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An attorney’s conflict of interest led to a stunning victory for imprisoned former New York police officer Charles Schwarz Thursday, as the 2nd U.S. Circuit Court of Appeals overturned his conviction in the Abner Louima case. Schwarz, convicted of joining with Officer Justin Volpe in the brutal assault on Louima in a 70th Precinct stationhouse in 1997, will have a second trial, largely because New York attorney Stephen Worth was hopelessly conflicted by his law firm’s retainer agreement with the Policeman’s Benevolent Association (PBA). A unanimous three-judge panel said that Louima’s civil suit against the PBA for orchestrating a conspiracy against him put Worth in an untenable position during Schwarz’s criminal trial in 1999. The conflict became manifest, the court said, when Worth continued to assert that Volpe was the lone assailant even after Volpe pleaded guilty in the middle of trial and said there was a second officer present when he jammed a wooden stick into Louima’s rectum in the bathroom. The court also found that Eastern District of New York Judge Eugene Nickerson, who died last month, erred when he refused to grant Schwarz a post-trial hearing on whether the jury was contaminated because it learned that Volpe had stated during his guilty plea that a second officer was present. “The combined effect of Worth’s conflict-impaired lone-rogue-cop defense and the jury’s exposure to portions of Volpe’s plea resulted in the worst of all possible worlds for Schwarz’s defense,” Chief 2nd Circuit Judge John M. Walker Jr. said. “At the same time that the single-attacker theory was being undermined by the jury’s improper exposure to Volpe’s assertion that a second officer was indeed present in the bathroom during the assault, Schwarz was denied the use of Volpe’s testimony that the second officer was someone other than Schwarz,” Walker said. The court, in United States v. Schwarz, 00-1479, also reversed, for insufficient evidence, the convictions in 2000 of Schwarz and fellow officers Thomas Wiese and Thomas Bruder for conspiracy to obstruct justice. They had been found guilty of impeding a grand jury investigation by giving false statements to investigators to cover up Schwarz’s involvement in the bathroom assault. Because of double jeopardy concerns, the court said, the three officers cannot be retried on that charge. New York attorney Ronald Fischetti, who has represented Schwarz pro bono for more than two years through his second trial and his appeals, said Thursday he was working for an early bail hearing to get his client out of prison, where he was serving a 15 1/2-year sentence. “We are absolutely thrilled — I always believed I represented an innocent man,” Fischetti said. “Although it’s impossible to know for certain what the judges were thinking, there is no question in my mind that the judges had some doubt as to whether he was actually guilty of these crimes and I think that had a lot to do with this decision.” In fact, Chief Judge Walker in his opinion gave some indication of the panel’s view of the evidence when he wrote: “the events that followed the processing of Mr. Louima at the front desk were central to the government’s case and were hotly contested at both trials; however, evidence and testimony that strongly contradicted the government’s version of events was not introduced until the second trial.” ATTORNEY CONFLICTS The issue of Worth’s conflict of interest traces back to 1997, when, shortly after the Aug. 9 attack on Louima, Worth was hired to represent Schwarz, and Stuart London was hired by Thomas Bruder. The two lawyers joined others in forming the New York law firm Worth, Longworth & Bamundo in February 1998. Three months later, the firm signed a $10 million, two-year retainer agreement with the PBA to represent police officers on administrative, criminal and disciplinary matters as well as in civil actions. The government objected to Worth’s and London’s continued involvement in the case, particularly because Louima had filed a civil suit charging that PBA members injured him and PBA officials conspired to cover up the assault. At a pretrial hearing on the issue, Judge Nickerson carefully questioned Schwarz about his lawyer’s potential conflicts because of his role as PBA attorney, even though Worth was barred from playing any role in the civil suit. Despite hearing a litany of problems the conflict might cause, Schwarz waived any possible claim of ineffective assistance of counsel. But Thursday, the 2nd Circuit said that Schwarz’s claim for ineffective assistance of counsel was “unwaivable,” because