By Jared Chausow
By Katie Toth
By Elizabeth Flock
By Albert Samaha
By Anna Merlan
By Jon Campbell
By Jon Campbell
By Albert Samaha
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 Rightsare "very basic to our existence as the kind of society we are. We are what we are because we 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 Bruderpolice officers also present in the precinct house when Louima was brutalizedis 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 Journal pointed 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 Louimadespite 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 interestthe Second Circuit Court of Appeals decidednot 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 Fischettiwho had become Schwarz's pro bono attorneypresented 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 Minutes segment 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 manand that Wiese had admitted he was that man. Why didn't the governmentin the interest of justiceput that information before the jury? Was due processfundamental fairnessfollowed in this case?
The Second Circuit asked another question: Why did Judge Nickerson refuse to allow, as Ronald Fischetti requested after the first trial, an evidentiary hearing on whether that information, if known by the jury, would have affected the Schwarz verdict?
In their decision, the Second Circuit judges said: "The combined effect of Worth's conflict-impaired lone-rogue-cop defense and the jury's exposure to [information that a second officer had been with Volpe in the bathroom] resulted in the "worst of all possible worlds for Schwarz's defense." (Emphasis added).
At Schwarz's next trial, Volpe and Wiese are likely to testify, and attorney Ron Fischetti will urge the jury to decideon the basis of their testimony and the Second Circuit's decisionthat there is more than reasonable doubt to acquit Charles Schwarz on the violation of Louima's civil rights. I predict the jury will do just that.