- The Washington Times - Sunday, March 10, 2002

Charles Schwarz, the former New York police officer convicted as the "second cop" in the brutal station-house assault of a Haitian immigrant named Abner Louima, is back home and awaiting a new trial after the Second Circuit Court of Appeals in Manhattan unanimously vacated his conviction. The court ruled that Mr. Schwarz was denied a fair trial for two reasons: because his original defense attorney, Stephen C. Worth, had a conflict of interest that "adversely affected his attorney's performance"; and because the jury was tainted by hearing prejudicial information during its deliberations. The jury also failed to hear exculpatory evidence that might have affected its verdict. Three jurors have filed affidavits attesting to these same points.
These are the legal underpinnings of the Schwarz appellate ruling. Observers less erudite than the circuit court judges might have long ago reached a similar conclusion, one derived not so much from legal precedent and law books as from press accounts and gut instinct namely, that Mr. Schwarz is very likely an innocent man who was railroaded by a zealous prosecution via an inadequate defense.
The prejudicial information that filtered through to the jury room was that Justin Volpe the former NYPD officer whose conviction for the vicious assault stands indicated he had had an accomplice in the 1997 crime when, in a mid-trial sensation, he reversed his plea from innocent to guilty. The exculpatory evidence concerned the fact that Volpe's lawyer, Marvyn Kornberg, had come to both the prosecution and the defense with the news that Volpe would be able to testify that the "second cop" involved was not Mr. Schwarz. Neither the prosecution nor the defense would touch this potentially trial-busting testimony. Neither side trusted Volpe: His testimony undercut the "truth" as the prosecution "knew" it; and Mr. Worth believed that it might backfire against his client.
But, as the appellate ruling makes one wonder, which client? Mr. Worth, while representing Mr. Schwarz, was also working with a partner on a $10 million retainer for the Patrolman's Benevolent Association (PBA), the police union Mr. Louima was suing. As a PBA attorney, Mr. Worth had a very vested interest in involving as few police officers in a brutality scandal as possible and hence a terrific conflict of interest that may have deterred him from the most logical line of defense: that a second officer, not Mr. Schwarz (never identified by Mr. Louima as an assailant), was involved in the crime. Instead, Mr. Worth clung to what the appellate court called the "implausible and factually unsupported theory" that Volpe had acted alone despite Mr. Kornberg's information, and despite the pre-trial statements of former officers Thomas Wiese and Thomas Bruder that at least placed Mr. Wiese at the scene of the crime.
In addition to vacating the Schwarz conviction, the appellate court overturned guilty verdicts from a second Louima trial against Mr. Schwarz, Bruder and Wiese, for conspiracy to obstruct a grand jury investigation on the grounds of insufficient evidence. This more technical ruling would seem to underscore the prosecution's rigidly conceived over-reach in the case, which, combined with the defense's unconscionable conduct, and an ineffective trial judge, made for a ruinously mixed outcome.
Abner Louima, having settled with the city of New York and the PBA, is now a millionaire, and Volpe is serving a 30-year sentence. Mr. Schwarz's new trial is set for June 24 and that is a good thing. But given the shoddy conduct of this case, questions about the night Abner Louima was tortured may never be answered.


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