The Chief
March 8, 2002

Verdicts Tossed For Three Cops In Louima Case

Still Face Hurdles In Seeking Return To NYPD

By William Van Auken

The stunning Federal appeals court decision throwing out the convictions of three of the four Police Officers who were implicated in the 1997 70th Precinct stationhouse torture of Haitian immigrant Abner Louima leaves one of the cops facing a likely new trial and all three with an uphill battle to regain their jobs in the Police Department.

Officer Charles Schwarz, who was convicted in 1999 of holding Mr. Louima down in the Brooklyn stationhouse bathroom while another officer, Justin Volpe, shoved a broken piece of broomstick into his rectum, had been serving a 15-year prison sentence. He is expected to apply for bail this week.

Feds Set for New Trial

U.S. Attorney for the Eastern District Alan Vinegrad, who prosecuted the case against Mr. Schwarz, said that his office was prepared to retry him.

The conviction of Mr. Volpe, who pleaded guilty in the middle of the 1999 trial and is serving a 30-year prison sentence, was unaffected by the decision.

The other two cops - Thomas Bruder and Thomas Wiese - were convicted together with Mr. Schwarz in 2000 on charges of conspiring to obstruct a Federal grand jury investigation. The three-judge panel threw out the conviction on the basis of insufficient evidence, while suggesting that Federal prosecutors had overreached in not trying the three on a lesser charge of lying to Federal investigators. Mr. Bruder and Mr. Wiese cannot be retried.

Attorneys for the officers as well as the PBA praised the ruling and said that all three should be reinstated to the NYPD.

"We're really grateful that the judges had the courage to make the right decision; they had the opportunity to look at all of the evidence, which the jurors did not," said PBA President Patrick J. Lynch. He said that if the four cops choose to seek reinstatement, the union will back them. "We hope that the Police Department has the same courage that the judges showed," he said. "This is America, and the courts have ruled."

Mr. Schwarz's attorney, Ronald J. Fischetti, cautioned that Mr. Schwarz still faced "a long road" in the event that the U.S. Attorney seeks to prosecute him again. "But yes, after that, he would love to be reinstated," he said.

Andra Schwarz said her husband would have to answer whether he wanted to put on the uniform again. "In his mind, he's always a police officer," she said. "He loved the job and used to say to me, 'What about all the good things I did and all the people I helped; is that all gone? That's why this has weighed so heavy on his mind. He believes he's still a cop.

All three officers, however, would likely face significant hurdles in any bid to rejoin the force.

Kelly Plays It Cautious

Police Commissioner Raymond Kelly declined to comment when asked Feb. 28 if the three cops could return to the NYPD, saying he had yet to read the appeals court ruling.

All three were fired immediately after their conviction under the state Public Officers Law. The statute provides for the summary dismissal, without the right to a hearing, for tenured peace officers convicted of a felony. Mr. Kelly cautioned that the Louima cops would not automatically get their jobs back.

"They have to apply for reinstatement, and I assume that's what will happen," he said. Administrative charges that paralleled the Federal indictment were prepared against the three cops and then filed by the department, he noted.

These charges can be "dusted off" and brought against them, an NYPD official said, resulting in administrative trials should the fired officers attempt to get back on the force.

Ruling Not All Favorable

The appellate panel ruling that threw out the convictions of all three cops on the conspiracy to obstruct justice charge appeared to leave the department ample ammunition to use in any administrative proceedings. The three ex-cops could be charged with making false official statements, an offense which, under a policy introduced in 1996, leads to dismissal.

The appeals panel found there was no evidence of a conspiracy to lie to a grand jury. Nonetheless, it said, evidence "was plainly sufficient for a jury, if it accepted the government's version of what happened, to find that, soon after the state investigation into Louima's assault began, Schwarz, Bruder and Wiese agreed generally to impede investigators by putting fourth and corroborating a false version of what occurred."

The decision to overturn Mr. Schwarz's conviction on the charge of aiding in the stationhouse assault was based on the finding that he was denied adequate legal representation because in the midst of the case his attorney's law firm had accepted a $10 million retainer from the Patrolmen's Benevolent Association to represent all of its members.

