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Jewish World Review March 5, 2002 / 21 Adar, 5762

Jonathan Turley

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Yes, Sharpton, there was a failure of justice -- THE ink was not dry on the decision yesterday overturning the convictions in the Abner Louima case before Rev. Al Sharpton denounced the court as actively facilitating police abuse. The man who helped bring us the Tawana Brawley hoax objected that the court was ignoring the evidence and failing to protect innocent people. Ironically, what the appellate court found was that critical players in the trial tried too hard ­- not too little -­ to secure a conviction at any cost. In bringing and trying this case, the Justice Department, the judge, and a juror demonstrated the perils of yielding to the temptations of the moment in a high-profile case.

When Charles Schwarz, Thomas Wiese, and Thomas Bruder stood for trial, the environment could not be less conducive for a fair trial. The entire nation was still reeling from the torture of Louima at the hands of Justin Volpe, a sadist who admitted to sodomizing the Haitian immigrant with the handle of a broomstick. With protests in the streets, the Justice Department moved to hold others accountable for this horrendous act. The problem was a lack of evidence of direct involvement. In their first attempt, the Justice Department was able to secure convictions of Schwarz for violating Louimašs civil rights. However, a jury acquitted Schwarz, Wiese, and Bruder on assault charges. The Justice Department then pressed for convictions on conspiracy to obstruct a grand jury in a second trial.

However, there was never any real evidence that these individuals conspired to obstruct the grand jury. Not only did the officers not appear before the grand jury, there was little evidence that they were aware of a grand jury investigation and no evidence that they knew allegedly false statements would be introduced at a grand jury. Ironically, there was evidence of a different crime that is routinely charged by the Justice Department ­ lying to federal investigators. The appellate court stated that, had this other crime been charged, all three convictions would have been upheld.

The blunders of the Justice Department, however, in bringing these charges were overshadowed by the later errors of the trial judge, the late Judge Eugene H. Nickerson. Nickerson was aware that the convictions of these three men may have been unlawfully influenced by a juroršs misconduct. A respected judge with a long distinguished record, Nickerson properly instructed the jurors not to watch or read news accounts on the case. However, during the jury deliberations, one juror told the other jurors that Volpe had just pleaded guilty and had indicated that there was another officer in the bathroom during his assault. This information directly contradicted the theory put forward by the defense for Schwarz. After the verdict, jurors learned that they had heard only part of the news story and that Volpe had indicated that the other officer was not Schwarz. They contacted the defense and stated that they voted on improper and inaccurate information.

When the defense raised this issue with Nickerson, the judge made a terrible and uncharacteristic decision. He refused to hold a hearing to determine the damage done by the juroršs misconduct. Instead, like the officers accused of standing around at the 70th precinct, the judge chose to remain in willful ignorance rather than look into the jury room.

Of course, the only conduct more baffling than the judgešs was that of the juror. While the other jurors can be criticized for not immediately contacting the court, the responsible juror should have been subject to contempt of court. With the lives of three men in the balance, this juror decided to violate a sacred oath and yield to the impulse of the moment.

If the mistakes of the Justice Department, the judge, and the juror were not enough, the court also found a violation by one of the defense attorneys representing Schwarz. It appears that the defense attorney was representing the police union in a flagrant conflict with his duty to his client. This left the bailiff as the only party not responsible for a serious violation in the trial of these men.

A massive failure of this type is not easy come by. It took the concerted work of all of the parties (as well as public advocates) to deny the one thing that the victim, these officers, and this city so desperately need: blind and final justice.

JWR contributor Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University Law School. Comment by clicking here.

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© 2002, Jonathan Turley