Blood in the Water
Page 15
Ultimately, after much back-and-forthing, it was decided that an executive committee of six should create the document for Oswald: Eve, Kunstler, Jones, Kenyatta, Dunne, and Badillo, with Eve acting as chair. Since the prisoners had made it clear that amnesty was the main issue, the committee turned its attention first to the question of whether in fact Wyoming County’s DA, Louis James, could help on this matter. It was true that James had said that he would never grant amnesty, but maybe he could be persuaded. As Wicker saw it, “Perhaps if James knew the gravity of the situation, the danger of wholesale bloodshed,” he would be moved to do something. Most agreed with this reasoning, so Eve suggested that while the rest of the observers caught a few hours of sleep, Tom Wicker, Clarence Jones, and the public interest lawyer, Julian Tepper, should pay a visit to James in Warsaw and try to change his mind.
But while the observers committee was operating under the assumption that the Attica rebellion might still be resolved peacefully, those in charge of the New York State Police, the National Guard, and even many in Rockefeller’s office continued to agitate for an immediate retaking of the prison. At 10:43 the night before, just before the observers entered the yard for their marathon negotiations session, Chief Inspector Miller of the NYSP was waiting by the phone in the Batavia Holiday Inn because he was certain that his men were going to be called into action very soon. General O’Hara had also ordered eight hundred National Guardsmen to be at the ready. From what they had been hearing from FBI intelligence as well as various individuals in the Department of Correctional Services, things were falling apart in D Yard and there was no way the observers were going to change that. As one member of law enforcement put it, “There was no way that large amount of ‘brain power’ gathered at one location, debating every issue could be effective.”47 Most of the many hundreds of troopers now marshalled outside the prison agreed that something was seriously “wrong with Oswald” for allowing these outsiders to get involved.48
There was a new hitch to retaking the prison right away, however. Both John C. Miller and General O’Hara had been informed in confidence that the governor himself might come to the prison Saturday morning.49 In fact the governor was not planning to make a visit to Attica, in no small part because his own attorney, Michael Whiteman, had been reporting, via conservative observer State Assemblyman James Emery, that the radical observers were making the situation in the yard much worse. In one instance, Whiteman told Rockefeller, “the mood of the inmates had changed radically, that they were now defiant and insistent on all of their demands, including safe passage to a non-imperialist country.”50 Although this briefing to the governor was utterly inaccurate, it would have a huge, and tragic, impact on the way state officials would handle the crisis at Attica. While prisoners and observers spent hours painstakingly coming up with demands that were not only reasonable but would make life better for both COs and prisoners, Nelson Rockefeller’s suspicions of these men were only being fueled.
16
Dreams and Nightmares
At 6:30 on Saturday morning, September 11, the third day of the uprising, leaders at the negotiating table in D Yard decided to awaken everyone in the yard. They felt good about the progress that had been made in the previous hours with the observers, but they nevertheless thought it prudent that everyone still needed to make preparations to defend themselves in case negotiations fell through. In a forcible retaking, COs and troopers would undoubtedly come in with clubs flailing, as they had at Auburn and in several of the New York City jail riots. Thus, everyone in the yard was to “take all precautions, either dig a hole, pile up mattresses or anything you can get a hold of to protect yourself.”1 Some twenty or so prisoners were commissioned to dig an L-shaped trench in which the men could take shelter—an arduous task that would take them until almost 3:00 that afternoon to complete.2
As head of security, Big Black Smith felt the weight of planning for a worst-case scenario. One thing on his mind was making sure he protected one specific CO with whom he’d been business partners of sorts: while Big Black ran various moneymaking schemes in order to make ends meet, this CO had always watched his back, in exchange for a cut. They had developed a mutual respect, even a friendship of sorts. Big Black could see that the hostages would be sitting ducks should the state decide to attack. Quietly, Big Black told this guard to feign a heart attack and he would do his best to have him evacuated. That Big Black expended this effort, and actually succeeded in getting the CO out later that afternoon, made the rest of the hostages feel better about their prospects. At least the prisoners, be it for selfish or unselfish reasons, wanted to make sure they stayed alive.
Two of the hostages, Gary Walker and Ron Kozlowski, were actually having a kind of celebration on this chilly Saturday morning. As the prisoners went about their frenzied defensive maneuvers—“building make-shift housing, digging holes, making bunkers, making weapons”—Walker and Kozlowski realized it was both of their birthdays. Kozlowski was turning twenty-three, Walker thirty-four.3 They shared a cup of coffee and spoke about how much they looked forward to the goulash they had heard the men were cooking up for the evening’s supper—a prisoner-made concoction of “elbow noodles with spaghetti sauce and chunks of ham.”4
That same morning, with rumpled shirts and eyes burning from lack of rest, three of the observers, Wicker, Jones, and Tepper, were making their way down a maze of rural roads. Wyoming County district attorney Louis James had agreed to meet with them at his home in Warsaw. When they arrived, James and his wife greeted them warmly with hot coffee and a bacon and eggs breakfast.
