13245: Bellegarde-Smith: FW: Louima Case Closed, Not Resolved (fwd)

[Bob Corbett <corbetre@webster.edu>]

From: P D Bellegarde-Smith <pbs@csd.uwm.edu>



	NEWS ANALYSIS

	Louima Case Closed, Not Resolved

	By WILLIAM GLABERSON



	 The Abner Louima case ended on Saturday night without resolving one of the biggest questions of the five-year legal ordeal: the identity of the second officer in the Brooklyn police station bathroom where Officer Justin A. Volpe redefined police brutality on an August morning in 1997.

	The sentencing agreement that will send another former officer, Charles Schwarz, to prison, for a maximum of five years for perjury, included no admission that Mr. Schwarz was, as prosecutors long charged, the officer who restrained Mr. Louima while Mr. Volpe sodomized him with a broken broomstick. But it also prohibits Mr. Schwarz from continuing to proclaim his innocence publicly.


	The Louima case always carried with it unrealistic hopes that it could expose the truth about racism in New York, police brutality and the law enforcement brotherhood that critics say fosters a blue wall of silence.

	To some extent it succeeded: Mr. Volpe is serving a 30-year prison sentence. But the Saturday night deal was also a reminder of how the haze of lies and faulty memories surrounding the events in the case benefited some officers who were pursued by prosecutors and how ill-equipped the legal system is to answer questions for history. Explaining the deal yesterday, the chief prosecutor, Alan Vinegrad, acknowledged that after the exhausting legal battle, prosecutors had worried about the chance that Mr. Schwarz's fourth trial, which had been scheduled to begin today, could have ended in an acquittal or a hung jury.

	"There were risks of not getting the verdict that we wanted," he said in an interview. So Mr. Vinegrad accepted the deal, although he did not get what he had long sought: an admission from Mr. Schwarz that he had participated in the attack.

	Mr. Schwarz's chief lawyer, Ronald P. Fischetti, failed in the goal he had set of proving that Mr. Schwarz is innocent. He settled for the conclusion that the prosecution never proved that Mr. Schwarz was guilty of taking part in the attack.

	So after five years of courtroom warfare, the deal represented a draw on what became the most important question of the case after Mr. Volpe pleaded guilty: Was Mr. Schwarz the second officer in the bathroom?

	The law requires that prosecutors prove their cases beyond a reasonable doubt. An anonymous juror from one of Mr. Schwarz's previous trials told Pacifica Radio this year that some officers used that lofty concept to sabotage the investigation. In the interview, the juror said that the officers wanted "to throw smoke and dust in the eyes of the investigators, plant enough reasonable doubt in the record so a jury wouldn't be able to find anybody other than Volpe guilty of anything."

	None of the officers who were charged in the case ever acknowledged that. But Mr. Schwarz's plea agreement showed how the reasonable doubt requirement can be a wedge against prosecutors.

	After they won reversals of two prior convictions of Mr. Schwarz, his defense lawyers succeeded in getting a deadlock at his trial in July. They persuaded at least one juror that Mr. Schwarz was not guilty on three charges, including the two civil rights charges that would have been part of the trial that was scheduled to begin this morning.

	In preparation for the new trial, the biggest weapon Mr. Fischetti had in negotiating with the prosecutors was their fear that he might be able to win over just one juror. Both he and Mr. Vinegrad agreed in interviews yesterday that if the new trial had led to yet another hung jury, the government would not have mounted another prosecution of Mr. Schwarz.

	"We would not have tried him a fifth time," Mr. Vinegrad said, "because at a certain point the criminal justice system has to recognize that the system has played itself out."

	That meant Mr. Fischetti did not have to try for acquittal by 12 jurors. "What I needed to do in this trial," Mr. Fischetti said yesterday, "was convince one person out of 12 that there was a reasonable doubt, and that would end the prosecution of Charles Schwarz."

	Such stances are often part of negotiations, and in Mr. Schwarz's case there were many issues that could be used as ammunition in the psychological maneuvering. Yesterday, Mr. Vinegrad and Mr. Fischetti differed, for example, on what sentence Mr. Schwarz might have faced on the single perjury count had there been no agreement and had the prosecution failed to convict on the other three charges.

	Mr. Vinegrad contended that he might have gotten far less than the five-year sentence. That would make the deal a victory for prosecutors. Mr. Fischetti asserted that Mr. Schwarz would have received five years, which was the maximum. Under the deal, he said, Mr. Schwarz may be free after less than three years. That would suggest that he had outbargained Mr. Vinegrad.

	Each side acknowledged the risks of a new trial. For the defense, the possibility of a conviction on all counts would have subjected Mr. Schwarz to a sentence of 15 years. For the prosecution, the possibility of ending up without a conviction would have been an embarrassment and an invitation to supporters of Mr. Schwarz to harshly criticize the federal prosecutors' office in Brooklyn.

	But in the end, the pivotal issue might have been Mr. Fischetti's assertion that all he needed to do was persuade one juror that there was a reasonable doubt. As the case has drawn on through the years, that may have become an easier task.

	Two other police officers who had been convicted of obstruction of justice along with Mr. Schwarz, Thomas Wiese and Thomas Bruder, also had their convictions overturned in February. The appeals court flatly said that the evidence supported a finding that they had misled investigators but that, contrary to what the prosecution had charged, they had not specifically intended to mislead a federal grand jury.

	Some lawyers say reasonable doubt can be created not just from testimony, but also from the atmosphere surrounding a trial. In Mr. Schwarz's case, some headlines had incorrectly asserted that Mr. Wiese and Mr. Bruder had been "cleared." Lawyers say it is unlikely that the two former officers will face any new charges. That prediction has amplified the perception among Mr. Schwarz's supporters that the prosecution's larger case to find other officers culpable in the Louima investigation has collapsed.

	Mr. Fischetti always played his hand aggressively in fostering public doubts about the case. But the prosecutors also knew that Mr. Fischetti and a colleague, Diarmuid White, had in fact won an appeals decision overturning Mr. Schwarz's two earlier convictions and that the defense had fought the case to a mistrial in July.

	Prosecutors did have many reasons to be encouraged about the strength of their case. The foreman of the jury that deadlocked in July said publicly, for example, that the holdout juror had been biased and suggested she was irrational. But nothing could guarantee that another single juror would not reject the government's case.

	In the negotiations, Mr. Fischetti had little to trade because Mr. Schwarz has publicly said he would never admit any part in the assault itself. The unusual solution was an agreement that Mr. Schwarz would not be able to continue to proclaim publicly that he is innocent.

	The agreement forbids him, his wife and his lawyers to make any statements "relating in any way to the sexual or other assaults of Abner Louima." The prosecutors, too, are bound not to debate the question of Mr. Schwarz's guilt.

	That unorthodox curb on speech, Mr. Vinegrad said, was intended to "put an end to the continuing debate about whether or not Mr. Schwarz was in the bathroom."

	It is not clear whether a legal document can do that. But the fact that the prosecutors wanted so badly to quiet the debate may suggest how much they think it helped Mr. Fischetti foster the idea that there was reasonable doubt about whether Mr. Schwarz was the second officer in the bathroom.