Kitty Genovese: A True Account of a Public Murder and Its Private Consequences (39 page)

Though Sparrow had originally intended to call a third psychiatrist, he rested this phase of his case with the testimony of Dr. Diamond and Dr. Winkler.

The prosecution called Dr. Frank Cassino, chief psychiatrist at Wyckoff Heights General Hospital, as their sole rebuttal witness. Dr. Cassino admitted that he had never interviewed or examined Winston Moseley; his testimony was based on the reports he had read from Kings County Hospital and from observing the defendant in the courtroom the past two days.

Dr. Cassino gave his opinion that the defendant knew the nature and quality of his acts and was able to distinguish between right and wrong. On cross-examination, Sidney Sparrow emphasized that Dr. Cassino had never personally spoken with the defendant. At the conclusion of Dr. Cassino’s testimony, Judge Shapiro recessed court for the day.

The following morning, June 11, the trial resumed with the defense summation from Sidney Sparrow. Sparrow gave an intelligent, eloquent closing argument in which he carefully reviewed the details of Moseley’s crimes, stating that he had not cross-examined most of the prosecution witnesses because there was no question that Winston Moseley had killed Catherine Genovese. “I tell you this is a sick, diseased mind,” Sparrow said of the defendant, “a malfunctioning mind, a mind that could know what it was ordering, know the nature and quality of the steps it was doing, even know the consequences, yet not know that it was wrong.”

Sparrow spoke at some length about the complexities of the human mind. “Cancer is a disease, an illness. So is mental disease.” Indicating the defendant, Sparrow said, “I don’t ask you to feel sorry for him, although you can’t help feeling sorry for any sick person.”

Sparrow discussed the supporting psychiatric testimony from Dr. Diamond and Dr. Winkler. He then unleashed his wrath on Dr. Cassino, the prosecution’s psychiatric witness who testified that Moseley knew right from wrong though he had never personally met or spoken with him: “I say this was an insult to your intelligence. This was an insult to his own proud profession. How he had the unmitigated
gall to come into this courtroom, get up on that witness stand and say to you on an issue so vital as a man’s lifetime or life, that he tells you that he knew, just on the basis of what he had seen here—it frightens me. It really frightens me.

“If your life or your son’s life depended upon an opinion, would you listen and accept what Dr. Cassino said to you yesterday afternoon as being any more worthy than the air that it dissolved into afterwards?”

Discussing the troubled life of the defendant, Sparrow referred to the relationship Moseley had with his current, faithful wife, saying that maybe if Bettye had been his mother or his first wife, “this wouldn’t be.” In closing, Sidney Sparrow said to the jury, “I ask that we realize that the criminal insane be dealt with, not punished. They don’t belong in jails to rot or in electric chairs to die. Insane persons belong in the care of those who are qualified and trained to care for or treat them.”

Before launching into his summation of the People’s case, Frank Cacciatore apologized in advance for how loud he intended to be.

Cacciatore went over all the points in the case that gave credence to the prosecution argument that Winston Moseley had shown premeditation, clear thought processes, and acute awareness of circumstances and consequences. Referring to Moseley as a beast roaming the streets of Queens, he talked about Moseley’s first attack on Kitty and his retreat after a witness shouted at him. “So he figures it out in his mind,” Cacciatore said, “people are apathetic, people really don’t care. At 3:00 in the morning you hear a scream in the street. You’re going to then go downstairs? From the security of your apartment, or your home, are you going to go downstairs to find out if somebody is getting killed? You might pick up the phone and call the police, maybe, if you’re that much interested, or you might just turn around and go to bed. He knows this.

“He knows this,” Cacciatore continued. “This is the fellow that doesn’t know that what he’s doing is wrong? He knows this. He figures it out.”

Cacciatore scoffed at the testimony about the defendant’s distressed childhood, ridiculed the psychiatric opinions of Dr. Diamond. “Catatonia—oh, brother—catatonia. I don’t think anybody knew
what catatonia was. I thought it was some kind of island in the South Pacific.”

