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Authors: Sebastian Junger

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Two days later Israel Goldberg, rushing through his strangely quiet house, finally glanced into the living room and noticed something that looked like his wife's feet.

THE TRIAL

ELEVEN

A
T
9:37
ON
the morning of November 7, 1963, Roy Smith rose from his seat at the calling of his name and faced Judge Charles Bolster in a courtroom at the Middlesex Superior Court in East Cambridge. Smith stood in a prisoner's dock that came up to his waist and had a small door that was locked behind him to symbolize that he was not free on bail. (That practice was eventually abandoned as too prejudicial. Defendants now sit at a table next to their attorneys.) The room had thirty-foot ceilings and tall arched windows and was possibly the most ornate piece of architecture Roy had ever stepped into. Next to Roy at the defendant's table was his young attorney, Beryl Cohen, and across the room on his left was a twelve-person jury plus two alternates, all men. Judge Bolster was a respected but undistinguished judge who was known to be unapologetically fair toward the defense despite being an archconservative in an extremely liberal state.

“Mr. Foreman, gentlemen of the jury, the case before you is the case of the Commonwealth versus Roy Smith,” began Richard
Kelley, the prosecutor. “He is charged—and the Commonwealth shall prove—that on March 11, 1963, he robbed, raped, and murdered Mrs. Israel Goldberg, Bessie Goldberg, at 14 Scott Road, in Belmont.”

Kelley then plunged into the cumbersome language of a formal indictment. When he was done, he went back and repeated the charges, this time describing in detail the circumstances of each crime. The language was dense and repetitive and did not shy away from the awful particulars of the crimes. “You will hear evidence,” Kelley told the fourteen men of the jury, “that this defendant Roy Smith, in his attack upon Bessie Goldberg, threw her on the floor, pushed up her girdle and underclothing, tore off and tore apart her underpants, and forcibly and against her will had intercourse with her. Penetrated the body of Bessie Goldberg and completed the act of intercourse upon her by force and against her will.”

Richard Kelley was a tall man with a full head of curly black hair and bright, piercing eyes. He spoke carefully and thoughtfully with the flat vowels and dropped r's of a slight Boston accent, and after fourteen years as a trial lawyer was fully at ease before the jury. “And then you will hear that this same Roy Smith, sitting here in the courtroom today, did attack her further,” he continued. “He tore from the garter belt the top of her stocking, took off the stocking from her leg and with that stocking wound around her neck, twisted it tightly, and for a period of time, until massive hemorrhages appeared on the face of Bessie Goldberg and caused her death, and you will hear from the medical testimony that her death was the result of that strangulation by Roy Smith, which will be described as a ligature. And that this Roy Smith, who sits before you today, was the one who for a period of time caused the life to gradually eke out of Bessie Goldberg and cause her death.”
Kelley went on to explain to the jury that they would be hearing from many witnesses, all of whom had “their own capacity to observe and recall and their own manner of speech.” The accounts of these people, he explained, would effectively become a mosaic that depicted the events of March 11, 1963. At times Kelley's account had the timeless quality of a fairy tale. “There was living at Belmont Mr. and Mrs. Israel Goldberg,” he said. “They lived for some ten years at 14 Scott Road; that Mrs. Goldberg was a loving and devoted wife and a mother of a daughter who was quite grown up. That Mr. Goldberg got up at 7 o'clock that morning, had some conversation with his wife, left fifteen dollars by the night table and went downstairs, had his breakfast and did various things, leaving the house approximately at 9 o'clock.”

Kelley's speech slowly gathered the force of true conviction. “You will hear that Roy Smith lied to police as to when he went to Belmont!” he promised. “When he left Belmont! What he was paid at Belmont! About what he did at Belmont! You will hear evidence of the weather that day. You will hear from the engineer who made the plans and you will hear other facts, Mr. Foreman and members of the jury, that I have not expressed to you at this particular time that will prove beyond a reasonable doubt each element in the three indictments against Roy Smith for the charges of rape, murder and robbery.”

