Blood in the Water

by Thompson, Heather Ann

  This meeting, like all the others, was attended by Harry Albright and Eliot Vestner, whose job it was to record what was discussed and write it up in a report.15 In the following decades state officials would repeatedly deny the existence of the so-called “Albright-Vestner Report,” but it had served its intended purpose. Over the coming years, the retaking of Attica would come under extraordinary scrutiny, and the state officials who had spent so many hours in the fall of 1971 in that pool house corroborating their stories would be very glad they had.

  PART VI

  Inquiries and Diversions

  ANTHONY SIMONETTI

  Tony Simonetti worked for Robert Fischer in the Organized Crime Task Force’s Rochester office. He had come to the OCTF after first getting his BA at St. John’s University and then his law degree from Fordham. He was admitted to the bar in 1964, was a former U.S. Marine, had been an FBI agent, and had even spent time in the South the previous decade looking into civil rights violations in that region. Simonetti had come to Robert Fischer’s attention, though, as someone who worked for famed Manhattan DA Frank Hogan. Tony Simonetti had been a bit of loner in Hogan’s office, but he had nevertheless earned the respect of staff lawyers and investigators alike. He got the job done. Not only did he investigate his cases carefully and methodically, but he was also extremely sharp in the courtroom. Everyone could see that Simonetti relished getting witnesses on the stand and then, with little fanfare and a penchant for simple but devastatingly direct questions, getting them to say exactly what he needed them to say.

  When Tony Simonetti got the call from Robert Fischer to come to the Attica Correctional Facility on September 13, 1971, he had no idea how much his life was about to change. It soon became clear that most of the responsibility for investigating what had happened at Attica was going to fall on his shoulders. Even Simonetti’s investigative and prosecutorial skills would be challenged. He would have power as “Attica Special Prosecutor Anthony G. Simonetti,” but it would be hard to do his job without stepping on a lot of toes. The very man who was employing him, the governor of New York, had ordered the retaking of the prison that he was now supposed to look at carefully and critically. And, as awkwardly, New York state troopers who had retaken the prison were now collecting the “evidence” from Attica’s yards that he would soon have to rely upon to make cases.

  30

  Digging More Deeply

  Rockefeller’s office worked hard to control all investigations into what had happened at Attica. Choosing Robert Fischer to head up the official inquiry—the OCTF’s Attica investigation—was but one way. Devoting several meetings to creating a unified state version of what had taken place was another. Still, by mid-fall of 1971 there were many individuals, groups, and organizations calling for very different, and far more independent, probes into why the retaking of Attica had been so deadly. Those investigations would be much harder to direct.1 Among those calling for an Attica inquiry were thirteen African American members of the House of Representatives, the New York Urban League, the National Legal Aid, the Defender Association, and the Buffalo Council of Churches. Additionally, “a group of 300 students at Harvard Law School signed a petition to President Nixon asking for assignment of a Federal Commission to investigate the country’s penal system” more generally.2 The Prison Reform and Justice Committee of Rochester’s FIGHT organization also began calling for a statewide coalition to pressure for prison reform, and the committee’s chairwoman was none other than Betty Barkley, L. D. Barkley’s sister.3

  So unhappy was Governor Rockefeller with these inquiries that he attempted to meet with legislative leaders in Albany “in an effort to consolidate the many investigations of the rebellion that have been called for.”4 This he was unable to do, and, worryingly, word had it that Attica’s observers committee, the group that had been constituted during the uprising, had started meeting again in order to pressure legislators to order a totally independent investigation of the retaking.

  The observers committee had in fact reconvened on Sunday, September 26, at the behest of Arthur Eve, who felt strongly that they should collect and preserve all the documents, papers, tapes, and records they had accumulated over the course of the five days they’d spent at Attica. His idea was that they could deliver a full and accurate report regarding how the rebellion had progressed—including the committee’s many efforts to warn the Rockefeller administration how disastrous a forcible retaking would be—to any serious investigative body.5 They even did some fundraising, collecting money for both “the families of the deceased inmates and hostages.” In short, the reconstituted observers committee had “pledged not to let down either the inmates or the hostages who died at Attica.”6

  By May of 1972, however, and as other more formal investigations had gotten under way, only a few of the observers seemed interested in meeting anymore.7 Some, such as Tom Wicker, had decided to keep Attica alive in a different way—in Wicker’s case through his columns in The New York Times. Others had parted company with the committee because they now disagreed with its views. State Senator John Dunne, for instance, felt that the current committee consisted of men who took a one-sided pro-prisoner stance.8

