Edition: U.S. / Global

Judge Allows Lesser Charge In Trial of Subway Pusher

Published: March 22, 2000

The judge presiding over the second murder trial of a schizophrenic man who pushed a woman to her death in front of a speeding subway train ruled yesterday that the jury could consider a lesser charge, manslaughter.

The charge of second-degree manslaughter, which carries a sentence ranging from probation to 5 to 15 years in prison, was not included in the first trial of the defendant, Andrew Goldstein, which ended in November with a hung jury.

Mr. Goldstein, 30, has admitted pushing the woman, Kendra Webdale, 32, to her death on Jan. 3, 1999, but maintains that he was not responsible because of his illness.

The lesser charge could offer jurors a compromise if they have difficulty reaching a unanimous decision to either convict Mr. Goldstein of second-degree murder or find him not guilty by reason of insanity.

Kevin Canfield, a defense lawyer, made the request yesterday in State Supreme Court in Manhattan, with the jurors not present. Prosecutors objected, but Mr. Canfield said that because Mr. Goldstein had claimed in his videotaped confession that he had not intended to kill Ms. Webdale, jurors should be given the option of convicting him of manslaughter, and the judge, Carol Berkman, agreed.

Mr. Canfield rested his case yesterday without calling Mr. Goldstein to the stand. Mr. Goldstein had told Justice Berkman on Monday that he wanted to testify, but yesterday his lawyers persuaded him to change his mind, Mr. Canfield said.

Before the trial began last month, Mr. Canfield had said he wanted Mr. Goldstein to testify while he was off his antipsychotic medication, so that the jury could see what his condition had been at the time of the attack. But a week before the trial began, while he was off his medication, Mr. Goldstein struck a social worker, and the judge ordered him to be offered his medication every day. Mr. Goldstein has been on the drug since the trial began.

In his closing arguments, Mr. Canfield accused the lead prosecutor, William Greenbaum, of trying to diminish Mr. Goldstein's illness and wrongly portraying him as a faker.

''Mr. Greenbaum is trying to tell you, 'If he is not drooling, if he is not walking along like Frankenstein, he is responsible,' '' Mr. Canfield said. ''Don't believe it.''

Although defense lawyers in the first trial made much of how the system had failed Mr. Goldstein, Mr. Canfield avoided those arguments, instead focusing on the depth of Mr. Goldstein's illness. After the first trial, some jurors said they had been hesitant to acquit Mr. Goldstein for fear that he would simply be returned to a mental health system that had continually turned him out on the streets.

''I apologize to my client, but he is not the man he was,'' Mr. Canfield said. ''If it wasn't for this illness, would Andrew Goldstein kill anyone? No.''

During most of the closing arguments, Mr. Goldstein looked straight ahead or down at the defense table. He seemed to pay attention only when prosecutors played, once again, his confession. Prosecutors contend that Mr. Goldstein was not psychotic on the day he strode behind Ms. Webdale and shoved her in front of the train.

In his closing argument, Mr. Greenbaum again argued that Mr. Goldstein had used his illness to shield himself from the consequences of his misdeeds. Mr. Greenbaum walked jurors through a detailed accounting of other attacks by Mr. Goldstein in which he had told the police that he needed treatment for his mental illness.

''This defendant has demonstrated a history of insulating himself from his actions,'' Mr. Greenbaum said. ''He had done it time and time again, taking advantage of people of good will, saying, 'I'm psychotic, take me to the hospital.' ''

Defense lawyers have argued that the very act of killing Ms. Webdale was insane, because it lacked reason or justification. But Mr. Greenbaum said Mr. Goldstein had killed Ms. Webdale to get back at her for ignoring him and to exact revenge on another blond woman on the subway platform who had spoken to him sarcastically.

If the jury convicts Mr. Goldstein of second-degree murder, he could be sentenced to 25 years to life in prison. The jury is to begin deliberating today.