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.
For Lillian Rubin, too, the Goetz case symbolizes much more than a fight on the subway. She is a clinical psychologist who practices in San Francisco and came to New York to write her book, which gives an account of the case from the shooting in December 1984 to the decision of the second grand jury. Flashbacks, based largely on previous newspaper and magazine reports, fill us in on Goetz’s childhood. A concluding chapter, added just before the book went to press, discusses the legal disputes that held up the case from January to July 1986, when the Court of Appeals decided that the prosecution for attempted murder should go forward. Quiet Rage provides a readable and informed if speculative introduction to Bernhard Goetz as a person, and to the sociological setting of the current trial.
Rubin brings to the case two perspectives. She complains that the press, in both creating and reporting on public interest in the mysterious subway vigilante, has not given the four black youths and their families, and particularly the paralyzed Darryl Cabey, the attention and sympathy they deserve. Accordingly, she devotes a good many pages to the sentiments of Shirley Cabey, Darryl’s mother, a woman she wants us to see as a struggling single parent in the impoverished and hostile environment of the Bronx ghetto. No doubt the press has found Goetz a more intriguing character than his victims, but the prospective jurors I witnessed did not seem ignorant of Cabey’s injury. When they were routinely asked what they knew about the four youths, almost all said that one youth was subsequently arrested and convicted for rape (James Ramseur) and another was paralyzed for life (Darryl Cabey), Knowledge of these events seems to have had little to do either with race or with educational level.
Rubin’s fascination with the victims’ side of the story does not necessarily reveal any bias against Goetz. While the book lacks the kind of speculative argument that would build a strong case for convicting him of attempted murder, Rubin points to several problems that the defense will be confronting at the trial: that Goetz used particularly damaging hollow-point bullets; that two of the young men were shot in the back; and that Goetz paused before he fired his fifth shot at Cabey. She points out that the screwdrivers the young men carried were not sharpened as was originally reported. All this brings balance to the evidence on the question whether Goetz’s defensive response was “reasonable” in the circumstances. Still, Rubin implicitly shares the widespread assumption that the four youths were planning to attack and rob Goetz.
A strong case against Goetz would have to assume that the four youths were merely panhandling and that if Goetz had said, “Sorry, I don’t have any money,” the youths would have gone their way. Whether they would have left Goetz alone is anyone’s guess (do their race and age in themselves prove anything?). Rubin does not seriously consider the possibility that the youths were wholly innocent, for she would like to think of the shooting as a confrontation between the privileged middle class and underprivileged “violent youths” in New York City. What is at stake in her view is the larger issue of social justice for poor blacks who are driven to crime in order to survive. Just what happened among the five young men in the subway car becomes a secondary issue.
Rubin’s other perspective derives from her work as a clinical psychologist. I was surprised that so experienced a psychologist would speculate so freely in print about why Goetz pulled the trigger when he did. Since the psychologist has never even met, not to mention treated, Goetz, some professional restraint would seem to be in order. But none of this restrains Dr. Rubin. She has one theory after another about Goetz. That he chose to study at the old NYU campus in the middle of the black Bronx is an instance of “repetition compulsion,” a syndrome forcing him to be an outsider. She describes Goetz’s second lawyer, Joseph Kelner, as a surrogate for Goetz’s recently deceased father, “easing the pain and loss with which the son has lived so long.” She commits her psychological coup de grâce, however, when she links an embarrassing episode in Goetz’s early adolescence with the present shootings. Two teen-age boys once accused Bernie’s father of making homosexual advances toward them. The charge, which no one in the family has ever conceded to be true, led to a trial, a conviction, a reversal on appeal, and finally a negotiated plea to a charge of disorderly conduct. What particularly interests Dr. Rubin is that after spending an evening with one of the boys who subsequently accused him, the elder Goetz drove the boy home and, as the latter got out of the car, offered the boy five dollars.
For Dr. Rubin, this cannot be a coincidence. No, she argues, the impact of Bernie’s having heard this allegation at his father’s trial “would lie inside him like a trap waiting to be sprung. Troy [Canty’s] request [for five dollars] certainly could have been the trigger.”
