If you’re my age, you’ll recall the story of Bernhard Goetz. On a New York City subway car on December 22, 1984, Goetz shot four Black teenagers from the Bronx at point-blank range. Accused of attempted murder, Goetz went to trial—and was acquitted on the most serious charges, after claiming he acted in self-defense.
Goetz became internationally famous—or infamous, as the case may be—and folks who were around in the ‘80s will surely be interested in looking back on his case, seeing where he is now, and the like. But even if you’re not familiar with Bernie Goetz, the issues his actions raised remain very relevant to our current moment.
If you’re interested in exploring these important subjects, I have a reading recommendation for you: Five Bullets: The Story of Bernie Goetz, New York’s Explosive ‘80s, and the Subway Vigilante Trial That Divided the Nation, by Elliot Williams. A federal prosecutor turned CNN legal analyst, Williams is perfectly positioned to delve into the Goetz case—and connect it to current controversies.
Thanks to Elliot for writing Five Bullets. And thanks to him for joining me—for a wide-ranging discussion covering his fascinating career as a lawyer turned journalist, his compelling new book, the Goetz case, and what’s going on right now in Minnesota (Elliot is also a former senior official at ICE)—on the Original Jurisdiction podcast.
Show Notes:
Elliot Williams bio, Penguin Random House
The Subway Vigilante Who Never Left Is Back (gift link), by David Segal for The New York Times
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Three quick notes about this transcript. First, it has been cleaned up from the audio in ways that don’t alter substance—e.g., by deleting verbal filler or adding a word here or there to clarify meaning. Second, my interviewee has not reviewed this transcript, and any errors are mine. Third, because of length constraints, this newsletter may be truncated in email; to view the entire post, simply click on “View entire message” in your email app.
David Lat: Welcome to the Original Jurisdiction podcast. I’m your host, David Lat, author of a Substack newsletter about law and the legal profession also named Original Jurisdiction, which you can read and subscribe to at davidlat.substack.com. You’re listening to the ninetieth episode of this podcast, recorded on Wednesday, January 28.
Thanks to this podcast’s sponsor, NexFirm. NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com. Want to know who the guest will be for the next Original Jurisdiction podcast? Follow NexFirm on LinkedIn for a preview.
If you grew up in the 1980s, as I did, you’ll remember the name of Bernhard Goetz. A few days before Christmas in 1984, Goetz shot Barry Allen, Darrell Cabey, Troy Canty, and James Ramseur—four Black teenagers from the Bronx—at point-blank range. Goetz claimed that he acted out of self-defense, fearing they were going to mug him; the teens claimed that they were simply panhandling.
The story of the shooting went viral, even in an age without social media, and Goetz became famous—or infamous, depending on your point of view. The Manhattan District Attorney’s Office charged Goetz with attempted murder and other offenses, and the case went to trial. A jury found Goetz guilty of carrying an unlicensed firearm, but acquitted him of all other charges.
Although these events took place four decades ago, the issues they raised remain all too relevant. It makes perfect sense that they’re subject of a new book by CNN legal analyst Elliot Williams, Five Bullets: The Story of Bernie Goetz, New York’s Explosive ‘80s, and the Subway Vigilante Trial That Divided the Nation. According to former Manhattan U.S. Attorney Preet Bharara, “Williams manages to make sense of a complex and notorious case that transfixed and frightened an entire city. Even as he takes us back in time, Williams grounds us in the present, identifying all the hot-button issues that are arguably just as hot or hotter today: race, violent crime, prosecutorial discretion, the right of self-defense, and media bias.”
Last week, I had the pleasure of interviewing Williams. We discussed Five Bullets, the events it chronicles, and the relevance of its core themes for our current moment. We also covered his impressive legal career—including two federal clerkships, service as a federal prosecutor, and time spent as a lawyer on Capitol Hill—before he pivoted into journalism. Without further ado, here’s my conversation with Elliot Williams.
Elliot, thanks so much for joining me.
Elliot Williams: Thanks so much for having me, David. I’ve been looking forward to this one. This is cool.
DL: Congratulations on the publication of Five Bullets and the great press it has been getting. But let’s start at the beginning, with your background and upbringing. I believe we share a lot in common: we were both born in New York, the children of immigrants, but grew up in New Jersey.
EW: And rakishly handsome—stunning, eye-popping good looks. Yeah, but all of the above. My parents are from Jamaica. I was born in Brooklyn and grew up a little bit outside the city in Hillsborough, about an hour south of the city.
DL: And did you have any lawyers in the family or any early exposure to law?
EW: Oh, I barely have college graduates in the family before me, so really no exposure. My parents did ultimately go to college, my mom eventually—and I make a reference to this in the beginning of my book, Five Bullets. My dad worked two jobs for a lot of my childhood. And, in fact, part of where we maintained the connection to New York City is that my dad worked at the Gimbels in Herald Square. We all know Macy’s is the big Herald Square department store, but one of the big New York City department stores was Gimbels, and my dad worked in the camera department and in the sporting-goods department for most of my childhood. So I’m not from a storied, august line of attorneys, if that’s the question.
