A Reporter as Prosecutor

Police speak of the theory of a crime, and lawyers have a theory of a case.

After a split jury delivered a partial verdict (guilty on one of four counts) in the Charles Schwarz trial, federal prosecutor Alan Vinegrad issued his theory about an obstacle he had faced in his relentless pursuit of Schwarz.

The defense, he said, had conducted “an extraordinary media campaign to promote a one-sided and slanted view” of the case.

Vinegrad is far from alone in crediting Schwarz’s lawyer, Ronald Fischetti, with seducing some of the press—and Vinegrad himself has been the subject of criticisms here, and in a few other places. In the June 3 New York Times, William Glaberson wrote that this prosecutor “has become the object of unusual vitriol, much of it provoked by shrewd management of the news by Mr. Vinegrad’s opponent, Ronald P. Fischetti.”

If the press coverage had been part of the trial, one exhibit would be my citing of Victor Hugo’s Inspector Javert in Les Misérables and my description of Vinegrad as similarly “the very model of a relentless, mean-spirited prosecutor.”

And in the June 23 New York Times Magazine article “No Way Out” (a profile of the present-day Abner Louima), Jim Dwyer wrote that “a new opinion has taken hold among prominent members of the New York and national press: namely, that the wrong police officer has been named as an accomplice to the torture.” Dwyer referred to Thomas Wiese’s statement on 60 Minutes that “he, not Schwarz, had been in the bathroom with [Justin] Volpe.” Dwyer does not appear to buy that theory.

Vehemently contemptuous of that theory are Andrea Peyser of the New York Post and other journalists, but the belief has taken hold that much of the New York press has been ensorcelled, to some extent, by defense attorney Fischetti.

The most persistent focus on Fischetti as Svengali has been by Jeffrey Toobin, legal analyst for The New Yorker and CNN. In his June 10 article, Toobin refers to Fischetti as a “sarcastic wise guy” who “built a thriving practice through the years, first as a Mob lawyer.” But customarily, members of the mob are called “wiseguys,” not their lawyers. And Fischetti has defended Schwarz for years without a fee—not a practice of “mob lawyers.”

Fischetti, who has taught at Fordham University law school and has been a visiting professor at Harvard, Cardozo, NYU, and Yale law schools, is hardly a role model for a character on The Sopranos. By the way, Fischetti’s last “mob” case was 15 years ago.

In a June 4 WNYC appearance, as in The New Yorker, Toobin went so far as to claim that Fischetti has been so brilliant an orchestrator of “media-age advocacy” and had persuaded so many reporters that “the wrong guy had been convicted,” that the Second Circuit Court of Appeals went along and gave Schwarz a new trial. This would mean that judges John Walker Jr., Jose Cabranes, and Chester Straub were also manipulated. Their “highly technical grounds [for reversing the convictions],” as Toobin has put it, were that Schwarz’s lawyer in the first trial had a conflict of interest, thereby denying Schwarz an adequate defense. I wonder how carefully Toobin, and some other reporters on the case, read the full Second Circuit decision.

Actually, those three judges’ questions of Fischetti during oral arguments were so harshly skeptical—particularly the ones from Chief Judge John Walker Jr. (who later wrote the unanimous decision granting the new trial)—that I thought Schwarz would lose and stay in prison for many more years.

But in their decision, far from being influenced by Fischetti’s “management of the news,” the appellate judges didn’t limit themselves to citing his original lawyer’s conflict of interest in the first trial. The judges went on to emphasize that during its deliberations, the jury got word that Volpe—who had been claiming he was alone in the bathroom with Louima—had said, after pleading guilty, that there was a second cop in the bathroom. But during the trial, Volpe had not been allowed to say this within the hearing of the jury. And what the jury did not hear during deliberations was that Volpe had also named Thomas Wiese, not Schwarz, as that second man.

The Second Circuit ruled, therefore, that the combination of the original lawyer’s conflict of interest “and that jury’s exposure to [only] portions of Volpe’s plea, resulted in the worst of all possible worlds for Schwarz’s defense.” (Emphasis added).

And that’s why, as Ed Bradley reported on 60 Minutes (February 18, 2001), “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.” (Toobin did mention that in The New Yorker, but not on WNYC until Fischetti called the station to remind him.)

Nonetheless, in many of the press reports following that appellate decision—including accounts of Schwarz’s new trial—broadcast and print reporters kept repeating that Schwarz’s previous conviction had been reversed just on “technicalities” or “procedural grounds.”

The theory that Fischetti had shaped press stories supporting Schwarz focused on this Voice columnist, Ed Bradley, Bob Herbert of The New York Times, and Steve Dunleavy of the New York Post.

Dunleavy has been Schwarz’s most aggressive defender. This swashbuckling, vintage reminder of the Front Page school of journalism spends less time on details of a case than on his visceral, initial reactions, which, I suspect, are formed before he even talks to a defense attorney.

Ed Bradley notes that 60 Minutes was interested in the case before Fischetti was even involved in it, and had a producer at the original trial. And, as Bradley told me, what he said when he later contacted Fischetti was “Give us the documents and the facts.”

As for Bob Herbert, having followed his career as a stubbornly independent reporter and columnist, I doubt that anything short of an Alan Dershowitz-style “torture warrant” would make him manageable by any defense lawyer.

Even during the original trial in the Louima case, I had doubts—as I wrote for the Voice—about Schwarz’s having been the second man in the bathroom. Ed Bradley’s two stories on 60 Minutes strengthened those doubts, and I did more of my own research. I then called Fischetti—he didn’t call me—for copies of his and the prosecution’s briefs to the Second Circuit and later, for a copy of the Second Circuit’s decision.

Actually, if Fischetti is that accomplished a media manager, how come many in the press believed all along that Schwarz was guilty? Many still do, as we’ll see when they focus on the next trial, if there is one.