More Loyal to Union?

The contract, the panel argued, gave the attorney, Stephen C. Worth, "a strong personal interest in refraining from any conduct" prejudicial to the PBA, which was accused in a civil suit of conspiring to cover up police involvement in the Louima assault. 

The conflict of interest cited by the appeals court surfaced three months after the 70th Precinct cops were indicted by a Federal grand jury in February 1998. Mr. Worth and Stuart London had been hired by the PBA as outside attorneys to defend Officers Schwarz and Bruder, respectively. In May of that year, Mr. Worth, Mr. London and several other attorneys established a new law firm, Worth, Longworth & Bamundo, LLP and entered into a two-year contract with the PBA to represent all 27,000 of its members in administrative disciplinary and criminal cases as well as defending them against civil suits arising from their actions as Police Officers. After winning the contract, the attorneys agreed to drop any additional fees for their work on the Louima case.

Feds Sought Removal

Federal prosecutors moved to have the two attorneys removed from the case, citing a conflict of interest, while the lawyers and their clients denied the existence of any conflict outside of two members of the same law firm representing co-defendants. U.S. District Judge Eugene H. Nickerson, who presided over both trials, allowed the two officers to continue their representation by the PBA lawyers after warning them of the potential conflict and barring the firm from representing the PBA or any of its other members in any civil lawsuit brought by Mr. Louima.

The appeals court, however, found that the conflict of interest was of an insurmountable nature and resulted in an ineffective defense of Officer Schwarz.

The critical issue of fact in the first Louima trial was whether there was a second officer with Mr. Volpe in the stationhouse bathroom, and, if so, whether the cop was Mr. Schwarz.

Louima's ID Shaky

Mr. Louima was unable to provide a positive identification of the second officer, whom he charged had held him down while Mr. Volpe assaulted him with the stick. And, while another 70th Precinct cop testified at trial he had seen Mr. Schwarz escorting the prisoner toward the bathroom, Officers Schwarz, Wiese and Bruder had all said that it was Mr. Wiese who had led Mr. Louima to the back of the stationhouse.

Mr. Volpe, meanwhile, said Officer Wiese had been in the bathroom with him and had done nothing to stop the assault. Mr. Wiese had told Internal Affairs investigators that he had been outside playing with the station house dog, Midnight, when he heard a commotion in the bathroom and assumed that Officer Volpe was "tuning up" Mr. Louima, When he went in, he said, he saw Mr. Volpe crouched over Mr. Louima with the stick in his hand and shouted out, "What are you crazy?" He then lifted the prisoner off the bathroom floor and led him out, he said.

'Ignored Logical Defense'

The appeals panel found that the logical defense for Mr. Schwarz was to identify Officer Wiese as the second cop in the bathroom. Instead, Mr. Worth's defense was based on the assertion that Officer Volpe had acted alone. The decision suggested that this defense was tailored to suit the PBA's interest in having the assault portrayed as the action of a lone, deranged cop, rather than a conspiracy involving other officers, including Officer Wiese, a PBA Delegate.

"The PBA's interests in defending against the civil lawsuit, which alleged that the PBA. participated in a conspiracy to cover it up, diverged from Schwarz's interests in putting on a defense that would implicate anyone other than Volpe as participating in the bathroom," the appeals panel wrote.

It continued by pointing out that "because the Worth firm's retainer agreement with the PBA provided that (a) a portion of the $10 million retainer (which was otherwise payable in equal monthly installments) would be held back and paid quarterly to ensure the PBA's satisfaction with the Worth firm's performance and (b) the PBA could unilaterally cancel the contract upon 30 days' notice, and because Worth could expect that satisfaction with the firm's performance would result in a renewal of the retainer upon its expiration, Worth had a strong interest in refraining from any conduct to which the PBA might object."

Volpe Could Testify

The strategy of implicating Mr. Wiese as the second officer in the bathroom became even more attractive, the appeals court said, after Mr. Volpe's attorney, Marvyn Kornberg, had told Mr. Worth that "my guy can take your guy out of the bathroom," the court noted.

