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In reversing Charles Schwarz’s conviction in the Abner Louima assault case because of his attorney’s “unwaivable” conflict of interest, the federal appeals court opened a Pandora’s box of problems for judges, prosecutors and defense lawyers, U.S. Attorney Alan Vinegrad said in court papers Wednesday. In a petition to the 2nd U.S. Circuit Court of Appeals, the Eastern District of New York prosecutor asked the court to reconsider its reasoning and base its February reversal of Schwarz’s civil rights conviction on a second, independent ground, or amend its language on attorney conflicts. That language, Vinegrad argued, would “inject new uncertainties into the already difficult and contentious area of defense attorney disqualification and will have adverse consequences for all participants in the criminal justice system.” Vinegrad also asked the court for a rehearing on its simultaneous decision reversing the conspiracy to obstruct justice convictions of Schwarz and two other officers in the cover-up of the Louima assault. Neither of Vinegrad’s requests would affect the upcoming retrial of Schwarz for allegedly joining with a fellow officer in the police bathroom attack on Louima. Officer Justin Volpe pleaded guilty during their trial in 2000. Jury selection in the Schwarz retrial is expected to begin June 3. Vinegrad argued that the court was setting bad precedent when it found that no rational defendant in Schwarz’s shoes would elect to waive his attorney’s conflict of interest. Defense attorney Stephen Worth, the court found, was hopelessly compromised by his law firm’s contract with the police union, which, among other things, had an interest in limiting its liability in a related civil lawsuit. In addition, Worth, the court said, might have been hesitant to argue that another officer, Thomas Wiese, was the second policeman actually involved in the assault. In the past, the court had found unwaivable conflicts to exist only where the attorney was not licensed to practice law or when counsel is implicated in the defendant’s crimes. And so the court was wrong, he said, to expand this limited universe of unwaivable conflicts when it found that Worth’s conflict could not be cured. On the initial appeal, Vinegrad had argued that the trial judge, the late Eugene Nickerson, had made every effort to make sure that Schwarz knew what he was doing when he elected to keep Worth as counsel, including appointing an independent counsel to advise Schwarz. Vinegrad urged the 2nd Circuit to either cite an alternative basis for vacating the conviction or amend its decision to state that “absent a per se conflict, a court may accept a defendant’s knowing, voluntary and intelligent waiver of the right to conflict-free counsel, but that Schwarz’s conviction nevertheless must be vacated because of the peculiar circumstances of this case, which are unlikely to be encountered again.” PROBLEMS CITED If the court chooses not to amend its opinion, Vinegrad said, the following problems would arise: � defendants may unnecessarily be deprived of counsel of their choice; � defense attorneys will face dilemmas in deciding whether they may ethically represent a client who is willing to waive a conflict of interest; � prosecutors must decide whether to move for disqualification of defense counsel or accept a defendant’s waiver of a conflict of interest; � district court judges will risk committing reversible error no matter how they rule on a pretrial motion to disqualify an attorney for conflict of interest despite the defendant’s effort to waive the conflict; and � the courts will be confronted with an increasing number of mandamus applications in cases in which either the government or the defense believes that conflict and waiver issues have been resolved incorrectly by district court judges. “Because the court cited a potential alternative basis for vacating the assault convictions — that prejudicial publicity about the guilty plea of Schwarz’s co-defendant Justin Volpe may have tainted the jury’s deliberations — the government does not ask the court to recall its mandate or to reconsider its ultimate conclusion that Schwarz should receive a new trial on those charges,” Vinegrad said. “Instead, we ask the court to withdraw the opinion’s discussion of the attorney conflict issue and to substitute an alternative ground for decision based on the jurors’ exposure to information concerning Volpe’s guilty plea allocution to facts directly at odds with Schwarz’s defense.” On his request for a rehearing on the conspiracy to obstruct justice issue, Vinegrad said the court misstated the law and misapplied the facts when it found in February that there was insufficient evidence to convict Schwarz, Wiese and Thomas Bruder in the cover-up of the attack on Louima. Schwarz’s current defense attorney, Ronald P. Fischetti, said Thursday that “we are not concerned about it.” He said further that the “motion to have them reconsider the obstruction of justice convictions raises no new issues whatsoever � it’s just a recasting of their earlier briefs.” He added: “I don’t have an opinion on the conflict of interest issue, but they seem to admit now that Schwarz did not receive a fair trial based on jury contamination.”

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