Schwarz: Justice or Technicalities?

Have the Critics Read the Whole Decision?

When Charles Schwarz was sent to prison for violating Abner Louima's civil rights by joining Justin Volpe in the bathroom while Volpe viciously sodomized Louima, Schwarz said: "I refuse to go down quickly, and I refuse to lay down and die. Abner Louima was the victim of a brutal and horrendous crime, but that does not give the government the right to convict an innocent man."

Now that Schwarz will have a new trial to prove that he is indeed innocent of the charge, Al Sharpton and others infuriated by the vacating of Schwarz's conviction on the civil rights counts are insisting that the Second Circuit Court of Appeals miscarried justice on the basis of mere technical mistakes by the initial trial judge (the late Eugene Nickerson) and the prosecution.

Justice William Brennan, one of the firmest protectors of "equal protection under the laws" in the history of the Supreme Court, used to point out that "technicalities"—all embedded in the Bill of Rights—are "very basic to our existence as the kind of society we are. We are what we are becausewe have those guarantees. . . . They're there to protect all of us."

Let's look at the "technicalities" in the unanimous Second Circuit Court of Appeals decision to give Schwarz a new trial on the civil rights violations of Abner Louima. (The additional reversal of the obstruction of justice counts against Schwarz, Thomas Wiese, and Thomas Bruder—police officers also present in the precinct house when Louima was brutalized—is another story, for another column.)

I agree with Les Payne of Newsday that the crime scene that night was the entire precinct. Just about everyone on duty was responsible for coming forward and telling what they knew was going on, but only a few did. That needs much more probing.

In any case, I am convinced that Schwarz was not the second man in the bathroom. However, the Second Circuit's decision was not about his guilt or innocence. It had to do with whether he received a fair trial. To begin with, the unanimous court emphasized one of the fundamental requirements of a fair trial:

"A defendant's Sixth Amendment right to effective assistance of counsel includes the right to representation by conflict-free counsel." Schwarz's lawyer at the initial trials was Stephen Worth, hired by the Patrolmen's Benevolent Association to represent him. The PBA also hired Stuart London to represent officer Thomas Bruder on the conspiracy to obstruct justice charge.

As the March 1 New York Law Journalpointed out: "The two lawyers joined others in forming the law firm Worth, Longworth & Bamundo in February 1998. Three months later, the firm signed a $10 million, two-year retainer agreement with the PBA to represent police officers on administrative, criminal, and disciplinary matters as well as civil actions."

When Justin Volpe's lawyer told Stephen Worth that "my guy can take your guy out of the bathroom," that meant that Volpe, on pleading guilty, would testify that Thomas Wiese, not Schwarz, was the second man in the bathroom. Wiese had already come forward and told investigators that he was the second man, but was not involved in the assault on Louima. He told this to police investigators early on, but they focused on Schwarz.

Worth refused to call Volpe or Wiese to testify, maintaining all along that Volpe had been alone with Louima—despite Louima's insistence that there had been a second man in the bathroom, and the fact that Volpe would say it was Wiese.

But, since Abner Louima had filed a civil suit charging that the PBA had conspired to cover up the assault on him by PBA members, it was in Worth's interest—the Second Circuit Court of Appeals decided—not to implicate PBA members in the violation of Louima's civil rights. He also had a professional obligation to the PBA. And, after all, in two years, that $10 million retainer would be up for renewal.

At the trial, Judge Nickerson warned Schwarz of this very possible conflict of interest by his attorney, Worth, but Schwarz waived any claim of ineffective assistance of counsel. However, the Second Circuit ruled that Schwarz should not have been allowed to waive that claim because "an actual or potential conflict cannot be waived if, in the circumstances of the case, the conflict is of such a serious nature that no rational defendant would knowingly and intelligently desire that attorney's representation."

Another "technicality" cited by the Second Circuit is that "a defendant has a constitutional right to be tried by an impartial jury, unprejudiced by extraneous influence." After the trial was over, Ronald Fischetti—who had become Schwarz's pro bono attorney—presented to Judge Nickerson affidavits from three of the jurors who had found out Justin Volpe had confessed that he was not alone in the bathroom.

In Ed Bradley's second 60 Minutessegment on Charles Schwarz, he pointed out that Volpe had identified Thomas Wiese as the second man, and on camera, one of five jurors who had eventually come forward said if that had been known during the trial, the juror would have "without a doubt" voted differently on Schwarz.

But the prosecutors knew that Volpe had identified Wiese as the second man—and that Wiese had admitted he was that man. Why didn't the government—in the interest of justice—put that information before the jury? Was due process—fundamental fairness—followed in this case?

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