The Wrong Man Gets a Second Chance

A Decision Protecting All Defendants

The clearest and most accurate reaction to the unanimous decision by the three judges of the Second Circuit Court of Appeals to grant Charles Schwarz a new trial in the Abner Louima case was by Patricia Williams in the March 3 New York Times. She is a professor at Columbia University's Law school, black, a longtime columnist for The Nation, and a neighbor of mine.

As her weekly column persistently shows, Patricia Williams is a trenchant critic of the huge inequalities in American life. We don't always agree on issues, but share a conviction that the history of liberty is the history of due process: fairness.

Of the Second Circuit's February 28 decision, she wrote: "Ultimately, this will protect any and all defendants, not just police officers. I completely understand how impatient it must make people feel, given the nature of the case. But it's not about his guilt or innocence; it's about the ability of everyone to have a fair trial." (Emphasis added.)

Others, black, white, and Latino, are angry at the decision. If and when they read the court's 68-page ruling, they may see what Patricia Williams means. (There was extensive coverage of that decision in the March 1 New York Times and the March 1 New York Law Journal.)

Predictably, Al Sharpton was instantly outraged: "This is a miscarriage of justice," he told the New York Post (March 1). Moreover, he told Clyde Haberman of The New York Times (March 1), the decision was "a shocking display of how the judicial system continues to fail to protect citizens from police abuse." I don't know if Sharpton actually read the whole decision, but I doubt it would matter if he had.

Also predictably, the media paid much more attention to Sharpton when the decision came down than it did to Ronald Fischetti, Schwarz's lawyer. However, on NY1—by far the best source of local news and analysis—Sharpton was incisively questioned about the basis for his claim. But not enough New Yorkers watch NY1.

Missing from all the accounts of this startling Second Circuit decision—which criticized Schwarz's ineffective first lawyer and the trial judge's refusal to allow testimony on his behalf—was credit for the reporting on this case by Ed Bradley and the research staff of CBS's 60 Minutes. Even during the trial, I had doubts about whether Schwarz was the second cop in the bathroom when Justin Volpe so savagely brutalized Abner Louima. But Ed Bradley's detailed investigation, including interviews with principals and jurors, led me to do my own further research, resulting in two Voice columns, "The Wrong Man" (March 27) and "The Witness Who Was Not Called" (April 3). Bradley's work also quickened the interest of other journalists.

Before being released on a million-dollar bail to face a new trial starting June 24, Charles Schwarz had been held for two years and eight months in seven different prisons around the country. Most of the time, he was in solitary confinement, because prison officials figured that letting an ex-cop convicted of involvement in the Abner Louima case into the general population might result in the abrupt completion of his sentence. Meanwhile, his wife, Andra, who has unflaggingly rallied support for him, had to sell their house.

When Phyllis Malgieri, attorney Ronald Fischetti's paralegal, got through to Schwarz in an Oklahoma City prison early on February 28, she shouted: "You're coming home!"

In shock, Schwarz—who was allowed no newspapers or radio in his six-by-nine-foot cell—said, "You're kidding me!" She yelled the news again.

"Oh my God," said Schwarz, "I knew Ron would do it!"

For two years and eight months, Ron Fischetti has devoted an enormous amount of time—without any fee—to the legal work he believes will ultimately clear Schwarz's name.

On Fox News the night of the Second Circuit decision, Greta van Susteren asked him, "Why did you do it pro bono?"

"Because," Fischetti said, "I knew the man was innocent. If you don't do this professionally, why are you a lawyer?"

When Schwarz's appeal was argued before the Second Circuit on July 19, 2001, it was Schwarz's last chance to get his conviction vacated and win a new trial. If he lost, the likelihood of the United States Supreme Court deciding to hear his appeal would be extremely remote on either the facts or the law.

Fischetti was sharply questioned by the three-judge panel last July, with a lot of the skepticism coming from Chief Judge John Walker Jr. When the oral argument was over, I thought Schwarz would have to serve the rest of his 15-years-and-eight-months sentence. In the silence of his days and nights, he was getting increasingly depressed.

But the unanimous Second Circuit Court of Appeals decision was written by Chief Judge Walker. Joining were Judges Jose Cabranes and Chester Straub.

In all of the reporting and commentary on that decision that I've seen, only passing mention has been made of the lower-court judge whose errors required a new trial. Maybe that is out of a distaste for speaking ill of the deceased, because that judge, Eugene Nickerson, has since died. Still, there is no minimizing Nickerson's central role in creating the conditions of unmistakable unfairness that led to Charles Schwarz's conviction for being an accomplice in "violating the civil rights" of Abner Louima.

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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