Blood in the Water

by Thompson, Heather Ann

  Fischer tried to get Rockefeller to issue an executive order under Section 6 of the Executive Law indicating that investigations into corruption had ready access to any information that might be useful. Since the governor had placed Fischer’s inquiry under the Organized Crime Task Force, Fischer reasoned that he should have unlimited access to the McKay findings. McKay and the rest of his commission, however, argued that this would be “totally unacceptable” and made this crystal clear to Rockefeller lawyer Michael Whiteman. When Whiteman was unable to get Fischer to back down from his efforts to get at the commission files, McKay called Rockefeller to inform him that “the Commission would resign” if he planned on doing what Fischer wanted.44 In addition to threatening to disband the entire operation, McKay insisted that the governor stand by some ironclad principles so that commission members could do their work unhampered and unintimidated. These included the commission’s right to hold public hearings, its right to the full cooperation of all state officials, and a guarantee that its files and witnesses would remain off-limits to any other state office or body.45 If he would not agree to these conditions, Dean McKay informed Rockefeller, members of the commission “would give serious consideration to immediate resignation at the November 8th meeting.”46

  To the dismay of Fischer, and to the great consternation of prison officials, the governor gave in to McKay. Russell Oswald was particularly worried by what this would mean for his people. He wrote to Attica superintendent Vincent Mancusi, “Frankly I can see nothing but trouble ahead for you, Walter [Dunbar] and me, for the next several months with the manner in which this Commission is moving. You are undoubtedly aware of the fact that they have recruited law students from New York University, Columbia University Law School and Yale Law School to assist in their study. Need more be said?”47

  Once the McKay Commission entered Attica in November of 1971, just after the Goldman Panel left, Mancusi had his hands full. The commission spent the next seven months trying to interview anyone who had any knowledge of the causes of the uprising, the day-by-day course of the uprising, the retaking by the state, and the immediate aftermath of the retaking. The commission members faced great difficulty in collecting this information. The COs they encountered were often hostile, doing their best to instill a serious fear of the prisoners in the interviewers, in particular the young ones. Recalled Arthur Liman, “The initial reaction of many guards to our visit was that even the male members of the Commission would be raped” and when a woman arrived to conduct interviews, they unnerved her by “constantly peering in the window to make sure that she was okay.”48

  Another serious barrier to the McKay investigators was that many prisoners were deeply suspicious of them—particularly because they were an overwhelmingly white group. Aware of this potential reaction, Robert McKay and Arthur Liman had tried to include black interviewers in the group; Liman had specifically met with members of the Black Law Students Association at Yale, but he ultimately recruited only four part-time students.

  Ironically, these few black interviewers among so many whites became objects of suspicion for the prisoners. As a prisoner writing on behalf of the group of eighty men who were locked in Attica’s HBZ segregation unit put it, “When the McKay Commission saw that the greater majority of us, who are black, were reluctant to talk to them (white), they went and got five or six blacks, hoping we would relate to them. As a result, we strongly feel that the Blacks appointed to this Commission compromised their principles and sold their Blackness to obtain information from us.”49 If the commission were really interested in “hearing about events leading up to the rebellion and its bloody climax,” he went on, from the beginning it “should have been made up of our peers, of people who know how we live, who come from our communities, who are poor like us, who can relate to our struggle for survival in this society.”50

  These same prisoners had been willing to talk to congressmen as well as members of both the Goldman Panel and the Jones Committee, yet it had gotten them no improvements. They were understandably jaded. The real issue driving prisoner suspicion of the McKay Commission interviewers, however, was that for the past two months they had endured some particularly aggressive interrogations by Fischer’s investigators—both State Police and state investigators—who had been grilling them and trying to get them to inform on their cell mates. The prisoners knew that Fischer was trying to find evidence of criminal wrongdoing during the rebellion and retaking, and it certainly appeared to the prisoners that his team was only looking at them. When the McKay investigators came in, it was hard for the prisoners to know how the McKay investigation might relate to the Fischer investigation, or which investigators belonged to which group. Even if the former was independent of the latter, prisoners feared that something they might say to investigators from McKay’s office could end up twisted by Fischer’s men to build cases against them. As a man in HBZ explained, it was the fear of what the state might do with McKay information that terrified prisoners who had participated in the rebellion and kept them from cooperating: “any and all information the Commission accumulates can be subpoenaed by the grand jury and used as evidence against us.”51

