THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ROGER COSSACK, CO-HOST: Hello, and welcome to BURDEN OF PROOF.
Yesterday, in a packed New York federal court, retired New York Police Department Sergeant Patrick Walsh, he testified that investigators ignored him when he said that a key witness, who implicated Charles Schwarz in the Abner Louima assault, was unreliable. Now Walsh recalled telling his superiors that Patrolman Eric Turetzky could not make a positive identification of the officer who led Louima to the bathroom where he was attacked. Walsh's testimony is central to the appeal of Officer Schwarz who was convicted of holding down Louima while another officer sodomized him with a broken broomstick. Prosecutors are dismissing this new testimony as worthless and insists - and insists Schwarz is the right man.
Joining us today, from New York, attorney for Abner Louima, Peter Neufeld. Also in New York, former assistant U.S. attorney for the Eastern District of New York, Alexandra Shapiro and Elkan Abromowitz, attorney for Patrick Walsh. Here in Washington, John Leonard (ph), criminal defense attorney, Ronald Sullivan, and Shana Marshall (ph).
I want to go right to you, Elkan. You represent the -- Mr. Walsh who testified yesterday. Tell us about his testimony and tell us, in particularly, why it was - why he did -- his testimony is only being heard now?
ELKAN ABROMOWITZ, ATTORNEY FOR SGT. PATRICK WALSH: Well, he, for the time that he was working in the police department up until June of 2000, felt that if he had told any more people about what he had heard that night and that - and hearing no reaction and having no invitation to come to be interviewed, that if he had come forward publicly, he clearly would have been transferred or his career in the police department would have been affected. He has no motive to make this up. He doesn't know Schwarz, he doesn't know Schwarz' family. He is a policeman -- career policeman who interviewed Turetzky before anybody else did and was the one who first heard that Turetzky was not sure who escorted Louima to the bathroom.
COSSACK: Now he claims that when Turetzky made those statements that he was unclear or could not recognize who it was because he saw them only from the back. That's what he's...
ABROMOWITZ: That's correct. COSSACK: But he claims there were other people in the room with him when Turetzky made those statements...
ABROMOWITZ: Well, he's...
COSSACK: ... and those people don't - aren't able to confirm that?
ABROMOWITZ: And he's not at all surprised that they're unable to confirm it or unwilling to confirm it is probably better. His partner, Sergeant Tully, according to Walsh, was in and out of the room and wasn't present throughout the whole interview. I know that Tully says otherwise, but Tully is still working for the police department and probably is operating under the same fear that Walsh was operating under during the period that he was at the police department.
This is - you know this is a very, very controversial case within the police department, without the police department. People are afraid to, you know, to spoil this conviction, but this conviction may be wrong.
COSSACK: All right. Joining us now is Christopher Francescani, a reporter.
Christopher, you have been covering this trial and you were in court yesterday as well as today. Bring us up to date on the testimony.
CHRISTOPHER FRANCESCANI, NEW YORK POST: OK. Yesterday, Captain or Sergeant Walsh testified that six days after the attack, then rookie cop Eric Turetzky came into the commanding officer's office of the 70th precinct. They said he was very agitated and very nervous. Also in the room were Sergeant Tully and Captain James Peters. All three of them corroborate the fact that Turetzky told them that he saw Justin Volpe coming out of the bathroom with escorting Louima - escorting Louima and that he had a stick in his hand.
What's in dispute is that Walsh says that Turetzky told him he saw an officer. He couldn't tell whether it was Officer Charles Schwarz or another, Officer Thomas Wiese, leading Louima into the bathroom. Now Tully says he never heard that. Tully says that he left the interview room after he believed the interview was over, and he didn't hear that. Captain Peters also left the interview room at a couple points and also said he never heard that. However, Walsh claims that he did in fact hear that, and he said in the testimony yesterday that he was 1,000 percent sure.
COSSACK: Now did Walsh ever make any kind of a formal written report regarding his testimony, the kind of report that usually gets turned over to the defense in these kinds of cases?
FRANCESCANI: According to Walsh, he tried. Once they had spoken with Turetzky, Walsh says he contacted the captain in Internal Affairs, by the name of Captain Freed (ph). Captain Freed came down at approximately 3:00 in the morning to take Turetzky and formally interview him. At that time, Walsh says that he said, Captain, would you like me to write up a report and fax it over to you and that Captain Freed said, no, we'll take it from here, or something to that effect.
Now Captain Freed has not, to this point, taken the stand nor has Turetzky. Turetzky is scheduled to take the stand today. In fact, he may be on right now. I'm going to have to run back in a couple of minutes into court. But the full picture has not emerged at this point.
