BLIND JUSICE

In the case of the hit-and-run death of seventeen-year-old Courtney Steel, was the jury reckless? asks JESSE KORNBLUTH

JESSE KORNBLUTH

Postscript

'The fear is different from any fear you've had before—it's a tunnel without any end," Robby Steel was saying. "But you can't feel sorry for yourself, because that wouldn't be fair to people who are sicker than you." Bette-Ann Gwathmey and 1 sat in her study, watching her second son, then seventeen, in a videotape called Coping with Cancer: The High School Years. I kept my eye on the television, more afraid to say the wrong thing to Bette-Ann than to confront the brainsplitting reality that this extraordinary young man, so vibrant on the screen, now lived on only as a memory and as the inspiration for a cancer-research foundation.

Then Courtney Steel walked in. She was seventeen that September, a year ago, almost as old as Robby had been when he died in 1984. She looked at the image on the screen, she looked protectively at her mother, and then she looked at me, as if she might, in a glance, find out what kind of article I was going to write about her family's philanthropy. And I saw that what Bette-Ann had said was true. Courtney was not just bright and beautiful, perceptive and direct, but mature in a way you don't expect teenagers to be—she had, openly and consciously, taken Robby's place as the emotional center of her family. I thought Courtney had triumphed over sadness; 1 didn't know she had only recently stopped writing long, late-night letters to her dead brother.

October was a busy month for Courtney. At the Spence School, where she was an A student, she had just begun her term as president of the student government. She visited Harvard, where the woman who interviewed her gave her every indication that she'd be accepted. She helped her mother and her older brother Eric and her stepfather, the architect Charles Gwathmey, prepare for the annual fund-raiser for the Robert Steel Foundation; she made Bette-Ann promise that when it was over they would, finally, deal with Robby's room. And before going off to school on her mother's birthday she left Bette-Ann a note: "I love you so much it's often frustrating. I wish I could take all of your pain and obliterate it forever."

Three days later, Courtney was dead.

Courtney Steel didn't die because she was reckless, or because she picked the wrong guy, or even because, on a Sunday morning, she left a club at 3:IS. She died because, as she followed her escort across York Avenue to a cab, she had the misfortune to be the one in the street when a white Honda CRX came speeding down the hill.

The night was clear, the street was well lit, the girl had long, flowing blond hair. The driver, a twenty-five-year-old mortgage banker named Brian Confoy, never slowed or swerved. He hit Courtney with an impact that forced her body up the hood of the car, smashing her shoulder through the windshield. Confoy sped on, carrying her almost half a block before she fell off. And still he didn't stop, didn't slow down, didn't even reach for the cellular phone by his side to call for help as Courtney died in the street, her spine severed and her neck broken.

What kind of man kills a girl and drives on? In this case, a man who was trading a $110,000-a-year job at Dime Savings Bank for a position at Shearson Lehman American Express that he expected would bring him $200,000. But there was another side to Brian Confoy. In the past seven years, he'd had six convictions for speeding. Just three months before he killed Courtney Steel, Confoy and some cousins were so intoxicated in a Philadelphia hotel after his brother's wedding that the police had to be summoned. Brian was arrested—and jailed—for disorderly conduct and resisting arrest. On Saturday, October 18, 1986, the night of Courtney's death, those charges were still pending. (They have since been dismissed.)

Had Brian Confoy considered his traffic record and his recent run-in with the law, he might have realized that a Saturday-night reunion with his brother and some of the other participants in the Philadelphia fracas was likely to involve another binge—this time, in a bar that was more than an elevator ride from his room. But Brian Confoy was thinking more about the World Series. If he drove out to his family's home in Setauket, he could watch the game with his girlfriend of seven years. By 9:30, though, he still hadn't left his apartment in Queens. Instead of completely missing the game, he drove to a Manhattan sports bar called Runyon's, where he met his brother Bob and Bob's wife, his cousins Brendan and Maura Kelly, her fiance, Patrick Swan, and several others.

"I cannot bear the idea that probably the last face my sister saw was one so completely uncaring, so inhumanly cruel, as Brian Confoy's." —Eric Steel

At Runyon's, Confoy had a few beers. When the game ended, he drove up to Murphy's Bar, at Eighty-sixth Street and First Avenue, where most of the Runyon's group joined him. Now the drinking began in earnest. One pitcher of beer. Two. Three. Starting at one A.M., he participated in three beer-chugging contests. Then he started head butting with Patrick Swan. Between bouts, some of his friends say, Brian and Swan fell over; as they fell, it is alleged, Brian's head hit the pool table. Few noticed, but almost everyone remembered the hilarious spectacle of Brian crawling around the pool table on all fours.

