A Juror’s Diary: Schwarz Foreman Explains Impasse

Anyone who has ever served on a jury knows that there’s nothing that quite prepares you for the experience-no juror’s

Anyone who has ever served on a jury knows that there’s nothing that quite prepares you for the experience-no juror’s colloquium, no lineup of network courtroom dramas, no endless playbacks of 12 Angry Men . My introduction to the system started when I served as foreman on the federal jury that tried former police officer Charles Schwarz in connection with the Abner Louima affair. The trial ended on July 16, when we told Judge Reena Raggi that we were deadlocked on three of the four charges against Mr. Schwarz.

When a U.S. marshal closed the door on a windowless jury room and the 12 of us faced each other across the table on the first day of deliberations, our strongest hope was that, one way or the other, we’d all seen and heard the same thing during the trial. In large part, we had. The sad irony was that it didn’t matter.

A day and a half into deliberations, it seemed clear that the proceedings had been for naught. A single juror, in the jury room for reasons other than to establish innocence or guilt, succeeded in subverting the process. The trial became moot the instant this person, whose name I don’t know-none of us knew each other by name-cleared the jury-

selection process. The rest of us listened in astonishment during our deliberations as logic and reason took a back seat to a higher truth.

The cumulative weight of the evidence was leading us to believe the government’s accusation that Mr. Schwarz held down Mr. Louima when he was violated by Officer Justin Volpe. But this one lone juror rejected the testimony of almost every witness who testified against Mr. Schwarz. Anyone who spoke against Mr. Schwarz was automatically mistaken, misguided, duplicitous.

“Liars. They are all liars-or maybe they forget,” she said of the prosecution’s witnesses. “How do I know?” In a broad and unmistakable inflection, our obstructionist uttered this generic reply to almost every question. She took particular exception to a witness’ pronunciation of the accused officer’s name. “His name is Schwarz, it is not Schwartz!” she said. “He knows there is no ‘t.’ Why does he say Schwartz?” It was a response worthy of Mel Brooks’ offended playwright in The Producers , Franz Liebkind, decrying Winston Churchill’s pronunciation of his beloved party’s name.

During the deliberations, at least three colleagues asked me why this juror was dwelling on the pronunciation of the accused’s name. I explained that spelled with the ‘t,’ Mr. Schwarz’s name would almost certainly indicate that he was Jewish; without the ‘t,’ German.

Those of us who remember Max Fleischer’s Popeye cartoons will recall that social commentary-or anything of consequence that Popeye said-was muttered sotto voce at the end of a sentence. In pretty much the same manner, the 12th juror’s comments trailed off into the nearly inaudible, followed by what can only be described as a condescending giggle and what became her trademark gesture, a dismissive wave of the hand. This routine brought her into conflict with several of the other jurors, myself included, when we insisted that she repeat her statements within the range of human hearing.

One of the most important prosecution witnesses, Sergeant Eric Turetzky, was discovered to have falsified an application for some sort of E.M.S. certification some years earlier. When our holdout juror commented that he lied then and was lying now, I said that I believed him. I believed that in this, his third opportunity to testify, he remained consistent. She replied, “Of course you believe Turetzky. Why wouldn’t you?” I asked her what she meant. “That’s all,” she said. “I say nothing else.” She giggled and waved.

Apparently possessed of a photographic memory, she was, perhaps, the only juror not to have taken any notes during the proceedings. When another juror pointed this out, she immediately sought to rectify what was now a clear impression that she had made up her mind about Mr. Schwarz’s innocence before the trial began. During rereadings of testimony, her pen was probably the fastest-moving object in the jury box.

Note to Judge

Upon returning to the jury room after a read-back, a sudden and unexpected argument arose. The 12th juror accused two others of pretrial bias-the very problem we suspected of her. One of the accused, particularly offended, sent a note of protest to the judge. The note was read verbatim in court, but I understand the media misunderstood its contents. Press reports indicated that the jurors had uncovered some unknown bias. In fact, this communication was meant to inform the judge that the jurors were furious about being accused of bias by the 12th juror.

As our deliberations continued, the holdout advised several of us that we were “too loud,” “too vocal” and that we gave “too much information.” One man had to be physically restrained after she told him that he interrupted, was loud and should simply “shut up.”

Like several fellow jurors, I had much more than a reasonable doubt regarding the accusations against Mr. Schwarz, but I became firmly convinced after the read-backs of testimony from several witnesses that Mr. Schwarz had good reason to fear conviction.