COSSACK: Elkan, Turetzky testified during the original trial and he testified that he was sure that it was Charles Schwarz who led Abner Louima into that bathroom where these horrible events took place. There was no doubt in his mind. How does that square up now with what is being testified to?
ABROMOWITZ: Well, Walsh's testimony would cast doubt on Turetzky's testimony, or at least the certainty of Turetzky's testimony. And certainly a jury should have been entitled to know that a few hours before he is reinterviewed by the Internal Affairs people, in which he says he is sure that the person that escorted Louima to the bathroom was Schwarz, that he was unsure and said that he couldn't see their faces, just saw these people from behind. And Wiese and Schwarz, according to Turetzky at that time, looked alike from behind, and he could not positively identify either one.
It would seem to me that a jury would hear Walsh's statement of what Turetzky said versus what Turetzky is testifying to and could come to the conclusion that Turetzky is either lying or was mistaken. He is the only witness that puts Schwarz into the bathroom and, therefore, is a crucial witness of -- in the case against Schwarz.
PETER NEUFELD, ATTORNEY FOR ABNER LOUIMA: Roger,...
NEUFELD: Just have to throw in one little clarification there. He's not the only person who puts Schwarz in the bathroom. You know people -- as you know from other trials, if you simply rely on what you read in the papers as opposed to carefully reading the transcripts -- you know there was more evidence here. There were two other police officers who also said that Schwarz led him away toward the bathroom, although they couldn't put him going right into the bathroom. But all three police officers contradicted the testimony of Officer Schwarz. So it's not just one officer, it's three.
And the other thing to remember when you're talking about this hearing that just transpired is Walsh testifies that there were two other officers in the room when the conversation occurred, yet neither of the other officers supports the most important observation that Walsh makes. And Walsh also says that I then shared this information with three other supervisor officers. Two of them were then called to the witness stand yesterday. They all said no such statement was ever made to them. And the third supervisor is dead. So, you know, I look at the scorecard, I see one person making the statement and four people basically,...
NEUFELD: ... you know, undermining it, and the fifth person is dead.
COSSACK: Elkan, besides what Peter points out, doesn't it put Walsh in sort of a tough spot that apparently he never went forward during the trial to deliver his testimony to the defense? And his reason is and -- is that as a police officer, he just knew that this might wreck his career, and he was on the short term to being retired. In fact, he is retired now, and I think he's a bartender, isn't he now?
ABROMOWITZ: Well, he was. I don't think - he's not - he's unemployed right now.
COSSACK: All right.
ABROMOWITZ: He's not a bartender right now.
COSSACK: But, in fact, he never did go to the defense and say, listen, there's something you should know.
ABROMOWITZ: No, he didn't go to the defense. And it - and I think he was very candid on the stand yesterday saying how regretful he is that he didn't do it and how this was plaguing him for four years. It was a very - it was very emotional testimony yesterday. I think Walsh felt very guilty about his conduct in not coming forward.
He is not, as I said before, at all surprised that people who currently work in the police department are not supporting his story. But that doesn't take away from the fact that the Second Circuit Court of Appeals thought that the testimony, as set forth in Walsh's affidavit, was crucial enough to send back for a remand to determine from the district court's point of view whether this should have been turned over to the defense during the trial to use at the trial or whether it is significant enough to cause the court to order a new trial is because Turetzky's testimony is crucial to a finding of guilt against Schwarz. And if he can be attacked with a prior inconsistent statement on such a crucial issue as identification, it might have resulted in a different verdict.
COSSACK: All right. Let's take a break. I want to thank Christopher Francescani for coming in and helping us out.
When we come back, in light of the new testimony, should Charles Schwarz be given a new trial? Stay with us.
LEGAL BRIEF: The California Commission on Judicial Performance order that a Los Angeles Supreme Court judge be removed from the bench. Judge Patrick Conwenberg misrepresented his educational background when applying to be a judge.
COSSACK: Former police sergeant Patrick Walsh waited four years to come forward with his testimony claiming that Turetzky's identification of Schwarz was less than certain. Now the prosecution claims that testimony is worthless.
Alexandra, the issue here is not so much whether the testimony is good or bad, but the testimony - but the issue, I think, turns around now whether or not it's Brady material. And our viewers know that Brady material means that the prosecutor has to turn over to the defense all evidence that might tend to show that the defendant may be innocent, whether it's believed by the jury or not. What about that?