Worth’s conflict was “so severe that no rational defendant in Schwarz’s position would have knowingly and intelligently desired Worth’s representation.” Thursday Worth said, “I’m obviously pleased with the result, although I feel the court reached it for the wrong reasons. I always believed in Chuck’s innocence but I don’t feel there was a conflict of interest regarding his representation.” But the appellate panel found that a conflict that was merely possible when Worth signed the retainer with the PBA became “actual” when Louima filed his civil suit against the Association. “Because Louima had consistently maintained that he was assaulted in the bathroom by at least two officers, Schwarz had an obvious strategic interest in implicating another officer in the bathroom assault from the moment he was charged with the crime,” Chief Judge Walker said. “Such a defense, however, could have hampered the PBA in its defense of the Louima civil suit.” Walker then moved to the second phase of the analysis: whether the conflict affected Worth’s performance. Schwarz, he said, must show that the conflict led to a “lapse in representation.” That lapse, the court said, was that Worth eschewed the “plausible alternative defense strategy” of implicating Thomas Wiese as the second officer in the bathroom. Walker said that theory was “viable,” in part, because Wiese, in a proffer during the initial stages of the investigation, told an investigator he had escorted Louima to the bathroom with Volpe, and that he had entered the bathroom during Volpe’s assault. But Chief Judge Walker said that Worth continued to pursue his lone assailant theory and declined “the opportunity to call Volpe to the stand, despite being told by Volpe’s attorney [Marvyn Kornberg] that ‘my guy can take your guy out of the bathroom.’” “Indeed, to put Volpe on the stand to testify that there was in fact a second officer in the bathroom (who was not Schwarz) would plainly have been ‘ … in conflict with Mr. Worth’s other loyalties … ‘ because it would have provided support for Louima’s conspiracy claim in the civil suit against the PBA,” the chief judge said. SECOND TRIAL The court then addressed the second trial in February 2000, where it was charged that as part of a conspiracy with Schwarz, Bruder and Wiese provided false information to federal and local law enforcement officials in an effort to exculpate Schwarz with respect to the sexual assault of Abner Louima. The charge, under 18 U.S.C. � 1503, was that the men obstructed or impeded a federal judicial proceeding — a grand jury investigation. The evidence at the second trial, which included testimony from both Schwarz and Volpe, included some 250 phone calls among Schwarz, Wiese, Bruder and others following the incident, meetings in the stationhouse and statements that Bruder and Wiese made to investigators. But Chief Judge Walker said that the “only evidence that tied appellants’ conduct to the federal investigation and thus the federal grand jury proceeding, was Bruder’s statements to federal investigators on Nov. 8, 1997.” “The fatal defect in the government’s case is that there was no showing that Bruder, who had been subpoenaed only for his memo book, knew that the allegedly false statements he made to the federal investigators on Nov. 8, 1997, would be conveyed to the federal grand jury,” Walker said. “Bruder had not himself been called to testify and there is no evidence that the investigators gave him any indication they would repeat his statements to the grand jury.” Eastern District U.S. Attorney Alan Vinegrad released a statement in which he said that the government was preparing to retry Schwarz, and that he believed that the former officer had waived any objections to his attorney’s conflict. Vinegrad also said the 2nd Circuit “recognized” that the evidence at the second trial supported the government’s claim that the three officers had agreed to impede the investigation into “one of the worst acts of police brutality in New York City history.” Judges Jose A. Cabranes and Chester J. Straub joined in the opinion. Diarmuid White, Brendan White and Mark L. Freyberg joined Fischetti in representing Schwarz. Richard M. Asche, Russell Gioiella and Howard S. Weiner of New York-based Litman, Asche & Gioiella and Joseph Tacopina represented Wiese. Jeremy Gutman and Stuart London of New York-based Worth Longworth Bamundo & London represented Bruder. Assistant U.S. Attorneys Barbara D. Underwood, Lauren Resnick and David C. James, then-Eastern District U.S. Attorney Loretta Lynch and Vinegrad represented the government.

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