When you look up at the top of any courthouse in America you
will always see the same thing. The trouble is that too many people
have their minds in the gutter, especially those who hang out in
the courthouses, so they don’t bother looking up. The statue at the
top of the building is that of a blindfolded lady in her nightgown,
holding up the scales of justice. The point of the blindfold is, of
course, that the administration of justice is blind to any outside
influences. While justice may be blind, we don’t have to expect it
to also be deaf and dumb.
But that is exactly what happened in the convictions of police
officers Charles Schwarz, Thomas Bruder and Thomas Wiese. Bruder
and Wiese were convicted of lying to investigators in testimony
that was given to a grand jury when, in fact, they did not know
that their testimony was to be given to a grand jury. Schwarz was
convicted of being “the second man” in the heinous station house
assault on Abner Louima. However, the jury in Schwarz’s trial was
never told that Justin Volpe, the officer who actually committed
the crime, immediately after pleading guilty, acknowledged that it
was not Schwarz who committed the crime along with him.
Instead, he identified someone other than Schwarz as being the
guilty person.
In a headline-making event, the United States Court of Appeals
reversed the conviction of all three police officers. Bruder and
Wiese were forever free from prosecution, and Schwarz would be
entitled to a new trial if the government decided to retry him.
It was only through the efforts of the police officers’ lawyers
after the original convictions and unrelenting efforts by certain
members of the media, particularly Steve Dunleavy of the “New York
Post,” that the public’s attention remained riveted to the failure
of a criminal justice system which had been twisted into pandering
to a politically motivated blood lust.
The crucial elements in this judicial farce were a judge who
should not have been presiding in the case, and a prosecutor who
was apparently blinded by his own ambition.
When we were kids, New York used to have a reputation for having
the best judges money could buy. The lawyer’s mantra was, “It is
more important to know the Judge than the law.” However, in the
ensuing decades all of that changed. Judges, when they were of the
appointed variety, were approved before appointment by independent
panels and ultimately chosen, because of ability, by the Mayor or
Governor. In the case of elective judicial office, judges were
chosen in competitive open elections. A judge from New York, give
or take several unfortunate situations in Brooklyn, was rightfully
respected in legal circles anywhere in the United States, if not
the world. And then came Federal Judge Eugene Nickerson.
Judge Nickerson was judge of the year. Unfortunately, the year
was somewhere around 1950. According to columnist Dunleavy, Judge
Nickerson fell asleep on the bench during the police officers’
trials and at one point addressed the jury when there was nobody
sitting in the jury box. The Judge, in his eighties, has long since
gone off to the great tribunal in the sky. Dunleavy’s charges were
never denied, and so it is reasonable to assume that they were
accurate portrayals of what indeed occurred in the court room.
The underlying problem in the federal system is that a judge can
hang around in his job as long as he chooses. Nickerson,
unfortunately, was one of those individuals where the name outran
the man. If the charges against him were correct — putting aside
the massive embarrassment of a complete reversal of the convictions
as a matter of absolute law by an appellate court — the public is
entitled to be protected from judges who have stayed too long at,
on, or under the bench. One might logically ask, “Don’t lawyers
have the same problem?” The answer is “Yes” and “No.” True, once
lawyers obtain a license they can practice well into senility or
debilitating illness, long past the point where they should have
retired.
There are two obvious answers to these points which distinguish
the difference in the positions of judges and lawyers. The first
is, clients can walk away from a lawyer if he or she is apparently
incompetent, or too old to perform their duties. On the other hand,
a defendant cannot walk away from a judge.
It is true there are committees to which one can complain in
order to initiate an investigation into the conduct of lawyers and
judges. However, in the case of lawyers people are only too quick
to file complaints, even if the complaint is directed only to the
size of the bill, or the fact that a jury disbelieved the client.
However, it is quite a different story when dealing with complaints
about a judicial officer. Lawyers, being human, hesitate to file a
complaint against a judge, since the lawyer in the future may have
to appear before that same judge or, at least, some of the judge’s
colleagues.
Clearly all of this suggests that there should be rigid
standards for judges to retire from the judging business when they
have advanced to a certain age.
Acting Brooklyn U. S. Attorney Alan Vinegrad, the prosecutor in
the Louima case, apparently was more concerned about obtaining a
conviction and securing his own future than allowing the truth to
come out. The things he is most expert at, apparently, are high
profile cases where convictions lacking legal substance are
obtained.
Last month, his convictions of two men in the race riot killing
of Yankel Rosenbaum were overturned by the same U.S. Court of
Appeals that reversed the Louima convictions. Vinegrad, happily
soon-to-be the ex-U.S. Attorney in Brooklyn, immediately stated,
“The government is committed to seeing to it that justice is done
in the prosecution of the offenders.” The unworthy thought crosses
our mind that what was dispensed by the U.S. Court of Appeals was
not chicken soup — it was justice. Because Vinegrad doesn’t agree
with the court doesn’t mean that Justice sleeps exclusively in his
bed.
Perhaps the most disappointed person in the recent reversal was
Abner Louima now living in luxury in a home he purchased in Miami
Lakes, Florida. He received an $8.75 million settlement from the
City and the police union. His comment was, “You could say I am fed
up with it.”
Louima was the victim of a terrible, terrible crime, but having
received $8.75 million, the fact that he is “fed up with it”
shrinks into insignificance against the thought of innocent men
being convicted, one of whom has already spent two years jailed in
solitary confinement.
If Prosecutor Vinegrad still has a job, and still wishes to
retry Officer Schwarz, “fed up” or not, Mr. Louima will have to
testify again, but this time without getting paid $8.75 million.
Things are tough all over.
