MIKE PESCA: A verdict is expected some time next week in the retrial of former New York City policeman Charles Schwarz who is accused of assisting in the sexual assault of Abner Louima. The appeal of Schwarz's original conviction was granted after the efforts of his lawyer, Ronald Fischetti who, along with filing his legal papers, vigorously courted the media, convincing many big players from New York and national outlets that his client was innocent. CNN legal analyst and staff writer for the New Yorker Jeffrey Toobin wrote about the Schwarz retrial a few weeks ago. The very fact that Schwarz got a retrial Toobin calls "stunning."
JEFFREY TOOBIN: To simply, what the court did was they said that Schwarz's original lawyer had a conflict of interest that was so profound that Schwarz couldn't possibly have received a fair trial. Defendants raise those kind of arguments all the time on appeal and it almost never succeeds. In fact the judges at the oral argument of this case never even asked a question on this subject, giving rise to my supposition that what the defense lawyer did really worked, which was persuade these judges that they simply had to give an innocent man another chance at vindication.
MIKE PESCA: So what was Fischetti's media strategy?
JEFFREY TOOBIN:This was basically a retail operation by Ron Fischetti -- not wholesale. He went reporter by reporter with some very established, intelligent reporters and presented them with essentially his legal brief so that individually they would write stories saying that he's innocent. But there was a second trial where Fischetti raised all the arguments and Schwarz was still convicted!
MIKE PESCA: And even after that, Ed Bradley did a long piece on 60 Minutes which concluded that Schwarz was innocent.
JEFFREY TOOBIN:Absolutely. And I have to say it was an example of a great program not at its best. Part of the appeal of 60 Minutes, and I'm a big fan, is that the stories have a real point of view. But-- the, the risk is when you get the story only from one side that you're just simply going to get it wrong! And-- you know I think there is at least a possibility that 60 Minutes got the facts of this one wrong.
MIKE PESCA:The crux of Bradley's story was that it wasn't Schwarz who held Louima down in the police bathroom -- it was another cop -- Thomas Wiese. But not all the cops involved agree with that version.
ED BRADLEY: Let me give you a, a hypothetical. If the government knew from the beginning that Wiese said he was in the bathroom that night, that Volpe also said he was in the bathroom and that Schwarz says that he wasn't -- would Schwarz be where he is now?
POLICEMAN: We wouldn't be doing this interview.
MIKE PESCA: The problem with Ed Bradley's hypothetical was that Wiese never said he was in the bathroom.
JEFFREY TOOBIN: And Volpe had testified at the second trial that Schwarz was not in the bathroom. And the jury still convicted! The jury didn't believe Volpe! To pretend that this was somehow new information was not only misleading the audience but it was also not new information to the jury that heard the case!
MIKE PESCA:So last February 60 Minutes gets the ball rolling. In March you have Nat Hentoff of the Village Voice citing the 60 Minutes story saying Charles Schwarz is innocent. In April the Daily News's Dennis Hamill says Hentoff has convinced him that Schwarz is innocent. In July the New York Times columnist Bob Herbert says that 60 Minutes and Hentoff have combined to convince him that Schwarz is innocent. You really see the snowball effect.
JEFFREY TOOBIN: And I think what's so striking about you know the - this series of newspaper columns that you point out is how much they are based on one another and not based on actual inquiry into the facts of the case! I mean Bob Herbert's column in the New York Times basically refers exclusively to the 60 Minutes story. I mean it shows the importance of getting one big high profile visible story out there which can then be cited and referred to repeatedly, even if it's far from the whole story.
MIKE PESCA:If none of them provided new information and the second jury contradicted many of the suppositions of the original 60 Minutes piece, why did it influence the judge?
JEFFREY TOOBIN: Judges [LAUGHS] read the newspaper! And if you have a steady drumbeat of people talking about someone's innocence in a wide variety of publications going from, you know, the politically right New York Post to the politically left Village Voice, the judges are going to say hey, maybe there's something going on here. And remember all of us feel very-- worried about the possibility that an innocent person may be behind bars.
MIKE PESCA:When all this is over and we evaluate the job that reporters did, can we say that the journalism was bad if Schwarz is innocent and those stories helped to free him?
JEFFREY TOOBIN: Well I don't think I could make such a harsh judgment about, you know, good journalism and bad. You know my, my-- concern about those stories is that they were really one-sided in their presentation of the facts and that there, there was a lot of evidence for Schwarz's guilt that was simply neglected or pl-- d-- played down because Ron Fischetti did such a skillful job of selling his client's innocence.
MIKE PESCA: Jeffrey, thank you very much.
JEFFREY TOOBIN: My pleasure.
MIKE PESCA: Jeffrey Toobin is a staff writer for the New Yorker and legal analyst for CNN. [MUSIC]
"Bach Cello Suite No. 2"
by Mstislav Rostropovich