Whatever the outcome, the ultimate lesson of this case . . . is that the truth can be irretrievably muddied when the prosecution sets out to make a case rather than simply determine the facts.
—Michael Daly, 2002 Pulitzer finalist for commentary, New York Daily News, July 10
In his third trial, his first as the sole defendant, Charles Schwarz has been convicted of one charge of perjury—that he lied when he said he did not take or escort Abner Louima to the 70th Precinct bathroom where Louima was savagely assaulted. The jury deadlocked on another perjury count and on charges that he conspired with Justin Volpe to deprive Louima of his civil rights and that Schwarz himself violated Louima’s civil rights by beating and sexually assaulting him.
Before trying to pierce the miasma of reasonable doubt as to Schwarz’s guilt on any of the charges, I’ll discuss a point that has not been covered in the press about Al Sharpton’s characteristic compulsion to manipulate the media and to intimidate juries. Sharpton has been trumpeting the charge that the new verdict is racist because there were only two blacks on the jury. But if Sharpton hadn’t pressed to remove the trial from state to federal court, there would have been more black prospective jurors. And Sharpton doesn’t mention that in the four cases involving the assault on Louima, all the jurors excluded by the prosecution, in a total of 24 peremptory challenges, were white. The jurors dismissed by the defense were both black and white. (In the fourth trial, police officers Francisco Rosario and Roland Aleman were charged with making false statements.)
And when this federal jury declared itself seriously divided, Reverend Al, in a televised weekend press conference, urged his supporters to insist that Schwarz be thoroughly convicted. Accordingly, on the following Monday, while the jury continued to deliberate, busloads of anti-Schwarz demonstrators descended on the courthouse, shouting dire epithets and becoming so boisterous that Schwarz and his attorney, Ronald Fischetti, needed a police escort to get through. The intent was to convince the jury to do the right thing. Remember: This jury was not sequestered.
As for the trial itself, and Abner Louima’s credibility as a witness with regard to Schwarz, consider that judge Reena Raggi, in instructions to the jury—as the July 17 Daily News noted—”warned them that they should view the victim’s testimony ‘with caution and weigh it with great care.’ ”
In the June 25 Newsday, Patricia Hurtado noted, “In cross-examination, Fischetti assailed Louima’s credibility and highlighted dozens of inconsistencies that have surfaced in the numerous accounts Louima has given, including two state grand jury appearances in August 1997, February 1998, federal grand jury testimony, and four occasions in federal court.”
On the stand, under oath, Louima admitted he had committed perjury in saying that the arresting officers told him, “It’s Giuliani time.” Moreover, Louima waited five months, until he found out his lie was going to be exposed, to admit he had spoken falsely. The lie had spread around the world, and the swashbuckling Reverend Al had led his troops across the Brooklyn Bridge, brandishing “It’s Giuliani time!” signs.
And while Louima was testifying repeatedly that “the driver” was the second cop in the bathroom, he was never able to identify Schwarz as that cop—either from photographs shown to him in the hospital, or later, face-to-face, in open court. Yet he had seen Schwarz directly when the patrol car carrying him to the precinct from Club Rendezvous stopped and Schwarz turned around and looked right at Louima. “I saw his face,” he said of the driver, in cross-examination. And he said Schwarz was standing next to him at the desk in the precinct. But he never identified Schwarz in court as the second man in the bathroom.
As for the prosecution’s two key witnesses, John Marzulli reported in the June 30 Daily News that both Eric Turetzky and Mark Schofield “had major differences in their accounts, which implicate Schwarz. Turetzky said he saw only Schwarz leading the handcuffed Louima toward the bathroom. But Schofield, who was standing nearby, stated that he witnessed Schwarz and Volpe escorting the prisoner and that he didn’t see Turetzky anywhere.” No reasonable doubt?
In the July 7 New York Times, William Glaberson quoted Judge Raggi as saying, while the jurors were out of the courtroom, “I know from this trial many witnesses remember events at that desk [as to who escorted Louima where] differently.” The trial transcript is replete with witnesses, particularly prosecution witnesses, contradicting each other and themselves on this and other contested evidence. Then there was Sylvia Stewart, a police clerk, testifying for the prosecution (New York Times, July 16) that “she saw an officer lead Mr. Louima toward the bathroom. ‘I think it might have been Schwarz.’ ” (Emphasis added.) Any reasonable doubt there?
Early in the investigation, Thomas Wiese, against his lawyer’s advice—”You’re crazy,” said Joseph Tacopina—told Internal Affairs he, not Schwarz, led Louima to the bathroom, but didn’t go inside until he heard what was going on. Wiese made the same admission to Ed Bradley on CBS-TV’s 60 Minutes (February 18, 2001).
Wiese did not testify at Schwarz’s new trial because prosecutor Alan Vinegrad has been quick to indict for perjury. (He added two perjury counts to Schwarz after Schwarz’s previous convictions were reversed.) Defense lawyers not on this case tell me they would have instructed their clients not to testify in the face of such prosecutional practices.
However, no witness at any of the trials put Schwarz in the bathroom. Even the prosecution’s star witness, Eric Turetsky, said at an early point in the investigation that he wasn’t sure whether he saw Wiese or Schwarz leading Louima in that direction.
In his summation to the jury, Ron Fischetti said: “If you find beyond any reasonable doubt that my client, Chuck Schwarz, was in that bathroom with Justin Volpe assaulting Abner Louima, go no further, convict him of the perjury, because he had a motive to lie. . . . But if you agree that the prosecution has not proven by their burden of proof beyond any reasonable doubt that he was in that bathroom participating in that brutal assault, then please have the courage to come in here and say not guilty.”
In her charge to the jury before they began to deliberate, Judge Raggi said: “If the government fails to prove the defendant guilty beyond a reasonable doubt, you must find him not guilty.” If you had been on the jury, how would you have decided?
Next week: press prosecution of defense lawyer Ronald Fischetti. Meanwhile, do you think justice will yet be done in the next trial of Charles Schwarz?
The Schwarz Verdict: in Praise of Vinegrad by Wayne Barrett