The Witness Who Was Not Called

Hospitalized with the grave injuries he had suffered from Officer Justin Volpe, Abner Louima was asked if he could identify the two cops he said were in the police precinct bathroom that night. Shown a series of photographs, Louima identified Volpe immediately; but when shown a picture of Charles Schwarz, Louima could not identify him. And during the trial in 1999, Louima was also not able—in open court—to identify Schwarz.

Yet, while Volpe was sentenced to 30 years in prison, Schwarz is serving a 15-year sentence for aiding and abetting the crime and trying to cover up his complicity. Moreover, as noted in last week’s column, Officer Tom Wiese—Schwarz’s partner—has come forward to identify himself as the second officer in the room. Wiese says he came in only after Volpe had tortured Louima. He heard the noises as he was standing outside the door.

Volpe himself also told his own attorney that Wiese was the second man—not Charles Schwarz. But Schwarz’s attorney at the time, Stephen Worth, did not call Volpe as a defense witness to give that vital information, even after Volpe’s attorney told him that Volpe could exonerate Charles Schwarz. And Worth never called Wiese. So the jury never knew what either had to say.

Why didn’t Worth call Justin Volpe? During the second of two 60 Minutes programs on the case of Charles Schwarz, Worth said: “You mean the man who admitted pleading guilty to torturing another individual? No, I don’t need Mr. Volpe’s testimony.”

But why didn’t Worth call, as a defense witness, Tom Wiese, who had come forward before the trial to say that he was the second man?

During the second 60 Minutes program, Ed Bradley, who was the reporter on both programs, said that Worth had a further explanation for not calling Wiese:

“Worth told us he believed Schwarz was originally arrested because [Officer] Eric Turetsky had mistakenly identified him instead of Wiese. But by the time the case went to trial, almost two years later, Worth made the decision that the best way to get Schwarz off was to argue that Volpe acted alone. So Worth never asked Wiese to testify and never called Volpe either.”

On that second 60 Minutes broadcast, a juror on the case was asked by Ed Bradley: “If you had known that Volpe had identified Wiese, would it have changed your verdict against Schwarz?”

“Yes, without a doubt,” said the juror.

“So you think you convicted an innocent man?”

“Yeah.”

Bradley continued: “Five jurors have come forward and two have signed affidavits, all saying that if they had known Volpe had said it was Wiese in the bathroom with him that night, they would never have convicted 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?

It was Supreme Court Justice William O. Douglas who said, “The greatest battles for liberty have indeed been fought over the procedure which police and prosecutors may use.” (Emphasis added.)

And in Irvine v. California (1954), Supreme Court Justice Felix Frankfurter argued: “This Court has rejected the notion that [even when] a conviction has been established on incontestable proof of guilt, it may stand, no matter how the proof was secured. Observance of due process has to do not with questions of guilt or innocence, but the mode by which guilt is ascertained.” (Emphasis added.)

In the case of Charles Schwarz, to begin with, the conviction was not even obtained because of incontestable proof of guilt, but because the jury was not allowed to hear testimony that—according to five of its members now—would have acquitted Schwarz.

On 60 Minutes, Ronald Fischetti—Schwarz’s present attorney, who has appealed the case to the Second Circuit Court of Appeals—said plainly what has happened to subvert justice:

“They [the prosecutors] won’t admit that they made a mistake, and an innocent man is gonna spend a substantial period of his life in jail unless we can reverse that.”

And Fischetti told me that “public clamor,” which exploded after Abner Louima told what happened to him, led the government “to erect its own federal ‘blue wall of silence’ ” to hide Schwarz’s innocence so that the public clamor would be quieted.

A juror told Ed Bradley: “One of the greatest rights we have as Americans is to sit on a jury and to have a fair trial. But [Charles Schwarz] didn’t get a fair trial, and I participated in it. I am convinced. He didn’t get a fair trial because we only heard half a story.”

And what of the presiding federal judge, Eugene Nickerson? Through the years, I’ve had great respect for Nickerson’s conscientious adherence to due process in his conduct of trials. But at the first trial, when Volpe pleaded guilty, Volpe wanted to also say in open court who the second man in the bathroom was. But the government would not allow the plea to include that information. Judge Nickerson could and should have asked Volpe, as he stood before him, who that second man was. And Volpe would have named Tom Wiese—not Schwarz.

But Nickerson did not ask that question. I hope he regrets his grievous neglect of due process.

At the end of the second 60 Minutes report, Ed Bradley said: “The one person missing from this story is the person most responsible for putting Schwarz in prison: government prosecutor Alan Vinegrad. Although he wouldn’t talk to us, Vinegrad has said publicly he’s convinced he got the right man, and that Schwarz’s double conviction speaks for itself.”

After the trial was over, Vinegrad called me to complain fiercely about what I’d written concerning due process in what happened to Schwarz. Listening to the venom in Vinegrad’s voice, I had an idea what Torquemada must have sounded like.

Nat Hentoff’s previous column on Charles Schwartz, “The Wrong Man.”