"Chuck, we won, Chuck! You're coming home, pal," the lawyer told Charles Schwarz.
"We won!" the lawyer's assistant screamed into the phone to Schwarz's wife when his conviction and those of two other former cops were overturned Feb. 28.
"Congratulations!" a WNBC-TV anchor said to Schwarz's wife, Andra, and lawyer, Ronald Fischetti, in an interview Friday morning.
"We lost" is what so many people - especially black people and, among blacks, especially Haitians - are feeling since that decree from the 2nd U. S. Circuit Court of Appeals was announced in a case that will live in infamy.
It was triggered, of course, by what the court described as "the brutal assault on Abner Louima in the early hours of Aug. 9, 1997, while he was in custody at the 70th Police Precinct in Brooklyn, New York."
The critical words of the three-judge panel were these: "(W)e hold that Schwarz's convictions for the civil rights violations must be vacated and remanded for a new trial because his attorney's unwaivable conflict of interest denied him effective assistance of counsel, and because the jury was improperly exposed to prejudicial extrinsic information during jury deliberations. We also hold that all three appellants' convictions at the second trial for conspiracy to obstruct justice must be reversed for insufficient evidence."
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All that gobbledegook means is this: Schwarz, though he agreed to be represented by a lawyer whose firm represented one of his co-defendants, as well as the police officers' union, did not have the right to give up his right to have an impartial attorney.
Moreover, the jury learned from outside sources that even though one cop pleaded guilty and his lawyer was insisting that only he was involved in the assault, another cop was involved in the sexual assault of Louima in a bathroom at the 70th Precinct stationhouse.
So Schwarz, who has been in a federal prison for nearly three years, now gets a new trial. And two other cops are allowed to walk because they were charged with something that the prosecutors didn't prove.
To that, Al Sharpton, one of Louima's most public champions, said, in so many words: Hogwash! It was "probably the most astounding reversal that any of us have seen in our lifetime."
That's an arguable point, but for now, let Sharpton have his hyperbole. Louima said it more simply: "I am very unhappy."
Winning and losing is not so easy to discern in what has been described rightly as one of the worst instances of police brutality in the nation's history. No one disputes that Justin Volpe rammed the broken broomstick up Louima's rectum while worked up about the abuse he'd taken on the street outside Club Rendez-Vous. Volpe admitted as much, in pleading guilty May 25, 1999.
The question has always been: Who was the officer who assisted Volpe in assaulting Louima?
According to the appellate court, Schwarz's lawyer, Stephen Worth, had dual loyalties - to Schwarz and to the Patrolmen's Benevolent Association, which had retained him.
Schwarz could have benefited from a defense focusing on someone else as the officer who assisted Volpe in assaulting Louima. But the union, against which Louima brought a civil suit, would benefit from the jury believing that Volpe was a nut who acted alone. Who wants a lawyer with divided loyalties?
The bottom line is that these guys - Schwarz, Thomas Wiese and Thomas Bruder - are no longer cops, and that's a good thing. They violated their oaths and, as the appellate court said, they "agreed generally to impede investigators by putting forth and corroborating a false version of what occurred."
But rather than being charged with something akin to saving their own hides, they were charged with what amounted to trying to keep the grand jury from doing its job. So let the other guys off if the prosecutors screwed up and give Schwarz his new trial. Whether he's convicted or not the next time, he has paid and will continue to pay.
He and his pals know what they did.
by E.R. Shipp
New York Daily News
E.R. Shipp is a columnist for the New York Daily News. She won the Pulitzer Prize for commentary in 1996. Readers may write to her at the New York Daily News, 450 West 33rd Street, New York, N.Y. 10001; e-mail: eshipp2002@hotmail.com.
