Bernhard Hugo Goetz is a dangerous man. Armed with a gun, he shot four youths on the subway, two of them in the back. Armed with the public opinion polls, he painted a yellow stripe down the backs of New York's politicians.
The first to realize that justice is what Gallup says it is was the district attorney, Robert Morgenthau. He had a virtual identity crisis, forgetting he was the prosecutor and thinking he was the judge. When it came to the shooting of four persons on the subway, Morgenthau was all facts and no guidance. He chose to spare the grand jury any testimony from either Goetz or his victims -- or even the benefit of his own wisdom.
"We don't ever push a grand jury to return an indictment," Morgenthau said. "My policy is not to push." Lawyers all over the country are pondering that statement because, at last, there's finally something new under the sun. Ever since the grand jury was created back in Merry Old England it has been used by prosecutors as their tool. When they want it to investigate, it investigates; when they want it to indict, it indicts.
Given Morgenthau's understandable decision to cater to popular sentiment, it's not surprising that the grand jury failed to indict Goetz for the shooting of the four youths. Instead, it indicted him on three gun possession charges for which he could serve time in jail. The way things are going, though, he's more likely to get a ticker-tape parade and a wet kiss on the cheek from Mayor Ed Koch. It is certain that we are no longer talking of the same Goetz whose subway shooting an assistant DA called "methodical." She said Goetz shot two of the youths as they were running away.
As for Koch, he, too, received a legal education from the public opinion polls. His once trumpeted denunciation of vigilante justice has been muted. But over the weeks he softened his views until, after being told of the grand jury's decision, he was so impressed by its wisdom that he pronounced it "Solomonic." This, from the David of New York, is high praise. With a sling and a smooth little pebble, he got justice right between her blindfolded eyes.
It could be that Goetz was justified in shooting one or maybe two of the youths who asked him for $5 on the subway. It could be he was justified in shooting the other two as well. It could be that all four of them, including the one who is still paralyzed for life and comatose, got what they deserved. All of that could be true, but that was for a jury to decide. Only after a trial in which the arguments of both the prosecution and the defense was heard would we know enough to make such a decision. In this case, though, there was no prosecution and defense. It was all defense.
The public cheers Goetz and politicians, listening as they should, have taken heed. That's fine. There is a message in Goetz's celebrity and it has to do, as everyone knows, with fear of crime and a sense that the criminal justice system is all criminals and no justice. Politicians have a duty to hear what the public is saying and do something about it. In this case, the public is saying it's scared.
That explains the widespread support for Goetz -- maybe even for Goetz's actions. It does not, though, automatically exonerate him. Frightened people are not above the law. Scared people are not a law unto themselves. And popular crimes are still crimes -- just like unpopular ones. Ask yourself what the grand jury would have done with Goetz if he were black and his victims/assailants white.
In the old Jim Crow South, people really were afraid of the changes demanded by civil rights activists, but that did not justify the refusal to indict those who committed crimes in the name of segregation. The same holds in New York or anywhere else. Bernard Hugo Goetz may or may not have been in a blind and terrified rage when he squeezed the trigger, but it's clear from the results that New York justice has been under no such handicap. It took off its blindfold and saw the public opinion polls.