Still, however fanciful, Dr. Rubin’s attempt to tell us about Goetz’s personality leads to some interesting legal questions that are likely to become central in the impending trial. The jury’s verdict may well turn on whether they regard Goetz’s violent reaction to the request, or demand, for money as reasonable under the circumstances. In order to understand that issue and to grasp the relevance of Dr. Rubin’s speculations, we have to consider the legal argument that dominated the Goetz proceedings in late 1985 and the first half of 1986.
The dispute originated in a comment. Assistant District Attorney Gregory Waples made to the second grand jury in March 1985. Typically, the only legal official at a grand jury inquiry is the prosecutor, who must explain the law to the jurors so that they can decide whether, on the basis of what they have heard, there is sufficient evidence to issue an indictment. Waples was explaining the statutory requirement for selfdefense that the defendant “reasonably believe” that a robbery was about to occur. A grand juror asked him if they should assess whether the fear of robbery was “an insane act or irrational.” Waples replied that the grand jury should “consider whether the defendant’s conduct was that of a reasonable man in the defendant’s situation.” The grand jury thereupon returned its indictment for attempted murder and aggravated assault.
Waples had instructed the jury in what is commonly called the “objective” standard of self-defense. The standard is objective because it requires an evaluation of whether the defendant overreacted to the signs of danger. The alternative is the subjective standard, which turns exclusively on what the defendant himself believes. As applied to Goetz’s situation, the objective standard requires us to ponder a series of questions that would go unasked under the subjective test. Should Goetz have let the four youths go so far as to make an explicit physical threat before he reacted? Would a less drastic response, such as merely showing the gun or firing in the air, have been sufficient to ward off the perceived attack? Under the subjective test, the only question is whether Goetz believed both that he was being mugged and that shooting to injure was the minimally safe response. Under the objective test jurors are to inquire whether Goetz, holding these beliefs, should have exercised better judgment in the situation. It is obviously more difficult for the defendant to prevail under the objective than under the subjective standard.
One would think that there would be little dispute whether jurors should apply an objective standard of acceptable behavior. After all, the New York criminal code itself requires that the defendant who acts in self-defense “reasonably believe” that he is about to be robbed. How could that language possibly refer only to what the defendant actually believes, regardless of whether it is reasonable or not?
In a case argued in 1981 before the appellate court immediately superior to Justice Crane, however, a curious tendency in favor of the subjective standard began to make its way into the law. In that case the prosecution inexplicably conceded that the trial court had erred in charging the jury to evaluate the accused’s claim of self-defense according to the behavior of the “ordinary prudent man.”1 This gratuitous concession by the prosecution was reflected in language in the court’s opinion that subsequently came to plague the prosecution in the Goetz case. The 1981 case affirmed the conviction, but the published opinion referred to the objective standard for assessing self-defense as “error.” In 1983, another New York appellate court held that the correct standard is “what the defendant must have thought.”2 During the following two years, several other decisions confirmed this apparent deviation from the statutory requirement of “reasonable belief.” By the time Gregory Waples told the grand jury to apply the objective standard, the Court of Appeals in Albany had not yet rendered a decision one way or the other.
New York judges generally review grand jury minutes in order to determine whether the proceedings conform to law (neither the defendant nor his counsel has an automatic right to see the minutes). As Justice Crane was reading the minutes from the grand jury indicting Goetz for attempted murder, he noticed a Law Journal report of a new decision, in People v. Santiago,3 which once again applied the rule of the appellate division favoring the subjective standard in self-defense cases. Gregory Waples’s comments now seemed a challenge to the prevailing law. Accordingly, Justice Crane released the relevant parts of the minutes to the defense lawyers, and in October they petitioned him to dismiss all the charges affected by the allegedly incorrect instruction on self-defense.
