Blood in the Water

by Thompson, Heather Ann

  Everyone in Simonetti’s office presumably would have preferred to get prisoner testimony without such egregious acts of force and intimidation, and indeed, to that end, they had made noises from day one about getting Williams’s BCI investigators out of Attica and, instead, hiring their own men to interview prisoners. Ideally, Fischer hoped, Simonetti would have a stable of “NYC detectives who were retired or who could take retirement” to help him conduct the Attica investigation. By November 20, 1971, Fischer had been able to hire nine homicide detectives from the New York City police department.8 But Simonetti still had to rely heavily on the BCI investigators if he had any hope of getting evidence before a grand jury in a timely manner. As Robert Fischer had bluntly explained, “Herein lies the problem—release of the State Police personnel will slow down the completion of the investigation considerably unless the independent investigative staff can be enlarged somewhat. The net result is that instead of being able to report in the early Fall, the grand jury will not be able to present a complete report until much later.”9

  As a few months turned into almost one and a half years, prisoners continued to endure serious investigative improprieties.

  According to one later account of this period in the Attica investigation, the typical prisoner interviews began with investigators trying to get them to identify mug shots of the hundred-plus “pre-selected inmates” against whom the state was seeking evidence.10 Time and again, the prisoner failed to identify the man whom the investigator had already decided to pursue, and so that investigator would push and push—even telling the witness the name of the man they hoped he’d ID. Given enough pressure, prisoners often would cave, ultimately agreeing that they had, in fact, seen so-and-so committing an illegal act.

  Sometimes, though, even leading questions and outright pressuring of prisoners didn’t get them to say what the investigators wanted to hear about a given suspect’s actions. In these cases a slightly different tactic was employed to get them to cooperate. When one very frightened prisoner was interviewed right after the retaking, he dutifully identified a fellow prisoner whose photo investigators kept trying to get him to name as Roger Champen. Investigators were very interested in gathering evidence against Champ because troopers had marked him on the day of the retaking as a leader of the rebellion. According to this witness, however, Champ was a really good guy—he had actually saved his life in D Yard. His fellow investigators, however, kept pushing this man to say Champ had done something illegal. Ultimately frustrated, one investigator exclaimed in disgust, “I don’t want to hear anything about that from them niggers.”11

  When strong-arm tactics still proved ineffective, they switched their approach: should this witness help them, investigators suggested, they would, in turn, help him get paroled.12 In addition to enticing the witness with the possibility of parole, they also promised to make prison life easier for him in the meantime. As this man later testified, one of Simonetti’s own, non-BCI investigators, Ernest Milde, actually put $5 on his commissary account three different times, and he said that this investigator had done the same for at least three other would-be prisoner witnesses.13

  Prisoners were susceptible to the promise of early release, and in time some were paroled “after cooperating with Fischer’s committee.”14 No one from Simonetti’s office decried this practice in which “prisoners and ex-prisoners have been subjected to pressure to cajole them into being witnesses for the state.”15 Nor did anyone intervene when the investigators began offering not only parole, but also commuting sentences and granting pardons.16 State prosecutors merely doubled down on such sweet carrots with some strong sticks. Should a prisoner change his mind later about testifying on behalf of the state, state prosecutors readily reminded him that “the penalty for refusal to testify is 4 years for contempt of court.”17

  Perhaps the greatest incentive for a given prisoner to support prosecutor efforts was neither avoiding a beating nor securing the promise of parole, but was instead the threat of being indicted himself. As stated in a prisoner lawyers’ affidavit, many of the Attica investigation’s witnesses testified for the state because of, among other things, the “generalized threats of future indictments.”18

