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The 2nd U.S. Circuit Court of Appeals has ordered prosecutors to give lawyers for convicted New York police officer Charles Schwarz materials the defense attorneys believe may contain exculpatory material that should have been provided before trial. In another unusual step, the court also postponed oral arguments that were scheduled for Monday on the appeal of Schwarz, who was convicted two years ago of joining fellow officer Justin Volpe in the 1997 attack on Haitian immigrant Abner Louima in Brooklyn’s 70th precinct station house. The materials at issue are dozens of tapes, summaries and transcripts of so-called GO-15 hearings — the initial interviews conducted by police department internal affairs investigators with officers who may have had information concerning the attack on Louima. During trial, Volpe pleaded guilty to sodomizing Louima with a broken broomstick and was sentenced to 30 years in prison. But Louima also testified that a second officer held him down while he was brutalized by Volpe in the station house bathroom, and the jury believed him. Schwarz was convicted of being the second officer in the bathroom, and he was sentenced to 15 years in prison. But lawyers for Schwarz, including Ronald Fischetti, have insisted that the jury convicted the wrong man — and that Charles Schwarz was not in the bathroom during the attack. Before trial, Senior Judge Eugene Nickerson of the U.S. District Court for the Eastern District of New York ruled that the government had met its constitutional obligation to provide materials to the defense under the U.S. Supreme Court’s holding in Brady v. Maryland. Lawyers for Schwarz objected, arguing they were entitled to transcripts and tapes of GO-15 hearings. It was not enough, they told Judge Nickerson, that the government merely stated that it was not in possession of any exculpatory materials, and then provide only a list of potential witnesses that included officers interviewed by internal affairs. However, Nickerson ruled that “providing the names of witnesses, without full statements or summaries of whatever exculpatory information they may have, has been sufficient in this circuit for the government to be in compliance with Brady.” Lawyers for Schwarz argued that the 2nd Circuit needed to review the materials in deciding whether Nickerson should have ordered fuller disclosure, or at least whether the judge should have conducted an in camera review of the transcripts. The lawyers also argued they would be hamstrung on the appeal if they were not allowed to review the material themselves. The 2nd Circuit agreed. COURT ISSUES ORDER In an order issued June 28, the court directed prosecutors to show cause why the materials should not be unsealed or shown to defense counsel. However, while the government turned over the materials to the 2nd Circuit on July 3, accompanied by an affidavit signed by Assistant U.S. Attorney Lauren Resnick, it balked at providing the materials to the defense. In a letter to the court, Resnick and Eastern District of New York U.S. Attorney Alan Vinegrad, who prosecuted the case, said: “the defendant Schwarz has failed to demonstrate that such disclosure is necessary to a proper adjudication of his Brady claim.” But on July 6, the appeals court issued a second order, directing the government to provide all tapes and summaries from the GO-15 hearings to the defense, as well as “all reports of FBI interviews of persons who had testified in GO-15 hearings.” Once lawyers for Schwarz have waded through the tapes and transcripts of the interviews, they will have an opportunity to submit an additional brief on the issues. Once the government responds, oral arguments will be held on July 19 before 2nd Circuit Chief Judge John M. Walker, and Judges Jose A. Cabranes and Chester J. Straub. UNUSUAL RULING Although it is not uncommon for the 2nd Circuit to order additional submissions before it hears oral arguments, veteran defense attorneys say the court’s decision ordering disclosure of potential Brady materials is a rare occurrence. “It is unusual because most of the time you do not need to supplement the record,” said Robert G. Morvillo, of New York’s Morvillo, Abramowitz, Grand, Iason & Silberberg. “The court is simply trying to put the lawyers in a position to be able to argue more effectively. This is a way for the court to assess whether the failure to turn over the material, [or the lower court's decision not to order it be provided] amounts to the type of error that could require a new trial.” Mark Pomerantz, of New York-based Paul, Weiss, Rifkind, Wharton & Garrison, was surprised by the decision of the 2nd Circuit to order the disclosure and postpone arguments. “It’s very unusual,” said Pomerantz, who once served as chief of appeals and headed the criminal division in the Southern District of New York U.S. Attorney’s Office. “Particularly the rescheduling of the argument, because they are set so far in advance. And the fact that they want additional briefs suggests they are going to be focusing very closely the impact of the evidence.” Fischetti and Vinegrad, who prosecuted the case, declined to comment on the appeal.

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