Reversal of Misfortune

The Wrong Charges, the Right Decision

It seems beyond dispute that Justin A. Volpe, the police officer who pleaded guilty to actually torturing Abner Louima, did not act alone. At least one of the defendants whose convictions were reversed last week by a unanimous Court of Appeals probably helped Volpe assault Louima in the police station bathroom. The problem is we don't know which of these officers was the accomplice. It also seems clear, as the Court of Appeals itself emphasized, that the police officers whose convictions for obstructing a grand jury were also reversed did in fact conspire to mislead both state and federal investigators. Their convictions were reversed because prosecutors, essentially, charged them with the wrong crime.

So there should be no cheering these alleged victims of injustice, no grand parades welcoming them home, and certainly no quick offers by the NYPD to take them back. Let there be no mistake about it: At least some of these guys are very bad cops who were involved either in helping to perpetrate one of the worst abuses ever reported by a victim of police torture or in covering up these abuses.

Nevertheless, the decision by the Court of Appeals was certainly correct in relation to Charles Schwarz and probably correct with regard to officers Thomas Bruder and Thomas Wiese. The court reversed Schwarz's conviction on the grounds that his trial lawyer had an unwaivable conflict of interest. In other words, he was serving two masters at the same time. One of them was the defendant. The other was the Policemen's Benevolent Association, with which he had a long-term retainer agreement. Because of his loyalty to the PBA, Schwarz's trial lawyer, Stephen C. Worth, apparently refused to call Volpe as a witness even though Volpe's lawyer told Worth that Volpe, who had already pleaded guilty, "can take your guy out of the bathroom." The lawyer told Worth that it was an officer other than Schwarz who had taken Louima to the bathroom. Despite this extraordinary offer, Worth persisted in arguing to the jury that Volpe had acted alone—a defense that the trial judge later characterized as "fanciful," which is a judicial euphemism for ridiculous. By offering this fanciful "lone deranger" defense for Schwarz, he may have helped protect the PBA from a civil conspiracy judgment. Although Schwarz waived any conflict of interest after the prosecutor raised it, the Court of Appeals ruled that a conflict that is as obvious and potentially prejudicial as this one was could not be waived. Thus Schwarz, who was sent to prison pending the outcome of his appeal, will now be subject to another trial, at which he will probably be represented by the excellent lawyer who secured the reversal of his conviction, Ronald P. Fischetti. If there is a new trial, Schwarz's lawyer will almost certainly try to pin the rap on another policeman, by calling Volpe and having him testify as to who else was with him in the bathroom. If he names another policeman, it is possible that that policeman could be prosecuted, if the statute of limitations has not run out. It will not be easy for Volpe, who is serving a long prison term, to finger a fellow police officer, but he may have to do so to save Schwarz.

Unless Bruder or Wiese is fingered by Volpe and prosecuted, they are probably off the hook, since the Court of Appeals found insufficient evidence to support their convictions.

It is possible, at least in theory, for either the federal or state government to indict them for misleading or lying to policemen or investigators, but there might be some double jeopardy constraints on such an action.

Some close observers of the court system worry that certain defendants get more breaks than others in the appellate courts. I have seen numerous convictions affirmed by the appellate courts that have raised more compelling issues than this one. Some appellate judges, it seems, start with a smell test. If their nose suggests to them that an innocent person might have been convicted, they will lean over backward to find a technical reason for reversal. But if their nose persuades them that the defendant is clearly guilty, they will stretch the law, distort the facts, and do legal contortions to affirm the conviction—usually on the ground that any error was "harmless." In this case, the conviction of Schwarz, in the face of Volpe's offer to finger the real accomplice, did not pass the smell test. There was a real possibility that the wrong man had been convicted. It is now, of course, possible—indeed likely—that the right man may never be convicted and that an accessory to a vicious torture may go free. But our legal system is committed to the proposition that it is better for 10 guilty to go free than for one innocent to be wrongly convicted. That salutary rule applies to policemen who torture innocent civilians as much as it does to less serious cases.

The decision of the Court of Appeals should not let the city and its police department off the hook for tolerating the kind of police culture that would permit an outrageous crime like this to have been committed. Many suspect that the Louima case was the tip of a truncheon regularly wielded against civilians, especially people of color, for disrespecting or hassling police. A huge civil settlement in the case already made by New York City should serve as a warning that the days of cops getting away with unjustified violence are quickly coming to an end. Tort lawyers, however much despised by some, serve as an important check and balance against police excesses.

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