The judge admonished the prosecutor to refrain from such comments. Cacciatore, however, continued to inject notes of sarcasm into his scathing closing argument. He finished with insistent declarations that the defendant had known that his actions were wrong. “The law recognizes only one thing—criminal responsibility. I say to you that the People have proven, first, that Winston Moseley killed Catherine Genovese beyond any shadow of a doubt; the People have proven Winston Moseley criminally responsible under the law. He did know the nature of his act. He absolutely did know that what he was doing was wrong according to any concept, according to any concept at all.” He asked the jurors to bring back “the only verdict justified under the law and the evidence in this case, and that is guilty as charged—murder in the first degree.”

In his charge to the jury, Judge J. Irwin Shapiro gave detailed instructions on the points of law relevant to the case. He included an explanation of the four degrees of homicide (murder in the first or second degree, manslaughter in the first or second degree) and spoke at length on the definition of legal insanity.

The jury left the courtroom at 1:00 p.m.

At 10:30 p.m. that night, they returned a verdict on Winston Moseley: guilty as charged.

THE JURY RETURNED
on Monday, June 15, for the sentencing hearing. Moseley could be sentenced to life imprisonment or the death penalty.

The prosecution called four of Moseley’s assault victims to testify. One by one, they told their stories of what Winston Moseley had done to them.

Sidney Sparrow wished to call Dr. Diamond and Dr. Winkler to give further testimony, but Judge Shapiro would not allow this. “This Court, this jury, has now determined that for all legal purposes, this defendant is not insane within the meaning of the law. I will not permit that issue to be re-litigated.”

In his summation, Sparrow made an impassioned plea for the jurors to spare Winston Moseley from the death penalty, urging the jury to evaluate his history and mental condition in their sentencing deliberations. Toward the end of his summation, Sidney Sparrow said something that would come back decades later to haunt him, the Queens County District Attorney’s Office, and the surviving family of Kitty Genovese. According to the transcript of the hearing, Sidney Sparrow said to the jurors, “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.”

Judge Shapiro interrupted, “We don’t know anything about that; that’s not in the record.”

“Well, I understood I’m allowed to make comments, sir, without the necessity of taking the stand.” Sparrow said.

“No, you are not.”

Sparrow said later that he had been about to say he knew Kitty Genovese and represented her
four years ago
, but Judge Shapiro had cut him off before he could finish.

In his summation for the People, Frank Cacciatore said, “You see, you have a choice of one of two things—imposition of the death penalty, or life imprisonment, so called. And the Court will explain to you what life imprisonment means. It isn’t life imprisonment at all. This monster can walk the streets of Queens County again.”

In his charge to the jury, Judge Shapiro explained the intricacies of a sentence of life imprisonment. With time off for good behavior, the defendant could be eligible for parole after serving a minimum of twenty-six years and nine months, though a parole board would not be obligated to release him early.

It took the jury less than an hour to come back with a recommendation of death.

Winston Moseley remained as impassive upon hearing his sentence as he had when hearing the verdict. Sidney Sparrow would forever remember the thundering applause and cheers that resounded within and outside the courthouse when the sentence was announced. As Loudon Wainwright later described it in his column for
LIFE
magazine, “The jury’s unanimous recommendation of death seemed fitting to many watchers in the courtroom. Like gleeful knitters at the guillotine, they burst into happy applause.” Fannie Moseley, clad in a black dress, wept and wailed her son’s name, “Winston . . . Winston . . .” Judge Shapiro angrily banged his gavel to restore order. The judge then turned to the jurors and said, “I don’t believe in capital punishment, but I must say I feel this may be improper when I see this monster. I wouldn’t hesitate to pull the switch on him myself.”

The defense asked for three weeks in which to prepare for formal imposition of the sentence before Judge Shapiro.

“No, there’s no reason for three weeks,” Shapiro said. “I know what I’m going to do with him now. June 22nd for sentence. The sooner we get him out of Queens County and into the death cell, the better. Maybe it will act as a deterrent for others, though I don’t believe in the deterrent provision myself.”

