The Chief
July 27, 2001

Court Hears Appeal of Louima Verdicts

New Trial for Schwarz?

By William Van Auken

The move for a new trial for convicted Police Officer Charles Schwarz is inevitable given recently released evidence that apparently contradicts the Government's key witness in the Abner Louima stationhouse torture trial, members of a U.S. Court of appeals panel agreed July 19.

Hearing appeals on behalf of Mr. Schwarz, as well as for Thomas Wiese and Thomas Bruder, two other cops who were convicted in an obstruction of justice trial in connection with the Louima case, the judges pointed to testimony by other police officers that was recently made available to defense attorneys as the result of a court order.

Turetzky Inconsistent?

These statements - which the Government did not disclose during the trial itself  - were at odds with the account given by Officer Eric Turetzky, who provided the key evidence pointing to Officer Schwarz as the man who collaborated in the attack on the Haitian immigrant.

"We could remand it now to the U.S. District Court," said Judge Chester J. Straub, after pointing to so-called Brady material  - evidence that could be used to establish the defendant's innocence.

"It will be before the District Court one way or another," added Chief Judge John M. Walker, referring to an inevitable motion for a new trial by Mr. Schwarz's lawyers.

Mr. Wiese and Mr. Bruder, who were each sentenced to 50 months in prison but are free pending appeal, attended the hearing, as did Mr. Louima and his attorneys.

Schwarz in Solitary

Mr. Schwarz was not in the courtroom. Sentenced to 15 years in prison, he has been held in solitary confinement since 1999, when he was found guilty of holding Mr. Louima down in the 70th Precinct stationhouse bathroom while Officer Justin Volpe rammed a broken piece of broomstick into his rectum. Mr. Volpe, who pleaded guilty before the end of the trial, was sentenced to 30 years in jail.

The convicted cop's wife, Andra, as well as other family members, sat in the courtroom with Staten Island Borough President Guy Molinari, who has championed Mr. Schwarz's fight to establish his innocence.

Officer Turetzky, who has since been upgraded to a Second Grade Detective, testified at trial that he saw Officer Schwarz search Mr. Louima at the stationhouse desk, when the prisoner's pants fell down around his ankles. He said he then saw Mr. Schwarz escort Mr. Louima down a hall leading to the stationhouse bathroom, his pants still down and his buttocks exposed.

Reverse Trial Judge

The Federal appeals court reversed a pre-trial ruling by Eastern District Senior Judge Eugene Nickerson, who held that the Government was obliged to turn over only the names of potential witnesses, and not a record of their statements. Prosecutors had been allowed merely to assert that the testimony contained no exculpatory information.

The most explosive new material released by the Government came from a since-retired cop, identified only as "Officer F." His testimony, the judges acknowledged, directly contradicted that of the prosecution's star witness, Mr. Turetzky, who placed Mr. Schwarz with Mr. Louima in the corridor leading to the bathroom.

While "Officer F's" identity was concealed and his affidavit sealed - as with all the cops whose testimony was released to the defense  - a source familiar with the court documents said he was a police officer from Patrol Borough Brooklyn South who was the first investigator to talk to Mr. Turetzky about the Louima affair.

Confused on Identity

According to this source, "Officer F" testified that Mr. Turetzky told him he was not sure whether it was Officer Wiese or Officer Schwarz who led the Haitian immigrant toward the stationhouse bathroom.

"If this is factual, there is no way of denying that is Brady material," declared Judge Straub.

Chief Assistant Brooklyn U.S. Attorney Barbara Underwood said that the Government had been unaware of "Officer F's" testimony until after the trial.

Mr. Schwarz's attorney, Diarmuid White, also pointed to the recently disclosed testimony of two other cops that he said would have served to undermine the prosecution's case.

One of them, "Officer A," contradicted Mr. Turetzky's claim that Mr. Louima's pants were down when he was escorted from the desk. "He would have said it never happened," said Mr. White.

A second cop from the Brooklyn precinct, identified as "Officer D," gave testimony that cast doubt on Mr. Turetzky's description of his own whereabouts at the time Mr. Louima and another prisoner were being searched at the stationhouse desk. Mr. White suggested that this officer's testimony would have indicated that the man that Mr. Turetzky saw escorted toward the rear of the stationhouse might not have been Mr. Louima, but rather Patrick Antoine, who was arrested at the same time.