And so began the trial of Roy Smith, Negro, age thirty-five or thirty-six, charged with rape, robbery, and murder in the first degree.

 

THE MOST SERIOUS
charge against Smith was, of course, the murder, which in Massachusetts carried with it an automatic death
penalty if accompanied by a rape conviction. Murder is a category of homicide, which is a legally neutral term that simply means the killing of a human being. Suicide is technically a homicide, as are state executions and traffic fatalities. Centuries ago English common law, on which American law is based, developed the principal of “criminal” homicide. Criminal homicide was the unjustified killing of a human being by another human being and was punishable by death in all circumstances; if you killed you were killed in turn, end of discussion.

As concepts of fairness took hold in English society, criminal homicide was further divided into murder—which was, roughly speaking, a deliberate crime—and manslaughter, which was not. The manslaughter charge acknowledged that the world was an inherently chaotic and messy place and tried to avoid piling tragedy upon tragedy by allowing some leniency for people who did not set out to take a human life. Even that, however, was too blunt an instrument to sort out the various tragedies that man inflicts on man. If you throw a flowerpot out a window and kill someone on the street below, that may or may not be murder, depending on whether you were aiming. But suppose the pot slips out of your hands because you were drunk—is that a crime? If a man finds his wife in bed with another man and kills both in a blind rage, is he a murderer or simply a victim of circumstance? If he's a victim of circumstance, then would the man in the bed also be a victim of circumstance if he managed to kill the attacking husband instead?

There are no perfectly just answers to those questions, but early English law did understand the need to distinguish between different degrees of choice on the part of the killer. A person who kills deliberately but in a situation he did not construct—the enraged husband, for example—is guilty of voluntary manslaughter; the
drunk who lets go of the flowerpot is guilty of involuntary manslaughter. Neither of those charges describes someone who intentionally sets out to kill another human being; that is reserved for the term “murder.” The modern murder charge claims to know the mind of the killer, and claims to know that he or she acted with something called “malice aforethought.” A man who kills with malice aforethought kills intentionally after contemplating his actions and discarding the idea of
not
killing. In Massachusetts malice aforethought also includes doing anything—like throwing a hand grenade into a crowded restaurant—that is likely to cause serious injury or death. In this sense, the word “malice” does not refer to spite or hatred on the part of the killer; “malice” refers to the fact that the killer had intentionality. It refers to the fact that at
some
point—years before the murder, or seconds—the person thought about killing another person and then carried it out.

The very pinnacle of the homicide pyramid—the very worst crime a person can commit, the only crime that regularly rates the death penalty—is murder in the first degree. Under most state statutes, murder in the first degree is defined as murder that is premeditated and deliberate. Like “malice,” the term “premeditated” means that the idea of killing entered the mind of the killer beforehand, and the term “deliberate” means that the killer went on to weigh its merits and ultimately decided it was a good thing to do. The murder was committed with “cool purpose,” rather than with “hot blood”; it was a conscious, rational decision by someone who did not value human life. And that was the crime Roy Smith was charged with committing.

According to his indictment, Smith showed intentionality by using a stocking to strangle Bessie Goldberg. Even without that element, however, first-degree murder can also be achieved by show
ing “extreme atrocity or cruelty,” which is arguably true of a strangling, or by killing during the commission of another felony. And Roy Smith was charged not only with killing Bessie Goldberg but with raping and robbing her as well. Roy Smith, in other words, qualified for first-degree murder ten ways from Sunday.

Still, the U.S. Constitution guarantees due process to anyone charged with a crime, and that means that everyone who is arrested is presumed to be innocent until found otherwise by a jury. Referring to the country's collective sacrifice during the American Revolution, a Massachusetts judge wrote that it was “inconceivable that the people who depleted their resources in a long and bloody war to maintain their rights as freemen should have intended to deprive their citizens of an impartial trial before an unprejudicial jury.” That meant that around nine o'clock on the morning of November 7, 1963, Roy Smith walked—unshackled—into Massachusetts Superior Court and took a seat in the defendant's box. For the next three weeks Roy Smith would watch a Middlesex County prosecutor try to convince a jury that had been
ordered
by the judge to presume his innocence that he was in fact guilty.

