angeles and in London. In May British police interviewed Spacey in the U.S. about six claims of sexual assault and assault against the former “House of Cards” star, who ran London’s Old Vic Theatre between 2004 and 2015.

After more than a year of inquiries by local and state police on Nantucket, Cape Islands District Attorney Michael O’Keefe announced that Spacey would be charged with one felony indecent assault charge. He was arraigned in January 2019.

Ever since, prosecutors and defense lawyers have been arguing at hearings and in court documents over discovery, leading to the current impasse over the cellphone matter.

Meanwhile, the accuser and his family first filed – and on Friday abruptly dropped – a civil suit against Spacey, seeking unspecified damages for “severe and permanent mental distress and emotional injuries” arising from the alleged assault at issue in the criminal case.

Garabedian said in court documents the decision to drop the suit was “voluntary” and permanent. He did not explain why it was dropped just a week after it was filed. 

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