Two days after Schwarz was indicted, Thomas Wiese -- the passenger in the patrol car -- told investigators that Volpe was the one who rammed a stick into Louima's rectum. And, Wiese told them, Schwarz was not in the bathroom. He knew this, he said, because he saw it.
Wiese, the precinct's PBA delegate on the midnight tour, told Internal Affairs he was chasing a stray puppy the cops had picked up in the street when the dog ran to the back of the precinct by the bathroom. He followed, heard a noise inside, and opened the door. There was Volpe, he said, standing over a crumpled, moaning, soiled Louima, with a stick in his hand. "He shit himself," Wiese said Volpe told him. Wiese's story is backed up by Volpe's partner, Thomas Bruder, who said he saw Volpe take Louima into the bathroom and he saw Wiese near the door.
Wiese's account is without question the most enigmatic part of the case, and the government has dismissed it from the beginning. What remains impossible to determine is whether they have definitive proof he was lying. Wiese did fail a lie-detector test shortly after he first talked to investigators, but several days later, he passed a second one.
If the prosecution is right, however, and Wiese is lying, what could possibly be his motivation? Why would he place himself in jeopardy by saying he was at the scene when no one else put him there? Indeed, given the mood of the city in the aftermath of the attack and the race to find and indict every cop who had a role in it, the last place on earth any cop would have wanted to be on that morning was anywhere near the bathroom at the Seven-Oh.
It is on this point that the government's case against Schwarz really turns. According to sources close to the case, prosecutors in the U.S. Attorney's office do not believe it is possible that their two witnesses and Louima are either mistaken or lying about what happened. One of them, maybe, but not all three. Instead, they believe that Wiese, Schwarz, and Bruder concocted a story to protect Schwarz, and the three of them have been charged with obstruction of justice. The trial is set to begin January 3. (Schwarz is scheduled to be sentenced after this trial.)
Because the obstruction trial is pending, Alan Vinegrad declined to comment on any aspect of the case other than to give me an official statement, which says, in essence, that the place to argue the case is in the courts, not in the media. It also accuses some of the defense attorneys of using "half-truths and outright misrepresentations" in their effort to retry the case in the media.
"They're furious about this buzz that's out there," says one of the defense attorneys, "and their attitude now is, You just wait, we'll show you at the obstruction trial."
What the prosecution apparently intends to do is to solve the big mystery, to prove, at long last, that Wiese is lying. Sources tell me they will do this by revealing that several days after the bathroom attack, a secret meeting took place in the 70th Precinct's muster room at three in the morning. Attending were Schwarz, Wiese, Bruder, and several PBA representatives. The belief is that the government may have a witness who'll testify that some kind of a cover-up was hatched or at least discussed at this meeting.
"I don't know too many people who would do what Tommy did," says Joseph Tacopina, Wiese's lawyer. "Think about it. You're not in the soup, you're not charged with sexual assault, and you're not charged with being near where it happened. The people who are charged are looking at possibly spending the rest of their lives in jail. Still, you go to investigators and tell them, voluntarily, 'I walked into the bathroom and here's what I saw.' And yet the government doesn't buy his story. What would make them believe Tommy? If he told them he stood there in the bathroom yelling, 'Go, Volpe, go!'?"
But why would Wiese -- who by all accounts, including the prosecution's, was a model cop -- participate in a cover-up to protect Schwarz? Sources say one possible scenario coming out of the prosecutor's office is this: After Louima is booked, Schwarz takes him to the bathroom thinking Volpe is going to tune him up -- smack him around a little, to get even, since he thinks Louima is the guy who sucker-punched him in the street.
But once inside the bathroom, Volpe doesn't just hit Louima a couple of times; he pushes him facedown into that small space in the stall between the toilet and the wall and sodomizes him with the length of stick he'd left in the bathroom a little earlier. It all happens so fast, and Schwarz is so astonished by what Volpe's done, that he basically freaks. Overcome by a mix of fear and adrenaline, he just freezes. He makes no move to stop Volpe, and in the blink of an eye it's too late. It's already over. Then, his mind racing, trying to take it all in and figure out what he should do, he runs out of the bathroom and gets Wiese, the precinct fixer, the guy who can take care of anything.
There is also a version of events that has been floated by some of the people close to the case that has Wiese in the bathroom in the role that Schwarz has been accused of playing. In other words, he didn't just happen by and happen to open the door. This story line rests on mistaken identity and the key fact that except for a height difference, Schwarz and Wiese look pretty much alike. Remember, when Louima was asked to make an I.D. in court, he looked at Schwarz and said he could be the driver or the passenger. He wasn't sure.
It was lost on no one once the trial started that Wiese suddenly showed up in court looking like a schoolboy with longer hair and glasses. It was so apparent he was trying to separate himself physically from Schwarz that a hot topic of gossip around the courthouse was whether his glasses actually had lenses in them.
When I asked his lawyer, Tacopina, about it, he dismissed this notion as ridiculous with a quick wave of his hand. However, the rumor was enough of a concern that he told me he went to court every day with a copy of Wiese's lens prescription in his litigation bag, just in case.
Andra Schwarz has taken a leave of absence from her job as a paralegal to work full-time on her husband's behalf, writing letters, making phone calls, and trying to organize fund-raisers. She has put their Staten Island house in the tidy, working-class neighborhood of Westerleigh up for sale so the money can be used for his defense. When she visits him at 9 South in the MCC, a special unit on the ninth floor where he's held along with Justin Volpe and the terrorists accused of bombing the American embassy in Africa, he is brought out in handcuffs.