A Forgotten Hiccup in the Kitty Genovese Case: The Judge Speaks Out

What follows is an excerpt from ' Disrobed: An Inside Look at the Life and Work of a Federal Trial Judge ,' a book where I try to explain life on the bench and the unknown parts of our legal system.

A partially clad 29-year-old barmaid had been found brutally stabbed to death in the hallway of an apartment building in Queens during the chilly early morning hours of March 13, 1964. In canvassing the neighborhood several weeks later, detectives learned that 38 people had heard Kitty Genovese scream for help as she was being stabbed and raped in the hallway -- but did nothing. Consequently, the case came to symbolize urban apathy and reinforced New York City's image as a place where cold, uncaring citizens would do nothing while a helpless victim lay dying.

Winston Moseley was arrested and tried for the murder. He told the jury that since no one was responding to Kitty's screams, he decided to remain in the hallway to rape her. Moseley was not put to death, however, since on appeal the state's high court reduced his sentence to life because it determined that the trial judge had improperly excluded significant evidence bearing on Moseley's mental condition during the sentencing phase of the trial.

In 1990, 25 years after Moseley murdered Kitty Genovese, he brought a pro se habeas corpus petition in the Brooklyn federal court seeking his freedom. He claimed that his trial lawyer, Sidney Sparrow, had a conflict of interest at the time of the trial because Sparrow had also been Genovese's lawyer. Moseley's habeas petition lingered in the court for the next five years. I do not know which judge was assigned the case, but I could surely understand why no judge would want to touch it. Nonetheless, it had to be disposed of. The courthouse is open to all, even deranged, pro se, convicted criminals.

When a new judge comes on board, he has to be assigned a docket of cases. Each existing judge is asked to give up some of his cases. In many district courts -- but not in the EDNY -- some use the opportunity to unload their dogs and hot potatoes. I got the Moseley case. After Moseley had been convicted, the United States Supreme Court had decided a number of cases making it clear that a criminal defendant was entitled to be represented by a conflict-free lawyer. Sparrow had represented Genovese when she had been prosecuted on gambling charges. Moreover, I had read the transcript of Moseley's trial and was shocked that Sparrow had told the jury during the sentencing phase -- to determine whether Moseley should be put to death -- that "I didn't try this case involving Kitty Genovese objectively, calmly, just as a lawyer defending a client because I knew Kitty Genovese and represented her for years." Under Supreme Court law, Moseley was entitled to a factual hearing before a judge -- without a jury -- to determine whether Sparrow's conflict and comments would require a new trial. I had no choice.

I conducted the hearing on July 24, 1995. It was the first time a case of mine would make big news and that my name would hit the papers. The press reported that I had said in court that, "I have a responsibility as a federal judge to not let [the government] sweep this under the rug." Nonetheless, as a new judge I needed this case like a hole in the head. I anticipated that I would be vilified in the press. I had doubts that people would be able to detach their emotions and accept the fact that a judge is bound to adhere to the rule of law. I was right. The New York Post, for example, wrote that "the very fact that this absurd appeal had actually made it into court demonstrates, in graphic terms, the sorry state of the criminal justice system: The mythical man from Mars would shake his head and marvel at the prospect that Kitty Genovese -- a full 31 years after she was murdered -- stands to be denied justice."

During the hearing, three of Kitty Genovese's brothers and a sister sat in the first row and stared down at their sister's killer. Kitty's sister later told the press that she "was shocked to hear that this case would be reopened." Her brother Frank added that, "The whole thing is kind of surreal." The courtroom was packed. Sparrow, who was then 82, testified about the way in which he handled the case. He had kept copious notes. I was impressed. In a lengthy, 28-page decision I denied Moseley's habeas petition, concluding that, despite Sparrow's statements to the contrary, he gave Moseley "effective, competent and capable counsel under difficult circumstances." I noted, however, that "Moseley's quarter-century delay in bringing his habeas petition poignantly support[ed] those who would argue that Congress should establish a habeas statute of limitations," but "Congress ha[d] yet to do so."

Moseley appealed to the circuit court of appeals. As a new judge, I was thrilled that the appellate court summarily affirmed "for substantially the reasons stated in the district court's thorough and well-reasoned opinion." A few years later, Congress established a one-year statute of limitations for habeas cases. Moseley would have to die in jail, and stale cases like his could never come to court again.

Nevertheless, the Kitty Genovese case lingers on. For many people the question still centers on those 38 New Yorkers who failed to act. After the hearing, Professor William DiFazio, chairman of the sociology and anthropology department at St. John's University, suggested a reason. He viewed the apathy as a coping mechanism: "In the city, human beings are confronted with so much stimuli that there is no way they can process it all. What you have to do is shut yourself off a bit -- if you don't you can go crazy." However, on the positive side, he thought that as the legacy of the horrifying Genovese murder lingered in the City's psyche, it might subconsciously cause some good Samaritans to act. He thought that it was good that the case came back to court years later because "it remind[ed] us we should get involved."

Frederic Block has practiced law for 34 years. He was appointed to the federal district court as a judge in 1994 by President Clinton. Block is the author of Disrobed: An Inside Look at the Life and Work of a Federal Trial Judge.