Dabbing his mouth with a napkin, James cut to the chase. He could not and would not authorize any sort of criminal amnesty for the prisoners. Period. In Wicker’s opinion, James did seem to grasp what was at stake and really did want to help in some way, so he tried a new tack: Would the DA be willing to put in writing the specific terms under which he would prosecute, for example, only specific individuals linked to specific crimes by conclusive evidence, as well as pledge on paper that he would not allow any mass reprisals?5 Yes, James said he’d be willing to do this. For the first time in many hours, the three observers felt optimistic. They followed James to his office in downtown Warsaw where, as a team, they drafted the document.6
The trio was eager to bring the signed agreement back to the Steward’s Room, where the rest of the observers were awaiting news of their visit. However, when they arrived back at Attica, a large contingent of troopers refused them entry. Wicker was incredulous. He’d assumed that prison officials were waiting on tenterhooks for word of what had happened with the DA, and now they couldn’t even get in to see the commissioner.7 It wasn’t until nearly 1:30 p.m. that the door opened for them, and then only because Badillo and the other legislators intervened and forced law enforcement to let them pass.8 These three weren’t the only observers to have been barred, either. Herman Schwartz and William Kunstler had also been kept outside for an extended period of time when they tried to reenter that morning. Such a hostile reception made all of them wonder if this suggested “a substantive hardening” in the state’s position.9
By the time the observers did manage to reconvene inside that afternoon, everyone was out of sorts. No one had gotten enough rest, and the obvious deepening of law enforcement hostility had raised the stakes of their job immeasurably. Under these fraught circumstances, Wicker, Tepper, and Jones nevertheless recounted their visit with James and made the case the observers should take the document he’d signed into D Yard. The statement read:
I have been asked by Mssrs. Clarence Jones, Tom Wicker and Julian Tepper, representing the Committee of Observers at Attica Correctional Facility, to express my views as to possible prosecutions that might arise from recent events at the Facility.
First, I deem it to be my duty as a prosecuting attorney to prosecute without fear or favor ALL substantial crimes committed or apparently committed within this county, if sufficient evidence exists to warrant prosecution.
/> Second, in prosecuting any crime, I do and would endeavor to prosecute fairly and impartially and for the sole purpose of attempting to see that justice is done.
Third, under the circumstances of the present situation at Attica, I deem it to be my obligation to prosecute only when in my judgment there is substantial evidence to link a specific individual with the commission of a specific crime.
Fourth, in this particular instance at Attica, I am unalterably opposed to the commencement of indiscriminate mass prosecutions of any and all persons who may have been present, and to prosecutions brought solely for the sake of vindictive reprisals.
Fifth, in the prosecution of any crime, in this as in every other situation, I would endeavor to prosecute honorably, fairly and impartially, with full regard for the rights of defendants.
Finally, as prosecuting attorney, I regard it as my paramount duty to attempt to assure justice, both in the trial itself, the outcome of the trial, and in the possible sentence.10
William Kunstler, Tom Wicker, and Clarence Jones confer outside the prison. (Courtesy of The New York Times)
Before anyone could make a comment, Jones jumped in to reiterate not only that “this was the best of all possible things which was capable of being achieved,” but also to suggest that they present it to the prisoners as a major political victory.11 Although a number of the others seemed to agree—among them Alfredo Mathew, John Dunne, and Reverend Walker—William Kunstler most emphatically did not. In Kunstler’s opinion the document merely restated the law, was full of platitudes that did not in fact protect the men in any substantive way, and, of course, said nothing at all about the most important issue, amnesty. He was representing the prisoners’ legal interests, as he had promised to do. Wicker, however, was flabbergasted. He immediately launched into a passionate defense of the district attorney’s integrity, and that man’s intention to do the right thing.12
And then Herman Schwartz entered the fray. Still smarting from the previous day’s events when prisoners had rejected the document he’d gotten Judge Curtis to sign, he stated that there was no way the prisoners would accept this new mealy-mouthed document since the injunction he’d given them “was worded much more tightly than the statement from the D.A.”13 To the dismay of Jones, Tepper, and Wicker, the rest of the observers began debating whether they should even show the prisoners the James letter at all. Eventually they concluded that, given how nervous the men in the yard were undoubtedly becoming as they waited for some word from the state, it was better to show them the document. Even if it wasn’t everything the men hoped for, at least this paper indicated that the observers were making a good-faith effort on their behalf.
