Thank you for sharing!

Your article was successfully shared with the contacts you provided.
While the vow of silence taken by both sides Saturday in the Abner Louima case was not unique, the promise to stop the war of words over whether former New York police officer Charles Schwarz helped Justin Volpe sodomize Louima stands apart because it was memorialized in a sentencing agreement. Both prosecutor Alan Vinegrad and defense attorney Ronald P. Fischetti, who have fought bitterly over Schwarz’s guilt since Fischetti first began representing Schwarz in 1999, say they have never heard of a self-imposed restriction on talking about a case put in writing. Veteran defense lawyers who have handled sensitive plea negotiations in high-profile cases also say the agreement is unprecedented. “I have had certain informal understandings with government lawyers that neither side was going to look to trumpet the result, but never in a formal agreement,” said Benjamin Brafman of New York’s Brafman & Ross. In the end, the sentencing agreement approved Saturday night by Eastern District of New York Judge Reena Raggi bore a greater resemblance to a civil settlement than a plea bargain in a criminal case. Schwarz was sentenced to 5 years in prison for a perjury conviction handed down in July. A Brooklyn jury found that Schwarz had lied at an earlier trial when he denied walking Louima away from the front desk at the 70th Precinct stationhouse and toward the bathroom where the assault occurred on Aug. 9, 1997. Under the sentencing agreement, if Schwarz remains silent over the next 30 months, the U.S. Attorney’s Office for the Eastern District of New York will recommend to the Bureau of Prisons that his sentence be reduced to 47 months. Any statements made by Schwarz’s wife, Andra, or his lawyers, will be attributed to Mr. Schwarz as violations of the agreement. Counting good behavior and the likelihood that Schwarz would serve six months of his sentence in a halfway house, he would probably end up serving 34 months behind bars for perjury. For its part, the government agreed not to pursue what would have been a third trial of Schwarz on the more serious civil rights charges of assault and conspiracy. It agreed to drop a second perjury charge as well. Also part of the deal was an agreement that the 33 months Schwarz served in prison following his earlier conviction for assaulting Louima — a conviction that was later overturned on appeal — would not, and in fact could not, be factored into the sentence he agreed to serve on Saturday night. Defense attorney Gerald Lefcourt, who is not part of the case, said he has never heard of a criminal case in which the ultimate sentence of a defendant depended on a formal agreement to refrain from commenting publicly on his guilt or innocence. Usually, he said, an agreement not to speak is “often part of the discussions in plea bargaining in high profile cases,” but such understandings are reached behind the scenes. “It’s generally true that prosecutors don’t want the public image of having given away the courthouse or being criticized for a plea bargain — it affects the perception of the justice system and the perception of the prosecutor’s office, and that comes into play in any case that has the media’s attention,” he said. Judge Raggi made it clear to the parties Saturday night that while she was accepting the sentencing portion of the agreement, she viewed the sections dealing with public commentary as purely voluntary. “I think it’s very unusual, but very appropriate given the unique circumstances of this case,” Vinegrad said Monday. “But it shows a shared view by the parties that the very public debate over Charles Schwarz’s guilt or innocence should come to an end.” FIRST CONVICTION Schwarz’s first conviction for assaulting Louima was thrown out by the 2nd U.S. Circuit Court of Appeals on the grounds that Schwarz’s first lawyer labored under a conflict of interest. A subsequent conviction for obstructing a grand jury investigation obtained at a second trial was also overturned by the 2nd Circuit. Schwarz was retried this summer on the civil rights charges as well as for committing perjury during his obstruction trial. Although the jury came close to convicting Schwarz, it could not find unanimity and agreed only to convict him on the single count of perjury. So Vinegrad, with a jury selected for a third trial on the civil rights charges, was faced with the possibility of an acquittal, or more likely, another hung jury in what was acknowledged to be the government’s last shot at convicting Schwarz in the Louima assault. That would have left Schwarz with only a single perjury conviction for lying about a crime that had yet to be proven to a jury. At that point, unlike the result reached Saturday, Schwarz might have been able to argue that he had already done enough time behind bars. “I think that if he had been sentenced solely on the perjury conviction, without any agreement on his part to accept the maximum time of imprisonment and without any agreement to accept that sentence on top of the three years he already served, he would have had a very credible argument that he should have received very little or no jail time at all for his perjury conviction,” Vinegrad said. Fischetti, who has represented Schwarz pro bono since after the first trial, was looking at the possibility of a conviction for his client and a sentence similar to the 15-year term Schwarz was given following his first conviction on the civil rights charges. Fischetti also went into the negotiations knowing how close his client came to being convicted in July. Monday, Fischetti was able to say: “We received the same result we would have received if we had been acquitted on all the charges.” RISK-REWARD ANALYSIS But despite the risk-reward analysis about possible outcomes and probable sentences, the clincher for the agreement was the provision on staying silent. Fischetti’s long-running effort to portray his client as an innocent scapegoat victimized by obsessive prosecutors had grated on Vinegrad, who disparaged the publicity campaign and grew tired of the strident claims of innocence from a man he believed was guilty. Fischetti agreed with Vinegrad that the back and forth between the prosecution and the defense on whether Schwarz was the second officer in the bathroom should be brought to a close. He termed the negotiations “cordial and professional.” And for a defense lawyer who criticized the prosecution of his client as vindictive, Fischetti was quick to point out that the agreement to remain silent on the allegations was not about saving face for the prosecution. “It’s not fair to say that this was a way out for him [Vinegrad], but you could say that we both wanted to end the public debate,” he said. “It certainly was a factor to ensure both the government and the Louima supporters that the public debate would end.” Neither Fischetti nor Vinegrad would comment on the enforceability of the provision. SILENCE PROVISIONS Brafman said he is skeptical that the silence provisions would have any weight once Schwarz passes the 30-month period and the prosecution writes the Bureau of Prisons requesting a shorter sentence. “Once Schwarz finishes his sentence, they have no hold over him and I don’t think speaking publicly could ever be held as a violation of a condition of supervised release,” Brafman said. “But I don’t know if anyone will even care about this case so far down the road.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.