Without money for payroll, and with the state routinely refusing to hand over materials expeditiously—even when required by law to do so—the ABLD relied heavily on volunteer labor to track down everything it needed. The prosecutor’s office dragged its feet giving the ABLD the names of the many Attica prisoners whom it was relying on as witnesses; so ABLD volunteers spent “some 800-odd hours of office work simply on the identification, classification, and organization of those photographs of Attica inmates.”11
Fundraising quickly became another full-time job of the ABLD.12 A key source of funding would come from those Attica Brothers who, having managed bail thanks to community groups such as FIGHT, could travel to campuses and community centers to speak about their defense efforts. Some of the men who had been less visible during the rebellion itself now took an active role in fundraising. One such was Attica Brother Akil Al-Jundi, who was the featured guest at an event at which movement celebrities Amiri Baraka and Afeni Shakur also spoke.13 Similarly, Frank “Big Black” Smith drew a huge crowd on the campus of Eastern Michigan University on September 12, 1972.14 Big Black had been paroled in August 1972, was then indicted and released on bail, and, after going back to Brooklyn and getting married, he came to Buffalo determined to work hard on the Attica defense. His talks around the country generated a great deal of support for the Attica Brothers.15 Even if one of the indicted prisoners couldn’t himself show up at a given event, organizations from coast to coast found ways to hold fundraising benefits or vigils on their behalf.16
Attica Brothers such as Akil Al-Jundi also approached various groups to suggest how they might help raise money for the defense through their own activities such as “leaflettings, pamphleteering, buying pamphlets, buttons, the holding of bake and cake sales” and “drawing up petitions to be sent to the courts, the Governor of New York State, the President of the United States, State senators, United States senators, Congressmen/women, and the United Nations to help us win.”17
Even the prisoners who were still locked up, but not facing indictment, tried to assist the Attica Brothers’ defense effort. One prisoner wrote to the organization RESIST expressing his concern for the many men now “facing serious charges,” and he requested that its newsletter print the ABLD fundraising address “in every issue till the trials are over” as well as give a “grant of $1,000 to the Attica Brothers’ Defense Fund.”18 Thanks to suggestions of this nature, a variety of publications ended up helping ABLD fundraising efforts. The Syracuse Attica Coalition, for instance, published a lengthy piece called “Attica Is All of Us,” which was chock-full of information on the Brothers, and also promised that “all profits from the sale of this brochure go to the Attica Brothers Defense Fund.”19
As an organization, the ABLD made regular pitches to anyone it could think of who might give money to help the Attica Brothers. Don Jelinek, legal coordinator of the ABLD, wrote in one November 1973 letter that “help is desperately needed. To mount the kind of defense that is required will take hundreds of thousands of dollars. Please write the largest check that you can. Your contribution is important. ATTICA needs your support.”20 In another instance the ABLD asked very specifically for “$4,575 seed money to begin preparing the defense of those charged with the Attica rebellion of September 1971.”21
A number of community and religious organizations also made pitches on the ABLD’s behalf. The Task Force for Humanity in Criminal Justice implored countless legislators to appropriate more funds to the Attica defense. A few offered support, but others forcefully indicated that they wouldn’t consider spending “one dime to help defend these Attica criminals.”22 When New York got a new governor, Malcolm Wilson, after Rockefeller became vice president, the American Baptist Churches of Monroe Association boldly asked him as well to “use the good services of this office to insure adequate funding for the use of the Attica indictees,” but his office was loath to get involved in something so politically charged.23
Media celebrities and other wealthy people were more willing than elected officials to make the Attica Brothers a favorite cause. At one fundraising party held in an apartment at 610 West End Avenue, attendees were promised that famed Black Panther Angela Davis would be in attendance.24 Other Attica bashes were held in swanky New York apartments and in posh houses in Amagansett, Long Island. One, at writer and media personality George Plimpton’s house on August 20, 1972, boasted seventy-five guests and had been organized by the wife of Victor Rabinowitz, a lawyer known to take on dissident causes.25
By mid-1973, with publicity on the rise and monies finally trickling in from various sources around the country, the ABLD was able to begin its herculean defense effort in earnest. There were by then about fifty-six people on staff who, when possible, were making about $50 a week for their round-the-clock work.26 In addition to living in the house in Victory, Attica lawyers and volunteer workers also occupied at least five other communal houses in Buffalo. One of these, set up by Chicago-based ABLD lawyers, was referred to as the “Linwood house.” It had six huge bedrooms plus a large space on the third floor that everyone called the dormitory because it could sleep nine to ten. At least two dogs roamed freely around the house while Attica defense work went on day and night. Another house on the same street, also filled with ABLD volunteers, was known affectionately as “Little Linwood.” On Auburn Avenue yet another house was filled with Attica lawyers and volunteers, this group primarily devoting its energy to the issue of securing fair juries for the trials. At the house on Mariner Street, Big Black Smith lived with various defense volunteers, and at the communal house on Ashland Street, still other legal volunteers lived and worked around the clock.