  Dunne did, however, join another committee—also created by Rockefeller—the Select Committee on Correctional Institutions and Programs. The governor tasked this group, known by all as the “Jones Committee” since it was chaired by Hugh Jones, president of the State Bar Association and former chair of the Board of Social Welfare, with looking into prison conditions at the Attica Correctional Facility and in New York more generally.9 John Dunne was still the chairman of the state’s Standing Committee on Crime and Correction, which prior to the Attica uprising had been calling attention to New York’s prison overcrowding and other problems. He was eager to serve here, as were the dozen or so additional committee members, including state assemblymen, state senators, religious leaders, and officials from various state agencies. Governor Rockefeller’s longtime friend Peter Preiser was appointed “Special Consultant to coordinate the work of the Select Committee” because, as Russell Oswald put it, “he knows most of you.”10

  Beginning in early October, the Jones Committee visited numerous correctional institutions across the state where they “explored…the experiences, feelings, and judgments of inmates, administrative staff, correction officers and other institutional personnel.”11 When the committee visited Attica, its members were horrified by accounts they heard from “at least 17–20 inmates…about excessive and continuing brutality,” and detailed descriptions of episodes of “gauntlets and beatings.”12

  After what they had seen and heard at Attica and other prisons, the Jones Committee pulled no punches in the first report it submitted to the governor on January 24, 1972.13 As it noted, “The committee is profoundly troubled by its impression of the present institutional system after making its initial assessment. There is substantial doubt as to whether the existing system offers any real hope of accomplishing the stated objectives.”14 At the very least, it went on, the Department of Correctional Services needed to invest in far “more training, more education, less profiteering, less warehousing, more attention to civil rights abuses, less censorship, greater mental health resources, adequate legal assistance supplied to inmates, brighter and cheerier prison facilities, better food, better medical and dental care.”15 To bring their recommendations about penal reform to a broader audience, the Jones Committee went on to hold three public hearings the following month, one in Albany, the second in Buffalo, and the third in New York City. Such hearings and the scathing final report that the Jones Committee issued were not at all what the Rockefeller administration had expected.

  DOCS commissioner Russell Oswald was incensed. “It seems to me,” he wrote Governor Rockefeller, “that this continuing negative emphasis by the Jones Committee is a disservice to the effort of Department and administration personnel who have worked so hard to bring about meaningful change.”16 The commissioner had been equall
y unhappy with the findings of the Goldman Panel. As he put it, “A disturbing situation has developed with the advent of the Goldman and Jones Commission reports….[Both] have consistently failed to credit the efforts of the department in the very areas in which it has contributed so much.”17

  DOCS officials and the Rockefeller administration became more alarmed, though, once an even higher ranking committee really began looking into Attica—this one a federal investigative body chaired by Representative Claude Pepper, who also headed up the House Select Committee on Crime. Initially, at least, the governor’s office felt pretty good about this particular inquiry, which had begun almost immediately after the retaking. On Friday, September 17, Pepper and five other congressmen, including Charles Rangel of New York, went to New York City to have an hour-and-a-half meeting with Rockefeller in order “to listen to the Governor’s account of the uprising.”18 Afterward the governor flew them to Attica in his private jet so that they could see what conditions were like a few days after the retaking.19 After this initial trip Representative Pepper told the press that they had had “a most interesting and profitable visit.”20 Committee member Representative Frank Brasco elaborated a bit further, stating to reporters that, in his view, Commissioner Oswald had gone “as far as he could in negotiations.”21

  The Pepper Commission: Congressmen William Keating (OH), Sam Steiger (AZ), Charles Rangel (NY), Claude Pepper (FL), Frank Brasco (NY) (Courtesy of Corbis)

  The next day, however, the Pepper Commission members spoke to some of the prisoners and COs, and had decided that they would stay at the prison “ ‘for as long as necessary’ perhaps the whole weekend” to get a full sense of conditions there.22 According to The New York Times the commission was not at all pleased to hear prisoners tell of suffering much abuse after the retaking, and having had to run a gauntlet of officers wielding batons.23

  The Pepper Commission went on to examine other prisons in the country that had also experienced uprisings—institutions that Rockefeller felt were also hotbeds of destructive revolutionary activism—which slightly buoyed the governor’s faith in its mission. But once the commission hearings got under way, he realized that his office was going to get an earful that it didn’t particularly want to hear.24 Despite Claude Pepper’s opening the hearings by stating that the committee was primarily interested in a “national inquiry into the American system for treating and rehabilitating criminal offenders” so that the nation could better deal with “the problem of crime,” conditions at Attica were clearly going to dominate the agenda, taking up a full two and a half days of the five days of hearings.25

  It appeared that the Pepper Commission intended to probe conditions at Attica fully—even arranging for Richard X Clark as well as other prisoners they had spoken to at Attica to come in to offer graphic testimony about severe and continuing abuse prisoners experienced at the hands of troopers and correction officers—but the prisoners ultimately were let down. Russell Oswald and Walter Dunbar refused to let Clark come, arguing that his visit would pose a security risk.26 And, instead of prisoners testifying, the commission instead heard a great deal from Superintendent Mancusi as well as many of Attica’s guards—all of whom “denied that any beatings or officially-sanctioned brutality occurred at the prison.”27

