Friday, July 29, 2011

Revisiting the Bernie Goetz case
by David Gilfix

“Is your life worth more to you than your money?” he asked me.
We were talking about muggings.  I had recently moved to the Big Apple, and my friend, Harold, was responding to my comment that I would resist if someone demanded my money.  Harold, a native New Yorker, took out a map of Manhattan, and ‘X’ed out the areas I should avoid for safety sake.  There were many Xs. I still have that map.
Muggings were a way of life in the 1980s -- as much a part of the fabric of New York as Wall Street, Madison Avenue, and the Mets.   Almost everyone had been mugged (at least once) or knew people who had been.   In raw numbers, violent crimes had tripled in NYC since 1966, leaping from 325 to approximately 1100 per 100,000 people in 1981.  I also suspect that these official statistics were low; I knew many people who had been mugged, and almost no one had even bothered reporting the incident.
But there was another strand in the daily fabric of perhaps half of all New Yorkers; I discovered it first-hand a couple of weeks later with the same friend.  The two of us were perusing books in one section of a bookstore and noticed a guard watching us.  When we went into another section, the guard followed.  After going to a third area of the bookstore only to be followed by the same guard, we decided to leave.
Harold was Puerto Rican.  He was also a Methodist minister, which should have been irrelevant unless you believed that all Puerto Ricans were dishonest except Puerto Ricans ministers.  If you were black, Hispanic, or otherwise non- Caucasian in the 1980s (and perhaps even today), racial profiling was as much a fabric of your daily life in New York City as Wall Street, Madison Avenue, and the Mets.
Muggings and racial profiling - the two most combustible elements in New York culture - collided one day in 1984 in a subway-shooting incident that quickly made national headlines.   Bernie Goetz was riding the Seventh Avenue No. 2 express train when four black youths approached him and asked for money.  Goetz took out an unlicensed revolver and fired it five times at the youths, injuring all of them, and severing the spinal cord of one.  Goetz later said that he felt he was being robbed.  The youths claimed, initially, that they were just “panhandling.”
Everyone took sides.  Big name lawyers and civil rights advocates weighed in with their perspectives.
On the day of the shooting, I got a phone call from a friend.  “I just saw a man take out a gun and shoot some people on a subway,” he said.  His voice sounded too calm, as if he was working hard to stay in control.  I checked the radio and television news.  Nothing.  The story wouldn’t hit the airways for another couple of hours.
After the incident, police took statements from subway passengers and told them to expect follow-up questions soon.  The Manhattan DA was deciding whether to prosecute.   Curiously enough, no one had contacted my friend. “Frank,” who requested I not use his real name in this article, was born in Sierra Leone, grew up in England, and lived in America with a Green card.  He was nervous about getting involved.
After a few days of coaxing, Frank’s girlfriend and I convinced him to meet with District Attorney, Greg Waples.  During this meeting which I attended, Frank said that he did not see Goetz surrounded or threatened prior to the shooting.
The next day, the New York Post ran with the headlines, “Secret Witness Reopens the Goetz Case.” The Post had scooped the Times.  The case would go to court.
William Kunstler, the self-described “radical lawyer”, learned about Frank and invited all of us (Frank, his girlfriend, and me) to his home office in the West Village.  Kunstler was a former director of the ACLU and had gained fame defending the Chicago Seven, members of the Black Panther Party and Weather Underground, and a slew of big-name clients including Angela Davis, Stokely Carmichael, and Martin Luther King Jr.  Kunstler was to represent Darrell Cabey, the teenager whom Goetz shot and paralyzed, in a civil court trial scheduled after the main trial.  He spoke with us for well over an hour and treated us all - especially Frank - like long lost friends.   According to Kunstler, this was a case of blatant racism.
In contrast, Barry Slotnick defended Goetz and painted the case as a simple and justifiable response to life threatening violence.
The rest of Manhattan and it seems the entire country took sides of their own.  As is always the case in such high profile events, discussions had less to do with the actual event than the perception of the issues ignited by it -- in this case, safety, and racial profiling.
Frank eventually appeared as witness for the prosecution and answered the DA’s questions as honestly as he remembered.  I was a character witness and testified that Frank phoned me about the shooting long before the incident was reported on either radio or television news.  In cross-examination, however, Slotnick tried to raise doubts about whether Frank was really present on the subway.  Regardless, Juror Mark Lesly revealed in his book, Subway Gunman, that “Frank’s” testimony did not change his overall assessment of the incident.
Goetz was ultimately acquitted of attempted murder and assault though convicted on one comparatively minor charge: carrying an unlicensed weapon in a public place.  He was sentenced to one year in prison for which he served eight months.  
