Of all the crimes that had occurred at Attica, prosecutors were most interested in indicting any prisoner involved with the death of William Quinn, the correction officer who had died from the injuries he had sustained in Times Square on the morning of the rebellion. They were also determined to prosecute the men who had been involved in killing prisoners Barry Schwartz, Kenneth Hess, and Michael Privitera in D Block; and they wanted to charge every prisoner who had been involved in taking a correction officer hostage with the crime of kidnapping. Finally, state officials wanted to levy numerous other charges against prisoners for acts ranging from sexual assault to wielding a makeshift weapon.
To get indictments against these men, Simonetti was depending on the testimony given by prisoners interrogated over the preceding months by BCI and his own investigators. And to help ensure that they cooperated, Simonetti wrote to the chairman of the Wyoming County Board of Supervisors, insisting that “we should make it as simple as possible to get such inmate witnesses into the grand jury to testify and then out of the Court house without chance of exposure to the public or press.”6 The result was that those prisoners who had agreed to testify on the state’s behalf were brought to the jury fully hooded so that the public couldn’t see who they were and, once they had testified, were immediately transferred to other institutions, as the prisoners put it, “allegedly for their own protection.”7
Most of the men who had agreed to offer evidence had no intention of backing out—they either were expecting the reward of early release from prison once they had testified, or feared the consequences if they didn’t. As one prisoner put it, “I knew that the things I was saying were untrue…I knew that I was lying,” but once he had agreed to testify, no one bothered him.8 Another witness said, after the terror he’d experienced at the hands of the troopers in D Yard, by “the time attorney generals, or whoever it was, the BCI came to see me, I would have testified to my mama doing something.”9
There were a few prisoners who did have second thoughts about lying to the grand jury and tried not to testify after all. When Flip Crowley was about to be called to the witness stand, he became plagued with guilt; as soon as he arrived at the courthouse he asked to see his lawyer, Barbara Handschu, hoping that she could help him get out of testifying. Instead of allowing him to speak to his attorney, however, a state trooper pulled a gun on him, “a very large gun and looked at me, and looked at his partner and said, ‘Hey did you see that nigger try to jump out the window? Who did you say you wanted to see?’ ”10 Fearing for his life, Crowley cooperated with them. Sure enough, he was later informed that “prior to my coming in, they [members of the parole board] were not disposed to rule favorably…in my way, but…[after testifying] I come quite highly recommended.”11
Jiri Newport, another prisoner who later filed an affidavit saying he “had been tricked into testifying for the grand jury,” also had second thoughts and tried to contact his lawyer, also Barbara Handschu, to see if she could prevent his being subpoenaed by the grand jury to give testimony that he didn’t believe was true.12 He heard nothing. He complained repeatedly about not having representation. Officials responded that he didn’t need a lawyer—nothing he said could hurt him—and that if he “went along with them,” in return he would be transferred to Napanoch, a medium security prison, where “it would be much easier” for him to serve his time.13 Ten days passed, and he still hadn’t heard back from Handschu. Newport “became more apprehensive and frightened,” then “someone from the Bureau of Criminal Investigation” told him that neither Barbara Handschu nor any other lawyer was going to help him and, because Newport was by now “in a sufficiently scared state of mind to believe the suggestion,” he did testify before the grand jury in August 1972.14 It turned out the letter Newport had asked a CO to mail to his lawyer wasn’t sent until the day after he testified.15
Even former members of the observers committee were being pulled into the grand jury proceedings. As Arthur Eve wrote to his fellow committee members, “Something of an emergency is developing because some members of the committee have already been called by the Wyoming County grand jury in connection with the Attica indictments.”16 What was most disturbing to him, as well as to prisoner support organizations and lawyers around the state, was that there appeared to be highly “selective presentation of testimony to the grand jury,” and that no “witnesses who had given contradictory testimony to the investigators” early on in their probe were being called to testify—so the grand jury didn’t even know such contradictions existed.17