DL: You actually talk in the book about how your upbringing informed your writing about these events, and we’ll get to that. So if you didn’t have lawyers in the family, what led you to go to Columbia Law School?
EW: I think indecision and confusion, more than anything else. And it’s funny, back to the immigrant parents’ point (and I have a sense that maybe you grew up with this too, David): you had to do something, whether you’re going to be an engineer, going to be a doctor, or going to go to law school. And it’s interesting: my wife is Chinese American, and even law school isn’t a favored career for a certain immigrant set, whether it’s South Asian or East Asian or whatever else. But it was going to be one of those things; it’s almost that there wasn’t a choice.
DL: What did you study as an undergraduate at Penn? Was it related to the law—political science, something like that?
EW: No. Would you believe this? I was an art history major. And, in fact, I always had in my mind the notion that—barring being a nurse, an engineer, or an architect, or one of four professions in the world—what you study as an undergraduate truly does not matter for your future. If you talk to tech CEOs now, they all say that the thing that led them to their life was studying the Stoics and philosophy and whatever else and not a life of learning how to code. And certainly I had the sense, early on in my mind, that a background in the humanities would be valuable in any career.
DL: You also have a degree in journalism. When did you get that?
EW: I got that jointly with the law degree—so it all starts to make sense, right? I had long envisioned being a legal journalist, one of the folks covering the Supreme Court or trials or whatever else. And that was the plan coming out of J-school and doing the joint degree with the law school. I interned at Bloomberg one summer. It never really materialized—and so I ultimately ended up going straight into the practice of law and doing that for some time.
DL: So when you went to law school, you already had in mind the career of a legal journalist?
EW: Yeah. I did not envision that I was going to practice law for a long time. I thought I was going to be one of the many people who gets a law degree and then just does something else; it just didn’t seem all that appealing to me. And the attractive place to be, I thought, was going to be—if not academia, which I thought about for a little bit—legal journalism.
DL: That’s so interesting, because I feel a lot of us fellow lawyers turned journalists didn’t know about this career going into law school. But it sounds like you definitely had it on your radar.
EW: It was definitely on the radar. And it was fortuitous going to Columbia, which has one of the top, if not the top, journalism programs in the country. So it was natural; there was a clean fit to doing the joint degree program there. I ultimately ended up doing two and a half years of law school and a year of journalism school. It’s not a fully formed program, but they just knock a semester off of law school. And come on, lawyers—everybody knows that last semester, you’re not doing anything of substance or value anyway, except drinking beer and probably playing softball. And so it worked out well by every metric. I got the full journalism school experience at Columbia, and enough of law school to be able to take the bar and competently practice and so on.
DL: So as you mentioned, you did not go straight into journalism. Instead, I believe you clerked after law school.
EW: I did—two years of clerking, on the Southern District of Florida and the Eleventh Circuit.
DL: And how did you like those experiences? Since now you wrote a book about a trial, I wonder whether that experience on the other side of the bench was useful to you, or has been useful to you, in your general career.
EW: Invaluable. There’s no question that having both was invaluable, particularly because I didn’t practice law for a long time in the grand scheme of people who practice law, right? I mean real, going-to-court law, not wonky, legislative-affairs stuff. It was invaluable—understanding how judges work, how judges think. Certainly the district-court clerkship, being in a trial court, a federal trial court, was invaluable for just understanding the law. As for the Eleventh Circuit, I loved the experience just because of the people I was with, the judge, all of the above. But you get a different understanding of the inner workings, the machinery of the law, from an appellate court than you do from a district court or trial court.
DL: I totally agree—and in hindsight, I wish I had done a district-court clerkship as well. You just learn so much from it. The appellate clerkship is almost like another year of law school. As much as I loved my appellate clerkship, I think just in terms of nuts and bolts, you learn a lot more in the district court.
EW: Absolutely. And it’s far more of—for lack of a better term—a people job. You’re interacting with counsel, you’re interacting with the judge, you’re interacting with other clerks. It’s just so much more interactive of an experience versus the appellate clerkship, where you’re just at a desk thinking big thoughts. Staving off dementia is probably a good thing to start thinking about in your 20s, and you do that when you’re an appellate clerk—but yeah, it’s just a totally different experience.
DL: So after the clerkships, you didn’t go into journalism just yet, right?
EW: No, I was on this program with the Justice Department and the Domestic Security Section working at one of the post-9/11 creations in the Criminal Division. It was alien smuggling and immigration crime—not trafficking, which would go under Civil Rights and other divisions in the Justice Department. So I was just prosecuting fraud on the immigration system, and some violent crime, too. And I tried some cases there.
DL: How long did you do that for?
EW: Not very long. I was there for, I think, two and a half years—and then ended up in Congress for the Senate Judiciary Committee.
DL: Who was your boss in Congress?
EW: That was the now-Senate Minority Leader, Chuck Schumer. At the time, before becoming the head immigration guy and before being in leadership, he was just a regular, rank-and-file senator on the Senate Judiciary Committee. And this was before he became chair of the Rules Committee.
But the big thing for him was that he was the chair of the Senate campaign arm, the DSCC. The arc of Chuck Schumer becoming minority leader starts there, because all politics is favors, and all politics is loyalty, and so on. And I think a number of the people whom he brought into the Senate ended up being his supporters as he ran for Senate leadership.