  This was exactly why prisoner David Hightower ended up cooperating. Investigators first visited Hightower on September 19, 1971, when he was in bad shape, having been severely beaten during the retaking six days earlier. Genuinely thinking they were there to investigate wrongdoings he might have witnessed, Hightower proceeded to tell them about an incident he claimed to have seen in the hospital in the hours after the retaking—a black prisoner being killed by three correction officers.19 Not only did the investigators refuse to take this information down, but they also made it clear he was to repeat this story to no one.20 As Hightower later swore under oath, “The agents from the BCI promised that if I cooperated with them, I would be able to get out of jail quickly; they promised to help me with medical treatment for my eye [but] threatened to indict me for a crime of sodomy that I allegedly committed in the yard if I did not cooperate with them.”21

  Threats, whether overt or subtle, and bribes, whether immediate or promised, worked wonders. Whether or not a prisoner had any knowledge of the event in question or believed that state prosecutors had the wrong man in their sights, they often ended up cooperating. As prisoner rights lawyers pointed out, one such man, Willie Locke, had been interviewed by one of the state’s chief investigators, Ernest Milde, “at least five different times during an 18 month period, and…he insisted for more than a year that he knew nothing about the death of the two inmates found dead, Hess and Schwartz.”22 However, after being subjected to “unrelenting long drawn out pressure, with a judicious use of both stick and carrot,” Locke eventually agreed “to become a half-hearted prosecution witness.”23

  Rather than worry about exactly how Simonetti was building his cases against Attica’s prisoners, as 1971 wore on Robert Fischer focused on the fact that, in his view, Rockefeller’s office was not giving his investigative effort sufficient funding. It particularly irked him that state funds had also gone to the McKay Commission, and he felt that his investigators’ job was much tougher than theirs. Rockefeller’s attorney Michael Whiteman agreed that Fischer’s request for funding should be “reviewed by Budget and Counsel’s Office,” and, on July 5, 1972, Fischer finally heard via Robert Douglass that Rockefeller had approved his request for more funding, although it would be limited to the next three months.24 Eventually, by December of that year, after many back-and-forth battles over his budget, Fischer was able to net the Attica investigation a permanent investigative staff of between ten and twenty men. Meanwhile, the prisoners were trying to cope with the investigation in any way they could.

  33

  Seeking Help

  Fifty-year-old George Jones was so depressed by how he was treated at Attica following the rebellion that at 4:45 a.m. on November 19, 1971, he asked a CO to put him on the sick call list for the next day. Shortly before 6:00 a.m., he “was found hanged in his cell” by his bedsheet.1

  Most of the men at Attica tried instead to protest all that they were enduring through subtle and small acts of rebellion. They refused to eat or shower, take their medications or get haircuts. One man refused his meals as well as his medications on both October 13 and 14, just as he had done on September 18. On October 16 he again refused his meals. Then, on October 17 yet another prisoner “refused noon meal [and] said he would not eat for 30 days” while scores of others refused showers. By the 20th of that month even more prisoners were declining to eat their evening meal or to take medications and showers. Such quiet and largely individual protests continued well into December.2

  Other Attica prisoners fought back more publicly by trying to seek help in the legal system. Many individual prisoners tried, for example, to sue the state for damages.3 By December 14, 1971, 506 Attica prisoners had filed “notices of intent to file claim.”4 Still others exerted pressure on lawyers such as William
Hellerstein and Herman Schwartz to keep fighting on their behalf—not to give up after Judge John T. Curtin refused to grant a permanent injunction against prisoners being interrogated without legal counsel and against their physical abuse.

  When they had sought this injunction, with Inmates of Attica v. Rockefeller, these lawyers were prepared to keep pushing Curtin. For starters, they kept presenting Curtin with additional accounts indicating that prisoners’ rights were being violated in the hope that he would again issue at least a temporary injunction. Curtin ultimately did hold hearings on September 30, October 4, and October 5 to consider their new evidence. There he heard testimony from Vincent Mancusi, Clarence Jones in his capacity as a member of the Goldman Panel, Arthur Eve, and six prisoners, including Frank Lott, Roger Champen, and Herbert Blyden. To the prisoners’ dismay, though, Curtin still concluded on October 6 he could not issue an injunction, “in view of the steps being taken to protect the inmates’ constitutional rights and personal belongings and the absence of evidence of continuation of physical abuse.”5

