A Prosecutor’s Revenge

Javert of ‘Les Misérables’ Lives!

Any prosecutor will readily say that his or her primary role is to do justice—even if it means losing a case. However, in the hot pursuit of a defendant, that noble standard sometimes vanishes.

Alan Vinegrad, interim U.S. Attorney for the Eastern District, has had two convictions in the Abner Louima case overturned by the Second Circuit Court of Appeals—one with regard to Charles Schwarz's having violated Louima's civil rights, and the other against Schwarz, Thomas Wiese, and Thomas Bruder for conspiracy to obstruct justice.

Vinegrad has now persuaded a grand jury to indict Schwarz on two charges of perjury—that he lied about which cop or cops took Louima to the bathroom, and that he also lied about which officer was in the bathroom while Justin Volpe was savagely sodomizing Louima.

The Second Circuit Court of Appeals gave Schwarz a new trial on the civil rights convictions that have been overturned. That trial begins on June 24, and again Schwarz's defense will be that he is innocent, that he did not lead Louima to the bathroom, and that he was not the officer inside with Volpe. So why has prosecutor Vinegrad brought the perjury indictments at this late stage, on the very issues that will be at the core of the June 24 trial?

Vinegrad is a clever tactician. Reena Raggi, who will be the judge in the June 24 trial, has told the lawyers on both sides to be circumspect in their public comments on the case. She did not impose a rigid gag rule, but her intent was clear. Now, however, Vinegrad can publicly talk about the new perjury indictments against Schwarz. And in newspapers, and on radio and television, there has been extensive reporting on these accusations.

With this prejudicial pre-trial publicity, it is going to be harder for Schwarz's lawyers to get a reasonably unbiased jury for Schwarz's June 24 trial. I was at Grand Central station the morning after the new perjury indictments came down, and at the entrance, copies of the New York Post were arranged in a blazing display. The front page blared, "LIAR, LIAR: Feds Indict Louima Cop on 2 New Perjury Charges."

How many potential jurors exposed to the clamorous media coverage of the new indictments know that three days after Abner Louima was viciously abused, he said he could identify both cops involved in his torture, but he was unable to pick out Schwarz from a photo array as the officer who led him to the bathroom and went inside along with Volpe. Louima did identify Volpe.

Omitted from that photo array was a picture of Thomas Wiese, who told internal affairs investigators early on that he—not Schwarz—had helped take Louima to the bathroom and was then inside. On CBS's 60 Minutes (February 18, 2001), Wiese again identified himself—on camera—as the second man.

There is another prosecutorial dynamic in this textbook example of how the government can use its built-in advantage before a grand jury to manipulate the odds in its favor. Alan Vinegrad was embarrassed, to say the least, when the Second Circuit vacated the convictions he had won in the Louima case, to which he has been deeply committed for years.

But now, in addition to riding on the prejudicial pre-trial publicity against Schwarz, the "LIAR," Vinegrad has what may be a crucial addition to his game plan.

Until Vinegrad filed his perjury charges against Schwarz, it was very likely that among those testifying in his defense at the June 24 retrial on the original civil rights charges would be officers Thomas Wiese and Thomas Bruder. The latter has also said that it was Wiese, not Schwarz, who was the second man with Volpe.

As of this writing, however, it is doubtful whether the lawyers for Wiese and Bruder, or lawyers for other defense witnesses, will allow their clients to testify in the June trial. Alan Vinegrad could subsequently indict them, too, for perjury.

Asked whether he would try to win back the obstruction-of-justice verdict against Wiese, Bruder, and Schwarz taken away by the Second Circuit, Alan Vinegrad told The New York Times (March 26), "The door remains open to the possibility of other charges of like kind being brought against one or more of the officers." Such "charges of like kind" could also include perjury against officers who testify for Schwarz in the trial before Judge Raggi.

I've talked to a number of defense attorneys, and all have said that if they had clients in a situation similar to that of Wiese and Bruder, they would not allow their clients to go on the stand in Schwarz's June trial.

Thomas Wiese's lawyer, Joseph Tacopina, said in the Times of March 26 that "we're not making any decisions at this point about testifying." Thomas Bruder's attorney, Jeremy Gutman, told me he had no comment yet on whether his client will testify.

A further indication of how badly Alan Vinegrad wants to redeem himself after losing two convictions before the Second Circuit is the fact that he has now gotten a grand jury to indict Schwarz on two counts of perjury.

In the March 27 New York Law Journal, Benjamin Brafman, a prominent defense attorney who has no role in the cases against Schwarz, said that bringing two counts of perjury, instead of one, was "a form of prosecutorial overreaching that few of us have ever seen anywhere."

The usual practice is to indict on one count of perjury that encapsulates additional specifications. A conviction on one count of perjury would extend Schwarz's prison term by up to five years. But a guilty verdict on two counts would put him away for up to 10 years on the perjury counts alone.

The basic question is: If Vinegrad wanted to indict Schwarz for perjury, why did he wait until now—after the previous convictions were reversed? He could have done it long before.

Remember Javert, the prosecutor of Jean Valjean in Victor Hugo's Les Misérables—the very model of a relentless, mean-spirited prosecutor? Alan Vinegrad could play him in the road company of that show. In the interest of justice, we should be grateful he is now only the interim U.S. Attorney for the Eastern District.


Related Articles:

"Schwarz: Justice or Technicalities?" by Nat Hentoff

"The Wrong Man Gets a Second Chance" by Nat Hentoff

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