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Jewish World Review Oct. 2, 2002 / 26 Tishrei , 5763

Jonathan Turley

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Gagged justice sets dangerous precedent | The Abner Louima case came to an abrupt end last Saturday with a sentencing agreement between former New York police officer Charles Schwarz and federal prosecutors. The final settlement was less of a victory than an exhausted concession by both sides that it was time to end a legal trench war that has been waged for five years without any significant advance by either side.

Not only does the settlement leave the merits of the charges mired in controversy; it introduces a new and disturbing prosecutorial device: a compelled silence of a defendant, his family and his lawyer. This highly objectionable measure appears designed to produce the appearance of resolution where only controversy remains. It is designed not to serve justice but to silence it.

Few people could view the deal as a fitting or just end for the infamous case.

The prosecution insisted that Schwarz was the second officer in the bathroom when Louima was tortured with a broken broom handle in the bathroom of the precinct station house. But lead prosecutor Alan Vinegrad decided to drop efforts to try Schwarz in a fourth trial for the more central civil rights and conspiracy charges. Instead, Schwarz would be allowed to be sentenced for a single act of perjury on a relatively marginal issue: his claim that he did not escort Louima away from the front desk that night.

If Vinegrad truly believed that Schwarz was the second officer, the deal is a travesty of justice. His formal sentence of five years is misleading. If Schwarz complies with the deal, he would serve less than 47 months (the prosecution agreed to ask for a reduction from 60 months to 47 months after he serves half of his sentence without violating the agreement). With good-time credit, this would mean a release in roughly three years. As part of the agreement, Schwarz would not have to admit to being part of the attack, which was the primary purpose of the five years of litigation. For his part, Schwarz insisted that he was innocent of the charges. His partner, Thomas Weise, reportedly admitted that it was he and not Schwarz who took Louima to the bathroom.

Moreover, Louima himself admitted to lying under oath without any threat of prosecution. (Louima's famous claim that one of the officers said, "It's Giuliani time" during the attack was false.) If Schwarz is truly innocent, the agreement is a travesty of justice.

Perhaps the most odious part of this deal is the restriction on free speech. In return for dropping the charges, Schwarz, his wife and his attorney will be barred from asserting his innocence. Vinegrad has been dogged throughout these trials by a successful public campaign by Schwarz's wife and friends, including a website. Under the agreement, the website has to be shut down, T-shirt sales suspended and other public events asserting his innocence halted. It appears that this idea may have originated with the defense as an enticement for the prosecutors for a deal, but the Justice Department should have resisted the temptation.

Vinegrad insists that he is trying to protect the public in barring the free speech of these people, as part of his effort to bring "closure." But this deal will not bring closure in any real sense given Schwarz's failure to admit anything. It does guarantee that Vinegrad can curtail media criticism over the merits of the settlement or the controversial prosecution that led to it. In Vinegrad's case, the Schwarz family, their lawyer and their website had raised a host of objections that ranged from thuggish tactics to impeding potentially exculpatory witnesses.

It is clear why a prosecutor would want such a deal, but it's not clear how it serves justice. By scuttling the case, Vinegrad leaves a host of unanswered questions about Schwarz's role and Vinegrad's own performance. Yet this novel gag agreement seems designed to produce an artificial silence as if justice were done. It is a concept other prosecutors may now seek to replicate in their own cases. With the new power, prosecutors can abuse defendants and then offer short sentences in return for coerced silence.

This case has already produced lasting injury to the city as well as the victim. This new measure threatens to add the law as the latest collateral victim of the Abner Louima case.

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JWR contributor Jonathan Turley is a constitutional law professor at George Washington University. Comment by clicking here.

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© 2002, Jonathan Turley