Controversy and justice in the case of Bernard Goetz

A Crime of Self-Defense: Bernhard Goetz and the Law on Trial, by George P. Fletcher. New York: Free Press. 244 pp. $19.95. Bernard Goetz lives in Manhattan. He was beaten by thugs and hospitalized as a result of the beating. He lost faith in New York's law-enforcement establishment being able, or even willing, to protect him from physical harm. Rather than live in the suburbs and drive a car to work as a means of self-defense against urban violence, he chose to carry, and use, a .38 caliber Smith & Wesson pistol.

Three days before Christmas in 1984 he shot and wounded four black assailants. Goetz was indicted on 13 counts, including attempted murder, and brought to trial two years later. On grounds of self-defense, a jury exonerated him of all charges but one, illegal possession of a handgun. Case closed?

Not likely.

One year since the completion of Goetz's trial, though passions have tempered, deep divisions remain. Ominous questions reside in the public's psyche. Was Goetz a racist vigilante who got off because he had a smart lawyer? Did his triumph over one set of muggers set him up for an even worse mugging at the hands of a politicized and hypocritical criminal-justice system, one that presides over thousands of citizens who fear to walk its streets by night, or ride a subway at any time? Should New York lawmakers and law enforcers be condemned as too lenient in dealing with the city's criminals, not getting law-and-order religion until one victim made victims of the predators?

Such questions were evident in the actual jury selection. Seven of the 12 jurors seated had either been mugged, burglarized, or had the same done to an immediate family member. Both the jury's and society's fears, ``unexamined sentiments about self-defense,'' were on trial as well.

In ``A Crime of Self-Defense: Bernhard Goetz and the Law on Trial,'' George P. Fletcher examines the legal theory of self-defense in the light of a hard case and a complex state statute. The courtroom bustles. One becomes an eyewitness to the judicial, political, and theatrical drama of the law at work. Fletcher escorts his reader through the chimerical world of courtroom procedures, evidentiary rules, and precedent, into the complex and often contradictory aspects of the Goetz case.

From the outset, the prosecution, the defense, and the bench knew they must select jurors who could see the complex legal distinction between Goetz's alleged status as a wrongful possessor of a handgun and the contra-commonsensical fact of law that his illegal possession could have no bearing on the criminality of his using it in self-defense that winter day on the subway.

A professor of law at Columbia Law School, Fletcher speaks to his readers as if they were his students. He socratically probes the contradictions of the criminal law and an individual's right to safety.

In his hands, the judge, members of the jury, attorneys for the prosecution and defense, witnesses, and the controversial defendant himself, however constrained by the rules of the courtroom, never stop living and breathing in the real world outside.

Realizing the importance of the case, the judge, the prosecution, and defense attorneys welcomed Fletcher as an academic observer. He participated in all stages of the trial, including the prescreening of prospective jurors.

His point of view is omniscient: a fly on the wall; teacher; preeminent legal scholar; and acolyte of the criminal-justice system exhorting the legal laity, as potential jurors, to rejoice in their absolute power to balance and check outmoded, evolving, or unjust statutes.

For Fletcher, the case's animus revolves around whether ``the statutory standard of `reasonable' should turn not solely on what the defendant believed, but on the `conduct ... of a reasonable man in the defendant's situation.''' Does Goetz's fear of being hurt justify his shooting the four youths at point-blank range?

There is no way to know how Fletcher would have ruled had he been on the jury, even though his narration constantly begs the reader to answer that very question. ``The most carefully constructed legal edifices crumble at the touch of the jury's common sense,'' he writes.

Fletcher shows a profound appreciaton for the wisdom the founders of our legal system had in establishing verdict by jury. He illumines how and why they institutionalized this most democratic ideal, their supreme confidence in the fairness of ordinary citizens, even in defiance of statute, to determine guilt or innocence.

In the final analysis, Fletcher holds all parties subordinate to the larger mission his tough-minded and original analysis sets for itself - nurturing an understanding of our legal system so it can continue to succeed ``in directing the public's energies away from retaliatory action and into legal argument,'' while humbly admitting that ``the issues are too deep, the fears too great, to settle the argument with a verdict and a sentence.''

Jim Bencivenga is on the Monitor staff.

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