  Roger Champen was particularly concerned about the McKay investigators—as he put it, they “worried me to death.”52 Not only did they want him to make statements about the rebellion, but they wanted him to testify about his experiences in future public hearings. “He [Arthur Liman] was at my cell—I thought the man would move in there with me. I’m serious, he came up there one night just before the hearing and said, ‘Are you sure you won’t reconsider?’…And I said, ‘Listen, I respect you, but I don’t think you give me the same respect. I told you repeatedly I am not speaking to you or any member of the McKay Commission…because I am going to be indicted and the testimony I give you can be used in the trial. I’m not going to give it to you….And he stood there trying to convince me, so much so that…I had to be rude and…ignore him.”53

  Richard X Clark also felt compelled to speak on behalf of the eighty prisoners being held in solitary. He issued an official statement to the McKay Commission in order to explain why so many didn’t want to testify at any hearing. The commission had “spoken to ‘thousands of inmates,’ ” he said, but had done “ ‘nothing favorable for them.’ ”54 More to the point, he continued, the commission “is solidly connected with the privileged class, which makes it a whitewash group.”55 Some prisoner rights advocates were so suspicious of the McKay Commission’s true intentions that a group calling itself the “Ad Hoc Citizens Committee to Defend the Constitutional Rights of Prisoners in New York State” filed a case in U.S. District Court on December 22, 1971, on the prisoners’ behalf, so that the commission would not be able “to go forward with its investigation.”56

  Although the McKay Commission in fact worked very hard to protect prisoners’ rights and would be deeply critical of the state’s retaking of the prison, its members sometimes behaved in ways that directly undermined their credibility with the prisoners. One day when Arthur Liman was on his way to speak with Richard Clark in his cell, it suddenly occurred to him that the fact that he was walking through the prison corridors accompanied by Vincent Mancusi might not be construed very favorably by the men, and asked the warden to “hide under a chair in the barbershop.”57 Of course for any prisoner who saw Liman’s awkward effort to appear independent, it looked like he was trying to cover up a close relationship with the prison administration. From the prisoners’ perspective, anyone who might be trusted by Mancusi couldn’t be trusted, since they blamed his callousness for the reason there was a rebellion in the first place. Liman thought that prisoners were overreacting when it came to McKay Commission members talking with prison administrators. As he later put it, “It seemed so ludicrous that the warden of the prison institution should have to screen himself under a stool.”58

  Despite these barriers to trust, in one year the McKay Commission was able to collect information from more than 3,200 witness
es, “including 1,600 present and former inmates of Attica, 400 correction officers, 270 State Police personnel, 200 National Guardsmen, 100 sheriffs and sheriff’s deputies, prison administrators at Attica and in Albany, doctors and other medical personnel who were called to the scene, residents of the town of Attica, and the wives of correction officers and inmates.”59 The commission also interviewed or took testimony from Governor Rockefeller and five members of his executive staff.60 What is more, it collected an extraordinary number of documents, over two thousand, from the Department of Correctional Services, the New York State Police, the New York National Guard, “and other sources.”61

  What they found made it abundantly clear not only that the men locked in Attica had much to protest in the first place, but that they had also experienced terrible abuse in the wake of the uprising. This was the very reason that Robert McKay insisted on holding a series of public hearings on the commission’s findings: he wanted the citizens of New York to hear all of this for themselves.

