Powerful movie producer Harvey Weinstein was fired from his company this week after the New York Times published the accounts of women accusing him of sexual harassment and sexual assault. The Times bombshell unleashed a flood of stories about Weinstein’s alleged misconduct, and today The New Yorker published audio of Weinstein seemingly admitting to groping a model named Ambra Battilana Gutierrez in New York City a little more than two years ago.

Despite this evidence, the office of Manhattan DA Cyrus Vance, Jr. did not pursue the case against Weinstein. “In the end, prosecutors determined that the case would rest on her credibility versus his,” DNAinfo reported at the time, citing sources that claimed that Gutierrez had lied about her legal history in Italy. Tabloid reports noted that she was present at Silvio Berlusconi’s sex parties. “Gutierrez’s statements about her past complicated the case,” a source told the New Yorker.

Matthew Galluzzo, a criminal defense attorney who spent two years in the Manhattan DA’s Sex Crimes Unit, and nearly seven years as a prosecutor, told Gothamist that he believed the case stalled “because he’s Harvey Weinstein.”

"It seems like they have enough evidence to me, they have the testimony of the complainant, they have what amounted to a confession,” said Galluzzo, who worked under Robert Morgenthau. “That would normally be enough if he weren’t a celebrity or if he weren’t Harvey Weinstein, I think that makes a big difference to them…If he was a nobody and some woman said he did that, and the nobody says, ‘I won’t do it again,’ he’s getting cuffed, 99 percent.”

The recording, which the New Yorker report says was part of an NYPD sting operation, takes place at the Tribeca Grand Hotel, the day after Weinstein allegedly groped Gutierrez’s breasts. As Weinstein is begging Gutierrez to come into his room, she refuses, and asks why he assaulted her.

“Oh, please, I’m sorry, just come on in,” Weinstein replies. “I’m used to that. Come on. Please.”

A surprised Gutierrez says, “You’re used to that?”

“Yes,” Weinstein says, as he continued to beg her to stop “embarrassing” him in the luxury hotel. “I won’t do it again.”

According to the New Yorker, after Vance declined to prosecute Weinstein for misdemeanor sexual abuse in the third degree, the movie executive offered Gutierrez a payment in exchange for signing a non-disclosure agreement—a pattern of behavior that the Times detailed in their story about Weinstein.

"I think that after the Strauss-Kahn incident, that happened at the beginning of Vance's administration, that he is very hesitant to go forward on high profile sex crimes cases,” says Jeffrey Chabrowe, a criminal defense attorney who spent seven years as a prosecutor in the Manhattan DA’s office under Morgenthau.

“Let’s say he was charged with a felony, he’d go to jail, but in this case he’s charged with a misdemeanor, so [for Weinstein] why not go to trial? Which is potentially something that could be a big loss to them,” Chabrowe says. “It’s going forward on a misdemeanor in a situation where there’s theater, there’s so much bad press, and you’re going up against a person who is powerful and vindictive. You’re gonna think twice or thrice.”

Chabrowe says that as damning as the tape sounds, “the way sex crimes are investigated at the Manhattan DA’s office, her credibility would have had a lot more bearing on what they would have prosecuted more than what Weinstein said on tape.”

Galluzzo, the former sex crimes prosecutor, agrees that “it sounds like they really investigated the complainant, and that's why they decided not to prosecute.”

“What’s really kind of upsetting and disappointing about this is—what about his history? Whatever excuse they want to say about her and her credibility, there are ten times more bad things to say about Harvey."

Chief Assistant DA Karen Friedman-Agnifilo for Vance’s office said in a statement, “If we could have prosecuted Harvey Weinstein for the conduct that occurred in 2015, we would have. Mr. Weinstein’s pattern of mistreating women, as recounted in recent reports, is disgraceful and shocks the conscience. Any individual who feels that she may have been the victim of a crime by this person in Manhattan is strongly encouraged to contact our Office’s Sex Crimes Hotline at (212) 335-9373.”

The rest of Friedman-Agnifilo’s statement seems to put some of the blame on the NYPD:

After the complaint was made in 2015, the NYPD - without our knowledge or input - arranged a controlled call and meeting between the complainant and Mr. Weinstein. The seasoned prosecutors in our Sex Crimes Unit were not afforded the opportunity before the meeting to counsel investigators on what was necessary to capture in order to prove a misdemeanor sex crime. While the recording is horrifying to listen to, what emerged from the audio was insufficient to prove a crime under New York law, which requires prosecutors to establish criminal intent. Subsequent investigative steps undertaken in order to establish intent were not successful. This, coupled with other proof issues, meant that there was no choice but to conclude the investigation without criminal charges.

"They're incorrect," Julie Rendelman, a former Brooklyn prosecutor of 20 years who worked on sex crimes cases and now practices criminal defense, said of Friedman-Agnifilo's statement that the audio was insufficient to prove a crime.

"You can make out a case without that audio. All you need is her saying that it happened, that’s the way the law works. You have a witness who says, 'I was assaulted' and they fit the description, and there is enough license to go forward."

Rendelman added that as a DA, "you always have to be careful, you always have to weigh the possibility that someone is going after something other than a criminal case...But the fact that they’re now saying that the audio isn’t good enough—that doesn’t rise to the level on why they didn’t go forward."

The Daily News recently reported that Harvey Weinstein's personal attorney, David Boies, contributed $10,000 to Vance's campaign several months after the DA declined to prosecute the case. Vance's office pointed out that Boies did not represent Weinstein in the groping allegations, and has strenuously denied that campaign donations have any effect on his work.

"How many people did [Weinstein] sexually harass after this?" Galluzzo asks. "This is the consequence after the action—when you don't have the guts to do it, more people suffer."

A spokesperson for Weinstein, Sallie Hofmeister, declined to comment.

Hofmeister gave this statement to The New Yorker in response to the article:

Any allegations of non-consensual sex are unequivocally denied by Mr. Weinstein. Mr. Weinstein has further confirmed that there were never any acts of retaliation against any women for refusing his advances. Mr. Weinstein obviously can’t speak to anonymous allegations, but with respect to any women who have made allegations on the record, Mr. Weinstein believes that all of these relationships were consensual.

Update: The NYPD released a statement about the investigation, "The case was carried out by experienced detectives and supervisors from NYPD's Special Victims Unit. The detectives used well established investigative techniques. The recorded conversation with the subject corroborates the acts that were the basis for the victim's complaint to the police a day earlier. This follow-up recorded conversation was just one aspect of the case against the subject. This evidence, along with other statements and timeline information was presented to the office of the Manhattan District Attorney."