DL: It’s a lot about favors; it’s a lot about connections. And I’m curious: you have a number of prominent people who have praised Five Bullets, one of them being Preet Bharara. Did you overlap with Preet at Schumer’s office?
EW: Oh, he hired me! And it’s remarkable, the people that you intersect with over the years, how they keep coming up and coming back. I knew Preet was going on to bigger and better and greater things—obviously, when you’ve been around him, you see he’s a really sharp guy. But no, he hired me into the Senate Judiciary Committee, and he was my boss for the years that I was there.
DL: And then where did you go after your time in the Senate?
EW: After the Senate I went to the Obama administration, where I ran legislative affairs at ICE—this agency, if people have heard of it (I believe it’s in the news every now and again). And that’s another thing. Whenever I talk to law students or even undergraduates about mapping out your next decade—and it’s getting worse for young people—they all have this sense that you have to have it all figured out and have to plan your next few steps out.
I always use this example: I think the job I’ve spent the second most amount of time in in my career was a job that didn’t exist when I was in law school. ICE literally had not been created yet. It was still the INS at the time that I was in law school. Then 9/11 happened, the Department of Homeland Security got created, and the whole world opened up. Similar thing: at the time, DHS needed legislative affairs people, they wanted folks coming out of Congress, and it was an interesting time to be at DHS. I saw the ICE job naively as, “Oh, it’s immigration and customs enforcement. Customs, all of the customs work—that’s half of the job, and you can focus on all of the human trafficking and customs and general criminal enforcement work that you know well.” Oh, how did I not know at that time that everything that would ultimately swallow my time there, my time working at ICE, was the immigration portfolio.
And I will also note—people don’t know this—that there’s just a giant cleavage in that agency between the customs folks (they were the former U.S. Customs Inspection Service, I believe, under Treasury) and the former INS, the immigration people. They were smushed together into one agency and never wanted to be one agency. And the customs side of the house hates being pegged to all of this craziness and stress and acrimony and nonsense. And in fact, in 2018, a lot of the top customs brass at ICE tried to break off from the agency: they wrote a letter to the secretary asking to break the agency up. And so it’s just a fascinating place that has never wanted to be the way it is, and pretty much nobody but the immigration people wants ICE to be doing immigration.
DL: I actually want to get back to this after we talk a bit about the book, because a lot of what you talk about in the book has some relation to recent events, including recent events involving ICE. But before we turn to that, let’s finish up your career. Where did you go after your time at DHS?
EW: Back to DOJ, where I was the deputy assistant AG for legislative affairs at DOJ. And so I almost went back home, in a way.
DL: And after that, when did you pivot into journalism?
EW: So I ended up at a consulting firm after leaving DOJ. This was the point at which I thought, “okay, I’ve left being a political appointee, I’ve left the practice of law—this is now time for me to make the pivot in my head that I’ve sort of had kicking around for a while.” So around 2017, 2018, after I left DOJ, I started writing some op-eds and getting out there, and then just started appearing on television. And here’s the best advice I ever got about TV: a producer said, “You know the best way to get on television is to get on television.” No, literally, just get on once and then you’re going to get on again. And then at a certain point, it becomes an entrepreneurial thing: you start pitching yourself and writing more and so on. But the key is just to get on that first time and then run with it.
I also had the great fortune—or misfortune—of getting into television at the height of whatever you want to call the years after 2017 on cable news. It was the Trump era, which sort of created the genre of celebrity legal analysts. And I’m not saying I’m a celebrity or anything like that—but if you just look at the number of folks whose careers were launched in the last decade by being television legal analysts specifically, this didn’t exist 10 or 15 years ago, other than Jeff Toobin (but he was something different too, because that goes back to O.J. Simpson and writing books and so on). So other than Toobin, how many people can you name who built a career that started by being a television legal analyst? And if you think now, Joyce Vance and Barb McQuade and Elie Honig and Glenn Kirschner and all these people who have started by commenting on the law, that’s a post-2017 global creation, which is sort of wild to see. But anyway, the timing worked out quite well, and then in time, I ended up signing at CNN, and that’s where I’ve been since 2019.
DL: Two of my former guests, whom you actually thank in the acknowledgments of your book—Elie Honig, whom you mentioned, and Elie Mystal (two Elies!)—are both examples of what you were talking about, in terms of people who have had great careers, including multiple books, but started off, in some ways, as TV commentators.
EW: Yeah, and specifically as legal TV commentators. It’s a profile that’s a newer thing since Trump. And we can talk about what some might call “Trump derangement syndrome” or whatever else. I just think—even setting aside the president’s personal legal issues—that so much of the last decade of talking about the law stems from the actions of the executive branch. And the cynical point is that cable networks find that covering it rates well, so they put it on.
DL: And you talk about that in the book as well, in terms of what generates clicks or views. But let me ask you one last question before we turn to the book. I often get this question as a fellow lawyer-turned writer. Do you miss practicing law?