Crane had little room to maneuver under the law. Before the Santiago opinion, all the decisions, except the first one taking account of the prosecution’s concession of error, had been in the appellate court with jurisdiction over Brooklyn and other districts. Justice Crane could defer to these decisions so far as they were persuasive, but he was not required to follow them. Now, after the Santiago ruling, he confronted a decision from the court that heard appeals directly from his courtroom in Manhattan; he would be summarily reversed if he should decide in favor of the objective standard.
Justice Crane therefore dismissed all the charges except those based on the illegal possession of guns.4 The proper standard, he wrote, was what Goetz himself believed and feared—not, as the prosecution claimed, what a hypothetical reasonable person might have thought was necessary under the circumstances. The judges in the appellate division, by a surprisingly close vote, upheld Justice Crane (they almost overruled Santiago). When the prosecution appealed this decision to Albany, the Court of Appeals held, in line with the prevailing view in the United States, that in a situation of self-defense, the judgments of the accused must be tested against the hypothetical behavior of a reasonable person in the situation of the defendant. The objective standard, as it applies to the personal situation of the accused, became the law of New York.
When the time comes to assess what evidence is admissible on the reasonableness of Goetz’s response, and to instruct the jury, Justice Crane will have to define the characteristics of a reasonable person in Goetz’s situation. The setting is obviously relevant. What does it mean in an urban culture for a person to approach a stranger and ask for five dollars? Is the request a veiled threat? And if properly understood as a threat, is the risk sufficiently serious and immediate to warrant shooting as a reasonable response? The defense and prosecution may present expert witnesses to discuss the sense of danger that can be implicit in encounters of the kind that took place. The jurors will inevitably rely on their own experience and their own projections of what they themselves might have done.
In addition, difficult questions attend the permissible scope of evidence about Goetz’s own past experience. That he was mugged and injured as a result in 1981 will presumably count as relevant in assessing Goetz’s propensity to react as he did. Should the jury also be allowed to consider the psychological arguments and evidence of disturbing boyhood incidents that run through Dr. Rubin’s speculations? Is it relevant to the reasonableness of his response that his father was prosecuted for making sexual advances to a young man? Should the jurors be encouraged to connect his father’s offering the young man “five dollars” with the amount requested of Goetz? Should the jury be told that Goetz’s father died in September 1984, three months before the shooting?
Even under the objective standard Gregory Waples and Barry Slotnick, Goetz’s lawyer, might be allowed to engage in debate and cross examination of witnesses about whether, say, the phrase “five dollars” triggered the “trap” of rage set in Goetz’s adolescence. But this seems most unlikely. Perhaps it is simply that Dr. Rubin’s theories are farfetched. But perhaps it is also that the legal conception of moral responsibility cannot readily accommodate causal accounts of criminal behavior. It is, after all, the primary task of a criminal trial to clarify and, if necessary, to condemn alleged violations of the law. If we are as receptive as Dr. Rubin is to psychological explanations of why people do what they do, we may forfeit the possibility of moral judgment. Tout comprendre—c’est tout pardonner: if everything about the accused is relevant, we may have no choice except to excuse him.
As the trial of Bernhard Goetz begins, many questions remain. Will Canty and Ramseur testify as they did before the second grand jury? If they do, how will the prosecution deal with the damaging effects of two pieces of evidence that came to light in November 1985? First, the injured Cabey told the columnist Jimmy Breslin that the others intended to rob Goetz. Then a police officer recalled that as soon as he arrived at the subway station after the shooting, Canty told him that “we were going to rob” Goetz. It is not clear why the policeman waited a year to report this, and his story may be challenged. Still, can the prosecution rely on its witnesses when they seem vulnerable to such testimony?
That Goetz had no valid license for his gun has, under the law, no bearing on the question whether he acted reasonably in self-defense. But jurors might be inclined to infer one wrong from another, and therefore the defense faces the challenge of keeping the two issues distinct in the jury’s mind. Of course, the defense would also like the jury to make an inference of one wrong from another with respect to the criminal records of James Ramseur and Berry Allen (who was convicted for chain snatching). If these men take the stand and claim they had innocent intentions, their criminal records might be introduced to discredit their testimony. Otherwise it will be difficult for the defense to bring their criminal convictions to the attention of the jury.
