Joe Dwinell: Kevin Spacey case unravels, criminal charge dropped

Boston Herald |

--A sexual assault charge against Academy Award-winning actor Kevin Spacey has been tossed less than two weeks after a civil suit was dropped and the accuser refused to testify when questioned about his lost smartphone.

In a one-paragraph filing, Cape and Islands District Attorney Michael O'Keefe said Wednesday "the unavailability of the complaining witness" compelled prosecutors to end the case.

Spacey, 59, was accused by the son of former WCVB anchor Heather Unruh of putting his hand down the then-18-year-old's pants at an upscale bar on Nantucket in . He faced one count of indecent assault and battery.

The alleged victim pleaded the Fifth Amendment earlier this month, prompting Spacey's lawyer to call for dismissal. It also comes after a civil suit was dropped by Unruh and her son six days after it was filed.

Mitchell Garabedian, the attorney for Unruh's son, said in a statement Wednesday, "My client and his family have shown an enormous amount of courage under difficult circumstances."

O'Keefe added in a statement that if Unruh's son continued to "invoke his Fifth Amendment right, the case would not be able to go forward. After a further period of reflection privately with his lawyer, the complaining witness elected not to waive his right under the Fifth Amendment."

O'Keefe then laid out a series of complicated steps -- including a Superior Court indictment -- that he said would be jeopardized by the accuser refusing to testify under his Fifth Amendment rights.

"In a case where the credibility of the witness is paramount," O'Keefe said, the refusal to testify "makes the further prosecution untenable."

The case took a dramatic turn last week when the defendant's family admitted a smartphone tied to the case had been lost.

That admission, said former federal prosecutor Michael Kendall, poisoned the case.

"It's about time they made that decision. With the cell phone missing, it smelled so bad," said Kendall, a partner at Goodwin Procter in Boston who is not involved in the case.

Kendall added that O'Keefe's decision to "nolle prosequi" the matter -- a legal move that does leave the door open to refile the charges -- doesn't necessarily indicate O'Keefe will try to bring it back.

"It's a common way to end a case," Kendall said, adding too many questions remain swirling around the lost smartphone and what may have been deleted.

Unruh has admitted she deleted images of "frat boy activities" on her son's phone before handing it over to state police.

Judge Thomas Barrett had ordered Unruh's son to turn over his cell phone. Unruh, her husband and her son all testified earlier this month that they have no idea where the phone is now.

Spacey, known for films such as "The Usual Suspects" and "Se7en" and the Netflix hit "House of Cards," was accused of groping the teenager after his shift as a busboy at the Club Car bar. Unruh's son told police that Spacey got him drunk and then stuck his hand down the then-teen's pants for several minutes.

More than a dozen other people, many in the entertainment business, have accused Spacey of sexual impropriety, but the Nantucket criminal charge was the only one filed against the actor. British authorities also questioned Spacey in May over six sexual-misconduct allegations from the past two decades.

O'Keefe added he met with Unruh and her son on Sunday in his office to go over the case and possibly not be able "to go forward."

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