EW: No. I don’t even need you to finish asking the question. No, I don’t. Honestly, it’s funny articulating it out loud: I meandered from being an art-history major, to a legislative affairs hack, to a journalist, to whatever else. I never had in my heart a passion for the practice of law. It’s never been something that I loved doing. I have friends who are partners at law firms who genuinely like it; they just like the issues, the ideas, and so on. But it’s never been something that grabbed me or that I found excitement in doing. Yes, if you were to ask me, when I was 29 and a federal prosecutor, “Is this the greatest thing on earth?” I might’ve said, “Yeah, I really do like it.” But deep down, in retrospect, I didn’t love it. I love what I’m doing now. And I find talking about the issues and writing about the issues so much more personally gratifying than actually practicing law.
DL: Well, it’s interesting—and I get this reaction sometimes too—you had an amazing early legal career: you went to Columbia Law, you clerked for two federal judges, you went to DOJ Honors and Main Justice. This is kind of like the whole shebang. So do you ever have people—or your parents—say, “oh, you’ve wasted your legal education”?
EW: No, definitely not. And definitely not my parents, with the notion that I “threw it all away” or anything like that. And immigrant parents, too: they see you on television, or their friends in the Mahjong game or whatever see you, and they all get excited by it….
I do think—just explaining the law to lay people, even lawyers to some extent—that there’s just a value in it, and a challenge to it, in conveying simple legal concepts in a way that people understand: how to explain speedy trial or immunity or these concepts that we know as lawyers and spend our careers learning how to explain in pages and pages and paragraphs of text. But explaining, in a sentence or two, “What is qualified immunity? What does the Sixth Amendment say?”—that’s a skill. And it’s important, because when people watch cable news, they watch from a place of passion. When they watch Donald Trump go on trial or whatever else, people have very strong opinions about it—but there are important legal questions, and also rights that he has as a defendant, that need to be explained. “It doesn’t matter if you didn’t vote for him; he’s still entitled to a speedy trial, and here’s why.” And so I have found that to be not a public service per se, but an important aspect of the job.
DL: Turning to Five Bullets, you do a beautiful job in the book of explaining some very complex legal proceedings and concepts. I know you had to dial it back a bit; I know that there was a section about criminal intent that your editor made you cut, for example, speaking of what’s just too “inside baseball.”
But what I really love about the book, among a bunch of things, is it really is a story; it’s not just legal jargon. Reading the opening, it just took me back to my own childhood as an ‘80s kid—and I went to high school in the city, so I was commuting on the subway back when it was graffiti-filled. So I can relate to that. But for those of my listeners who have not seen the copious positive press, congrats on Five Bullets. Tell us, in a nutshell, what’s it about?
EW: It’s about the 1984 New York City subway vigilante shooting: Bernhard Goetz shot and seriously injured four unarmed Black teenagers on the New York City subway. He ran, hid for nine days in New Hampshire, came back, turned himself in, came back a hero to many people. And it ended up being an immensely polarizing case—because of the things that you were talking about, David. This New York was historically rough and unsafe, covered in graffiti and litter, seeking bailouts from the federal government, with homicide rates through the roof—2,000 people a year getting killed in New York. And many people saw Bernhard Goetz as a solution to that: “finally, the guy who clapped back.” Many people felt that way. And it ended up being a very polarizing case. And so I revisit and unpack the facts of the story—and then just talk about what we are still living with today from this case, and other ones like it.
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You, like me, were a young kid at the time that this shooting took place. And I believe you say in the book that you actually heard about it not through coverage of the shooting itself, but through coverage of a song reference or something?
EW: Yes. I think my earliest memory of the Bernhard Goetz case was a piece I saw about hip-hop artists doing songs about the subway vigilante. And we’ve been talking about our childhood a little bit here—you don’t realize how stuff is affecting you when you’re a kid. And it’s like, “okay, a story about this guy who shot people being the muse for hip-hop artists.” Well, in retrospect, what an amazing moment that was in news and history, thinking about how this least hip-hop guy in human history was inspiring hip-hop. What does that mean? And now I can look back and reflect on it. But back then it was just, “oh, he’s popular, and it’s an interesting story,” or whatever.
DL: Your book does a really nice job of explaining what a watershed event this was. As you point out, Goetz has been mentioned in Billy Joel songs, and he’s been an answer on Jeopardy! And for those of us who were around then, we realized what a big event this was. But for those people who were not, this book will give them a sense, very vividly, of what that was all about.
What inspired you to write this book—especially since you were pretty young when this happened, so you weren’t connecting with this as an adult?
EW: That’s an important question: why now? And I just think I’d been just thinking, “were I too write something, what’s the story, and what would it be?” And believe it or not, David, it was a random poking around Wikipedia.
You’re a nerd, and anybody listening to this is probably a nerd, too. Sometimes you just end up going down a Wikipedia rabbit hole. Sometimes you’re just like, “hey, I’m just wondering what’s going on with Max Headroom, the 1980s animated figure who was the muse or the figure in Coke ads.” And you just start poking around, and the next thing you know, you’re thinking, “hey, what’s Bernie Goetz up to right now? I haven’t thought about Bernie Goetz for a little while.”
