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Thursday, Sep. 13, 2001

It is a familiar storyline. A police officer is brutally murdered or assaulted. The community cries out for swift justice. Police and prosecutors make a quick arrest. Often, the suspect turns out to be African-American.

A trial follows, with minimally competent defense counsel. A conviction satisfies the community's outrage. Years later, newly discovered evidence proves the wrong person languishes in jail.

Last week, another round of post-conviction appeals ended in a case some argue is the flip side of this typical storyline. In 1999, Charles Schwarz, a white New York City police officer, was convicted of participating in a brutal sexual assault of Haitian immigrant Abner Louima that made national headlines. Schwarz and two other officers were also convicted, at a separate trial, of obstructing the investigation into the assault.

From the moment Schwarz was convicted, some observers of the case questioned the verdict. Since then, his case has drawn more and more media attention, much of it sympathetic to Schwarz. The facts, while they do not clearly exculpate Schwarz, raise enough troubling questions to justify giving him a new trial.

The Weaknesses and Strengths of the Case Against Schwarz

What makes the Schwarz case a hard one is that it has some, but not all of the attributes typically present when people are wrongly convicted of highly visible crimes.

Some aspects of the case do suggest Schwarz may be guilty. He received a vigorous defense, yet was still convicted. There remains evidence of guilt — evidence that persuaded a jury.

Moreover, there is no dispositive proof that Schwarz is innocent. There is not, for example, any new DNA or other forensic evidence that clears him — nor, it seems, will there ever be any.

On the other hand, there are some serious problems with the case against Schwarz. The hard truth about this case is that we will probably never know the truth. Given that uncertainty, the least we can do is try again to do the best we can to find it out, with a new trial.

Problematic Identifications

The basic facts of the case are as follows. On August 9, 1997, Abner Louima was brutally sodomized with a broomstick in the bathroom of a Brooklyn police precinct by New York police officer Justin Volpe. Louima said a second officer was in the bathroom with Volpe, too.

Who was that officer? We still don't know for certain. No eyewitness (including Louima) has ever been able to conclusively identify Schwarz as the second officer in the bathroom.

Louima did testify that the "driver" of the police car that drove him to the precinct and booked him was the second man who participated in the assault. Schwarz was, in fact, the driver of the car, and he did book Louima. However, Louima could never positively identify Schwarz as the "driver," either in a photo line-up or in person at the trial. At trial, Louima said he could not be certain because Schwarz and another officer, Thomas Wiese, look alike.

The Crack in the Blue Wall of Silence

Because no one could testify they saw Schwarz in the bathroom, the government's case against Schwarz rested heavily on two police officers who testified that they saw him take Louima in the direction of the bathroom just before the assault.

One officer in particular, Eric Turetzky, was applauded for cracking the "blue wall of silence" when he provided testimony against Schwarz. Last week, Judge Eugene Nickerson, the original trial judge, persuasively rebuffed a new attempt by Schwarz's attorneys to cast doubt on Turetzky's credibility.

All this evidence plausibly points to Schwarz's guilt. But without a clear identification, there is room for reasonable doubt. At trial, Schwarz's attorneys gambled that a jury would agree — they never called Volpe or Schwarz to testify, leaving it to the government to prove its case against him instead. So partly as a result of Schwarz's counsel's strategy, some of the evidence people now claim proves his innocence never came out at the trial. That strategy was understandable, but in hindsight it backfired.

The Wrong Man?

Schwarz may be partly to blame for his predicament because evidence that he changed his story about the crime undermined his credibility as a potential witness in his own defense. Within the week after the assault, witnesses said Schwarz, Wiese, and a third officer, Thomas Bruder, told two contradictory stories about what happened.

Initially, witnesses said all three officers said that no one other than Volpe was near the bathroom. But after Schwarz was arrested, Wiese and Bruder both told investigators that Wiese led Louima toward the bathroom, but did not go inside and did not participate in the assault. Schwarz, they said, was nowhere near the bathroom. (Schwarz now says the same thing.) Finally, after Volpe pled guilty, Volpe told the government and Schwarz's attorneys that Wiese was the second officer to enter the bathroom, and that Wiese watched the assault.

Viewed as a whole, these statements seem to inculpate Wiese more strongly than they inculpate Schwarz — suggesting Wiese, not Schwarz, may have been the second officer. After all, three officers — Bruder, Volpe, and Wiese himself — ultimately put Wiese near the bathroom, and Volpe had him participating in the crime.

Yet the jury that convicted Schwarz of the assault never heard any of these accounts — perhaps in part because the officers' shifting stories made the defense fearful of presenting them.

The Wrong Cover Up?

The government saw these shifting accounts as evidence that Schwarz and his two friends had conspired to cover up Schwarz's involvement. First by initially portraying Volpe as alone in the bathroom at the time of the attack, then by putting Wiese near, but not in the bathroom. A second jury agreed that the three officers had conspired to obstruct justice. That verdict seems justified by the evidence.

The problem, however, is that even if the officers were trying to hide something, it does not follow that Schwarz's guilt was what they were trying to cover up. Instead, they could have been trying to hide Wiese's involvement — either because Wiese was guilty, or because they were afraid the facts would be misconstrued to suggest he was. Even if Wiese was innocent of torturing Louima, the officers might still have thought that conceding (as they later did) that he led Louima towards the bathroom would land him in hot water.

Continuing — and Reasonable — Doubt

Everyone involved in this case may be guilty of something, such as obstruction of justice. And someone may be guilty of participating in the assault, as the second officer Louima described. But the really tough thing about this case is that there will always be doubt about who that is.

Accordingly, the court of appeals should vacate Schwarz's conviction for the assault and send the case back for a new trial. To do so, the court of appeals would probably have to find a technical, procedural pretext for holding a new trial. It is rare for an appellate court to do that. In this case, it should.

Perhaps the closest thing to justice would be to ultimately clear Schwarz of responsibility for the assault — on the ground that the evidence does not establish his guilt beyond a reasonable doubt — but let his obstruction of justice conviction stand. In any event, a new jury should have a chance to consider all the evidence in the case.

Political Pressures to Convict

While Schwarz's case is not nearly as cut-and-dried as many other wrongful convictions making headlines, it still teaches some similar lessons. It reminds us that no matter who the suspect or the prosecutor may be, the system always remains vulnerable to miscarriages of justice in politically-charged cases.

Once Louima said there was a second officer involved in the assault, there was enormous pressure on investigators and prosecutors to find a culprit. Telling the public that the evidence was too inconclusive to prosecute someone would likely have drawn cries of outrage. As a result, a prosecution went forward on fairly thin evidence. And as sometimes happens, a jury trial did not produce a just result.

Perhaps it is some measure of progress that the same forces that typically wreak injustice upon minority suspects may now occasionally be turned on police officers suspected of abusing minorities. But that type of "progress" is really a step backwards. In the end, a system of equal injustice for all would only make everyone a loser.

Nathan Siegel is a First Amendment lawyer in Washington, D.C. who represents journalists in libel, privacy, and newsgathering matters. The views expressed are solely his own.

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