Chris Francescani/ABC News(NEW YORK) — Three years to the day since a boozy encounter in a summer resort bar, a young man who has accused actor Kevin Spacey of felony sexual assault that night testified in a Nantucket courtroom for the first time on Monday, acknowledging that he did not report the alleged assault to police for 15 months, rather than the three months prosecutors have been contending since filing charges against the actor in January.
The lead investigator in the case testified Monday under questioning from Spacey’s defense attorney that the one-year difference was the result of a “typo.”
A spokeswoman for the Cape and Islands District Attorney’s office did not immediately respond to a request for comment from ABC News on the investigator’s testimony.
After a series of significant blows to the prosecution’s case against Spacey during the daylong hearing, the presiding judge noted that it was unclear whether the case would “continue or collapse.”
The accuser — who is not being named because he said he was the victim of a sexual assault — arrived in the courtroom wearing khaki pants, a blue blazer and a pink shirt that matched his mother’s blouse, and sat in silence waiting for the Spacey case to be called, tapping his right foot and flanked on either side by his father and mother, Heather Unruh, a former New England television anchor at ABC affiliate WCVB in Boston.
The lead investigator in the case also acknowledged for the first time Monday that he did not advise the accuser or his mother to preserve the contents of the phone for evidence, and that he took Unruh at her word when she said some “frat boy activities” she deleted from her son’s phone before turning it over to police were not relevant to the criminal case against Spacey.
“If she had said I deleted things related to this investigation, that would have been different story,” Massachusetts State Police trooper Gerald Donovan testified under questioning from Spacey defense attorney Alan Jackson. “I didn’t think that Heather Unruh would be lying to me, so yes, I did take her at her word.”
Donovan also testified that he did not make a record of the fact that Unruh had told him when she turned over the phone to him that she had deleted material from it until just last month — nearly three years after the alleged incident.
Meanwhile, a civil attorney for the accuser told Judge Thomas Barrett that the phone authorities apparently returned to the alleged victim’s family has been irretrievably lost.
“We could not locate the phone,” attorney Mitchell Garabedian told the judge, before going on to say that the accuser and his parents do not recall ever receiving the phone back from police.
No receipt was issued, Donovan testified.
“Unfortunately I was remiss and I didn’t have them sign for a receipt,” he said from the witness stand.
Jackson contended that text messages and other data exculpatory to his client were deleted from the phone, and without the actual device, he could not complete a forensic examination of the device to recover material deleted from the phone.
“The government can’t point to any documentation that follows or tracks that phone and now that it’s missing it’s on them,” he told Barrett.
“They’re pointing fingers at each other, there’s no receipt or documentation and guess who loses? Us,” Jackson said, referring to his client and defense team. “Where is the actual phone? That’s what we want that’s what we’re entitled to and we still don’t have it.”
Garabedian also told Barrett that a civil lawsuit against Spacey over the incident was filed last month and dropped last week because the accuser is emotionally overwhelmed.
“There was a civil suit filed, but because of the emotional rollercoaster my client is on, the civil suit is dismissed,” he said. “He only wanted one roller coaster ride at a time.”
Yet the civil lawsuit was dismissed “with prejudice,” meaning it can’t be refiled. Garabedian declined during a break in the hearing to explain his comments in court.
Authorities launched an investigation into the former “House of Cards” actor after the young man contacted them by phone in October 2017 and alleged that Spacey plied him with beer and whiskey in July 2016 after meeting him at the Club Car bar and restaurant in Nantucket, where he had worked that summer as a busboy, and sexually assaulted him.
In a subsequent face-to-face interview with detectives, police say the young man told them he hung around the bar after he finished work on July 7, 2016, talked to Spacey and got an autograph from the actor for himself and his girlfriend.
In the fall of 2017, a week after her son first reported the alleged incident to police, Unruh held a press conference to allege that Spacey had forcibly stuck his hand down her then-18-year-old son’s pants and groped his genitals, tearfully calling the actor a “sexual predator.”
The alleged victim, who told police he lied to Spacey about his age, saying he was a 23-year-old college student at Wake Forest University, also told investigators he “had at least four or five beers before Spacey allegedly suggested that they should switch to whiskey,” according to court records.
Spacey, according to the complaint, allegedly told the busboy, “Let’s get drunk.”
The alleged victim told investigators “things started to get a little fuzzy when he and Spacey went over to the piano” at the Club Car, according to the criminal complaint in the case. At one point during the night, he and Spacey were near the bar’s piano when he alleges that Spacey started rubbing his thigh and then unzipped the victim’s pants and began groping his genitals.
The busboy told detectives that “he wasn’t sure if Spacey went into his pants through the open zipper” or if the actor groped his genitals over his pants and boxer shorts.
The alleged victim said while Spacey was touching him, he was texting and communicating with his girlfriend on Snapchat and sent her Snapchat video of Spacey groping him, according to the complaint. He alleged the inappropriate touching occurred for about three minutes, the complaint reads. Those texts and videos have been a key focus of previous hearings in the case.
After being questioned by Jackson on the witness stand about whether he was aware that it is against the law to delete potentially exculpatory data from the phone, the case took a recess and the accuser informed the judge he was going to exercise his Fifth Amendment right against self-incrimination by declining further testimony.
Barrett noted that his testimony would be stricken from the record as a result. Jackson sought an immediate dismissal of the charge against Spacey.
“This entire case is completely compromised” by the accuser’s decision to take the Fifth, he said. “He’s the sole witness than can establish the circumstances of his allegations.”
Barrett declined to immediately dismiss the charge after an assistant district attorney asked for a week to confer with his office, but acknowledged that “without him, the Commonwealth will have a tough road to hoe.”
He said it remained unclear whether the case would “continue or collapse” without the testimony of the accuser himself.
The accuser’s mother is currently testifying about what she deleted from his phone before turning it over to police.
This is a developing story. Please check back for updates.
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