And I just started rereading the story, realizing Bernie Goetz is still alive, realizing, “wait a second, there are not just players from that story that are still alive, but they are central figures in our discourse today.” And then there are also a host of issues presented by the case that we still live with today. And I just thought, “huh, maybe there’s something here,” and started putting a book together. And now here I am, talking to David Lat on Original Jurisdiction about it, several years later.
DL: There’s a ton of original reporting in the book—including, crazily enough, your talking to Goetz himself. Do you have a favorite anecdote or tidbit from your reporting that you might want to highlight?
EW: So there are a few. When you interview folks for books and just let them talk, eventually things come out. And the thing is, there’s not a lot of new material with respect to the story of Bernhard Goetz. And so every time a cute anecdote came out, I thought, “Oh wow, that’s fun.”
Number one: Gregory Waples, the prosecutor who was quite generous with a lot of his time, lived a life that will resonate with many law firm associates. He hated Cravath. He was an associate at Cravath—a young associate, brilliant, law review, accolades, sat in the back of class, just mellifluous prose when he would be called on—but he hated Cravath. He was miserable. He said it was like a low point in his life, and so he ultimately wound up an assistant district attorney.
Well, he told me this story that, after something big in the case, he just went on a vacation with his cousin to the Brooks Range, hiking in Alaska. And they drove from Colorado up to Alaska, and it’s like a boys’ road trip. And at the end of the trip, they’re eating dinner in Fairbanks, Alaska, and they see the headline, “Bernhard Goetz indictment reinstated.” And he thought, “Oh s**t, I got to go back to New York.” It’s just an interesting story.
The other one that came up was Mark Baker, the attorney. And this is something that also will resonate with lawyers—the epiphanies that one has as a lawyer of, “okay, this is the argument I’m going to make, and it’s a novel argument.” And they came up with this novel argument to use Bernhard Goetz’s confession video for his defense. He confesses to the crime, yet the defense attorney says, “let’s play this whole video for the jury, because people will see how mad and scared he was.” Not that he’s saying “I did it,” but that he’s saying, “I did it because I was terrified.”
And the attorneys are saying, “no, this is ridiculous—come on.” The other attorney says, “it’s a lost cause, we’re going to lose.” And they bet a truck. Barry Slotnick bets Mark Baker: “If this wins, I’m buying you a truck.” And Mark Baker , the appellate lawyer on the team, literally wins a 1985 Isuzu Trooper, which is like the most ‘80s car ever—but he wins it off his law partner in this funny story. And so it’s just these little random anecdotes that you hear about that people just slip in as asides, and I threw those into the book.
DL: And there’s a lot of fun behind the scenes stuff like that in the book. For people who are really into the law, they’ll really appreciate it. So big picture, as you write, this is a deeply human story—but it’s also a legal story, which is what’s germane to my audience. And you do talk about this in the book, but just for folks who haven’t read the book: big picture, did the legal system get this right?
EW: Well, did the legal system get it right? Yes, because of the adage we all know: it’s better for 10,000 guilty men to go free than one innocent person to go to jail. And I think in the abstract, yes, the “Legal System”—capital L, capital S—got it right. Morally, should we be content with what happened here? I think the answer is no. Bernhard Goetz confessed to the crime, and it was a knowing and voluntary confession. He did not have counsel present, but he voluntarily waived his rights and spoke for hours and hours on end. But the jury was very quick to pooh-pooh that confession because of how he was on the run and he was scared and he was frightened and this and that.
And moreover, Goetz as an individual, when you speak with him—as I did, at quite some length—his unrepentance and almost viciousness when talking about these young men really leads you to question, “was this the right outcome, morally, spiritually, culturally, on a human level?” And no, it’s a profound tragedy. But something I tried to make a point of in the book is that not all legal decisions are morally just; they are legally sound but morally unsound, in a way. And that’s something we have to grapple with, as we think about what serves us best as an evolving society.
DL: You do say in the book that the law supported his acquittal on the most serious charges. He was convicted on a weapons charge, and he did serve time for that.
EW: Eight months. There was no contesting the weapons charge. He acknowledges he had the weapon, they saw the weapon, the weapon was there. He acknowledges he didn’t have a license for it. It was the charge for carrying a weapon outside of the home. And no one disputed it.
DL: And he was held civilly liable, correct?
EW: Yes. The total settlement was, I believe, $43 million for one of the men that he injured—a young man who ended up brain-damaged, with the mental capacity of about a nine-year-old, and paralyzed from the mid-chest down.
Now, the interesting thing about that civil trial is, one, race was absolutely a factor in that trial. It came up from the opening statements in a way that it did not, and quite frankly, could not have, come up at his criminal trial earlier on.
Number two, the civil trial was a decade later. It was the 1990s, in a very different New York. It was an all-Black and brown jury in the Bronx, as opposed to Manhattan. The city had changed dramatically from the Escape From New York and Death Wish New York of 1984 to the Sex and the City New York of the late 1990s—literally, that’s the New York it’s tried in. And it’s an undeniable reality that the world just saw Bernhard Goetz differently at the time of a civil trial, when he was slapped with that big $40+ million judgment. But he hasn’t paid it: he filed for bankruptcy, and I don’t think he has any intention of paying it.
DL: Yes. And, of course, there’s a lower standard of proof, so I get that too.