  It was likely to be the same reason that Robert Fischer was determined to prevent such hearings from taking place. Just before the hearings were to commence on April 12, 1972, Fischer sought an eleventh-hour injunction against them.62 Dean McKay immediately fired off a letter to Rockefeller reminding him of previous correspondence in which the governor had already agreed that the commission “would be empowered to hold public hearings and issue our report without any restrictions and without the approval of any court.”63

  Once again, McKay won his battle to keep the commission on track. During the month of April the commission went to the studios of local public television stations in Rochester and New York City and from there broadcast the hearings live.64 Rockefeller, though, asked to testify privately in his Manhattan office, which he did for almost three hours. Having been carefully prepped by a special counsel who’d been brought on exclusively to get him ready for his testimony, the governor explained that he personally had little involvement with any decisions that had been made at Attica because of “his belief in delegating authority to subordinates in whom he had faith.”65 Rockefeller repeatedly dodged any personal responsibility for the debacle, but it was nevertheless clear to the McKay Commission—and to the public—that his office had had complete agency over the event. More important, he might have prevented the disaster there. Numerous witnesses told the McKay Commission that had Rockefeller merely come to the prison or, better yet, heeded the observers committee’s warnings about the bloodbath that was sure to result from an armed retaking, the outcome of this prison rebellion might have been very different.

  And the McKay hearings drove home to anyone listening that the outcome—the retaking of Attica—had been almost incomprehensibly barbaric. Powerful testimony by National Guardsman physician John W. Cudmore made the room fall silent.66 Speaking quietly, Cudmore summed up everything he had witnessed on September 13: “I think Attica brings to mind several things. The first is the basic inhumanity of man to man, the veneer of civilization as we sit here today in a well-lit, reasonably well appointed room with suits and ties on objectively performing an autopsy on this day, yet cannot get at the absolute horror of the situation, to people, be they black, yellow, orange, spotted, whatever, whatever uniform they wore, that day tore from them the shreds of their humanity. The veneer was penetrated. After seeing that day I went home and sat down and spoke with my wife and I said for the first time being a somewhat dedicated amateur army type, I could understand what may have happened at My Lai.”67

  This was not at all the story that state officials in New York had hoped the world would hear. More alarmingly for the state, Robert McKay announced on August 30, 1972, that his committee would be publishing a lengthy report on all of its findings—a report that could be purchased by the public—on the one-year anniversary of the retaking of Attica.68 At 11:00 a.m. that day, at the New York University Law Center, McKay took questions from the media and informed the press that there also would be “a one-hour television special to be broadcast on public television” to discuss the main points of the report.69 As it turned out, there was so much public interest in this story that New York City’s public television station, Channel 13, decided to devote ninety minutes to the McKay Commission findings, followed by a thirty-minute panel discussion chaired by newscaster Bill Moyers. Panelists included William Vanden Heuvel, then chairman of the New York City Board of Correction, Leo Zeferetti, president of the Correction Officers’ Benevolent Association, Tom Wicker, Arthur Liman, and two Attica prisoner survivors.70

  The report, published by Bantam Books in mass-market paperback form as Attica: The Official Report of the New York State Special Commission on Attica, flew off the shelves. Widely available in bookstores and on newsstands, it was so riveting a read that the following year it was a finalist for the National Book Award. The McKay Commission’s narrative of events unflinchingly and graphically exposed the mistreatment of prisoners that had led to the rebellion, and made it equally clear that its bloody end was both avoidable and unconscionable. In their conclusion, the authors of the report bluntly summed it up: “The decision to retake the prison was not a quixotic effort to rescue the hostages in the midst of 1,200 inmates; it was a decisive reassertion of the state of its sovereignty and power.”71

  Even New York political operatives who were in Rockefeller’s camp, such as Senator Jacob Javits, were unsettled by what they learned from the McKay Commission report. Javits publicly stated, “There will be more Atticas until federal and state governments and the American people accept their responsibility to establish minimum standards of decency and respect for human rights in our prisons. We cannot afford to wait for new explosions.”72 One of his aides described the report more bluntly still as “an incredibly shocking story of maladministration, bad judgment and total disregard for human life.”73

