Defense preparations for Kevin Spacey’s sexual assault trial have focused on obtaining the cellphone a young man was carrying the night he said Mr. Spacey fondled him in a Nantucket restaurant in 2016.
But the accuser’s lawyer said in a filing in Nantucket District Court on Wednesday that the phone, which the defense claims may contain evidence supporting Spacey’s innocence, is lost.
A judge had ordered the phone be given to the defense for forensic examination, but the lawyer, Mitchell Garabedian, wrote in a court document that the accuser does not recall having seen the phone since around December 2017, when it was turned over to the police. According to Mr. Garabedian, the police said the accuser’s father later retrieved the phone, but the father has “no memory” of having received it.
The accuser and his family “have searched all the places where such a phone may have been stored,” Mr. Garabedian wrote. “They have not found the phone.”
Because the phone is missing, the judge postponed a court hearing planned for Friday, June 21, to July 8. If the phone is not turned over by then, the judge said, the accuser will be asked to testify about its whereabouts. Mr. Garabedian, who declined to comment beyond his filing, wrote that the family planned to have a “digital forensic expert” search for backups of the phone’s contents.
R. Michael Cassidy, a law professor at Boston College, said that the phone’s disappearance could have significant consequences for the prosecution if the judge determines that officials associated with the case were at fault. If the judge were to determine that officials had deliberately disposed of the phone, he might dismiss the case — which Professor Cassidy said was unlikely — or he might inform the jury that it could hold the phone’s disappearance against the prosecution when considering the evidence.
A spokeswoman from the Cape and Islands district attorney’s office declined to comment, saying that the case “will be prosecuted in the courtroom, not the media.”
In 2016, the accuser was an 18-year-old busboy working at the Club Car, a restaurant and bar in Nantucket. More than a year later, he told investigators that he had been drinking with Mr. Spacey after a shift when Mr. Spacey put his left hand on his thigh and then unzipped his pants. The accuser said Mr. Spacey rubbed his penis for about three minutes.
The young man’s mother, Heather Unruh, a former television news anchor in Boston, said at a news conference that Mr. Spacey had sexually assaulted her son, and Mr. Spacey was eventually charged with indecent assault and battery.
The accuser’s girlfriend told the authorities that he had sent her a Snapchat video showing Mr. Spacey “touching the front” of his pants, by his crotch.
Mr. Spacey, 59, has pleaded not guilty and his defense lawyer has argued that the accuser welcomed the “alleged advances” because he wanted a “story” to tell. Mr. Spacey’s lawyer, Alan Jackson, has said in court filings that investigative records suggested that the accuser had deleted text messages that could shed light on what happened that night. The judge granted Mr. Jackson’s request to obtain the phone, but denied his request for access to Ms. Unruh’s phone records because she was not a direct witness to the events.
Mr. Jackson did not respond to requests for comment on Wednesday afternoon.
Mr. Spacey’s professional life foundered after a series of sexual misconduct allegations starting in 2017, when the actor Anthony Rapp said that Mr. Spacey had sexually assaulted him in 1986, when Mr. Rapp was 14. Mr. Spacey has not been charged in that case.
The trial in the Massachusetts case is expected to take place in the fall.