Let me ask you this, then—and again, you talk about this in the book. How would the Goetz criminal case come out today? Because on the one hand, as you note, societal attitudes on race have evolved, and the public-safety climate in New York has vastly improved. On the other hand, and you talk about this too, the acquittal of Daniel Penny for the fatal choking of Jordan Neely on the subway suggests that the public is maybe still open to the types of defenses invoked by Goetz and his lawyers. So again, this is total speculation, but as a thought experiment, how would this case come out in 2026?
EW: It’s funny, I’ve done a bunch of interviews for the book, and I feel like I answer this question based on the mood I’m in on the given day. Because sometimes I think, “yeah, absolutely he’s convicted.” Sometimes I think, “no, the Daniel Penny case”—exactly as you said, David—“makes it clear.”
What I do feel is that this notion of reasonableness—which was the central legal issue at trial, “was his action reasonable, both objectively in terms of what we would expect other people to do in the same circumstances and subjectively, do we trust that his fear was sincere when he had it”—is a different factor in 2026 than in 1984. When you consider the glossy LED-light New York City subways with no graffiti, far less crime, the voice of a transgender woman announcing where the stops are and to pick up your bags—it’s just a different New York City. And a gunman carrying an unlicensed firearm, walking the streets every day of his life with an unlicensed gun, shooting folks who, okay, might’ve been bothersome, but certainly were not mugging him—I just think a modern public might see it differently.
But again, reasonable doubt is still reasonable doubt. And people who are all New York City residents could still look at the circumstances and say, “Wait a second, I trust his fear here. It was a scary situation, and I’m not going to second guess that.” But again, the calculus is different. It’s just a different, safer place now, and perhaps that would be in people’s minds.
DL: Speaking of second-guessing, I have to admit that one of the things we do as legal commentators is we Monday-morning quarterback a lot of the lawyers. So let’s look at the lawyers in this case. You earlier mentioned the lead prosecutor, Waples. What do you think of his performance in the case? And even though you agreed with the verdict as a matter of law—not necessarily morality—was it okay to indict?
EW: Yeah, absolutely okay to indict. And I think Greg Waples—and I talked to him about his tactics and approach when I interviewed him—did an able job as a prosecutor.
The best example I can give is at the time Bernhard Goetz walked into the court for the first time for jury selection, and the prospective jurors were sitting in the room, several dozen of them broke out into applause when Goetz walked into the room. And at that moment, any prosecutor would think, “Oh, I am cooked here.” And Waples told me, “I felt it was a fool’s errand. Once I saw the jury that had been seated, trying this case would’ve been a fool’s errand.” There was just such passion in the city, and it was just hard to get 12 people who really, truly were going to view the case objectively, that he just felt it was sort of a lost cause.
So other than one comment he made that has been mined over the years, he made a comment in his closing argument that, “Okay, Bernie Goetz, if you hate it here so much and you’re so scared, then pack up your bags and leave.” And the jurors felt insulted by that. They felt like he was telling not just Bernie Goetz, but 12 people who also lived in the city and also felt the same fear, that they ought to just leave if they didn’t like it here. Eh, whatever—it was going to be a tough case for Greg Waples to try under any circumstances.
DL: And now let’s look at Goetz’s lawyers. You mentioned earlier their bet involving the truck—that was Mark Baker and Barry Slotnick, who also went on to a bit of fame. How would you evaluate their work in the Goetz case?
EW: Barry Slotnick—the way I describe it in the book is that if Gregory Waples was good at just distilling complex issues of law and framing them in ways people could understand, Barry Slotnick was good at kicking opponents in the teeth. He’d gotten a reputation as a skilled lawyer representing mob figures. He was Joseph Colombo’s lawyer and was standing next to Joseph Colombo when Joseph Colombo got shot and seriously injured at one point at a press conference. And he was good. He was spellbinding. He was charismatic. He ran for office at one point, I believe, for Attorney General for the state of New York as a Republican, and he was an exceptionally good attorney.
The thing that’s hard to square with is that they were not shy about trying to stoke the jury’s racial biases by blowing up photographs of these four Black men looking their most thuggish and mean, and putting them up against each other, putting them up in front of the jury so the jury could see them, or staging a reenactment of the shooting involving four big, muscular young Black men who were Guardian Angels at the time—for no purpose other than to frighten the jury. And Curtis Sliwa, when I interviewed him, acknowledged that. He said, “We really just wanted the jury to feel what Bernhard felt that day”—and in effect saying, in not so many words, “Four Black guys standing around you is going to make you scared.”
So yes, they were skilled. It was a little dirty, but the law allows you to be a little bit dirty, if the judge allows it and you don’t put in writing that you’re, for instance, specifically excluding jurors on the basis of their race or gender under Batson. So they got away with what they could get away with.
DL: And look, I think that the defense bar would say that their duty is to their client, and they’ve got to do what they’ve got to do.
You mentioned Rudy Giuliani, who went on to a bit of fame—and then infamy. What was his role in the Goetz case, and how did his handling of the Goetz case—or lack thereof, in terms of the federal piece of it—affect his future career?