The fifth shot, fired point blank at Cabey, may become the crux of the case. The most Goetz had to fear from Cabey, sitting across the subway car with his arms folded, was that if Cabey had a weapon and Goetz turned to flee, Cabey might attack him. It is doubtful that an effort by Goetz to cover his escape by injuring the last of the four could qualify, by any stretch of legal doctrine, as a reasonable response to an imminent threat of robbery. It would seem to make sense, then, for the prosecution to play down its case on the first four shots and concentrate on the last. But if the prosecution implicitly concedes that the first four shots were not entirely wrong, it might give away the case. The defense can always maintain that the five shots were all beats in the same movement of self-defense. Goetz’s lawyers may well argue that the fifth shot does not stand alone: it was the natural expression of suddenly ignited emotions of self-preservation.
If this were a case in which a battered wife fired a fifth shot at a husband who might have renewed his attack against her, it would be much easier for the defense to argue away what might seem to be an unnecessarily aggressive release of pent-up anger. In such a case expert testimony on the “battered wife syndrome” might make the fifth shot, and perhaps even shots in the back, seem understandable to a jury. Such testimony might evoke our sympathy for a persecuted and helpless class of victims. We do not talk of a “battered New Yorker syndrome,” but many people and many potential jurors evidently believe there is something roughly analogous which could excuse an excessive response by a once battered Bernhard Goetz, especially if they think he was still affected by anger and injuries after being mugged in 1981.
Most important of all, of course, will be the jury’s impression of Goetz himself, both as he is today and as he is pictured at the time of the shooting. It is hard to anticipate the impact of the videotaped confession he made to the police in New Hampshire where he fled just after the shooting. Will it show him to have been scared, “driven into a corner,” reacting from fear? Or will it show him to be confident, arrogant, convinced of the righteousness of his cause?
It may do both. Goetz may want to see himself as acting from high political and moral convictions when in fact he may have been scared for his life, scared in a way that most of the potential jurors I observed seem to understand. If he takes the stand and testifies on his own behalf, however, he is more likely to try to convey a sense of his own rectitude than of fear and remorse for what he was “driven” to do. I am sure that Goetz will want to tell his side of the story. I am not so sure that his lawyers will let him do so.
As I listened to the prospective jurors, I found them much more sympathetic to Goetz than I had expected—their sense of frustration about crime in the city and, in some cases, their own apparent exhilaration over what Goetz did would, I think, have been evident to anyone who listened to them. Yet unless a jury with such feelings votes its sympathies regardless of the judge’s instructions on the law, Goetz will certainly be convicted of several charges of illegal possession of guns; for here the evidence is indisputable. The most serious of these charges, criminal possession of guns in the second degree, i.e., with intent to use them illegally, carries a maximum prison term of fifteen years—a heavy penalty which the jury should not know of when it deliberates. The Court of Appeals recently ruled that self-defense cannot justify criminal possession in the second degree,5 and that is why Goetz seems vulnerable to this stiff punishment. On all the other charges of assault, attempted murder, and reckless endangerment—crimes for which self-defense is a complete defense—the prosecution will, I believe, have trouble convincing twelve jurors to vote for conviction.
—March 26, 1987
April 23, 1987
People v. Gonzalez, 80 App.Div.2d 543 (1981) (Supreme Court appellate division, first department). ↩
People v. Desmond, 93 App.Div.2d 822 (1983) (Supreme Court appellate division, second department). ↩
110 App.Div.2d 569 (1985) (Supreme Court appellate division, first department). ↩
Justice Crane did permit the prosecution to retain the charge of reckless endangerment on the ground that according to the legal precedents, self-defense did not apply as a defense to this charge. A subsequent decision by the Court of Appeals held that self-defense applies to this charge as well (People v. McManus, 67 NY2d 541, 1986). Therefore, if the Court of Appeals had upheld Justice Crane’s decision, they would have dismissed all charges except those for illegal gun possession. ↩
People v. Pon 63 NY2d 264 (1986). ↩