The ruling said that "implicating Wiese would have been 'inherently in conflict' with Worth's loyalty to the PBA (and, thus, with his self-interest) and that Worth's failure to pursue this strategy was almost certainly the result of this conflict."

Naming another cop in the bathroom assault, the decision continued, "would have supported Louima's claim in his civil case that he was assaulted both in the car and in the bathroom by multiple officers in furtherance of a conspiracy. Casting Volpe as a aberrant officer who acted alone, on the other hand, would likely have been consistent with any defense advanced in the civil case."

Accuses Louima of Lying

In his closing argument in the first trial, Mr. Worth asserted that Mr. Louima had conjured up a second officer in the bathroom in an attempt to "keep some shred of his dignity" after being sodomized with a stick. Describing the attack as "the most humiliating and degrading experience," the lawyer added, "Even more humiliating is that one guy did it to you." The Haitian immigrant, Mr. Worth argued, had claimed that two cops did it to make himself look "less powerless."

Then-Chief Assistant U.S. Attorney Loretta E. Lynch dismissed the argument as "the meanderings of Dr. Sigmund Worth," while Judge Nickerson described the lone-cop defense as "fanciful."

The appeals court found that the damage done to Mr. Schwarz's defense by this strategy was compounded when a juror violated the court's orders by recounting to other members of the jury a news report that Officer Volpe in his guilty plea had acknowledged that a second cop was in the bathroom.

"The combined effect of Worth's conflict-impaired lone-rogue-cop defense and the jury's exposure to portions of Volpe's plea resulted in the worst of all possible worlds for Schwarz's defense," the appeals court wrote. "At the same time that the single-attacker theory was being undermined by the jury's improper exposure to Volpe's assertion that a second officer was indeed present in the bathroom during the assault, Schwarz was denied the use of Volpe's complete testimony that the second officer was" Wiese.

Faults Nickerson

The panel found that Judge Nickerson, who recently died, had erred in not holding a hearing on the effect of the report on the jury's decision. Several jurors said afterwards that they would have voted to acquit had they known that Mr. Volpe had named Officer Wiese as the second cop.

Asked if the police union had taken any measures to prevent the recurrence of the kind of conflict of interest cited by the court, Mr. Lynch said the PBA had appointed a conflicts counsel to review cases in which the interests of individual Police Officers might conflict with those of the PBA or other cops, and to advise officers accordingly.

PBA's $1.6M Payout

The creation of that post, which is currently filled by Abraham Abramovsky, a Fordham University Law School professor, was undertaken by the police union in an effort to settle the civil suit that Mr. Louima brought against the city and the PBA. That suit was settled in July of last year for $8.7 million, with the PBA paying out $1.625 million through its insurance carrier.

The appeals court decision prompted anger from African-American politicians and civil rights advocates, who charged that it strengthened the perception that police officers can act with impunity in the use of force in minority communities.

"This is one of the worst, if not the worst, cases of police brutality in the United States," said Manhattan Borough President C. Virginia Fields. "It is unconscionable that people who may have been involved could walk away without facing justice."

Calling the decision "very distressing," State Comptroller H. Carl McCall said that "punishment fitting the horrific crime committed against Mr. Louima must be meted out to all who deserve it. Then and only then will justice be served."

'A Chilling Message'

The African-American police fraternal group 100 Blacks in Law Enforcement held a press conference outside the Brooklyn Federal court after the decision was announced, calling on the NYPD to reject any attempt by the three ex-cops to rejoin the department.

"This sends a chilling message to the communities we patrol," said the group's leader, Lieut. Eric Adams. "It says that the Federal courts will protect police officers in general and white police officers in particular when they are the defendants and people of color are the victims."

Mayor Bloomberg issued a statement describing the assault on Mr. Louima as "a barbaric abuse of human rights and the law." The appeals court decision, he said, "is a reminder that we need to do everything we can to prevent such incidents and also to improve the relationship between the police and members of every community they protect."