  And so, prisoners’ lawyers filed an appeal with the second circuit. They also tried to take the issue of the men’s sixth amendment rights being violated straight to the U.S. Supreme Court. They asked Justice Thurgood Marshall to weigh in, but he wanted the whole court to hear it. The U.S. Supreme Court, however, declined to issue a stay on October 12, 1971.6

  Attica’s men, and their lawyers, didn’t give up. Five more prisoners, this time including Jerry “the Jew” Rosenberg, also sought injunctive relief in the court of Judge Curtin, charging that their civil rights were being violated, both because they were still being held in segregation and because they had no legal protections during Fischer’s investigation and had been given “no notice of any charges against them.”7 In this instance Judge Curtin issued an order on November 12, 1971, to force Attica’s officials to respond to the charges.

  And respond they did. Attica’s deputy superintendent, Leon Vincent, testified in Curtin’s court that “38 convicts at the prison were being held in segregation and denied privileges” because they were a “threat to the institution.”8 But he said that no one’s civil rights were being denied because these men “got out in the yard about once a week on the average and had time to walk around it three times before they were led back to their cells.”9 After his testimony Curtin again decided to take some time to make a final decision on these men’s fate.10

  From the perspective of the prisoners and their supporters, Curtin had let them down. In their view this was how things always worked. As they explained it, “this tortuous process of delay, appeals and procedural haggling” was precisely the same type of legal response “that contributed to the atmosphere of total distrust and frustration that led to the uprising of September 1971.”11

  Yet again, these prisoners’ pleas to be let out of solitary ultimately went unheeded.

  And yet, the prisoners’ various legal efforts to get a judge to take their side at Attica had hardly been wasted. On December 1, 1971, the three-judge panel of the Second Circuit Court of Appeals, ruling on Curtin’s original denial of injunctive relief—back on September 14—finally issued its decision. Although this higher court “refused to grant a preliminary injunction that would have barred state authorities from questioning all Attica inmates concerning the recent prison uprising until the inmates had consulted lawyers,” it did overrule Curtin on the issue of protecting prisoners from physical abuse.12

  The author of the decision, Judge Walter R. Mansfield, was unequivocal not only that the prisoners had proven they had endured unimaginable abuses, but that such barbarism must stop immediately. Mansfield wrote that the abuse his court had learned of “far exceeded what our society will tolerate on the part of officers of the law in custody of defenseless prisoners,” and though these men were incarcerated, they were “still entitled to protection against cruel and unusual punishment by the Eighth Amendment.”13 The appeals court’s ruling read as a particular castigation of Curtin’s original decision on this issue. Because “prisoners are at the mercy of their keepers,” the court opined, “preliminary injunctive relief should have been granted against further physical abuse, tortures, beatings, or similar conduct.”14

  Curtin may well have been relieved that he had been overruled on this issue. Indeed some had speculated at the time that Curtin had written his decision as he had—that there was abuse but then not granting the injunction—so that he would be easily overruled by a higher court. As attorney William Hellerstein saw it, “he gave us a way to appeal it.”15 The truth was that Curtin was between a rock and a hard place when it came to Attica. The very same week he was overruled by the appellate court, Curtin had received a letter from a group calling itself Women in Support of State Correctional Employees, saying that they would hold him “directly responsible for any injuries or deaths to correction employees or inmates at Attica Correctional Facility or any other correctional facility that results from any injunction or decision made by you.”16

  Once he had been overruled by the Second Circuit Court of Appeals, though, he had no choice but to issue an injunction—no matter what COs’ wives threatened—and on December 14, 1971, he did. As he stipulated, “defendants, their agents and employees, including State Police and Department of Correctional Services personnel, are immediately prohibited and enjoined from subjecting inmates at the Attica Correctional Facility to physical abuse, torture, beatings or other forms of brutality, from threatening such conduct or from authorizing, sanctioning or permitting such conduct; and it is further ordered that plaintiffs be permitted to maintain as a class action their claim for injunctive relief against brutality.”17

