The Wrong Man Gets a Second Chance

A Decision Protecting All Defendants

For much of his long career on the bench, Eugene Nickerson was a first-rate judge. But by the time of the trial that convicted Schwarz of joining Volpe in one of the most horrifying cases of police brutality known in New York history, Nickerson did not appear able, from time to time, to fully concentrate on the proceedings. His serious misjudgments were not characteristic of his previous judicial record. He may not have been in the best of health. He dozed at times.

The 68-page Second Circuit decision ends with a summary of why Schwarz is getting a new trial: "(1) An . . . actual conflict of interest adversely affected his attorney's performance and (2) the jury's exposure to prejudiced information during jury deliberations, when considered with other circumstances in this case, gives rise to a reasonable probability that the outcome of the jury's verdict would have been different." (Emphasis added.)

Next week: Why the performance of Schwarz's original attorney, Stephen Worth, was crucially ineffective, and what might have happened if the full jury had been allowed to hear testimony on Schwarz's behalf that would likely have created a strong reasonable doubt as to his guilt. You won't hear about it from Al Sharpton.

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