Jewish World Review March 8, 2002/ 24 Adar, 5762
Jackie Mason & Raoul Felder
Justice is done
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
JWR contributors Jackie Mason and Raoul Felder need no introduction. Comment on this column by clicking here.
© 2002, Jackie Mason & Raul Felder.