  And yet the abuses continued. A mere two weeks after Curtin’s directive to Mancusi, attorneys from the National Lawyers Guild again had to go back to Judge Curtin and ask him to hold Attica’s COs in contempt for ignoring his December 14 injunction.18 They also wanted federal monitors. In hearings held within Attica prison before U.S. Magistrate Edmund Maxwell, much evidence of contempt was heard, including an incident when Richard Clark had tried to read the injunction aloud to fellow prisoners in an elevator (“a guard cursed him with a racial epithet and ordered him to stand with his nose against the rear wall of the elevator…[when] Clark refused [he] was then confined to a cell for 24 hours a day”).19 Another incident involved a prisoner being “repeatedly subjected to racial slurs, threats and beatings.” Another: Frank “Big Black” Smith had “been cursed, threatened with death, threatened with physical torture and almost constantly harassed by more than one guard.”20 And Maxwell seemed relatively sympathetic to their plight. When prisoners, including Richard Clark, told the judge that four COs had very purposefully “stationed themselves near the thick steel door and barred windows of the room” to intimidate them as they were meeting with him, these COs were “directed to leave by Maxwell.”21

  Although Judge Curtin was more dubious, and deemed these legal claims of contempt “sketchy,” he was willing to amend the injunction on December 23 so that it more specifically enjoined prison personnel from “physical abuse, torture, beatings or other forms of brutality, including verbal abuse and racial slurs, from threatening such conduct or from authorizing or permitting such conduct.”22 Regarding the issue of whether the COs were in fact acting in contempt of his order, Curtin stated that he would need more evidence to issue such a directive.23

  Various jurists’ ambivalence toward Attica’s prisoners in the fall and winter of 1971 made prisoners vulnerable to the investigation being conducted by the BCI and to the indictments sought by Simonetti’s office. Because the courts had failed to put an end to days and months of interrogation techniques that, according to prisoner advocates, “included not only open intimidation, physical torture, threats of indictment and counter-promises of early parole, but also such improper police methods as naming a photo before showing it to a witness for identification,” state investigators were, by the close of 1971, well armed with evidence�
��much of it false, coerced, or corrupt—to take to a grand jury.24 A mere thirteen months after the start of their investigations, the state was ready to seek criminal indictments against more than sixty prisoners.

  34

  Indictments All Around

  An Attica grand jury had been convened less than three months after the prison’s retaking and Simonetti’s office was eager to present the evidence it had collected to this body. This grand jury had been seated in the town of Warsaw, which was in the same county as Attica and housed quite a few COs. State officials had defended this choice of site, a mere “10 miles southeast of the Village of Attica,” by noting that “there is no provision in the law for a statewide grand jury.”1 Supreme Court Justice Carmen F. Ball of West Seneca was named to preside over this special term of the State Supreme Court in Wyoming.2

  Within six hours of hearing this news, attorneys for the prisoners from the National Lawyers Guild (NLG) had moved for a change of venue. By late fall of 1971 the NLG had a substantial presence in the area and felt strongly that the men at Attica would not have a fair hearing in Warsaw since the jury would necessarily be all white and its members would undoubtedly be personally acquainted with some of the prison guards. Judge Ball dismissed the request.3 He also refused to let the NLG lawyers representing prisoners ask vital questions of the prospective jurors about their views on the rebellion or connections to the prison. Thus, when the grand jury first convened on December 8, 1971, not only was it “an all-white jury of 13 men and 10 women,” but nine out of the twenty-three “admitted having friends who worked as guards at Attica” and “two of the nine had friends who were held hostage—one of whom was killed.”4 Furthermore, the foreman, Raymond Becker, had been “a close friend of one of the dead hostages” and ran the Attica school bus system, which also employed prison guards.5