Schwarz Silenced—Vinegrad Caves

Charles Schwarz Has the Edge

The Charles Schwarz case is over, but contrary to prosecutor Alan Vinegrad, there has been no closure. In the September 23 Newsday, Vinegrad emphasized that Schwarz's conviction on one count of perjury makes him "accountable in a very significant way for his role in the events surrounding Mr. Louima's assault."

However, in the historic plea-bargain gag order, Vinegrad agreed to dismiss the much more serious charges that Schwarz was the man in the bathroom who held Abner Louima down while Justin Volpe brutalized him. That conviction would have put Schwarz in prison for 15 years. Now, Schwarz could be released after serving about three years of his five-year sentence.

Vinegrad notwithstanding, there has been no closure to this case because, as William Glaberson accurately noted in the September 22 New York Times: "The central unanswered question remained—which police officer accompanied Mr. Volpe . . . into the Brooklyn police station bathroom."

With the jury for Schwarz's fourth trial already selected, why did Alan Vinegrad—in the most highly publicized case of his career—cave? Glaberson gave the answer, in part, when he wrote that the prosecution joined "the unusual agreement that effectively bars Mr. Schwarz, his wife, Andra, and his lawyers from claiming publicly that he is innocent of those charges."

To my knowledge, there has been no previous gag order in any internationally covered criminal case of such public interest that silences the principal participants, including the prosecutor, for five years. In this instance the public, and Abner Louima, have been left without closure.

Why did Alan Vinegrad agree to this historic gag order? Glaberson partially approached the answer: "The defense team often embarrassed prosecutors by persuading sympathetic reporters that Mr. Schwarz was the victim of a miscarriage of justice."

But the critical questions of Vinegrad's handling of the case from Ed Bradley of 60 Minutes, Bob Herbert of The New York Times, and this reporter were not orchestrated by Ron Fischetti, Schwarz's pro bono lawyer. We and others were concerned with due process violations in the prosecution of Schwarz, and I have characterized Vinegrad as vengeful in his pursuit of Schwarz through what would have been four trials.

Vinegrad cannot gag the press, but he has succeeded in preventing, for five years, any statements by Schwarz, his wife, and his lawyers "relating in any way to the sexual or other assaults of Abner Louima."

The prosecutor thereby hopes that his reputation will no longer be diminished by them. The gag order, he told The New York Times, was intended to "put an end to the continuing debate on whether or not Mr. Schwarz was in the bathroom."

However, as has been evident in the coverage of the plea bargain, the debate continues, and is likely never to be resolved. But at least, for five years, Vinegrad will be spared the continuing, determined assertions by Schwarz, his wife, and his lawyers that he is innocent of all the charges.

Not widely noted, by the way, is that although Schwarz took the single perjury sentence, he did not say he was guilty of even that. Because of the plea bargain, however, he may be able to serve less than his five-year sentence, with time off for good behavior, and a possible arrangement with the new U.S. Attorney—instead of the 15 years he would have received if Vinegrad had gone on with the trial and won a conviction on the civil rights charges.

This is the first major criminal case I know of in which the prosecution won a plea bargain that benefited the prosecutor as well as the defendant.

Ron Smolla, who has litigated a number of key First Amendment cases and is the author of a valuable casebook on First Amendment law, tells me:

"I have never heard before of a plea bargain in a major criminal case of high, long-term interest to the public, in which the prosecution used the leverage of the plea bargain process to restrict the free flow of information, thereby creating damage to the First Amendment."

And what of the judge in this case? Reena Raggi was recently unanimously confirmed by the Senate Judiciary Committee—in a time of unusually contentious, partisan hearings before that body—to a seat on the Second Circuit Court of Appeals. There was no reason to vote against her. She is certainly experienced, and she conducted the previous Schwarz trial very fairly.

With regard to this plea bargain that very well could cut off the free flow of information in such future trials—in which prosecutors are overly sensitive to criticism—the Times reported that "Judge Raggi said she took no position on that part of the arrangement." I find her silence odd, since Judge Raggi has been plainspoken in the past on legal issues before her. Maybe, one day, if she writes a memoir, we'll know what she thought of how Alan Vinegrad cushioned his less than triumphant farewell in this term as a federal prosecutor.

In the September 23 Daily News, Ronald Fischetti assessed the plea bargain: "It was a complete victory. They never proved Chuck was in the bathroom and assaulted Abner Louima, and they dismissed all the charges" connected with that part of the case.

"I could not have done better," Fischetti added, "if we went to trial and he was acquitted."

Even with an acquittal, Schwarz would still have had to serve prison time on the one count of perjury for which he was convicted as part of this plea bargain. Judge Raggi—even if she had wanted to—could not have given Schwarz credit for his previous 33 months in jail because he served them under a different charge.

In Berger v. U.S. (1935), Justice George Sutherland said of a United States Attorney that his interest in a criminal case must be not to win the case but to see "that justice shall be done. . . . Guilt should not escape nor should innocence suffer." Mr. Vinegrad did not win the core of this case, nor should he have.

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