Eleven years later in 1996, the case went back to court in a Bronx civil trial, in which William Kunstler and Ron Kuby represented paralyzed shooting victim Darrell Cabey.  This time, the jury found Goetz guilty of “reckless and deliberate infliction of emotional distress” and awarded Cabey $43M in damages.  Goetz subsequently filed for bankruptcy and, according to reports, has yet to pay a dime.  By the time of the civil trial, however, the public was no longer interested.  Their attention had shifted from the Goetz trial of the 80s to the recently concluded OJ Simpson trial of the 90s.
So they missed the bombshell:  
Daily News and Pulitzer Prize winning columnist Jimmy Breslin testified that Darrell Cabey had told him in an interview that the other three teenagers did intend to rob Goetz because “he looked like easy bait.”  Cabey said he was not involved (of course).   Following Breslin’s testimony, a New York police officer who claimed to be the first officer on the subway after the shooting, told the prosecution that shooting victim Troy Canty said, “we were going to rob him.”
For several months I questioned my own involvement in the case.  Had I helped bring a man to trial who had responded no differently than many of us if put in a similar situation?
Harold had asked me whether my life was worth more to me than my money.  Great question.  But in the Goetz case, I believe the question many people were asking was whether a mugger’s life was worth more than the victim’s money.  Let’s imagine that we knew for sure that the four youths did intend to rob Goetz as Cabey admitted.  Would Goetz’s potential loss of 5 dollars have justified his response?   Of course not, but the question is misleading.  A mugging, by definition, is a potentially life-threatening situation.  New Yorkers know too many cases of people who were stabbed or shot even after giving up their money.
A spokesman for the civil trial jury said that critical to their verdict was Goetz's act of firing a second bullet at Cabey.  This, they felt, was the "deliberate infliction of emotional distress."  But was it?  Isn't it possible, as Goetz claimed, that he was running on adrenaline and couldn't stop while firing as quickly as possible in response to an implied threat on his life? 
The jury in the bigger criminal trial could not find Goetz guilty of anything except carrying an unlicensed weapon.  So why were the civil trial jurors who awarded Cabey $43M certain they had made the right decision?  Simply put, they didn’t have to be.  Unlike in the criminal case, civil law allows a verdict based on a “preponderance of proof,” which in the vernacular means “more likely than not.”
The problem is that nothing about the Goetz case was clear-cut.
Which brings me back to William Kunstler.
I found him brilliant, passionate, and charismatic.  At the same time, the man whom I had admired for his work during the civil rights movement came across as being too sure too quickly – that the shooting was an act of racism by Goetz.  It seemed to me that Kunstler had a clear agenda and was exploiting issues of ethics out of expedience. 
In his post-Goetz career, Kunstler appeared to make knee-jerk ethical decisions that were as irrational as the ethics of people he so self-righteously criticized in his speeches.  Kunstler defended Colin Ferguson, who was convicted of murdering six people on the Long Island Railroad (and eventually fired Kunstler to represent himself at trial).  It was ironic that, after representing the victim of a subway shooting, Kunstler defended the perpetrator of an even more deadly shooting incident.   He also defended Sheik Omar Abdel-Rahman, who headed an Egyptian-based Islamist terrorist group that was implicated in bombing of the World Trade Center in 1993.  Abdel-Rahman is now serving a life sentence for planning to set off bombs in major population centers in New York and New Jersey. 
The bear hugs that Kunstler gave us were disingenuous.
The one thing about the case that was clear was my friend’s courage and honesty in coming forth and describing what he did and did not see.  Here, our court systems excelled by enabling someone like Frank to communicate one perspective of the truth through a personal and untainted recollection of the incident.  I am glad that Frank spoke up but suspect that, either way, the DA would have found a reason to bring this case to trial; the controversy was simply too big.  
In the end, the talk show hosts, columnists, and members of the general public who were sure they knew the facts demonstrated that they were willing to formulate opinions based on ideology, which they spewed with impunity.  After all, who could not be opposed to either racial profiling or mugging?  The subway shooting was essentially a catalyst for people to debate which of these societal evils they most opposed, and, by inversion, which one they would prefer to ignore.  If we had recognized at the time that both were deleterious to a healthy society, we would have better understood the pathology of our impulse to manipulate or 
obfuscate already complex issues with false labels.
Next Counter Rhythms article:  The Yoyo Masters of Northampton, Massachusetts.
Previous Counter Rhythms article: 
(Some uncommon thoughts for the graduating class)

