Jurors Nos. 2, 6, and 8 have all signed affidavits stating they learned about Volpe's plea -- he pleaded without the jury present -- while watching television. And in those televised news reports, they heard that Volpe said he committed the assault with another cop in the bathroom. The jurors simply assumed that cop was Schwarz, since he was the one charged. They learned only after the trial that Volpe's "other cop" was Wiese.
Stephen Worth, however, knew that Volpe was referring to Wiese as the second cop, and he had to make a key strategic decision late in the trial: Should he call Volpe to testify? When Worth looked at the case he had presented for Schwarz and tried to determine what kind of shape he was in, he decided it was pretty good. It looked like he had put together a very strong reasonable-doubt case.
But why not finish it off by putting Volpe on the stand and have him take Schwarz out of the bathroom once and for all? Because Worth believed he couldn't trust Kornberg and he couldn't be sure of what Volpe would actually say on the stand. Kornberg, however, is adamant that Worth's decision not to call Volpe as a witness was a colossal mistake.
"Don't you think he had an obligation to at least interview Volpe to find out what he would say in court before determining whether or not to call him? This," he says, "Worth didn't do." But even if he had, there was still no guarantee that putting the unpredictable Volpe on the stand wouldn't have blown up in his face.
Though Kornberg says he doesn't want to continue the public sniping he and Worth have engaged in, when I ask him if he feels he made Worth's job more difficult, he answers without a moment's pause, "I hope so. I put Worth in the position of having to make a determination as a lawyer of whether or not to call a man who's an exculpatory witness. Worth would've loved for me not to have told him that when Volpe said there was a second cop in the bathroom he was referring to Wiese, not Schwarz. If I hadn't told him, he'd have grounds for an automatic reversal. I didn't let him have an automatic reversal. I made him have to make a choice, to act like a lawyer."
The prosecution doesn't believe Volpe's claim that Wiese was the cop in the bathroom. Nor did they have any interest in Kornberg's offer to have Volpe take a lie- detector test regarding his claim that Schwarz had no role in the incident. In part, this is because Volpe's credibility ranks somewhere south of O. J. Simpson's, but they also believe he had a motive to lie. Volpe and Wiese have a history, and prosecutors are convinced that Volpe, in one last hostile act, is trying to get Wiese by putting him in the bathroom.
After Wiese talked to investigators that first week, word got back to Volpe that Wiese had given him up. Volpe apparently went completely nuts, overturning a desk and throwing a typewriter across the room. This, however, was not the first problem between the two cops. About a month earlier, Wiese, as the union delegate, had been getting complaints from other cops that they didn't want to work with Volpe. These cops were concerned that if they partnered with him they'd end up in trouble. Wiese took it to the sergeant on the midnight tour.
But when the sergeant tried to discuss it with Volpe, he threw a fit. Looking for a way out of the confrontation, the sergeant said, "Hey, I'm not making this up -- your own delegate came to me about it." Volpe then, of course, went straight to Wiese, and the two had what somebody called a "big fuck-you contest" that almost ended in blows.
Surely their most bizarre encounter, however, took place near the end of the trial. Volpe was only days away from pleading guilty. His life was essentially over. On a day off from court, he had to report to the Internal Affairs Bureau at 315 Hudson Street, as all suspended cops do, to sign in. Volpe was supposed to be there at nine, and Wiese was scheduled for eleven. When Wiese arrived, Volpe was sitting in the lobby.
He had waited two hours for him. As Volpe approached, Wiese thought he was in trouble. It had been nearly two years since the men had spoken, and they'd hated each other even before the incident. What would Volpe do now? Pull out a gun? Hit him? What? As the two men came face to face, Volpe looked at Wiese, kept his hands at his side, and began to recite the Gettysburg Address. Wiese couldn't get to the elevator fast enough.
In the end, the relationship between the two men was one more grotesque sideshow in a case that was overrun with them. What mattered most was that neither Volpe nor Wiese testified at the trial, so the jury never got to hear either man's version of what occurred in the bathroom. The same way they never got to hear the full story of the now-infamous and critical six-minute phone call.