Brian Confoy says he remembers nothing of that night after he started drinking at Murphy's. His family believes he suffered a concussion in the bar and drove on automatic pilot. If so, he had an excellent onboard computer, for after finding his car and starting it and getting the stick shift to the appropriate gear and killing Courtney Steel, he drove out of Manhattan by a route that avoided toll bridges. In the Bronx, on the side of a highway, he parked. An hour after Courtney Steel died, three young people found him, his head slumped over his chest, his eyes closed. "I definitely only hit one person," he told them. He wasn't worried about the victim. ''They'll take care of him." When the police questioned him, a sergeant asked why he hadn't stopped. ''I had," Confoy said, "too much to drink."

The funeral of any child is heartbreaking. The funeral of Courtney Steel was of a deeper, darker magnitude. Hundreds of weeping schoolgirls clutched one another, some of the most verbally acute parents in New York sat reduced to silent tears, an ashen crowd stood outside. At the podium, teachers spoke of Courtney's great qualities, and her friends bravely imagined her dancing in the sky. But the indelible moment belonged to Eric Steel, the coffin in front of him, reading some of his sister's favorite lines from Wordsworth and then, broken with grief, whispering one sentence of his own, "Dear Robby, take care of Courtney and hold her tight."

Later that day, Brian Confoy's parents bailed their son out of jail. He didn't mention a head injury or a headache. It wasn't until late that week, Bob Confoy says, that Brendan Kelly came over to him at work and told him the story about Brian's hitting his head on the pool table. The Confoys immediately called Brian's lawyer, Roderick Lankier, who arranged for a neurologist to examine Brian. The doctor found no brain damage. It looked, at that point, as if Brian Confoy was going to trial on three charges—second-degree murder, manslaughter in the second degree, and leaving the scene—without any evidence on which Lankier could peg a defense.

The Confoys needn't have worried. The remarkable thing about the trial of Brian Confoy was that it was more about a jury's reluctance to give a harsh sentence to a clean-cut yuppie banker than about the crime. The evidence, for these jurors, was practically extraneous.

Film director Robert Benton, a friend of the Gwathmeys, was in the courtroom the day Assistant District Attorney William Greenbaum led the jurors outside to inspect Confoy's car. Benton needed only a brief glance before he hurried back to Bette-Ann Gwathmey, put his arms around her, and whispered, "You don't want to see this." But after studying the windshield, which looked, as one witness had put it, like a funnel of glass, some jurors joked in the elevator as they returned to the courtroom.

Because of a legal technicality, the blood-alcohol test hadn't been admitted as evidence; the jurors didn't know that Confoy had still been drunk four hours after the killing. Even if they had, it might not have mattered—most jurors bought Lankier's contention that "it was only beer."

"From the start of our deliberations, one man said, 'One person is already dead. What good will it do to send another person away?' " a juror recalls. "Others had friends or relatives who'd been in jail; they were scared to convict him of anything that would send him away for very long. It was very, very frustrating."

In the jury room, not even this juror thought Brian Confoy had committed murder, which carries a fifteen-year minimum sentence. Indeed, there were only two who held out for a manslaughter conviction, which could have put Confoy in jail for at least five years. Most jurors believed that Brian Confoy had been out on what defense attorney Roderick Lankier called "a night of silly fun," and that, as Lankier had said, the death of Courtney Steel was "a terrible, tragic accident." After deliberating for three days, they convicted Confoy of criminally negligent homicide and leaving the scene, each of which carries a jail term of one and one-third to four years. Such sentences are not mandatory; the judge could have directed Confoy to do community service, or even given him probation. In July, therefore, when the jury rendered its verdict, it was possible that Brian Confoy would never have to spend a night in jail.

Almost three hundred people wrote Justice Allen Murray Myers to ask him to sentence Brian Confoy to the maximum possible term. Eric Steel, now twenty-three, didn't plan to be among them. He had moved to Los Angeles to work as a production executive at Disney, after graduating from Yale with honors. When Courtney was killed, he moved back home to be with his family. Eric was preserving his memories. They were, he told me, his treasure box, and if he opened that box, they would no longer be his.

But after the verdict, Eric had a particularly bad dream. In this dream, he was driving a car. Courtney was in the street. Eric stopped. He didn't hit her. She looked at him through the windshield. To Eric, the dream meant that Courtney had seen the man who killed her. She knew. And with that in mind, he started to write his letter to Justice Myers:

Shortly before 5 A.M. [last October 19], my parents called to tell me. I was no longer a brother....

I remember my brother struggling for air. After two years of brave, untiring struggle against a resilient form of cancer, after four months of hospitalization under experimental treatment, after receiving a bone marrow transplant donated by Courtney to bring back his immune system, Robby had developed pneumonia. As the doctors prepared to take him to intensive care, he asked me to help him remove the silver ring on his finger.... We had trouble getting it off. Finally, it twisted off into my hand. I looked at Robby's face, halfhidden behind an oxygen mask. It was difficult for him to talk, so he just nodded to me, and I put the ring in my pocket. The doctors brought Robby into the hallway where Courtney was waiting...in a wheelchair, having just had surgery to give her bone marrow to Robby. With much effort, Robby took off his oxygen mask and said, "Take it easy, Courts." Those were the last words 1 heard him say.

