By Jared Chausow
By Katie Toth
By Elizabeth Flock
By Albert Samaha
By Anna Merlan
By Jon Campbell
By Jon Campbell
By Albert Samaha
At Schwarz's sentencing, the respected U.S. District Court Judge Eugene Nickerson defined Schwarz's "active role in the offense." Having been ordered to take Louima to a holding cell, Nickerson wrote, "Schwarz took him instead in the direction of the bathroom, with Louima's pants (and underpants) below his knees. Once inside, Schwarz put his foot on Louima's mouth to silence him when he cried out after Justin Volpe kicked him in the groin, and then lifted him by the handcuffs and held him in position while Volpe sodomized him."
Even the appeals courtwhose reversals have been celebrated in tabloid banner headlines and full-page pictorials for two weeksfound the evidence "plainly sufficient" that Schwarz and his two fellow finest Thomas Wiese and Thomas Bruder "agreed to impede" the federal probe by "corroborating a false version of what occurred."
The only reason the court overturned the obstruction conviction was because the government had failed to prove that the three officers expressly conspired to mislead a grand jury rather than simply duping state and federal investigators. The only reason it reversed the assault findings was that Schwarz was not "a rational man" when he insisted, despite Nickerson's warnings, on keeping a Policeman's Benevolent Association attorney with a supposedly paralyzing conflict of interest. Yet one upside-down story after another now extols his "innocence."
Ron Fischetti, Schwarz's attorney, says his client has "no intention" of suing or filing a complaint with the disciplinary committee against Stephen Worth, the lawyer who supposedly let his $10 million contract with the PBA compromise his representation of Schwarz. The PBA certainly hasn't terminated its contract with Worth because he defended their poster boy so miserably. And quotable wife Andra Schwarz, who gets better press than all the 9-11 widows combined, hasn't said a critical word about Worth's failure to present the "alternative plausible defense" that, according to the appeals judges, might have kept her husband out of jail the last two and a half years.
When the government raised Worth's conflicts and moved to disqualify him, Schwarz swore in an affidavit that he and Worth "agree about the course my defense to these charges will take." Judge Nickerson held a hearing on the matter, urging Schwarz to "think seriously" about changing lawyers, even naming an independent counsel to advise Schwarz. Yet Schwarz, "fully aware of the conflicts," told Nickerson he still wanted Worth, adding: "I also understand that there are no do-overs with this case. Once I make my decision, that's it."
Had Nickerson disqualified Worth anyway, Schwarz's appeal no doubt would have revolved (as did another recent PBA case) around his Sixth Amendment right to counsel. Indeed, when Worth's predecessor at the PBA, James Lysaght, was convicted on federal racketeering charges in 1998, that's precisely what he did. Forced to shed his lawyer at trial because of conflicts the court said were "ubiquitous," Lysaght argued unsuccessfully on appeal that the district judge had "abused his discretion."
Yet this transparent whipsaw device has now, according to the Daily News front-page line, "CLEARED" Schwarz. Never mind that four witnesses, three of them cops with no reason to lie, put Schwarz in or near the bathroom. Never mind that the real hero cops whose photos never make the dailies, Eric Turetzky and Mark Schofield, came forward voluntarily without counsel or any request for immunity, and were believed by two juries. Never mind that when Turetzky told investigators about Volpe and Schwarz right after the assault, he was confronted as he left the interview by his PBA delegate demanding to know what he was "doing in there." Never mind that Schofield's boss tried to talk him out of cooperating, but that he testified that Schwarz and Louima passed within two or three feet of him on the way to the bathroom.
The Schwarz cheerleaders have made much of the fact that Louima could not identify him as the second cop in the bathroom. But they ignore the fact that Louima was certain the second cop was "the driver" who brought him to the precinct, and even the appeals court detailed five ways in which "the government offered evidence to support a finding that Louima's testimony about the driver referred to Schwarz." Louima, for example, said it was the driver who searched him at the precinct, and Desk Sergeant Jeffrey Fallon, as well as Turetzky, testified that it was Schwarz who searched him.
The Schwarz cheerleaders also won't acknowledge that he changed his description of his own whereabouts, moving from the precinct desk to the patrol car when three police witnesses made the initial story untenable. They sidestep Schwarz's astounding claim under oath that Volpe wasn't angry at Louima because he falsely believed Louima had punched him; nor was Schwarz angry though he believed, also incorrectly, that Louima had hit him in the face. They want to forget the sickening attempts by Volpe lawyer and current Schwarz champion Marvin Kornberg, as well as those of one of Schwarz's co-conspirators, Bruder, to claim that Louima had a card for an all-male sex club in his pocket and that his injuries might be the result of exotic sex.