EW: Oh, that’s interesting. So Giuliani was U.S. Attorney at the time in the Southern District of New York. Many people have heard of that office that birthed the careers of many top legal professionals in New York and around the country. And so he had the civil-rights case, or at least the request from a young street activist named Alfred Charles Sharpton, Jr.—who was then, I think, 31 years old and a figure in the city—asking for a civil-rights investigation. They investigated it briefly but ultimately decided not to bring charges.
That, I think, was the clearest call. I’m not saying it was a no-brainer, but it was hard to make a case that you could get past a jury, that even in spite of Bernhard Goetz’s past use of ethnic slurs or his suggestion that he was more scared of Black guys than white guys or whatever else, it would be really hard to get past a jury that he shot these men on account of racial animus, which would be necessary under federal civil-rights law.
Now, again, even stuff Bernhard Goetz said to me when I interviewed him made abundantly clear that this guy, even if he doesn’t dislike Black people, certainly is not shy in pointing out things about races that ought not to be ever said in mixed company. And he had a documented use of ethnic slurs in the past. So again, gray area. I don’t think you could get it past 18 U.S.C. § 241, the federal civil-rights statute that they could charge him with—but needless to say, that doesn’t absolve Bernie Goetz of holding some racial biases that were certainly kicking around in his brain at the moment he decided to pull the trigger.
DL: And I would say kicking around today. Your interview with him is extraordinary. He’s talking to you, a Black man, and he is ranting about Blacks and Hispanics, and it’s really quite remarkable.
EW: I don’t think that’s the selling point of the book, but that’s certainly what makes this work unique. It’s the first time the public has really heard Bernie Goetz’s voice at length. And I spend a whole chapter detailing what it’s like to talk to Bernie Goetz. And he’s just all over the place. He is unrepentant about the shooting. He is hung up on Mario Cuomo and how liberals in 1980s New York just made the public less safe. He is still obsessed with public safety, and he’s just a quirky, odd man. The New York Times, in their write up on the piece—it was on the front page of The Times last Wednesday, which would’ve been the 21st of January—said he rambles annoyingly to me for 45 minutes. And I think I couldn’t have said it better, because he’s just all over the place and just rambled. He’s a bright guy—he’s certainly cognitively sharp—but he was all over the place and of questionable wellness, for lack of a better way to put it. [Ed. note: the exact quotation is that Goetz “monologues irritably for 45 minutes about the case.”]
DL: Yep, I will not disagree with that diagnosis. I would say another point about the book that should make people want to pick it up is there are a lot of themes in it that are unfortunately relevant to recent events.
I want to quote one thing you say in the book. You describe “our modern conception of self-defense” as “an eye [for an eye] based on my fear that you might take my eye, even if you weren’t planning on doing so.” And sadly, that struck me as a possible description of what we’re seeing in Minnesota, with the killings of Renee Good and Alex Pretti. It’s almost like, “well, if you might kill me, or you have a gun on you, or you’re at the wheel of a vehicle that could be aimed at me—well, then I’ll just go ahead and kill you.”
EW: You’re the first person to ask about that line—and I’m so glad, because it’s the rare place where the book Five Bullets really does go into philosophy, legal philosophy. It’s really only a paragraph—I don’t belabor it a lot—but there’s a little bit of legal philosophy, and we have made peace in the United States with the fact that lethal force is okay if we think there might be some kind of lethal force coming.
Fine, in the abstract, that’s a fair idea—but it also allows anyone to use lethal force on a vague notion that they might be harmed in some way. And if you look at Minneapolis and the Alex Pretti shooting, it does not appear from the video—at least in terms of what is publicly available as of today, January 28th, when you and I are speaking—that he is brandishing a weapon, that he is intending to brandish a weapon, that he is there to assault, attack, threaten, whatever, police officers. I saw it, and everybody listening to this saw it as well. Yet somehow, he had lethal force used against him.
Now, I guess there is a question as to the sincerity of the fears of the four or so agents who were around him, at least two who fired on him, and that’s a legal question to be had. How sincere was their fear? But now a man is dead who may not have intended to harm someone. And we have made peace with that. I’m not saying we’ve made peace with the death, but we’ve made peace with the legal scheme that sometimes it’s okay to kill people.
I don’t really know what the answer is, because it is a fair philosophical point that, if one genuinely believes they’re about to be killed, they have some entitlement to use lethal force. Maybe that’s okay. But what do we do when an innocent person gets killed? How should we feel about that as a society?
DL: Let me ask you one last question before we go to our speed round. This is not necessarily related to Five Bullets, but it touches on your work as a former lawyer at ICE or DHS. What do you make of what is going on in Minneapolis, and around the country, in terms of this immigration crackdown? What are your thoughts on this?
EW: “I told you so”—that’s my thought. I feel that, from the time the president ran for office saying, “we’re going to have the most aggressive deportation effort in American history,” without a concomitant effort to change or adequately staff or fund DHS—one without the other was going to lead to agents who are ill-equipped for the job and are forced into the field despite not meeting physical-fitness requirements and educational requirements that existed before. I knew that they would be setting quotas that would necessarily mean that the nannies and the folks working in the bodegas were just going to start getting swept up. And America, you voted for it—so you better like it. And I could’ve told you that was going to happen.
