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Goetz on Trial

Quiet Rage: Bernie Goetz in a Time of Madness

by Lillian B. Rubin
Farrar, Straus and Giroux, 247 pp., $16.95

The criminal courts building on Centre Street in New York is not far from the Chambers Street station on the IRT subway. That subway stop is on the minds of a half dozen of us—Judge Stephen Crane, lawyers for both sides, a reporter, a court reporter, and myself—as we encounter the prospective jurors in the trial of Bernhard Goetz, who is also present. Over two years ago, on the Saturday afternoon before Christmas, on the express train running south toward Chambers Street, the thirty-seven-year-old Goetz, a thin, blond electronics engineer, opened fire on four black youths, injuring all four and paralyzing one of them for life. His trial, which may last for two months, is rapidly approaching. No one disputes that one of the victims approached Goetz on the train and asked him for five dollars. By Goetz’s own admission, he replied, “Sure, I have dollars for each of you.” He then fired five shots in rapid succession.

The first prospective juror I witnessed one morning, an attractive young black social worker from Harlem, is unusually frank. In response to Justice Crane’s gentle questioning, she admits to thinking that all whites harbor fears of young black men moving in groups. “Sometimes that fear is played out in ugly ways.” She says that there is some connection between the Goetz case and the recent racially motivated attack on three black men in Howard Beach—at least to the extent that both reveal stereotypical thinking about blacks.

The lawyers have to think fast. The woman has strong opinions, she is obviously biased, but does this bias help the defense or the prosecution? Her views about whites’ fear of blacks help the defense insofar as they render Goetz’s alleged fear of the four youths more understandable and therefore arguably reasonable under the law. But if she thinks that all whites are bigots, she might lean toward the prosecution. This is, after all, a case in which a middle-class white shot and injured four ghetto blacks. The informal rule is that unless both sides agree to dismiss the candidate, all jurors willing to serve are put into a pool for later, more intensive questioning in open court.

The assumed purpose of jury selection is to find impartial and unbiased jurors. The faith that this is possible in any trial, let alone one of the most sensationally publicized cases of recent years, can only strike the legally sophisticated as quaint. Prevailing academic wisdom puts in question the possibility of objective knowledge concerning human intentions; subjective interest shapes most of our efforts to establish what “really happens” in the world. Yet the law remains committed to the idea of jurors’ perceiving and reporting the facts as though they had no distinctive window on reality. In practice, only judges maintain the official faith in objectivity. Lawyers naturally seek jurors who lean to their side, but not so obviously as to be subject to challenge by opposing counsel for bias or cause. Before the jury is finally sworn, each side can make as many motions as it likes to remove particular jurors for what it claims is a good reason and, in addition, remove fifteen without having to give a reason.

The two sides agree to let the social worker go. It is not likely that she could have withstood a later challenge: her open bias was a wild card that could unpredictably strengthen or weaken either side. Sometimes, if the bias shown is relatively weak, the lawyer who stands to benefit continues the questioning in an effort to make the prospective juror appear neutral and more discriminating. This process is called “rehabilitation.” One solemn and intense-looking middle-aged white man recalls that he was once shot by a black mugger and as a result spent a year recovering in the hospital. He insists that he cannot be a fair and impartial juror, for he thinks that Goetz did the right thing. It looks as if the defense will have to consent to his being dismissed.

Suddenly Goetz himself intervenes with a question: “I realize you sympathize with me, but if the facts turn out to be that I shot them [the four youths] because I had nothing better to do, you would convict me. Wouldn’t you?” “Yes, of course,” is the immediate reply. Goetz’s lawyers try, usually without success, to keep their client quiet. Here his intervention works. By raising a hypothetical question contrary to what he believes to be true (namely that he had a legitimate reason for shooting) Goetz brings the message home to the prospective juror. The man now says that he realizes that his previous judgment, based on his assumed understanding of the facts, would not preclude his being open to proof of other facts at trial. If it is believable, this degree of open-mindedness as well as fidelity to the judge’s instructions on the law are all that can be expected from a juror. The former crime victim is “rehabilitated” and kept, for the time being at least, in the pool of possible jurors.