In an emotionally charged lecture to Confoy, Justice Myers said, "You tried to get away with it, and you almost did."

At Robby's funeral, Courtney and I recited The Lord's Prayer. She read the first part, 1 read the second. We read the last two lines together. I remember how her hand felt as we stood up at the podium, her fingers twisted in sorrow around mine, and mine in hers. The chapel was filled with people, with flowers, with tears, but for an instant there were just the two of us.

For her 16th birthday I gave Courtney a ring of three intertwined, inseparable bands of gold. She knew exactly what it meant....

It seemed to me that as the summer of 1986 became the fall, we had somehow turned a comer.... It was at the precise point in time when Courtney was able to experience happiness again that she was struck down and left to die....

Perhaps because Courtney and I held our brother's hands as he lay dying, I am haunted by the idea that Brian Confoy left my sister to die in the middle of the street. In your courtroom, Mr. Lankier snapped his fingers and asked, "What could have been done?" For as long as I live, I will never forget those words. I cannot bear the idea that probably the last face my sister saw was one so completely uncaring, so inhumanly cruel, as Brian Confoy's.

I ask you, Your Honor, to impose maximum, consecutive sentences on Brian Confoy for each of his crimes....

Perhaps, if the message is strong enough, a beautiful young woman will make it home safely tomorrow, and a young man will still be a brother.

A few months ago, on September 9, Justice Myers handed down a sentence that is believed to be a precedent in New York for first offenders who drink and drive and kill—consecutive four-year terms that will keep Confoy in jail for at least two years and eight months. Then Myers did something equally important. In an emotionally charged lecture to Confoy, he defined the killing not just as a crime but as an outrageous and immoral act. "You tried to get away with it, and you almost did," he said.

Between the verdict and the sentencing, Brian Confoy wrote to the Gwathmey family. The letter was short. "I do not ask you," one sentence read, "to forgive me my role in that accident." How was it possible that a man who claimed to remember nothing of what he'd done nonetheless believed he was a supporting actor in a drama that just happened to end in a death? Why couldn't he ask for forgiveness? What spawned such an attitude?

I had dinner with Confoy's parents, his brother, and his girlfriend. And I began to understand.

The Confoys' expansive home sits in protected woods on the northern shore of Long Island. The furnishings are tasteful, and, in a place of honor over the mantel, there is a picture of the six Confoy children. In this environment, his parents say, Brian thrived. At Ward Melville High School in Setauket, he was class president. He graduated from Villanova University, and then, his family says, he took a 103 I.Q. into the world. He was, the Confoys say, the third-highest mortgage producer at Dime Savings Bank—while buying apartments and renovating them on his own. To his family, he had only one flaw. "He drove too much, and he drove too fast, and there's no other side of that," his mother said.

Then we got into the case.

The Confoys acknowledged that their pain can never equal that of Eric Steel and the Gwathmeys. But they got beyond that rather quickly, and our evening together turned out to be a litany of all the wrongs that the Confoys believed had been committed against their son. Sixty miles away, Charles Gwathmey was still remembering screaming and falling back on the bed when he got that early-morning call, Eric Steel was wearing his sister's dented ring, Bette-Ann was trying to get past the first entry in a journal that begins, "Dear Courtney, sweet girl, come home." And here the Confoys were, with their son coming home in thirty-two months, talking about police peijury and missing evidence. The judge, they felt, should have sentenced Brian to community service, not jail.

If there was missing evidence, why did the defense call no witnesses?

The Confoys said, with some bitterness, that they had paid Roderick Lankier $130,000. "When you pay an attorney that much, you let him make the calls," Richard Confoy told me. "I still think Lankier was wrong. Hitting the brakes is an involuntary act. You hit something, something hits you—you react. But you don't when you're catatonic, when you've had a head injury."

"Or when you're drunk," I noted.

"Yes, but listen to this," Richard Confoy said. "One of the young women who was with Brian that night noticed he wasn't making any sense. She saw him go into the bathroom. She doesn't remember seeing him come out, but she thought he should go to a hospital."

Why didn't she give that testimony? Confoy shrugged. I asked to speak with her. The Confoys didn't have her number. Neither, it turned out, did Brian's friends. I'm not surprised that they were unable to produce her.

I understand, though, why the Confoys clutch at straws, why Brian's girlfriend would "stake her life" that the Brian she knows couldn't have driven away after hitting Courtney. A family like the Confoys believes what it can, denies what it can't. But beyond feelings, beyond a family's illusions, there are the facts.