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Goetz: Crazed Gunman or Good-Guy Defender?

May 17, 1987|George P. Fletcher | George P. Fletcher, a professor at Columbia Law School, is writing a book about the Goetz case.

NEW YORK — Until the Bernhard H. Goetz trial came along, insanity was typically the contemporary argument from defense attorneys in prominent cases involving violent assault and killing.

Think about the bizarre--the inexplicable assassination by Sirhan Sirhan and the grotesque violence of Charles Manson. These are defendants only too happy to invoke the insanity defense. Sometimes the defense succeeds, as when John W. Hinckley Jr. raised a reasonable doubt about his moral responsibility for attempting to assassinate the President. And in other cases, defendants have successfully argued that their responsibility was diminished by their emotional states. This plea of partial insanity led to manslaughter as opposed to murder convictions for Dan White after his assassination of Mayor George Moscone and Supervisor Harvey Milk in San Francisco, and for Richard Herrin after his widely reported slaying of fellow Yale student Bonnie Garland.

Yet in the Goetz case we hear no suggestion of either a plea of insanity or of partial insanity--called "extreme emotional disturbance" under New York law--that would reduce Goetz's potential liability for shooting and injuring four youths on the subway, from attempted murder to attempted manslaughter. Paradoxically, it is the prosecution that is tempted to invoke the idiom of mental abnormality.

At an earlier stage of the proceedings the defense team, Barry Slotnick and Mark Baker, criticized the prosecutor in the case, Assistant Dist. Atty. Gregory L. Waples, for not presenting the issue of extreme emotional disturbance to the second grand jury, which in March, 1985, returned the charges of attempted murder against the subway "vigilante." They argued, without success, that overlooking this issue at the stage of the grand jury provided a good legal basis for dismissing the indictment.

Now, however, in the midst of a month-long trial centering on Goetz's claim of justifiable self-defense, "insanity" is far from the defense's position.

In his opening statement to the jury, it was prosecutor Waples who described Goetz as an "emotionally troubled individual," "obsessed" by the desire to make these four kids suffer. Goetz's confession, Waples argued, would reveal him to be a "tormented man" who had a "very twisted and self-righteous sense of right and wrong." He had a "fanatic contempt" for the criminal justice system. This language comes close to describing Goetz as lacking the mental competence to be held liable for attempted murder. Why should the defense be wary of this idiom when the prosecution finds it the best way to argue that Goetz acted, not in self-defense but on his own, as an aggressive criminal?

This question goes to the heart of the defense's strategy and the prosecution's response. The defense seeks to promote Goetz as the embodiment of principle and courage. He is the man who came from nowhere to uphold the rights of all those who live in constant fear. Witnesses present at the shooting told the jury that they preferred not to look at the four boisterous youths at the north end of the subway car; for fear of contact, they preferred to keep their heads buried in books or newspapers. But not Goetz. According to Troy Canty, one of the youths, Goetz looked at them and they looked at him. Then came the request--demand? shakedown?--for $5 and the shooting. Goetz had the guts to stand up to elements Slotnick unhesitatingly described as the scourge of city life. "They got what the law allows," Slotnick argued repeatedly in his opening statement, making it clear that he has no sympathy even for the paralyzed Darrell Cabey.

Goetz cannot put himself forth as a hero and at the same time argue that he is not responsible for what he has done. Like those who engage in civil disobedience, heroes--those who stand up against the "forces of darkness"--must claim responsibility for their deeds. Goetz differs from Sirhan, Hinckley, Manson and all the other notorious defendants of the last several decades precisely because both he and a large segment of the public actually think that he is a hero. If defense counsel argued insanity or even partial insanity, they would injure the pride of their client and undermine their strategic position.

It is not surprising, then, that the idiom of insanity comes to the lips of prosecutor Waples. The best way to cut through the jury's identification with Goetz as the embodiment of the "common man's" martial fantasies is to treat him as foreign and bizarre. If he is not one of us, we cannot look to him as hero. And nothing would make him seem more apart from the average juror than the suggestion that he is mentally unbalanced.

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