Bias finds a ready outlet in the vision of Goetz’s trial as representing a larger political struggle—between black and white, between crime victims and predators. The jury will have to issue a verdict by applying the judge’s instructions on the law of self-defense to what they perceived happened on the subway car on December 22, 1984. If they see the verdict as standing for something more, e.g., as a statement on black dignity or on “crime in the streets,” their position on the symbolic meaning of the verdict will incline them toward reading the facts to support the verdict they prefer. The problem in the Goetz case is that virtually everyone sees the case as standing for something more. If it were merely a dispute between a young man carrying a gun and four perceived assailants, of unspecified color, few people would know about it.

For some the main issue is race. And nothing seems to worry the defense more than the difficulty of perceiving the true feelings of the numerous blacks and Hispanics interviewed as prospective jurors. A poll taken in March 1985 by the New York Daily News and ABC’s Eyewitness News revealed, albeit on the basis of a limited sample, that far more New York City blacks (51 percent) than whites (19 percent) supported the indictment of Goetz for attempted murder. Yet this is not the impression one gets as one listens to the black and Hispanic men and women called for jury service. If they express a position at all, it is for rather than against Goetz. The young black social worker dismissed by both sides is an exception. One young black man says he might have thought there was a racial factor in the case—at least until a year ago when two men from his neighborhood approached him from behind and broke his arm with a pipe.

For some of the prospective jurors the case is an occasion to express dissatisfaction with the ability of the police to protect New Yorkers from street crime. Goetz himself may think that people support him because they favor widespread distribution of guns and violent defensive action against harassment on the subways. The contrary is more likely true. In a nationwide Gallup poll which revealed that 57 percent of those interviewed supported Goetz, 78 percent were opposed to allowing more guns on the streets. Support for Goetz may be less a matter of ideology than simply a protest against the dangers of living in New York. Nearly all the young white women I observed being questioned appeared to be deeply fearful of violent crime and sympathetic to Goetz.

When asked what they know about the case, many of the prospective jurors were surprised that now, more than two years after the shooting, the trial is still pending. Some believe that he was already acquitted. They may be thinking of the first grand jury’s decision in January 1985 to indict Goetz only on relatively minor charges of illegally possessing guns. Apparently the twenty-three members of the grand jury found Goetz’s claim of self-defense so persuasive that they did not indict him for assault, attempted murder, or even reckless endangerment. The mayor pronounced the judgment “Solomonic” (presumably forgetting that Solomon didn’t compromise and slash the baby in two), and Goetz became something of a celebrity, giving interviews in which he urged distribution of an additional 25,000 guns to private citizens. His lawyer said on Face the Nation that Goetz felt no remorse.

But in February 1985 Goetz’s fortunes began to turn. A neighbor of his, Myra Friedman, published an article in New York magazine in which she said he had expressed racist views about cleaning up the “spics and niggers” on Fourteenth Street. About the same time, two of the victims, Troy Canty and Darryl Cabey, sued Goetz for damages. The district attorney, Robert Morgenthau, faced increasing criticism for not having made a stronger case to the first grand jury. Why, it was asked, hadn’t he offered immunity to the four young men? Several of them made it clear that they would have testified that they had intended merely to panhandle, not to molest or mug.

Toward the end of February 1985, Rudolph W. Giuliani, the US attorney in Manhattan, said he would not prosecute Goetz in a federal court for depriving the four young men of their civil rights—the only basis for federal intervention. The following day, Morgenthau’s office released a report from the police in Concord, New Hampshire, where Goetz had turned himself in, stating that before he had fired the fifth shot, the shot that sent Darryl Cabey into a coma, he looked at the uninjured man and said, “You don’t look so bad. Here’s another.”

This statement changed the political atmosphere surrounding the case. Governor Cuomo said that it was “a significant fact.” Editorials in both the Daily News and The New York Times demanded that Morgenthau submit the case to a second grand jury. In early March he petitioned the judge for permission to do so, and Judge Crane concurred. This time Morgenthau granted immunity to Troy Canty and James Ramseur, and both reportedly testified that Goetz picked the fight. Goetz was indicted for assault, attempted murder, and reckless endangerment—every possible charge of aggressive violence.

The defense was predictably outraged. If Morgenthau was to grant immunity to Canty and Ramseur, Goetz’s lawyers argued in court, he should have done so the first time. The defense lost their appeal because, at this stage of the proceedings, there was no way to test Justice Crane’s decision allowing the second indictment. It is theoretically possible (but unlikely) that if Goetz is now convicted an appellate court will still reverse the conviction on the ground that resubmitting the case to a second grand jury violated the defendant’s rights.

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