State prosecutors were particularly careful to not allow any contradictory evidence before the grand jury when trying to make cases against the prisoners accused of murder. With regard to the killing of Barry Schwartz, state investigators spent endless hours grooming four prisoner witnesses, Dallas Simon, Warren Cronan, John Flowers, and Willie Locke, to say that they had seen one of the members of the rebellion’s security team, Shango (Bernard Stroble), commit the crime.18 Given that grudges existed between men in prison, as in any insular community, state investigators didn’t always need to use coercion to get one prisoner to turn against another. Johnny Flowers told fellow prisoner Ed Kowalczyk while they both sat in a holding pen waiting to go before the grand jury that he was going to “get” Shango, and was eager to testify against him, simply because “he was pissed at [him] because of an argument” they had had when Schwartz had been removed from D Yard and locked up in the cell.19
The jurors never learned that some of the witnesses they heard from had been nowhere near the scenes of the crimes, nor were they told that many of the state’s witnesses had told multiple versions of whom they had seen commit these crimes. By December of 1972, little more than a year after it had first been convened, the Attica grand jury was ready to hand down the first of two major sets of indictments.20 From then on the Attica investigation was awash in funds. While Simonetti may have felt that he’d had to fight tooth and nail to get funding for independent investigators, after the indictments were handed down the amount of money given his inquiry grew exponentially.21 Records indicate that from April of 1972 to March of 1973 he drew $1,910,000 from state funds; from April of 1973 to March of 1974 his office spent another $2,065,000; and between April of 1974 and March of 1975, it went through another $4,546,000.22 By 1974 Simonetti would have a full-time and fully funded staff of twenty specially appointed attorneys general, twenty-eight special investigators, and twenty-seven clerks, stenographers, and accountants.23
Ultimately, the grand jury sitting in Wyoming County returned forty-two separate felony indictments—the first thirty were filed in December 1972, and twelve more followed—that charged sixty-three prisoners with 1,289 crimes.24 A journalist for The Nation noted, “Despite the fact that ten hostages, as well as twenty-nine prisoners, died from the state’s gunfire, the grand jury has not yet found sufficient cause to indict a single trooper or guard.”25
The state’s indictments began with charges for the murders, or attempted murders, of COs (indictment #1 was for the murder of William Quinn; the next indictments were for the attempted murders of hostages Frank Klein and Ron Kozlowski, who were both cut on their necks when the prisoners around them were shot down); and additional murder charges for the killings of prisoners Hess, Schwartz, and Privitera. Then there was a litany of charges: kidnapping, assault, unlawful imprisonment, possession of weapon, sodomy and sexual assault, and more. More than half of these indictments carried a life sentence should the state secure a conviction. And the state, which was very determined indeed to secure those convictions, now began gearing up to prepare for the trials.
Interestingly, other high-level parties also began mobilizing to gather information that might help to make these charges stick. According to a December 20, 1972, memo that the Buffalo office of the FBI received from W. Mark Felt, the acting director of the FBI in D.C. (and later admitted Watergate whistle-blower Deep Throat), had just received a request “for the criminal background of the indiv
iduals indicted whose names have been publicly disclosed.” No one was to know that the FBI was involved in any way in these cases; Felt stressed discretion, and “cautioned” the Buffalo office “that this matter must be obtained in a most circumspect manner.”26 Pressed to reveal who had made this request, Felt disclosed that it was the vice president, Spiro Agnew, who was “interested in what type of individuals, as to criminal history, were involved.”27
Between December 1972 and February 1973, any Attica prisoners who were named in the state’s blizzard of indictments but had already been released—either via parole or because his sentence had been served—were rounded up, mainly during the Christmas holiday, and were placed in prisons throughout the state to await their arraignment.28
To be sure, Simonetti’s office had worked around the clock to indict an extraordinary number of prisoners, and by doing so had clearly suggested to the American public that all that had gone wrong at Attica was down to them. But state officials had underestimated how determined those same prisoners were to defend themselves and to make sure that this same public heard their side. In fact, from the moment that the Attica grand jury had been convened back in November of 1971, a massive prisoner defense effort had gotten under way too. It was nowhere near as well funded as the state’s Attica investigation, but it was as determined.