(A list of all articles is on left side of page, near the top)


Ricky Greenwald said...

Interesting story. I am among those who missed the bombshell. In Kunstler's defense, though, lawyers don't always get to choose who asks them for help.

David Kassel said...

Fascinating account, David. It does show how we look for black and white explanations for events where the truth tends toward shades of gray.

The Black Cat said...

Sorry. Whatever their intent was doesn't alter the fact that Goetz didn't KNOW their intent. You can't go around blasting holes in people because you SUSPECT them of bad intent. That road leads directly to some very very unpleasant things.

Anonymous said...

It is not the responsibility of an attack victim to guess weather the intent was to rob or kill or both. The attackers basically forfeited their right to live once they acted. Also, the gun was licensed in NY State but not in NYC. Ironically, the city preemtively decided to deprive potential victims of means to defend themselves. But even so, Mr. Goetz would probably walk free had he learned to keep his mouth shut and not take a bold political stance, even if he was right. And lastly, it is opportunist lawyers like Kunstler and political activists like Jessie Jackson that are the problem. These scumbags were brilliantly exposed by Tom Wolfe in The Bonfire of the Vanities, circa 1987.

Rita said...

I was mugged right after I came America. If you haven't experienced that you don't know what it feels like and you will not understand how Goetz felt. But I can tell you this, if one man asks me for money that is panhandling. But if four teenagers ever come up to you and surround you and ask for money, believe me they aren't panhandling. And it has nothing to do with whether they're black green, hindu or Moslem. I'm not saying that Goetz was justified because I wasn't there and maybe it was only one teenager who asked him for money, but there were four teenager together, so that is hard to believe. Also one of them was later sent to jail for raping a pregnant woman in the Bronx on top of a roof. Interesting article.

Dr. Spencer R. Goldstein said...

Dr. Spencer Goldstein,
I understand the teenagers had quietly brandished a sharpened screwdriver at the time that they said they were "Just Panhandling"

I have met spoken with and had business dealings with Bernie. We did not speak of this incident. I found in my dealings with him that he is a remarkably honest and gentle person with a quiet demeanor. I would suspect that this appeared evident to the four assailants who believed him to be was an easy mark.

I might suggest that should there be a few more similar incidents of this kind the incidence of muggings and assaults would remarkably diminish. I am not advocating vigilante status however if a mugger believes there exists the possibility that their Potential victim may be armed they just may hesitate to attack.

agnosticcynic said...

A very compelling story by Mr. Gilfix, and who knew that he had bathed in social, ethical, and borderline political intrigue. As a (former?) bleeding heart liberal, it is distressing to read of Mr. Kunstler's rush to judgment, but he is after all a lawyer... I have yet to find a lawyer's creed that they shall seek the truth... rather, they will seek the best possible outcome for their client, and the debating societies over generations, dating back to the ancient Greeks, are the proving ground that lead them to that end... But, I think the most intriguing question here is "What did Kunstler serve for refreshments at the meeting where he was clearly shopping for your support?"