The New York Times

March 12, 2002

Schwarz Asks for New Judge at Retrial, but Is Rejected


awyers for Charles Schwarz, the former officer whose conviction was overturned in the Abner Louima torture case, asked yesterday for a new federal judge to preside over his retrial.

The judge who released him on $1 million bail Thursday, Reena Raggi of United States District Court in Brooklyn, promptly rejected the request and said she would remain on the case. "Defendant's request for reassignment is denied," she said in a terse order filed late yesterday.

The unusual request by Mr. Schwarz, whose supporters say he was unfairly convicted in two trials before a different federal judge, appeared to set the stage for friction in the new trial, scheduled for June 24.

Mr. Schwarz is facing a retrial on the charge that he led Mr. Louima to a bathroom in the 70th precinct station house and then held him down while another officer, Justin A. Volpe, assaulted Mr. Louima.

The letter dated yesterday by a defense lawyer, Diarmuid White, appeared to distance the defense lawyers from the request. "This application," it said, "is made at the specific request of our client, defendant Charles Schwarz."

It did not explain why Mr. Schwarz wanted another judge.

The case ended up with Judge Raggi because the trial judge, Eugene H. Nickerson, died, and in early February the court clerk had randomly assigned to Judge Raggi a separate legal motion filed by Mr. Schwarz's lawyers seeking more lenient treatment in prison.

The appeals court reversed Mr. Schwarz's conviction on Feb. 28.

The letter yesterday cited a court rule declaring that when an appeals court orders a new trial, the court clerk "shall randomly select a different judge" to preside. In her brief order yesterday, Judge Raggi said that when the case was assigned to her in February it was assigned "for all purposes" and declared that the rule about reassignment of cases did not apply, because that rule applies to reassignment from the judge who handled the original trial.

The defense lawyers declined yesterday to comment on Mr. Schwarz's reasons for wanting to replace Judge Raggi, a former United States attorney in Brooklyn who can be stern with defendants. But in 1998, during the investigation of the case, Judge Raggi made a ruling that was harmful to the officers under investigation and to the main police union, the Patrolmen's Benevolent Association.

At that time, federal prosecutors wanted to question union representatives who had met with police officers after the assault at the station house in Flatbush. The prosecutors have long claimed that the police officers involved conspired to cover up Mr. Schwarz's role in the crime.

The prosecutors had said they needed testimony from the union representatives to pierce the code of police secrecy. The union argued that the purpose of meetings between officers and union representatives under such circumstance was to determine whether the officers needed legal representation. The union claimed that its representatives should not have to testify because they were covered by an extension of the attorney-client privilege.

Judge Raggi ruled against the union and directed the union representatives to testify.