ON JUNE 22, JUDGE
Shapiro heard—and denied—the defense motion to set aside the verdict. The judge delayed the death penalty sentencing so that Moseley could be available to testify at the trial of Alvin Mitchell, which was currently underway (bringing Moseley to court as a witness after formal imposition of his sentence would have entailed “complicated legal steps,” according to an article in the
New York Times
.) Later the same day, Moseley was escorted under heavy guard to a Queens courtroom to testify as a defense witness in the Mitchell trial. To the dismay of Mitchell’s attorney, Herbert Lyon, Moseley refused to answer questions on the grounds of self-incrimination. Judge J. Irwin Shapiro—who was also presiding over the Mitchell trial—ruled that Moseley had the right to refuse to answer. Herbert Lyon told Judge Shapiro that Alphonso and Bettye Moseley had both expressed concern to him about the Mitchell trial; Lyon asked the judge to allow Moseley’s father as well as his wife to speak with Winston to see if they could persuade him to tell what, if anything, he knew about the Kralik murder. Lyon also requested that the district attorney grant Moseley immunity from prosecution in the Kralik case so that he could be free
to testify. Frank O’Connor agreed, granting him immunity from both prosecution and perjury in the event his testimony in this trial conflicted with what he had given at his own.

The following day, June 23 (incidentally, Alvin Mitchell’s 19th birthday), Winston Moseley took the witness stand and said that he, not the defendant, had murdered Barbara Kralik. Mitchell had taken the stand in his own defense and recanted his confessions.

The Moseley confession and the Mitchell recantation were not enough to persuade all of the jurors from the evidence the state presented against Alvin Mitchell. On June 27, the jury in the Mitchell trial announced that they were hopelessly deadlocked. A mistrial was declared. Judge Shapiro scheduled a hearing to set a new trial date for Alvin Mitchell.

On July 6, 1964, the day before what would have been Kitty Genovese’s twenty-ninth birthday, Judge J. Irwin Shapiro formally sentenced Winston Moseley to die in the electric chair at Sing Sing.

chapter 16

THE SAME WEEK
that Kitty would have turned twenty-nine and Moseley was sentenced to die for her murder, a small book titled
Thirty-Eight Witnesses
was published by McGraw-Hill. The book was only eighty-seven pages long. The author was A. M. Rosenthal, metropolitan editor of the
New York Times
.

Rosenthal had already written a lengthy article for the
New York Times
in May titled, “STUDY OF THE SICKNESS CALLED APATHY” in which he strenuously made the point that the tendency to ignore the sufferings of others was a prevalent human failing rather than a unique problem of a single community in Queens. He wrote that many of the residents in Kew Gardens resented the bad publicity, and that many felt they were being picked on unfairly. He included a quote from one female neighbor who said, “Let’s forget the whole thing. It is a quiet neighborhood, good to live in. What happened, happened.” Rosenthal ended his article: “There are, it seems to me, only two logical ways to look at the story of the murder of Catherine Genovese. One is the way of the neighbor on Austin Street—‘Let’s forget the whole thing.’ The other is to recognize that the bell tolls even on each man’s individual island, to recognize that every man must fear the witness in himself who whispers to close the window.”

In his book,
Thirty-Eight Witnesses
, Rosenthal reiterated and expanded on this. On the opening page, Rosenthal wrote that he had never met Catherine Genovese and knew nothing about her except
her name, age, and the manner of her dying. She had touched his life, he wrote, as she did the lives of tens of thousands of others, he thought. His book was also about thirty-eight of her neighbors, though he had never met them either.

“A great many hard things have been said about these thirty-eight, and I am sure they are bewildered, and I know they are resentful. But it is important to say this—that what they did happens every night, in every city. The terror of the story of Catherine Genovese is simply that by happenstance all thirty-eight did that night what each one alone might have done any night without the city having known, or cared. In my own mind, and I believe in the minds of others, this has presented a question that troubles and will not recede: is the ugliness in the number or is it in the act itself, and are thirty-eight sins truly more important than one?”

The book included a reprint of Martin Gansberg’s article along with photographs of the crime scenes that had appeared in the
New York Times
. It offered nothing new in terms of additional details about the murder, the victim, or the witnesses themselves (Rosenthal had not done any of the reportage himself), but instead focused largely on the author’s musings on the overall moral issues. He contended that the vast majority of decent, law-abiding people—himself included—regularly neglected to help others in distress.