ALEXANDRA SHAPIRO, FORMER FEDERAL PROSECUTOR: Well, it seems to me that if the prosecution had enough information to know about this at the time that they certainly should have interviewed Walsh and provided the information to the defense. Now four years later and after the conviction, the question is a - is a little bit different. Courts are very reluctant to overturn convictions. This one is not based on a lot, but as Peter pointed out, there are at least a couple of other witnesses who saw Walsh on the way to the bathroom. So...
UNIDENTIFIED MALE: Not Walsh.
SHAPIRO: I'm sorry.
COSSACK: Who saw Schwarz.
SHAPIRO: Right, Schwartz. And so I think it's pretty unlikely that after the hearing that the judge will grant a new trial.
COSSACK: But putting aside whether or not the judge will grant a new trial, how about the idea of just failing to turn over? What if it wasn't - what if it wasn't reduced to a report but they just had some kind of interview or they knew that Turetzky had made -- allegedly made that statement where he said, you know, I'm not sure? Shouldn't that have been turned over?
SHAPIRO: Yes, I think so. It really doesn't make any difference whether it's reduced to writing or not. If the prosecution has information or gets sufficient information to inquire in - and -- about evidence that may be exculpatory in some fashion, you have a duty to turn that over to the defense.
COSSACK: So, Peter, in light of that, recognizing that you represented Louima, I mean and in light of that and in light of the fact that there is going to be, if believed, a Brady violation, why isn't this the kind of case that would be turned over - would be a new trial be granted?
NEUFELD: Roger, first of all, I would be, as you know, the last person in the world to ever suggest that the government doesn't have a very strong Brady obligation. But there's - but you - but there's a threshold question here. There's no question that if in fact this was said to this Officer Walsh back in 1997 they had an absolute duty to turn it over. That's not the question in this hearing. The question in this hearing is whether or not it was ever said. The other two officers who were in the room say it wasn't - didn't hear it at all. The other - and then two more officers who he claims he said it too said it was never said to them. So if this judge finds that in fact Turetzky never said that, then you don't even get to the Brady issue at all.
COSSACK: Well that's right. But that's a...
NEUFELD: There's a threshold question of credibility, Roger, ...
COSSACK: All right, let's -- but let's...
NEUFELD: ... that Judge Nickerson will be asked to rule on, and my belief is that he is going to find this witness incredible, and therefore, there is no Brady issue.
COSSACK: Let's suppose, Peter, for the purposes of this discussion, that Turetzky comes in and says the following: You know, four years have gone by and I'm not as clear as I once was, but to tell you the truth, you know, I might have been a little confused at the time. Now what?
NEUFELD: Well, we can - we can speculate about his testimony and start walking down that slippery slope. Obviously if Turetzky corroborated what Walsh said then you'd have a different situation. But Turetzky is not going to corroborate it because he testified completely inconsistently with that, not just once, I think perhaps in three separate trials all tried before the same federal judge. So I think, you know, actually what's going on here is that, you know, Mr. Schwarz is still grasping at straws. You have multiple witnesses who identified him as going to the bathroom and that's the end of it.
Remember, this was a case involving not just the torture in the bathroom, Roger, but lying and covering up after. And these defendants have made every effort to continue that cover-up for the last four years.
ABROMOWITZ: Roger, with all due respect to Peter, and I have more than due respect for Peter, I have great admiration for him, the fact of the matter is that Turetzky's testimony is the single most crucial piece of testimony against Schwarz. Nobody can deny that. The Second Circuit recognized that. And with all due respect to Judge Nickerson and to Alan Vinegrad, the government is not to determine whether this evidence is credible or not credible. And with all due respect to the judge, it shouldn't determine whether it's credible, a jury should determine whether it's credible.
And the fact of the matter is that they knew Patrick Walsh was with Turetzky for an hour and a half on the evening of August 15, 1997, and the government had an obligation to find out what, if anything, was said in that meeting, and they never did. They never interviewed Walsh. He was -- said he was waiting for the knock on the door. Everybody knew that he was there with Turetzky. And to some extent, Captain Peters' testimony yesterday did corroborate some aspect of what Walsh had to say. So that the fact of the matter is that we're off on a tangent trying to determine - we're putting Walsh on trial. Walsh is not on trial. Walsh has no connection to Schwarz.
COSSACK: Well, but Walsh's believability is on trial, and that's what the - that's what...
ABROMOWITZ: The believability - the believability issue...
COSSACK: His credibility.
ABROMOWITZ: ... belongs in front of a jury. A jury should have heard and they could - they could assess...
COSSACK: OK, and I'm going to have to interrupt for a second because we've got to take a break.
COSSACK: But when we come back, let's talk about what impact the Louima - the Louima case has had on the NYPD. And has the blue wall of silence finally crumbled? Don't go away.