PART VII
Justice on Trial
ERNEST GOODMAN
Detroit attorney Ernie Goodman knew of the Attica prisoner uprising of 1971, but he was too busy arguing his civil rights and civil liberties cases to imagine lending his services to any of the sixty-two prisoners indicted in upstate New York.
For many years Goodman had been spearheading the legal efforts to ensure that protesters from Mississippi to Milwaukee got a fair trial. Goodman, however, was not what the media would characterize as a “hippie” lawyer. He was older than many of the people now flocking to the legal profession to effect social justice. He was born in 1906 in the tiny town of Hemlock, Michigan, and moved to the big city at the age of five. Life for this Jewish kid was hard. Confined to what was effectively the Motor City’s Jewish ghetto, he grew up in a clapboard structure where they often had bedbugs and insufficient heat. Still, the Goodmans held their heads high, kept a kosher house, attended synagogue regularly, and hoped for a better future for their kids. In 1928 Ernie Goodman made his parents proud by getting a law degree from Wayne State College. From that year forward his mission was to fight for social justice through the legal system.
In 1937 Goodman was instrumental in forming the National Lawyers Guild (NLG), which was the nation’s first racially integrated bar association. Over the decades he would be involved in some of the nation’s most important civil rights cases. In the 1930s he worked on the Scottsboro Boys defense. In the 1940s he supported NLG efforts to prosecute Nazis at Nuremberg. In the 1950s he helped represent the Hollywood Ten, the Rosenbergs, and blacklisted artists such as Paul Robeson. In 1951 Goodman joined African American lawyer George Crockett Jr. to form the nation’s first integrated law firm. By the 1960s he was immersed in school integration cases as well as in the NLG’s efforts to set up offices in the South in order to provide legal support for civil rights activists there.
By 1974 Ernie Goodman was trying to slow down a bit, hoping that his lawyer sons would continue the fight. Yet, when he was asked to come defend an Attica prisoner, he just couldn’t say no. In Goodman’s view Attica was, like Scottsboro, an egregious example of the state’s attempt to frame African American citizens.
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Mobilizing and Maneuvering
No sooner had the Attica prisoner indictments been announced in December 1972 than it became clear that Special Attica Prosecutor Anthony Simonetti was eager to get these to trial quickly. Knowing this, prisoner supporters stepped up existing efforts to provide a strong defense. Back in the spring of 1972, as prosecutors were presenting evidence before the grand jury, former Attica observer Arthur Eve noted worriedly to the remaining members of the observers committee that two of their biggest priorities would be preparing for the trials and drumming up funds for the defendants’ bail and legal defense. With virtually no such monies yet raised to provide help to sixty-two men now facing 1,289 criminal charges—the Attica Brothers, as they were collectively known—this task was daunting.
Back in September of 1971, a number of lawyers had come to Attica from organizations such as the American Civil Liberties Union, the Legal Aid Society, and the National Lawyers Guild and had created an Attica Defense Committee (ADC). The good news was that by December of 1972 there was still a dedicated core of young men and women from the ADC in the area determined to make sure that Attica’s indictees had representation.
As dedicated as this group was, though, by 1972 it was comprised of more student volunteers than lawyers who had passed the bar. As significantly, there was no one in charge who could take on the responsibility of coordinating the larger defense effort. The ADC suspected that the state’s cases wouldn’t be that strong, since so much coercion had gone into securing its indictments. In fact, state prosecutors would eventually drop almost a dozen indictments, even after a trial date had been set, because their evidence was so shaky. Nevertheless, a tightly coordinated defense effort needed to be marshalled, and quickly.
