It was not odd or unusual for an investigation being run out of New York’s Organized Crime Task Force to use the State Police’s Bureau of Criminal Investigation unit—in fact, it was standard practice. However, in the earliest days of the Attica investigation even Robert Fischer realized relying on them in this case was going to raise eyebrows. To try to ward off criticism, Fischer told Rockefeller attorney Michael Whiteman up front that BCI investigators would have to report directly to him, and not, as they normally would, to their State Police superiors. In fact, back in September 1971, Fischer said that “he would not take the job unless he was given full control of the State Police in the conduct of the investigation.”2 Whiteman agreed and made sure to inform State Police Lieutenant Colonel George Infante and State Police superintendent William Kirwan that their men would report directly to Fischer.3
With so much on the line, however, BCI investigators resisted taking any direction from Fischer or Simonetti and their superiors had little interest in doing so either. Dozens of men had died at Attica and, as Infante and Kirwan knew, many of their own men could face criminal charges if they didn’t control this investigation. Within twenty-four hours of arriving at Attica, Tony Simonetti could see that the State Police had closed ranks. As he opined, “independent investigators were required” if he had any hope of examining what troopers might have done wrong.4 Barring such independent investigators, for which there was no funding allotted, Fischer and Simonetti held a pointed meeting with Lieutenant Colonel Infante, Major John Monahan, Captain Henry Williams, and other State Police personnel to set everyone straight about who was in charge of this investigation.5 However, this had little effect on the men on the ground.
Fischer and Simonetti, and later Lefkowitz and Simonetti when Fischer left for the bench, never would be able to control the BCI investigators, let alone get them to follow proper procedures. Captain Williams went to great lengths to thwart every state effort to ask thorny questions about the actions of his men.6 And he went even further than that. In the immediate aftermath of the retaking, Williams took it upon himself to make sure as much evidence as possible was collected that might indicate that a prisoner committed a crime (for example, collecting every baseball bat in D Yard since these could have been used by prisoners as weapons) while also making sure that nothing related to the shooting—shell casings, the weapons themselves—was collected. Even though this was a crime scene, no BCI man made chalk outlines to indicate where bodies had fallen, or made any calculations regarding bullet trajectories vis-à-vis those bodies. Instead, Captain Williams ordered a crew of his men to start a “clean-up operation” of Attica’s yards, its storage rooms, and its tunnels as well as other buildings.7 By 5:00 p.m. on the day of the retaking, Williams’s troopers had “completed their assignment.”8
Troopers collecting evidence as the state’s investigation begins (Courtesy of the Democrat and Chronicle)
Since there was little interest in the governor’s camp in seeing state troopers indicted, no one considered removing the BCI, or even just Williams, from the state investigation. Others remarked upon their continued presence at Attica, however. Members of the Goldman Panel wrote directly to Robert Fischer on October 1, 1971, to express their strong feelings that the State Police could not “conduct an objective and impartial investigation of the allegations against state police and correction officers, of post-riot brutality and physical mistreatment of inmates.”9 Clarence Jones and Austin MacCormick of the Goldman Panel went further regarding Captain Williams’s involvement. Jones called it “an insult to the public’s intelligence; it’s ridiculous.” MacCormick agreed. “If I were Williams,” he said, “I think I’d disqualify myself.”10 The Goldman Panel asked Fischer “to remove him from the assignment as chief of investigators.”11 The president of the state NAACP, Donald Lee, had also called for Williams’s removal.12 Prisoner lawyer Herman Schwartz not only went public with his objections to the Fischer investigation, but he made clear that, legally, the way Williams was running it was “a violation of the inmates’ constitutional rights to equal protection under the law.”13
A few weeks into the start of the investigation, Fischer’s own man, Tony Simonetti, also grew increasingly vocal “that it was inappropriate for a State Police official who had been directly involved in the retaking events to play any role whatsoever in their investigation.”14 Williams simply wasn’t cooperating with him. When Simonetti asked Williams to turn over all reels of tape that the State Police had recorded, he “made available two reels of eight millimeter film,” but refused to turn over the originals. Doing so, Williams said, was unnecessary because they had been “reproduced in their entirety on the two reels furnished.”15 It became clear that none of the materials the BCI needed would be easy to get if it had anything to do with troopers, guns, or shooting. NYSP recalcitrance with Simonetti’s office was only a real problem, however, if the state was going to start digging into crimes committed by troopers at Attica. And, at least initially, Fischer and Simonetti had little interest in doing this. When it came time to get the BCI to hand over information it had collected that might be used against prisoners, Simonetti’s office had a great deal of cooperation.
Officially, Simonetti’s office was tasked with four main areas of investigation: crimes related to the rebellion itself, including the taking of the hostages; deaths that occurred in the prison prior to the retaking; deaths and injuries that resulted from the retaking; and abuses that took place as the prisoners were rehoused. Yet for reasons that many outsiders couldn’t quite grasp—since the most death and injury took place during the retaking and after—Fischer asked Simonetti to train his attention first on “the question of conspiracy to cause riot.” And then, with equal zeal, his team’s resources were to be devoted to investigating all homicides that had occurred prior to the assault—in other words, those that could not have been committed by troopers or COs.16
Indeed there were prisoner killings prior to the state’s retaking for Simonetti’s office to investigate: CO William Quinn had died from the beating he suffered in the initial rioting, and three prisoners were murdered at some point during the uprising.
