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Charging that Eastern District of New York prosecutors withheld a critical statement made by Abner Louima during the investigation into his 1997 assault at a Brooklyn police station, defense lawyers argued in court papers filed Thursday that the government should be sanctioned by having the civil rights charges against former officer Charles Schwarz dismissed. Attorney Ronald P. Fischetti said the government has only now released a report concerning Jean-Claude Laurent, an adviser to the Louima family, who purportedly told the Federal Bureau of Investigation in 1997 that Louima had told him four police officers were present in the bathroom during the incident. In a sanctions motion filed with U.S. District Judge Reena Raggi of the Eastern District of New York, Fischetti said that the government withheld the statement knowing that Louima’s credibility would be jeopardized. Louima testified at the first of two trials completed so far that only two officers were present during the attack: Justin Volpe and a second officer that Louima could describe only as the driver of the patrol car that brought him to the 70th Precinct on Aug. 9, 1997. Volpe pleaded guilty during the first trial in 1999, surrendering his defense and admitting to ramming a stick up Louima’s rectum with a second officer present. While the jury went on to convict Schwarz for being the second officer, the 2nd U.S. Circuit Court of Appeals ruled in February that Schwarz’s trial attorney labored under an “unwaivable” conflict of interest and ordered a new trial in the case. Jury selection in the retrial is expected to begin before Raggi on June 3. Schwarz also faces two counts of perjury for lying during a second trial in the case that ended in his conviction for conspiracy to obstruct justice. The 2nd Circuit also reversed that conviction, as well as the convictions of two other officers, in its February opinion. Eastern District U.S. Attorney Alan Vinegrad asked the court to reconsider its decision in papers filed Wednesday. Fischetti had contended on appeal, without success, that the government failed to turn over exculpatory information or material that would tend to affect the credibility of witnesses before the first trial. Vinegrad said Thursday that the government would respond to the latest allegations only in court papers. Laurent allegedly told FBI officers nine days after the incident that Louima said four officers took him into the station house bathroom and removed their badges before the assault. According to Laurent, Louima related that it appeared people were entering and leaving the bathroom “like people were coming in to look at him.” Fischetti and co-counsels Diarmuid White, Brendan White and Mark L. Freyberg claim that had this contradictory version of events been relayed to the jury, Schwarz “would very likely have been acquitted during the first trial … .” Schwarz’s trial counsel, Stephen Worth, had contended that Volpe acted alone, and that Louima invented a second officer to add credence to the prosecution theory that he was the victim of a more heinous and systematic case of police brutality. But Vinegrad, addressing the jury, said that if Abner Louima wanted to show “systematic brutality,” why would he add only one officer to his version of events and not three or four? “Because Abner Louima was telling the truth just like he has from day one,” Vinegrad said. Fischetti’s memorandum Thursday called that statement by Vinegrad “doubly improper,” because it “exploited the improper concealment of the evidence by affirmatively representing the opposite.” “Here, there can be no justifiable reason why the 1997 Laurent interview was not disclosed prior to or during the first trial, and the conclusion that the government acted in bad faith is irresistible,” he said in the memorandum. Fischetti said the government’s motive in disclosing Laurent’s statement at this point may be that the defense had requested, in advance of the June 3 trial, any information that is “inconsistent with or different from the trial testimony of Abner Louima.” And the government, he said, reinterviewed Laurent just three weeks ago — an interview Fischetti charged was “designed to create statements conflicting with Laurent’s [interview five years ago] and thereby dismiss him as an effective defense witness for impeaching Louima with Louima’s prior inconsistent statements to Laurent.” Should Judge Raggi decline to dismiss the case against Schwarz, his lawyers ask that they be allowed to introduce Laurent’s 1997 statement as evidence, and that the government be precluded from impeaching Laurent’s 1997 statement with his 2002 interview. Should the government attempt to argue that more than two officers may have entered the bathroom, Fischetti asked that Schwarz “be permitted to introduce the prosecutor’s above-quoted statement at the first trial that Louima did not put three or four officers in the bathroom because he was telling the truth from day one.”

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