  Anthony Simonetti, now fully in charge of Fischer’s inquiry, reacted to the release of the report by redoubling his efforts to access everything the McKay Commission had collected over the course of its investigation. He wanted to have as much information as possible about the Attica uprising and aftermath at his fingertips. He suspected the McKay book would reveal a great deal he needed to see. He had his investigators go through the book line by line, listing every key fact about each event that had taken place during the rebellion or the retaking alongside what his investigation did or did not know about that same event.74 On the basis of this analysis, Simonetti was certain that the McKay Commission had evidence that his men needed if they were going to bring indictments against those who had committed crimes during the course of Attica’s rebellion and retaking.

  Arthur Liman held firm to the commission’s position that if it was compelled to release its documents, the governor would have “violated his commitment to the Commission that its records of interviews (confidential statements of inmates, guards and others) would not be subject to the subpoena of the State Attorney General for criminal purposes.”75 Liman publicly stated that “he [would] go to jail first, rather than hand them over.”76

  Drawing this line in the sand was not enough to make the issue of state access to the McKay files go away—particularly since, according to one political aide, “the Governor’s people [were] apparently saying that no such commitment ‘as such’ was made.”77 Fischer refused to back down from his belief that he had a right to these files. He particularly wanted any information that would allow him to prosecute whoever had killed correction officer William Quinn. In a bold move, New York State attorney general Louis Lefkowitz, who when Fischer moved on in 1973 would be the main person overseeing Anthony Simonetti’s ongoing criminal investigation, decided to subpoena top McKay officials to come before a grand jury, testify to what they had learned in the course of their investigation, and then turn over all of their investigative files.78 As far as McKay was concerned, however, the files remained protected. As he reminded everyone, “In carrying out our task we made statements to inmates, state police and correction
officers that their confidentiality would be respected….If the records are given over to the grand jury, the credibility of the state and the commission would be compromised and it would be another justified instance where the inmates could not trust the establishment.”79

  Eventually, Judge Lee P. Gagliardi settled the matter in a hearing on October 17, 1972, ruling that the McKay files would remain protected.80 Rockefeller had been pressured not to play a public role in the dispute, likely making it easier for the judge to rule in favor of the McKay Commission. As Rockefeller attorney Michael Whiteman later recalled, the men charged with running the Attica investigation were, in the end, “quite embittered (a) that we wouldn’t support them in their demands to get the McKay records, and (b) that they lost.”81 Not getting to see the McKay files, however, did not prevent Simonetti’s office from moving forward in its investigation.

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  Foxes in the Hen House

  Simonetti’s investigation of criminal wrongdoing at Attica was not at all disadvantaged by its inability to see the McKay Commission’s files. The reality was that Simonetti’s office had unfettered access to every person involved in the rebellion as well as the retaking—better access than the McKay investigators had had—and was asking questions of prisoners well before anyone from the McKay Commission ever set foot in Attica.

  Before the gas had even cleared over Attica, Anthony Simonetti had “complete access to the prison yard.” He was also present when the prison was sealed so that investigators could “gather evidence such as ballistics information, blood tests, weapons, fingerprints and preparation of diagrams.”1 Incredibly, the investigators that Simonetti was relying upon to collect that evidence were from the New York State Police’s Bureau of Criminal Investigation (BCI). Troop A’s Captain Henry Williams, who had been instrumental in overseeing the retaking, was the main BCI man now collecting evidence and at least one other BCI investigator, Vincent Tobia, had used his weapon in the retaking. Indeed, during the first critical weeks of the Attica investigation—the weeks in which evidence was secured and troopers’ statements about the shots they had fired were taken—the main investigators of crimes at Attica were those who may well have committed them.