From the very first day of the uprising, men like Roger Champen had done an extraordinary job of minimizing violence and making D Yard a safe place for all. He and the security team had taken great pains to prevent the sexual coercion, revenge attacks, and drug use that might otherwise have wreaked havoc with almost 1,300 men in a space that was roughly a hundred square yards. But the longer the rebellion continued, and the more hardened the state’s position became, the more suspicion and fear began to take their toll. For prisoners Kenneth Hess and Barry Schwartz, who were accused of treason and taken to a cell in D Block after speaking with reporter Stewart Dan, the rising paranoia had proved deadly.
On Saturday night a prisoner by the name of Sam Liggits, known by his friends as “Bug-Eyed Sam,” had been summoned to D Block, along with another prisoner named John Flowers, to tend to some lacerations suffered by detainee Barry Schwartz. When they arrived Schwartz showed them some serious gashes on his arms and feet and told them that his captors had been throwing broken glass on him. While Liggits held a flashlight so that Flowers could see what he was doing, Flowers stitched him up.17 Sometime later that night, well after Flowers and Liggits had left, a group of elderly and infirm prisoners who had chosen to bunk in D Block since the riot began happened to walk by cell 3 where Bernard Schwartz was being held. These men, shuffling slowly with their arthritis, were literally stopped in their tracks by the gore inside.18 According to one of them, “I saw a white inmate lying or lied with another inmate on top, half on top of the other man, both covered with blood, the man on the bottom didn’t seem to be breathing, the man on the top was breathing like he was gasping for breath. Both men were laying face up, head toward cell doors.”19 Sometime after Liggits and Flowers had left the block Schwartz had again been attacked, and was now dead, and someone had moved him into the same cell wit
h Hess, who had also been stabbed repeatedly.
Although the terrible events unfolding behind the scenes in D Block escaped the notice of everyone outside in D Yard, on Sunday morning one of the state troopers who had been watching D Block noticed that something unusual was happening on one of the tiers. A prisoner was trying to get his attention from an exterior window in D Block. This trooper notified several of his men, including two sergeants, who, in turn, walked closer to the D Block wall. Upon closer inspection he could see that a prisoner had managed to wedge himself into the small opening between the window and the bars that covered it. He was wearing a bloody T-shirt and “what appeared to be a bloody towel or rag around his throat.”20 Although the prisoner was having great difficulty breathing and his voice came out in a rasp, a correction officer also standing there began firing questions at the distressed man. No one there could make out the man’s name, something like “Glass,” they thought.21 They could clearly see, though, that he was asking for their help.22 Unsure what to do, a trooper told the prisoner to lie down, and that they would try to get some assistance. This trooper then dutifully reached a sergeant, who tried to request a vehicle “for the purpose of pulling out the window board,” and he was then “told to stand by but nothing ever happened.”23
The bleeding prisoner was Kenneth Hess. About thirty minutes later, he reappeared at the window and, to the surprise of those troopers still watching, he began climbing up in slow motion, again wedging himself between the window glass and the outside bars but now trying to reach the window on the floor above. According to trooper reports he “appeared to be in extreme difficulty…[and] on reaching the second floor, [he] rested on the window and again entered into a conversation [with them].”24 It began to dawn on the troopers that this man might have been stabbed so they began questioning him about who had attacked him. “He merely shook his head negatively.”25 They watched him leave “the window after a few minutes and [he] was never seen again.”26 Although this incident was quickly reported to state officials, the troopers and COs were, as one put it, “extremely suspicious that he might be walking into a trap and that the man in the window was merely used as bait to get them close to the building.”27 It was not a trap. Three men, Kenneth Hess, his friend Barry Schwartz, and Mickey Privitera—who had been acting crazily in the yard and subsequently was sent to the third tier of D Block for the protection of the men assembled outside—were being held against their will and were in real trouble. By the time the state retook Attica, all three were dead.
It was ironic for the state investigation to focus on these killings with such zeal, when the state had seemed to care little about them as they were happening. Robert Fischer explained that Simonetti’s investigation should be oriented first and “primarily toward inmate crimes,” because “the initial silence of inmates in this regard has to be broken through early or not at all.”28 As important, he wrote to Attorney General Louis Lefkowitz, the deaths that had happened at the hands of prisoners were “simply more obviously homicides.”29 Because BCI investigators were the ones conducting the legwork of the investigation, there was plenty of “evidence” being found against prisoners.
