Three Strikes Is Still an Out


Thirty-six jurors have heard the case against Charles Schwarz, the “Hero Cop” of tabloid fame in the Abner Louima case, and 36 jurors have voted to convict him of at least one felony. None of the three juries that tried him has acquitted him of even a single count related to the sodomizing of Louima, though he was cumulatively charged with seven felonies connected to it. His post-verdict declaration of disappointment that he was convicted last week of the “small, technical charge” of perjury is an affirmation of the value this sworn law enforcement officer places on the truth.

Even the Court of Appeals that set aside his earlier convictions — on bizarre and highly technical grounds — found the evidence “plainly sufficient” that Schwarz and two other cops, Thomas Wiese and Thomas Bruder, “agreed to impede” the federal probe “by corroborating a false version of what occurred.” Although the thrice-convicted golden-boy cop loudly continues to portray himself as a victim, his attorney Ron Fischetti acknowledged in the aftermath of last week’s verdict that Schwarz “finally got a fair trial,” an admission incompatible with the repeated howls of innocence.

The latest Schwarz media drumbeat is that he should not be tried a fourth time on the three counts the most recent jury could not resolve — which focus on whether he participated in the bathroom assault. But while the government may decide to drop deadlocked charges when the jury has acquitted the defendant of the other counts, it does not usually abandon them when, as in this case, he was convicted on one count at trial and convicted on the still-unresolved counts in prior trials. U.S. Attorney Alan Vinegrad has already made clear the government’s perfectly appropriate determination to try Schwarz again on a case they’ve won twice, tied once, and never lost.

The reason he was convicted again — this time of lying about whether he took the soon-to-be-brutalized Louima to the precinct bathroom in August 1997 — was because seven witnesses put him there while only one said he wasn’t.

Four of the witnesses were cops, including a police union delegate hostile to the government’s case who admitted Schwarz told him he’d taken Louima in the direction of the bathroom. The others were a precinct clerk, an ex-cop close to Schwarz whom Schwarz called the night of the assault, and Louima himself, who could not identify Schwarz but said he was escorted by the driver of the car who brought him to the precinct (indisputably Schwarz). The two most important police witnesses to the Schwarz walk — Eric Turetzky and Mark Schofield — stepped forward early, without lawyers or any immunity requests, to nail Justin Volpe, the cop who lied for 21 months but eventually pleaded guilty to using a broomstick to shatter Louima’s rectum and bladder.

Their blue-wall-breaking testimony, overcoming so much pressure one had to be safely escorted out of his own precinct never to return, was as believable about Schwarz as it had been about Volpe.

The only eyewitness to insist Schwarz wasn’t there was Volpe himself, who was also the only witness with something to gain from his testimony. In a government tape of a prison phone conversation Volpe had with his father shortly before the trial, he says the lawyers “better start getting ready to do some strategizing and get me a reduction” of his 30-year jail sentence if they want his exculpating testimony. “If they think I’m falling on my sword again for nothing,” Volpe rants, “they’re out of their fucking minds.”

Volpe testified that Schwarz’s partner Wiese walked Louima to the room and stayed in it, doing nothing, while he alone sodomized Louima, a single-bullet theory contradicted even by the appeals court, which found the suggestion that the assault could have been committed by one man “implausible and factually unsupported.” But Wiese did not testify, and Schwarz’s lawyers chose not to even attempt to put a document summarizing Wiese’s account before the jury, even though it had been submitted in the prior trial.

The Wiese version supported Schwarz’s claim that Wiese walked Louima to the bathroom but contradicted Volpe, with Wiese claiming that he only entered the room after the sodomy, and that he stayed outside it throughout the assault and never even heard Louima scream. Had the defense put both Volpe and Wiese on the stand, their combined version would have been both inconsistent and inexplicable. The Wiese account, of course, came after Schwarz and Volpe were already arrested and was designed to clear everyone but Volpe, who was seen by other officers with either the broomstick or the gloves in his hands. It was not — as Schwarz’s media allies have attempted to portray it — a mistaken-identity claim with Wiese putting himself in Schwarz’s place. It was a calculated effort to save Schwarz without implicating Wiese.

What the jury essentially found was that Schwarz yanked Louima’s pants and underwear to his knees while searching him, walked him down a hallway bare-assed with his arm bent in a chicken-wing fashion, and took a right down a second hallway where the bathroom was the sole unlocked door. With only Louima and Volpe testifying about what actually occurred in the bathroom, and Louima unable to identify his second assailant beyond being certain that it was the driver, some jurors obviously had doubts that it was Schwarz. Without a smoking-gun witness, this jury, unlike two prior ones, refused to follow the logic of the government’s case.

Just after filing a complaint that Louima punched him in the face at the street riot that occurred outside a nightclub, Schwarz did not walk Louima to the bathroom because he wanted to accommodate his prisoner’s bowel or kidney needs. He didn’t pull Louima’s underpants down for that reason, either. The naked walk to the bathroom was a humiliating prelude to what would happen inside it. The seclusion of the bathroom was precisely why Schwarz took him there.

That’s why Volpe is heard on the prison tape bemoaning the fact that “the other guy’s going home [Schwarz] and I’m going to be rotting in these fucking places,” and even mysteriously calling Schwarz “a fucking scumbag who fucking tried to wreck my life.” Why is Volpe so angry at Schwarz? Volpe, argued the prosecutors in summation, “thinks it’s unfair and unjust because they did a crime together and he’s paying the full price for it” — the only explanation that makes sense. A fourth trial would be intriguing, just to see what Volpe does the next time, or whether Schwarz, who entertains the media ad nauseam, will take the stand, as he did to his own detriment the second time but refrained from doing most recently.

Fischetti, Schwarz, and their media chorus have defamed everyone involved in the case, assailing Louima, Turetzky, Vinegrad, and the deceased judge from the first two trials, Eugene Nickerson, in particular. The Post story the day of the verdict called it “vile” in a headline, and on the front page managed to depict the prosecutors as “reeling.” The Post has also favorably quoted a priest who says Vinegrad “should be arrested” and Volpe’s father, of all people, suggesting that Vinegrad is a “rogue prosecutor” who should be monitored by psychiatrists.

Blasted as a “viper” in the Post and as Inspector Javert in this newspaper, Vinegrad has actually received the Attorney General’s Award for Distinguished Service and the Bar Association’s Stimson Medal for outstanding prosecution.

Though the Schwarz case is repeatedly depicted as his personal obsession, he was in private practice in February 1998, when Schwarz was indicted, returning that September at the personal request of New York’s first black U.S. Attorney, Zachary Carter, who soon asked him to take over this racially charged case. With two young children to support, he gave up a far more lucrative position to come back to public service. Incredibly, this embodiment of a real law enforcement officer has been more sullied by the media mudslingers drawn to this high-profile case than the man nailed by 36 ordinary New Yorkers.

Research assistance: Ross Goldberg, Rebecca Isenberg, Matteen Mokalla, Nate Schwebber, Emily Weinstein

Related Article: Schwarz: Justice or Technicalities? by Nat Hentoff