QUESTION: Why did Paula Jones file a lawsuit against Abe Hirschfeld in U.S. District Court?
ANSWER: Hirschfeld has not paid the $1 million he promised her if she dropped her lawsuit against Bill Clinton?
COSSACK: In August of 1997, Abner Louima was a victim of police brutality in an NYPD precinct bathroom. In 1999, his abusers were convicted and sentenced to prison. And this year he settled his lawsuit against police union - the police union and others for $8.75 million.
Ron, you work with the public defender's office here in Washington, D.C. Has the Louima case and what happened there had any - have you noticed that it had any impact on the way police conduct themselves here in Washington, D.C.?
RONALD SULLIVAN, CRIMINAL DEFENSE ATTORNEY: Well, not in Washington D.C.. It's apparently had some impact in New York. The header before you left said something like did it shatter the blue wall of silence, probably not. May - it may have pierced it a bit and police officers may be a bit more careful in the way they deal with suspects. But in this case, police officers had their own penal interest to deal with and that's why the...
COSSACK: Yes, the interesting thing about this case is...
SULLIVAN: ... -- that's why the...
COSSACK: ... is that if you believe Mr. Walsh, retired Sergeant Walsh, as the reason he didn't come forward he was -- that he was - to help his other police officer is because he was afraid of the police brass, in a way.
SULLIVAN: Well, the Walsh affidavit apparently said that one, maybe even two, superiors affirmatively told him not to go forward, not to write this down, not to mention that. Strikes me that those superiors would even have a Fifth Amendment interest in not testifying because that could be obstruction of justice.
The whole thing is really clouded at this point, and what we have to remember that there are multiple values in the criminal justice system in addition to the search for truth, ascertaining the truth being the paramount value. There's also a due process value, and the system has to have the appearance of fairness in order for it to maintain its legitimacy.
COSSACK: All right.
Peter Neufeld, you settled the lawsuit this year for $8.75 million, but there was a hook up and a little problem because you wanted some kind of an agreement from the police union, or your client did, before he would settle. Tell us about that.
NEUFELD: Well, Roger, there were two things about the case that are so extraordinary in terms of the settlement. Number one, it's the very first settlement or resolution at all going for a plaintiff against a police union anywhere in the United States in the history of this country where a police officer was involved in act of brutality and the union had to pay up money. They paid $1.625 million That was their portion of the settlement. Never heard of before, and it's going to have a huge impact, we think, on lawsuits around the country involving police unions -- and hopefully -- because we've gotten a couple of phone calls now from police unions that want to take pro- active measures to avoid liability in the future.
The second thing that happened here, which is so extraordinary, is as a result of this litigation, the police union has engaged in constructive reforms. That probably would not have happened but for this lawsuit. They've brought in independent counsel now to make it easier for a whistleblower to come forward and not worry about retaliation from other union members. And they've also instituted a training program for all the hundreds of union delegates and union trustees so the rank-and-file will learn that they have access to counsel, that there's a duty not to retaliate. You wouldn't think they'd have to teach that them. And there's a duty to come forward and report acts of criminal misconduct by their fellow officers.
COSSACK: Alexandra, do you believe that cases like this will ever have any effect upon piercing or causing the blue wall of silence to crumble? Blue wall of silence - the blue wall of silence being that police officers - the unwritten law that police officers never testify against other police officers. SHAPIRO: Well, I think it would be unrealistic to really think that the blue wall of silence could crumble, but that certainly cases like this will have some impact. And I think one would hope that a large number of police officers would adjust their conduct when they see cases like this being brought.
COSSACK: Peter, in terms of, you've articulated what you - what you believe the reforms are, are going to be, that is, by the police union. What real effect do you think, if any, it will have?
NEUFELD: Well, obviously those are reforms that have already been instituted. And by the way, that answers your other question which is Mr. Louima would not settle the case until he actually saw proof that these reforms had been implemented, so that's number one.
Number two, obviously, you know, this stuff happens incrementally. We don't expect an overnight destruction of the blue wall. But number one, unions used to be - it used to be routine, for instance, in New York City, Roger, that the first person to arrive at a scene when there's been a police shooting was the delegate...
COSSACK: All right.
NEUFELD: ... who would whisk the police officer away to the hospital because he had ringing in his ears.
COSSACK: Peter, I'm afraid...
NEUFELD: And then...
COSSACK: ... I've got to interrupt you. They're telling me that's all the time we have.
Thank you (UNINTELLIGIBLE). Thanks to our guests.
COSSACK: Thank you for watching.
And tune in tomorrow because at the same time when I sit down for the full half hour on a one-on-one conversation with Levy family attorney Billy Martin. I'll look forward to seeing you then.
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