The first major step in doing this was to bring as many lawyers as possible back to upstate New York. The National Lawyers Guild’s annual convention in 1973 would be the ideal place to put out a call.1 The NLG had always been centrally involved in the nation’s major civil rights campaigns, including doing important work in the summer of 1964 when it sent sixty-seven attorneys and countless law students to the South to provide legal support for the Freedom Riders and other civil rights initiatives. The NLG had two significant causes to address at the 1973 convention: Wounded Knee and Attica. Assigning lawyers was simple: a line was drawn down the middle of a huge map of the United States, and it was encouraged that “everyone on this side of the line goes to Attica, everyone on this side goes to Wounded Knee.”2 By making sure that every Attica and Wounded Knee indictee had a lawyer, the NLG believed, the state wouldn’t be able to turn the defendants against one another to help the state win convictions. In the summer of 1973, the NLG began another so-called summer project and scores of lawyers and law students moved into communal houses in upstate New York—one of the most crowded being located in Victory, near Auburn prison, where the majority of the indictees were being held—and began working together on the broader defense effort. By the fall of 1973, attorneys were arriving from cities around the country, including Chicago, Detroit, San Francisco, Boston, and New York. This network of lawyers and law students would soon be filing myriad pretrial motions as well as beginning the arduous task of investigating the state’s claims against the Attica Brothers.
Before any of these efforts could be coordinated, the Attica Defense Committee would need an official director. Dan Pochoda, a lawyer already on the scene in early 1973, contacted his friend Don Jelinek out in California to see if he’d be interested in the job.
Don Jelinek lived in the Bay Area; agreeing to be the legal coordinator of the ADC would mean moving across the country for the indefinite future. But the Attica Brothers were a group of men in dire need of strong legal representation. And so Jelinek arrived at the communal house, in fact a large converted barn, in Victory on March 7, 1973. He quickly realized the challenge he was in for: managing twenty to thirty people, living and working together, all with very different views about how the defense should proceed.
Everyone did agree on one matter: the Attica legal defense effort needed a more formal, more effective, organizational structure. To this end, on September 21, 1973, the Attica Brothers Legal Defense (ABLD) was born. Recognizing the myriad strategic sensibilities and political viewpoints in play, the ABLD was clear in its commitment to doing both the “legal and political work” that needed to be done to help the indicted men and, as important, that “defense funds would be sha
red” so that all lawyers could work under this one umbrella organization.3
The future success of the ABLD hinged on including not just prisoner lawyers, but also local community organizations from the area such as FIGHT and BUILD out of Rochester. The leadership of FIGHT was irked that although they had bailed out many of the Attica prisoners, some of these same men had then been heard criticizing the group for not being radical enough.4 FIGHT’s and BUILD’s leaders, including former Attica observer Reverend Scott, needed to be treated with a bit more respect to feel comfortable lending a hand, according to Don Jelinek.5 By setting up both a “political office” and a “legal office” in New York City, as well as opening official ABLD locations in Berkeley, Rochester, Detroit, Chicago, and Syracuse, the ABLD was able to win the support of these more mainstream organizations, as well as satisfy the radicals.
What the ABLD really needed if it were ever going to take on the state of New York in court was cold hard cash. Four major bar associations offered funds to help the Attica defense: the Association of the Bar of the City of New York, the New York County Lawyers Association, the New York State Trial Lawyers Association, and the New York State Bar Association.6 But this funding never approached that of the state. ABLD lawyers couldn’t even access monies that were legally allotted for public defenders because the judge presiding over the calendar for all of the Attica cases, Carmen Ball, had decided not to release legal fees to any in-state attorneys until their trial had finished and refused to pay any fees to out-of-state attorneys.7 In Ball’s opinion, those lawyers “were contributing their efforts voluntarily with no expectation of reimbursement from the state.”8 And so, although the state had allocated $750,000 for the defense effort (compared with $4,500,000 for the prosecution), by May of 1974, a year into the organized defense efforts, it had yet to release any of these dollars.9 Given that the ABLD was trying to pay for the legal assistance of eighteen defense attorneys and fund at least twenty-eight investigators, all working around the clock, this was a harsh blow.10
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