When I was at ICE, the agency was removing 400,000 people a year, which was unprecedented. And I assure you, those people were not all folks with homicide and assault convictions. When the president spoke of ramping that up to or several thousand a day, it was necessarily going to mean chaos was coming. And I just think it was easy for many voters to think, “oh, sure, get the folks out who don’t belong here.” It was very easy for people to think that’s what they wanted. This is what people voted for. I don’t know if they knew that this is what they were voting for, but this is what people ultimately are getting. And this is not who we ought to be as Americans. The civil-rights violations, the culture of fear—it’s not who we ought to be.
Let me just say one more thing, David. Immigration law merely requires that people who are unlawfully present in the country be removed from the country, or deported. It doesn’t require that they be removed or deported to their home countries. The law does not require that. It is the height of cruelty and arrogance and unkindness to knowingly and willfully remove people from the United States to countries that they have no connection to. And so when you hear about folks from Jamaica or wherever else getting removed to Sub-Saharan Africa, where they don’t speak the language, don’t have cultural ties—that’s not law enforcement or just simply enforcing law, that’s meanness and cruelty. And yes, it’s a deterrent, but it’s awful. The cruelty is the point—and I think now we’re seeing it. Now we’re seeing what happens.
DL: Turning to my speed round, these are four questions, and they’re the same for all my guests. My first question is, what do you like the least about the law? And this can either be the practice of law or law as a more abstract system of justice.
EW: Serving clients. And I think this actually came up as a consultant as well. What I enjoy about my existence now is that I am just not beholden to the whims of clients, because when you’re a lawyer, you’re often a therapist as much as you are a fiduciary or employee or whatever else. And I just did not like representing clients in any way.
DL: I agree with you, although it’s interesting—some lawyers say that serving clients is the best part of the job. But my second question is, what would you be if you were not a lawyer—or an author or a legal journalist?
EW: I would be a personal trainer. I love the idea of just hanging out at the gym all day, hanging out with folks, helping them do better crunches and, on my breaks, just walking on the treadmill a little bit. Just fitness and wellness would be the thing that I find gratifying.
DL: Well….
EW: You have clients there, so maybe that wouldn’t be ideal. But in the abstract, I think it would be fun to be a trainer.
DL: I think I agree with you. And your clients as a trainer would be less difficult than your clients as a lawyer.
EW: Oh, no doubt. Because nobody calls their personal trainer at 8:00 p.m. on a Friday because their kid got in a DUI, right? So it’s probably a better role.
DL: My third question is, how much sleep do you get each night?
EW: I have an issue where I get pretty severe migraines if I don’t sleep pretty consistently. And so in general, let’s say I get upward of six, but never eight, hours in a night. After maybe three days of getting sub-six hours, I start really flirting with migraine trouble. I start getting pressure in my eyes. I start seeing spots. I start getting the aura and the haze. And so it’s just something that I have to really, really prioritize. And even six isn’t, probably, enough sleep for most human beings—but that’s the point at which I just have to be cautious. So six to seven.
DL: I know the parents in the audience might get that six-seven reference. And I know you’re a working dad, as am I, so six or seven may be the best you can do.
My last question is, any final words of wisdom, such as career advice or life advice, for my listeners?
EW: The advice I give everybody is, you just don’t have to figure it out now. It will all materialize and work out well, particularly if you’re an attorney and you have this amazing credential that is universally useful in virtually every profession, whether it’s education or being a personal trainer. Everybody wants someone with a law degree to be doing their stuff.
This advice is far more for the more junior folks—who, particularly from Millennials to Gen Z to Gen Alpha, whatever else, have just been fed a notion that you have to map out your next series of steps. When I talk to college kids or law students, it’s, “what internship should I get?” And I’ll say, “Well, what do you want to do?” “Well, I want the one that’s going to position me best.” “Well, nothing you do at age 24 really has a profound impact on the things you do later.” And I would say, “Look at the careers of people you admire.” And short of Ketanji Brown Jackson, Elena Kagan, John Roberts, and whomever else who, stamped from birth, knew they were going to be or wanted to be Supreme Court justices, very few people followed a linear path.
To use the Sheryl Sandberg term, careers are far more of a jungle gym than a ladder. In succeeding, you end up moving laterally far more frequently than moving straight upward. And so I just feel like, pick the internship that you’re going to find fun, where you’ll have good mentors and good colleagues and a good balance of what you want your life to be. Pick the classes that you will find gratifying and can excel at, not the ones that you necessarily feel you should pick on account of where it’ll get you later. I feel like I’m most turned off in the workplace by people who are there for the next thing, because it just comes off as insincere and thirsty. So just let it play out. I know I’m sounding chill and zen, which I’m not—but, no, things do play out far less linearly than you would ever imagine.
DL: Well, your career has not taken a linear path, but it has played out very well for you. So again, Elliot, congrats on the book, and thanks for joining me.
EW: So great to talk to you, David. This is wonderful.
DL: Thanks so much to Elliot for joining me, and congratulations to him on the publication of Five Bullets. If you grew up in the 1980s, as I did—or even if you didn’t, because the issues it addresses are timeless—you should definitely check it out.
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