March 1, 2002

Judges Deliver a Jolt

Court throws out convictions, orders a Louima retrial

This story was reported by Tom Brune, Karen Freifeld, Beth Holland, Patricia Hurtado, Dan

The notorious police torture-beating of helpless Haitian immigrant Abner Louima again rocked the city yesterday when a federal appeals court ordered a new trial for one officer and threw out conspiracy convictions against him and two others.

The jaw-dropping action by the 2nd U.S. Circuit Court of Appeals came in the racially divisive 1997 case that created — and later came to define — a new era of raw relations between police and the city's minority community.

In a 68-page decision that stunned lawyers, elected officials and activists, the appeals court threw out Charles Schwarz's 1999 conviction for violating Louima's civil rights by restraining him in the bathroom of Brooklyn's 70th Precinct while fellow Officer Justin Volpe sodomized Louima with the handle of a broomstick. The judges said Schwarz's lawyer, Stephen Worth, could not represent him properly because Worth also was a lawyer for the Patrolmen's Benevolent Association.

The court ordered a new trial for the imprisoned Schwarz, who steadfastly maintained his innocence throughout two trials. His wife, Andra, has campaigned tirelessly to win his freedom for as long as he has been behind bars.

The three-judge federal appeals panel also threw out the March 2000 obstruction-of-justice convictions of Schwarz and officers Thomas Wiese and Thomas Bruder, both free on bond pending appeal.

The three officers were convicted of conspiring to lie about Schwarz's presence during the attack. Volpe, serving a 30-year sentence, was not affected by the decision. The judges said there was insufficient evidence to sustain the obstruction-of-justice convictions against Schwarz, Wiese and Bruder.

U.S. Attorney Alan Vinegrad said he was disappointed the court ended the obstruction case by entering a "judgment of acquittal," which prevents a retrial on the same charges. Vinegrad said the government is prepared to retry the case against Schwarz.

Louima, living in Florida after receiving a record $8.75 million settlement from the city and the PBA last summer, said he had "no comment at this time."

But response from members of New York's congressional delegation, the organization representing black police officers and activists including the Rev. Al Sharpton was swift, stinging and sharp.

Sharpton, who led demonstrations after the attack and counseled Louima's family, called the court's decision "a shocking display of how the judicial system continues to fail to protect citizens against police abuse."

"We cannot allow one man to take a fall when clearly one man could not have operated alone," Sharpton said at his National Action Network in Harlem, referring to Volpe. "Does a policeman have automatic immunity once they become a member of the force?"

Schwarz, serving his 15-year sentence in a federal penitentiary in Oklahoma, was scheduled for a hearing in Brooklyn federal court Thursday.

The Louima case had come to be seen as a horrible foreshadowing of the fatal police shootings of Amadou Diallo in the Bronx and Patrick Dorismond in Manhattan — also cases of white officers and victims of color.

But, unlike both the Diallo and Dorismond cases, in the beating and torture of Louima, officers were accused of criminal atrocity against a hapless and overpowered victim. In the 1999 shooting of Diallo, the four police officers successfully pleaded their innocence, with their lawyers positing Diallo's death as a horrible and tragic mistake; no charges were brought in the death of Dorismond in a drug sting gone awry.

Still, in this terrible triad Louima came first. It happened the summer before a fall mayoral election, as Rudolph Giuliani ran for re-election with a heavy emphasis on having cleaned up crime. From the infamous case stemmed a mayor-appointed commission to study whether there was a pattern of police misconduct against minorities and new attention from the NYPD's top echelon to gaps in the supervision of officers.

Louima, then 30, was arrested in a pre-dawn melee outside the Club Rendez-Vous, at the corner of Flatbush Avenue and Farragut Road, on Aug. 9, 1997. Only later did it become known that his arrest was a case of mistaken identity: Volpe wrongly believed Louima had punched him in a fracas outside the nightspot.

After his arrest, Louima was beaten and, after being taken to the bathroom of the 70th Precinct stationhouse, sodomized with the broken handle of a broomstick — assaults to which Volpe pleaded guilty during his 1999 trial on federal civil rights charges.

Louima's beating and torture set off a firestorm of anger, with thousands protesting police abuse. In a march on the 70th Precinct, protesters waved toilet plungers in the air, hoisting what then was believed to be the weapon used against him.

On June 8, 1999, Schwarz was convicted of being present in the bathroom and restraining Louima during that assault. At a second trial, Schwarz, Wiese and Bruder were convicted March 6, 2000, of conspiring to obstruct justice by lying to a federal grand jury.

In its decision, the 2nd Circuit panel found Schwarz was denied effective representation because of Worth's inherent conflict-of-interest, as Worth also was a lawyer for the PBA. The judges also said jury deliberations were tainted because three jurors learned Volpe had said Schwarz was not with him in the bathroom.

Although Schwarz had indicated awareness of the potential for his attorney's conflict at a special hearing before the late U.S. District Court Judge Eugene Nickerson, the conflict was "so severe that no rational defendant in Schwarz's position would have knowingly and intelligently desired Worth's representation," the appeals court judges wrote.

In Washington, Rep. Jose Serrano (D-Bronx) pressed Attorney General John Ashcroft, at a House hearing, to name a federal prosecutor to investigate the appeals court's action.

Ashcroft said he would consider the request.

Mayor Michael Bloomberg released a statement saying the torture of Louima "shocked and disgraced our city." 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 police and members of every community they protect."