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Despite a frustrating setback dealt by a federal appeals court, U.S. Attorney Alan Vinegrad of the Eastern District of New York shows no signs of letting up on former police officer Charles Schwarz. A federal grand jury Monday indicted Schwarz on two counts of perjury for lying about his role in the scandalous police assault on Abner Louima in 1997, setting the stage for a third trial in the most closely watched brutality case in the city’s history. The perjury charges stem from Schwarz’s testimony at a 2000 trial in Brooklyn federal court that ended with the conviction of Schwarz and two fellow officers for conspiracy to obstruct justice in the Louima investigation. Those convictions, as well as Schwarz’s 1999 conviction in a separate trial for joining with a second officer in the attack on Louima, were thrown out less than month ago by the 2nd U.S. Circuit Court of Appeals. The obstruction convictions were based on an alleged scheme by Officers Schwarz, Thomas Wiese and Thomas Bruder to frustrate a federal grand jury’s probe into the identity of the “second officer” who allegedly held Louima down in the bathroom while then-Officer Justin Volpe jammed a broken stick into his rectum on Aug. 9, 1997. Monday’s indictment charges Schwarz with lying twice during that trial: once concerning the identity of the officer or officers who escorted Louima from the 70th Precinct station house front desk to the bathroom, and a second time about the identity of the officers who were present in the first-floor bathroom with Louima. During the trial, defense lawyer Ronald P. Fischetti asked Schwarz, “[D]id you ever escort Abner Louima from the front desk of the 70th Precinct … toward the cells and make a right turn toward the bathroom?” Schwarz responded “no,” and he gave the same answer when Fischetti asked him, “Did you take him anywhere away from the desk?” Vinegrad charges that this was a lie — and that Schwarz also lied when he denied, on the witness stand, ever being in the bathroom with Louima. The 2nd Circuit found on Feb. 28 that there was insufficient evidence to convict the three officers of conspiracy to obstruct justice. In that same ruling, the court reversed Schwarz’ civil rights conviction for being the “second officer” in the bathroom assault, a conviction that came after Volpe, facing overwhelming evidence, broke down and pleaded guilty to attacking Louima. Schwarz’s attorney in the first trial, Stephen Worth, argued throughout that Volpe acted alone. Despite assurances by Volpe’s lawyer, Marvyn Kornberg, that Volpe, after pleading guilty, was willing to testify and take Schwarz “out of the bathroom,” Worth declined to call the disgraced former officer to the witness stand. Worth’s strategy was second-guessed by the 2nd Circuit, which ruled that the attorney was laboring under an actual conflict of interest throughout the trial. The conflict for Worth, the court said, was that his New York law firm had recently signed a $10 million, two-year retainer agreement to represent officers for the Patrolmen’s Benevolent Association, and because of that, Worth might be reluctant to jeopardize the renewal of that contract by basing his defense on pointing the finger at Thomas Wiese — the one officer who admitted to being near the bathroom during the assault and to entering the bathroom after the assault. Despite a rigorous waiver catechism by Schwarz conducted at trial by Judge Eugene Nickerson, now-deceased, and despite the fact that Nickerson insisted that Schwarz receive outside counsel on the conflict issue, the 2nd Circuit found Worth’s conflict “unwaivable.” The appeals court also said that juror contamination was an issue, as members of the jury learned during the trial that Volpe in his plea allocution had said there was a second officer in the bathroom. The result of the 2nd Circuit’s ruling was that Schwarz, at least temporarily, is out of prison, and Vinegrad was left to weigh his options. Vinegrad immediately said he would retry Schwarz for the bathroom assault. That trial is now scheduled to begin before Judge Reena Raggi of the Eastern District of New York on June 24. TOUGHER DECISION But the veteran prosecutor was faced with a tougher decision on the conspiracy to obstruct justice. The 2nd Circuit said that the bar against double jeopardy prevented Vinegrad from retrying the three officers on that charge. And legal authorities disagree over whether the officers could instead be tried for conspiracy to lie to a federal investigator who was helping to build a case before the grand jury. Instead, Vinegrad opted for the perjury charges, and now Fischetti is faced with the issue of whether to ask that those charges be tried before the same jury that will decide in June whether Schwarz was the second officer in the bathroom.

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