The prosecution, therefore, labored under the implacably humane ideal that, as later expressed in a Supreme Court decision, “it is better that ten guilty persons escape than that one innocent suffer.” This is called the ten-to-one rule and can be traced through English common law all the way back to the Romans. The scales of justice—in theory, at least—are so heavily tilted in favor of the accused because it is thought that vastly more social harm results from jailing the innocent than from freeing the guilty. The reason that laws exist in the first place is to prevent social harm; so by definition those laws cannot cause more harm than the crimes they are meant to prevent.

In order to minimize that risk, Richard Kelley, as head prosecutor, bore something called the burden of production, which meant that he had to produce for the jury all evidence against Roy Smith; and the burden of persuasion, which meant that he had to assemble that evidence in a way that showed Roy Smith's guilt beyond a reasonable doubt. It was up to Judge Bolster to decide if Kelley had presented enough evidence for the case to go to a jury, and it was then up to the jury to decide whether that evidence showed that Smith was guilty. Once a jury has found someone innocent of a charge, they are innocent of it forever; a defendant could deliver a full confession to the police after his acquittal and still never be retried for the crime.

Furthermore Kelley had to prove not only that Roy Smith had killed Bessie Goldberg but that he had intended to, and that he had been in a criminal state of mind while he was doing it. In the United States one cannot be punished for merely thinking about something, and one cannot be punished for doing something without an accompanying criminal thought. You can fantasize all you want about committing murder, you can go out and buy a gun, you can draw a bead on someone from your attic window, but until you pull the trigger you have not committed a crime. There is no crime without an act—without, in fact, some kind of muscular contraction. On the other hand, if you trip while carrying a gun and accidentally shoot someone, you cannot be charged with first-degree murder because malice did not accompany the act. As Supreme Court justice Oliver Wendell Holmes, Jr., observed about criminal intent, “Even a dog distinguishes between being stumbled over and being kicked.”

Roy Smith, on the other hand, was required to do absolutely nothing in his defense. He did not have to testify on his own behalf.
His attorney did not have to present other witnesses. His attorney did not have to present evidence. His attorney did not have to make an opening statement or cross-examine the state's witnesses. Theoretically, at least, Smith and his attorney could remain absolutely mute until the closing arguments without any adverse affect on the jury's verdict. The case was Kelley's to make or fail on the merits of his own evidence, and the jury was instructed by Judge Bolster not to draw any inference whatsoever from the manner of Roy Smith's defense.

Not only that, they were also instructed not to draw any conclusions from the fact that he had been arrested in the first place, that he had been held on bail, that he had been indicted by a grand jury or that he currently sat before them in the dock. Absolutely nothing that had happened up until this point—and nothing that the prosecutor said at any point in the trial—could be considered evidence against Roy Smith. Smith was a blank slate; he was exactly the sort of blank slate that the jurors themselves would wish to be if the roles were ever reversed, and they found themselves in the dock instead of him.

 

PROSECUTOR KELLEY HAD
a case on his hands that was both utterly straightforward and oddly elusive. On the one hand, Smith was a longtime petty criminal with several assault charges on his record who was the last known person to have seen the murder victim alive, and who had left the victim's home less than an hour before the body was found. On the other hand, not one shred of physical evidence linked Smith to the body, and not one person saw him do anything wrong. People saw him go into the Goldberg home. People saw him leave the Goldberg home. People saw him
take the bus, buy his liquor, ride around town, do whatever he did, but
no one
saw him kill Bessie Goldberg. What happened at 14 Scott Road that afternoon could never be determined with absolute certainty, so a jury of peers was required to decide what they thought happened. This was exactly the kind of case that the great, awkward loops of logic employed by the law are designed to resolve. Roy Smith's case was entirely circumstantial but nearly airtight, marred only by the fact that he refused to admit that he did it. A jury would have to step in and say it for him.

BOOK: A Death in Belmont
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