  These witnesses did get some pushback from committee members. Representative Charles Rangel, for example, refused to accept the viewpoint that prisoners were nothing more than militant troublemakers determined to destroy America. Rangel noted with disgust that this trope had gotten so out of hand that “there is talk right now from the governor’s office right on down, that prisoners now will be labeled as to whether or not they are rebellious, they’re revolutionists, or they’re moderate, and they will be systematically segregated or removed from the general population.”28 Some of Rockefeller’s own political friends, including John Dunne, also disagreed with his view of the Attica rebels. Dunne had steadfastly maintained that “there was ‘no basis’ for Warden Mancusi’s belief in a conspiracy influenced by Marxists, Maoists, and far-leftists, enhanced by an atmosphere of permissiveness in the outside world.”29 One of the governor’s closest advisors, attorney Michael Whiteman, indicated as well that he and Rockefeller had a stark difference of opinion about this.30 Commissioner Oswald too rejected the idea that Attica’s uprising had been a leftist plot. He testified before the Pepper Commission that he saw “ ‘no evidence’ that a communist or a revolutionary conspiracy lay behind the Attica prison riot” and therefore, like Rangel, Oswald thought it far more productive to focus on “root causes, such as an obsolete prison system long starved by the state government for funds and trained personnel.”31

  Still, the first set of Pepper Commission hearings did little to further prisoner rights in America. Indeed the whole affair seemed relatively pointless to Congressman Badillo, who stepped in to testify at the last minute when Richard Clark was prevented from doing so. Badillo felt that no investigation of the rebellion at Attica prison, including the Pepper inquiry, got at the heart of the issues at hand in New York’s prisons—this one had even managed to “obfuscate the fact that inmates’ demands agreed to by state have not been implemented.”32

  Eventually the Pepper Commission did hear testimony from a few of Attica’s prisoners. In a later set of hearings, held at the U.S. Customs House in February 1972, Richard Clark and Frank Lott, along with two white prisoners, took to the stand to report on what had led to the uprising at Attica, as well as how they had fared since. All four expressed their frustration that, despite having finally spoken to the men from the commission during their visit to the prison back in September, little had changed for them.33 Clark was particularly dismayed by the commission’s ineffectiveness. As he put it, “We had people come up and talk and talk about reform and rehabilitation and that’s all it is is talk….We’ve still got brothers being beaten up in here.”34

  While both the Jones Committee and the Pepper Commission expressed criticism of Rockefeller for not going to Attica, most prisoners, civil rights groups, and what remained of the observers committee felt that “all the committees appointed by the state to investigate the events of Attica would produce a ‘whitewash.’ ”35

  There was one investigative body that state officials had almost no influence over. In the wake of the retaking the public had persistently and loudly demanded a genuinely independent inquiry, and the governor was eventually pressured to create a fully independent citizens committee to conduct the investigation.36 On September 21 he announced that Chief Judge Stanley Fuld would be in charge of appointing this committee, which would “investigate the facts leading up to, during and following the riot at Attica,” and then file “a full, factual, and impartial report just as soon as possible.”37

  Chairing the citizen inquiry was Robert McKay, dean of New York University School of Law. The McKay Commission, which first met in November 1971, was comprised of judges and lawyers, members of the clergy, and leaders of various political and social justice organizations, who were all formally empowered by the State Supreme Court.38 The commission’s general counsel was Arthur L. Liman, an experienced lawyer who had worked as both a defense counsel and a prosecutor, and was currently a partner in the very prestigious New York firm of Paul, Weiss, Rifkind, Wharton & Garrison. This commission was one impressive body, to be sure, but as Liman himself put it, black and white alike they were all “save one…totally ignorant” of prisons. The exception was commission member Amos Henix, who had served several sentences as a young man and had become “a leader in the movement for the rehabilitation of addicts.”39

  The commission was sent to work with a budget of $250,000, and Liman was tasked with putting together a full-time staff, which eventually contained “36 full time attorneys, investigators, researchers and clerical personnel….They were assisted by more than sixty part-time interviewers, student volunteers, and consultants in the fields of communications, penology, sociology, hospital and health services, psychiatry, pa
thology, and ballistics.”40

  Despite its official independence, however, members of the McKay Commission felt from the beginning that they had to fight to keep the governor’s office from trying to control or undermine their inquiry.41 The commission’s goal was not to make general recommendations on penal reform—that had been the goal of both the Jones and Pepper commissions.42 The McKay Commission was to focus solely on Attica—going over the rebellion and the retaking with a magnifying glass. From the moment he accepted his appointment as counsel for the commission, Arthur Liman constantly had to fend off Robert Fischer, who wanted to know everything the McKay Commission was learning and wanted access to all its files for the purposes of the state’s inquiry into criminal acts committed at Attica during the rebellion and retaking. As Rockefeller attorney Michael Whiteman recalled, “After its formation [Fischer] complained and said, ‘You know, I don’t understand how these things are going to function together.’ ”43