New Evidence

By Richard Stengel

Bit by bit, the complicated public image of Bernhard Goetz, New York City's "subway vigilante," seems to be shifting. The initial perception of him as a mild-mannered Clark Kent who changed into an intrepid punk stopper was certified last January when a grand jury refused to indict the weedy, self- employed engineer for attempted murder. But lately Goetz's righteous aura has been smudged by new revelations, principally that he admitted firing a bullet into one of his four victims with the words "You don't look so bad. Here's another."

Manhattan District Attorney Robert Morgenthau announced last week that on the basis of new information, the case against Goetz will be reopened. Investigators said they now had an additional witness. Morgenthau refused to identify the witness, but there was speculation that the individual was a passenger on the IRT subway car last December when Goetz, 37, opened fire on four teenagers he claims had hassled him and hustled him for money. A number of other passengers testified before the original grand jury, which indicted Goetz only for illegal possession of a handgun. Acting State Supreme Court Justice Stephen Crane ruled that Morgenthau's application for a rehearing was compelling enough to warrant asking another grand jury to consider charges of attempted murder and assault.

For Morgenthau, who faces an election this year, the case has become a political snare. Those upset by the first grand jury's lenient treatment contend that the district attorney did not press the grand jury hard enough for an indictment for attempted homicide against Goetz, who had overnight become celebrated as a quirky urban hero, an Everyman who finally fought back. In New York, unlike some other states, prosecutors seeking a grand jury indictment are required to present a balanced case and must include exculpatory evidence. Even so Morgenthau was astonished by the original grand jury's finding. "We thought we had a case against this guy," he says. "I guess we underestimated the currents running in his favor." Those currents, he says, are still strong: the flood of letters to his office is running 3 to 1 in Goetz's favor.

All four of Goetz's victims have criminal records. One is still hospitalized with brain damage. Morgenthau was reluctant to allow any of the other three to testify before the first grand jury and thereby gain automatic immunity. He was concerned that it would appear to the grand jury that he was letting off a rather unsavory character with a previous criminal record in order to indict someone (Goetz) without one. Morgenthau says he subsequently urged one of the youths to testify before the new grand jury, but the boy's family was unwilling; it has already received 50 death threats since the shooting. The prosecutor's case against Goetz has been made more difficult by New York's self-defense law, which permits the use of "deadly force" if a person believes that he or she is about to be robbed, raped, kidnaped or sodomized. The standard is not what judgment a reasonable person would make in retrospect, but what the victim personally believed at the time. Goetz's skittish fears, fanned by a previous mugging, may have proved an asset under New York State law.

Goetz's lawyers called the reopening of the case a "judicial lynching." Says Joseph Kelner: "Mr. Morgenthau has been highly pressured by politicians who see gain in this for themselves. If he has a new witness, you have to wonder why they pop up now." Arguing that there is a tacit conspiracy among officials to convict his client in the court of public opinion, Kelner cites the decision this month to release a brooding confession Goetz made when he surrendered at a Concord, N.H., police station nine days after the shootings. "He's being turned from a crime victim into a criminal," says Kelner. Goetz, who was out of town on a business trip to South Carolina and Kentucky, reacted to his changed circumstances with his familiar mask of stoic calm. Said he: "If that's what they want, another grand jury, well it's O.K. with me."

With reporting by Marcia Gauger and John F. Stacks/New York