In the four-count indictment-count 1 was conspiracy; count 2, the act of depriving Mr. Louima of his civil rights; and counts 3 and 4 were for perjury in a previous trial-neither guilt nor innocence were foregone conclusions. However, after various votes of 11-1, 9-3 and 10-2 on counts 1 and 2 in favor of a guilty verdict, several jurors asked our obstructionist if any evidence, real or imaginary, would persuade her of Mr. Schwarz’s guilt. She replied, “I don’t know.” It was apparent that without a snapshot of the accused caught in the act, she felt confident of her ability to protect him. With several witnesses testifying that they saw Mr. Louima escorted through the 70th Precinct station house in Officer Schwarz’s custody up to the exact instant and place before he met his terrifying fate, the holdout juror suggested that the witnesses-some of whom were police officers-had entered into a conspiracy to “give the government what they wanted and further their own careers.” I asked if there was anyone whom she did believe. “Yes,” she quickly replied, “Justin Volpe and Anthony Abbate.” I reminded her that Mr. Volpe was the only convicted felon testifying, and that at his own trial he’d reversed his account of the events and pleaded guilty. I also reminded her that Mr. Abbate was a former P.B.A. delegate who had been fired from the NYPD for giving false testimony under oath. She simply didn’t reply.

The Perjury Count

In one weak moment, our holdout juror, searching for a credible ally, stated that she also believed Sergeant Jeffrey Fallon, the desk sergeant in attendance when Officer Schwarz entered the 70th Precinct with Mr. Louima in tow. Several of us thumbed through our yellow legal pads, coming up with the same piece of information. Mr. Schwarz, in prior testimony, claimed that he never left the front desk with Mr. Louima in handcuffs, and was charged with perjury for that statement. Sgt. Fallon said they left the desk together. No one failed to notice this breach in her otherwise granite-like intransigence. We immediately called for a vote and came up with a guilty verdict on count 3, perjury. It was the last time that evidence or reason was to play any part in these proceedings.

I suggested to her that we had as many pieces of the puzzle as anyone could hope to see. I thought of some analogies: She was watching several men begin a 100-yard race that would last approximately 10 seconds. She witnessed them all break from the starting blocks, then lowered her eyes for perhaps four seconds, and finally saw them all cross the finish line. It was perfectly reasonable to assume that all of the participants had run the 100 yards, even though she hadn’t seen the entire race. It would be the epitome of illogic to believe anything else. She responded, “Maybe. I don’t know.” So I tried another analogy: She sees a man threatening to jump from the roof of a six-story building. He jumps, she covers her eyes, and then she reopens them to see his shattered remains on the pavement before her. I asked her if she agreed that even through she didn’t see the entire spectacle, it was reasonable to believe that prior to striking the ground he fell past the fourth floor, then the third, then the second. Her reply: “Maybe.” Then she giggled. “How do I know?” Then she said something we couldn’t hear.

We were a congenial group, the other 11 of us. We passed the day mulling over the evidence with the predictable mixture of humor and personal anecdote. We wondered from which deli the government would be ordering lunch that day. All the while, we never exchanged names.

As a group, we soon realized that we were never going to persuade the holdout of anything other than Mr. Schwarz’s innocence. And as the deliberations dragged on, she gained an unexpected ally: The one juror with whom she’d become friendly was now voting with her, making it 10-2 in favor of conviction. He began to defend her, saying that her opinions were her own business and that she didn’t need to explain them, an idea to which every other juror took exception.

She’d already dismissed the evidence and testimony as lies. The others would have no more of it. Notifying the judge that nothing more could be achieved, we closed the deliberations and the trial of Charles Schwarz, finding him guilty on one count of perjury and deadlocking on all the others.

I rode home that afternoon in a darkened government van, consumed by frustration. I believed that I knew the truth, but I could do nothing to bring about a verdict. The 12th juror and her recent ally shared the van with me. He left first, and as he exited, he kissed the hand of our star juror, and they both giggled. Her turn was next. As she left, she thanked the driver and then glanced at me. I couldn’t resist. “We both know what happened here, fraulein ,” I said. She slammed the van door and quickly walked away.

We were, in the end, outmaneuvered by one juror who entered this trial with a mission different from the other 11 of us. She believed that the rules of engagement guaranteed victory through steadfastness. Her work was done.

The government, on the other hand, has taken the position that the battle continues. The U.S. Attorney’s Office has announced that it will move to retry Charles Schwarz, with the presiding judge setting the date of Sept. 9 to begin jury selection.

We’ll see. A Juror’s Diary: Schwarz Foreman Explains Impasse