Before anyone would be heading into D Yard, however, there was another document still to deal with: the list of demands that the executive committee had hammered out with Oswald in the early hours of the morning. To the surprise of the observers, Oswald seemed amenable to almost everything on the list. The commissioner went through the prisoners’ thirty-three demands one by one, saying yes to most.14 As Oswald later described the process, “We went over each word in the demand…and then attempted to rephrase it. And Mr. Kunstler and I, I think, did most of it, with some suggestions along the way from the others. But he and I did a good part of it. It took all afternoon, at least.”15
Yet, when a final version was typed up and circulated for the observers’ approval, not everyone was happy.16 Lewis Steel, for one, was concerned that Oswald was unwilling to replace Mancusi, an important demand that would be easy to grant. Nor would Oswald budge on the amnesty question. Every time Steel tried to insist on how crucial this demand was, Oswald simply replied: “You’ve got the James letter.”17 Hours later, though, even Steel had to concede that they had in this meeting “pressed Commissioner Oswald as hard as [they] could.”18 Amnesty wasn’t going to happen, but Attica’s prisoners had gotten the highest-ranking official in New York State’s Department of Correctional Services to agree to twenty-eight out of the thirty-three key demands they had submitted. This, everyone prayed, would be enough.19
OBSERVERS’ PROPOSALS PROPOSALS ACCEPTABLE TO COMMISSIONER OSWALD
1. Provide adequate food and water and shelter for this group.
1. Provide adequate food, water, and shelter for all inmates.
2. Replace Superintendent Mancusi immediately.
2. Inmates shall be permitted to return to their cells or to other suitable accommodations or shelter under their own power. The observers’ committee shall monitor the implementation of this operation.
3. Grant complete administrative and legal amnesty to all persons associated with this matter.
3. Grant complete administrative amnesty to all persons associated with this matter. By administrative amnesty, the state agrees:
a. Not to take any adverse parole actions, administrative proceedings, physical punishment, or other type of harassment such as holding inmates incommunicado, segregating any inmates, or keeping them in isolation or in 24-hour lock-up.
b. The state will grant legal amnesty in regard to all civil actions which could arise from this matter.
c. It is agreed that the State of New York and all its departments, divisions, and subdivisions, including the State Department of Correction and the Attica Correctional Facility, and its employees and agents shall not file or initiate any criminal complaint or act on complaints in any criminal action of any kind or nature relating to property, property damage, or property-related crimes arising out of the incidents at the Attica Correctional Facility during September 9, 10, 11, 1971.
d. The District Attorney of Wyoming County, New York, has issued and signed the attached letter as of this date.
4. Place this institution under federal jurisdiction.
4. Establish by October 1, 1971, a permanent ombudsman service for the facility staffed by appropriate persons from the neighboring communities.
5. Apply the New York State minimum wage law to all work done by the inmates. STOP SLAVE LABOR.
5. Recommend the application of the New York State minimum wage law standards to all work done by inmates. Every effort will be made to make the records of payments available to inmates.
6. Allow all New York State prisoners to be politically active, without intimidation or reprisal.
6. Allow all New York State prisoners to be politically active, without intimidation or reprisal.
7. Allow true religious freedom.
7. Allow true religious freedom.
8. End all censorship of newspapers, magazines, and other publications from publishers.
8. End all censorship of newspapers, magazines, and other publications from publishers, unless there is determined by qualified authority which includes the ombudsman that the literature in question presents a clear and present danger to the safety and security of the institution. Institution spot censoring only of letters.
9. Allow all inmates on their own to communicate with anyone they please.
9. Allow all inmates, at their own expense, to communicate with anyone they please.
10. When an inmate reaches conditional release, give him a full release without parole.
11. Institute realistic, effective rehabilitation programs for all inmates according to their offense and personal needs.
10. Institute realistic, effective rehabilitation programs for all inmates, according to their offense and personal needs.
12. Modernize the inmate education system.
11. Modernize the inmate education system, including the establishment of a Latin library.
13. Provide a narcotics treatment program that is effective.
12. Provide an effective narcotics treatment program for all prisoners requesting such treatment.
14. Provide adequate legal assistance to all inmates requesting it.
13. Provide or allow adequate legal assistance to all inmates requesting it or permit them to use inmate legal assistance of their choice in any proceeding whatsoever. In all such proceed
ings, inmates shall be entitled to appropriate due process of law.
15. Provide a healthy diet; reduce the number of pork dishes; serve fresh fruit daily.
14. Provide a healthy diet; reduce the number of pork dishes; increase fresh fruit daily.
16. Reduce cell time, increase recreation time, and provide better recreation facilities and equipment.
15. Reduce cell time, increase recreation facilities and equipment, hopefully by November 1, 1971.
17. Provide adequate medical treatment for every inmate, engage either a Spanish-speaking doctor or interpreters who will accompany Spanish-speaking inmates to medical interviews.
16. Provide adequate medical treatment for every inmate; engage either a Spanish-speaking doctor or inmate interpreters who will accompany Spanish-speaking inmates to medical interviews. (See point 11 above.)