Aim for New Trial

Because the evidence was not heard during the original trial, the appeals court cannot consider it in deciding whether to overturn or led stand the convictions. It can, however, he used to press for a new trial.

The judges moved swiftly through other arguments made on Mr. Schwarz's behalf. These included a claim that the jury was influenced by media accounts of Mr. Volpe's confession, in which he said that another officer was with him in the bathroom. The confession was made out of the jury's presence. Mr. Volpe later said that the second cop was Officer Wiese, and several jurors submitted affidavits that had they known this, they would have acquitted Mr. Schwarz.

'Smeared by Link'

Mr. White also argued that evidence introduced by the Government concerning Mr. Schwarz's relationship to a former Patrolmen's Benevolent Association delegate, Anthony Abbate, who was fired by the NYPD, was irrelevant and used solely to "smear" his client's reputation.

Attorneys for Mr. Wiese and Mr. Bruder, meanwhile, argued that the Government failed to prove that their clients violated the Federal obstruction of justice statute. They were accused of conspiring with Mr. Schwarz to deny that he was in the bathroom during the assault.

Richard Asche, the lawyer representing Mr. Wiese, said that the law required proof that there was a conspiracy to obstruct the proceedings of a Federal grand jury, while the Government's case pointed only to an alleged conspiracy to lie to law-investigators.

"They didn't agree that someone would go in front of a grand jury and lie," said the attorney. "There's a difference between lying to a U.S. Assistant Attorney, however great a sin that might be, and obstructing justice," he added.

Wiese Put Self on Spot

Mr. Wiese, he said, had given a statement to police investigators implicating himself, rather than Officer Schwarz, as the man who escorted Mr. Louima, evidence "that clearly, if not terminating his career, would have resulted in a very unpromising future in the Police Department."

In making the claim that the alleged acts of lying by the three cops failed to violate the letter of the law, the attorneys pointed to the case of a Federal Judge who lied to an FBI agent after asking him whether a grand jury had been convened in his case. The U.S. Supreme Court ruled that he had not violated the obstruction of justice statute, drawing a distinction between lying to the agent and interfering with the proceedings of a grand jury.

Judge Straub, however, appeared to oppose this line of argument. "It was foreseeable that a Federal grand jury would be impaneled, he said. "These gentlemen are not pumpkins that had just fallen off the truck."

The defense team also argued that Judge Nickerson acted improperly in overruling a challenge to the seating of a black female juror, who had stated that her son had suffered racially discriminatory treatment at the hands of police in Nassau County.

In the written appeal filed for Mr. Schwarz, Mr. White and Ronald Fischetti argued that Federal prosecutors were overzealous in their attempt to convict their client, resulting in the failure to share exculpatory evidence.

"The larger question that pervades this appeal is whether there has been a miscarriage of justice and whether the government, determined not to be thwarted by a 'Blue Wall of Silence,' erected its own wall," they wrote.

'Reverse Conspiracy'

In its reply, the Government ridiculed the charge that there was a drive to frame the Brooklyn cop. "Schwarz's claim of innocence rests upon the view that every material participant in his prosecution - from Abner Louima to Officers Turetzky and Schofield to IAB investigators to Federal prosecutors - all embarked upon a massive and corrupt conspiracy to falsely implicate him," wrote U.S. Attorney Alan Vinegrad.

Patrolmen's Benevolent Association president Patrick J. Lynch, who attended the hearing with half a dozen PBA board members, voiced optimism that the legal arguments would sway the court.

'Get to the Truth'

"I hope that the court has the courage to get beyond the politics of this case and get to the truth, the main truth being that an innocent Police Officer is behind bars," said the police union leader. "All we're asking is for Police Officers to be granted the same rights as any other citizen, including the right to a fair trial."

Speaking outside the courthouse, one of Mr. Louima's lawyers, Sanford Rubenstein, declared that the appeal was "not about mistaken identity, but about police officers not having to pay for their criminal acts."