But just as Simonetti’s office knew that the NYSP wasn’t being aboveboard turning over evidence it had collected against troopers, it was well aware that the evidence the BCI was collecting on prisoners was highly problematic. For one thing, its interrogations were being conducted without regard to prisoners’ legal or civil rights. Even though BCI investigators were repeatedly warned, even by Fischer himself, to make sure prisoners’ rights were protected during questioning, they ignored him. The violations of rights were so egregious that as early as September 17, Fischer insisted that Captain Hank Williams order his own investigators to stop all prisoner interviews.30 He did not. Even Rockefeller later admitted that the BCI had not been “following what appeared to have been a direction by Fischer that Miranda warnings…should have been given to inmates before they were interrogated.”31 Rockefeller’s lawyer Michael Whiteman also acknowledged that the state police were “proceeding contrary to the directions that had been given…that they were conducting interviews with people or doing things they hadn’t gotten specific clearance on from Fischer.”32
Even if Fischer had been able to rein in the BCI investigators, there was still the problem of how Mancusi’s COs were treating the prisoners that had been enlisted to help build criminal cases against their fellow prisoners. At least officially, Fischer tried to bring Mancusi in line as well, writing, “As you are aware…it is my function to gather evidence in regard to any criminal violations relating to the ‘Attica Riots’ and assure that these violations are prosecuted according to law. Any attempt by any officer to penalize inmates in any other manner can only interfere with the proper prosecution of those inmates who may have violated the penal code.”33 Mancusi obligingly wrote a memo to his staff that read, in part, “As I have emphasized in the past, despite recent events at this facility, any officer who undertakes any abuse of inmates not only does himself a disservice, but may interfere with proper prosecution of those criminally responsible.”34 As for actually monitoring his own COs’ behavior, however, he passed that buck to Deputy Superintendent Leon Vincent. And the violations continued.
Beyond the issuing of internal memos, neither Fischer, Simonetti, nor eventually Lefkowitz, did much to prevent such abuses. The fact was, they relied heavily upon the intelligence that such violations netted them. With few attorneys there to protect the prisoners’ right to remain silent, and with even fewer monitors in the prison to make sure that they weren’t being threatened, intimidated, and physically hurt, throughout 1971 and into 1972 the Attica investigation proceeded most aggressively.
32
Stick and Carrot
Simonetti paid little attention to the cases of BCI interrogation–related abuse that prisoners repeatedly brought to his attention. The fact was that the endless months of interrogating prisoners were netting his office the very prisoner-witness accounts it would need if it wanted to move to begin indicting prisoners—clearly what the higher-ups wanted. From the earliest days of the investigation, this disinterest in prisoner claims of abuse was mirrored by his boss, Robert Fischer. Back in October of 1971, Fischer had actually asked Governor Rockefeller to contact U.S. Attorney General John Mitchell about the possibility of the Justice Department beginning its own, separate investigation to see if prisoners’ claims of abuse and illegal acts of law enforcement had any merit. The Justice Department agreed to take a look.1 But when the U.S. Justice Department informed Fischer that it had a witness to a terrible assault on an inmate with a Phillips head screwdriver, Fischer “advised that he had no information regarding the incident described by the National Guardsman,” and stated firmly that “there has been no medical information brought out which would substantiate any prisoner being wounded in the rear end and by being stabbed with a screwdriver.”2
Whether they liked to admit it or not, everyone at the Attica investigation was aware that abuse and intimidation were key to persuading Attica prisoners to agree to testify against their own. Consider one witness whom Simonetti’s office looked forward to calling in its grand jury case regarding the killing of Barry Schwartz: prisoner Edward Kowalczyk. On the day of the retaking Kowalczyk had been shot seven times, and then was beaten savagely by correction officers—so badly that a National Guardsman intervened on his behalf and got him taken to Meyer Memorial Hospital. But only a day later, while still heavily sedated and clearly in critical condition, he had to deal with BCI investigators. They pointed guns at him, threatened to pull tubes out of him, and said they would poison him. Finally, sick with fear, he agreed to cooperate.3 He would say that he saw who killed Barry Schwartz.
Simonetti’s office also had to know that a combination of abuse and bribery was used to convince Charles “Flip” Crowley to go before the grand jury in another case they hoped to make against one of his fellow prisoners at Attica. On September 17, 1971, Cr
owley recounted, “I gave an interview under an atmosphere of the most intense terror that I have ever seen. I gave an interview, indeed, to save my life. I felt and knew within myself that had I not spoken to the two officers of the law at the hospital that I would not have been allowed to live.”4
The two officers who came into Crowley’s hospital room told him they knew he’d been having a hard time and were willing to transfer him out of Attica to a “safe location” where he would not be harassed by correction officers or state troopers. In return, though, “they had certain pertinent facts” that they wanted him to confirm for them.5 When he was unable to do so to their satisfaction, according to Crowley, the officers “proceeded to beat me and they beat me for at least a half an hour. During the course of the beating I was made to crawl around on the floor and shout White Power and kiss their feet…this went on for two days.”6 To Crowley’s shock, a clergyman had seen the whole thing—but when he begged this man for help, according to Crowley the clergyman just “bowed his head, and walked out and left me there.”7
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