There were many tasks that these defense workers had to accomplish quickly, since any of the sixty-two Attica Brothers’ trial dates could be set at any time. The ABLD first needed to find and interview witnesses—either to crimes that the Brothers were accused of committing or to crimes committed by law enforcement, since, it was hoped, jurors’ attention could be focused on those too. The ABLD also needed to file as many motions as possible, in as short a period of time as possible, both to force the prosecution to turn over critical discovery materials, and also to bury that same prosecution in paperwork. They wanted the state of New York to be forced to defend everything, from the coercive tactics it used with witnesses in building its cases, to the specific charges it had leveled against a given Attica Brother, to the jury pool it was counting on to convict those same men. By the summer of 1974, after nearly a year of working feverishly to file countless discovery motions, motions for dismissal, motions to change venue, and motions to get the Attica Brothers still imprisoned in HBZ released into the general prison population, the ABLD succeeded in its goal of burying the prosecution in paperwork. The stack of papers was so large that Simonetti’s office needed a dolly to wheel the papers before the court.27
The ABLD was particularly eager to learn the fate of two motions it had filed—one to change the venue of the Attica trials, and the other to force the state to turn over any evidence it planned to use. The ruling on the change of venue turned out to be a partial success. Whereas the judge refused to consider moving the trials to New York City, as some in the ABLD had hoped, he would move them further from the prison to Buffalo in Erie County. Buffalo, at least, was a big city and it had far more racial diversity, as well as a major university. The result of the ABLD’s motion for discovery was an even clearer triumph for the defense. This motion, argued for more than five hours before the court on July 10, 1973, was critically important because, as Don Jelinek explained, if “granted by the court,” prosecutors would be required “to turn over massive information, facts, documents, and tangible evidence in preparation for the trial.”28
Whereas the venue motion was argued before Judge Harry Goldman of the now disbanded Goldman Panel, this discovery motion came before Judge James O. Moore—a man completely unknown to the ABLD. To its relief, though, while the Attica defense didn’t win access to all of
the evidence that the prosecution had, it nevertheless won a remarkable amount. Even better, Judge Moore ordered that the prosecution must copy all of this material, with separate batches for individual lawyers, at its expense. Since the state had levied nearly 1,300 crimes charged in forty-two indictments of sixty-two prisoners, who, in turn, now had at least seventy lawyers working for them, state prosecutors were dismayed by the “many hundreds of copies of everything” they would now have to produce for the defense.29
Although it had enjoyed some success with certain key motions, the ABLD also experienced some serious setbacks. For example, its motions to disband the Attica grand jury so that no additional Attica prisoners could be indicted failed.30 As important, none of its motions to dismiss cases were initially successful either. In one such motion to dismiss more than a dozen indictments, defense lawyers had argued that their clients’ “right to a speedy trial [was] denied” and, more serious, that the “Grand Jury [had] used illegally coerced testimony” to indict their clients and, thus, that “the evidence before the Grand Jury was not sufficient to establish offenses charged.”31 None of these arguments swayed the judge.
Attica Brothers such as Big Black took the failure of the ABLD’s various motions to dismiss as simple confirmation that the judges were working hand in hand with Special Prosecutor Simonetti “and his political masters, chiefly the former governor of New York, Nelson Rockefeller.”32 Many other Attica Brothers shared this suspicion—particularly those who had been locked up in Auburn’s segregation wing since their indictment. Although several of these men had managed to get out of segregation by being paroled or making bail, including Big Black and Champ, most remained. By 1974 over eighty of Attica’s men in the HBZ at Auburn had been there for at least nine months, and none of their motions asking to be released to the general population—those who had been indicted or not—were successful. Auburn’s superintendent had merely to let the judge know that at least twenty-two former Attica COs (three of whom had been hostages in D Yard), were now working at Auburn and also that forty-two of Auburn’s own COs “had been assigned from Auburn to assist in the restoration of order at Attica,” to persuade him that it simply wasn’t safe for his staff to let the former Attica rebels out of segregation.33
The good news was that every person who had come to upstate New York to help in the ABLD defense effort was determined to keep fighting to get all of Attica’s men out of segregation and to get all of them who’d been indicted acquitted. There remained, however, significant differences of opinion regarding exactly how this latter fight should be waged.
36
A House Divided
At the very first meeting of lawyers committed to defending the Attica prisoners, in Buffalo on September 13, 1971, it was clear that there were serious tensions—generational, political, cultural, and strategic. Liberal lawyers like Herman Schwartz and William Hellerstein had fought bitterly that evening with younger, more radical law students and lawyers over how best to help the prisoners. As Hellerstein remembered it, he was simply “trying to figure out what we could do legally” to help the men inside, but there was much conflict in the group because others felt that, in addition to legal work, people needed to be organized politically around what was happening to the men in Attica.1 As Schwartz explained his position, “We were not as interested in the politics as we were in the issue of civil rights and civil liberties unto themselves.”2
But over the next few years, both legal and political work around Attica did manage to happen in concert, and all lawyers involved with Attica worked hard to do whatever was needed to represent the men behind the walls of Attica and Auburn. Minimizing factionalism was a key motivator when activist and more mainstream lawyers alike came together in 1973 under the auspices of the Attica Brothers Legal Defense. Agreeing to hire one person to coordinate that defense reflected their optimism. Nevertheless, tensions between more mainstream lawyers such as Don Jelinek and the more radical lawyers and young law student activists repeatedly threatened to undermine ABLD cohesion.
By and large, it had been the younger, more radical elements—the forces that had resisted men like Hellerstein and Schwartz in 1971—that had stayed on in Buffalo, both collecting evidence to help the Attica Brothers and also keeping media attention trained on their fate. These men and women had always been suspicious of more “establishment” lawyers, fearing that they would forgo the politically powerful lessons that could be taught and learned from Attica.
This was exactly what lawyers such as former Attica observer William Kunstler thought when he agreed to act as a defense lawyer for the ABLD, as did another self-identified radical attorney, Dennis Cunningham of the People’s Law Office in Chicago. As then law student Elizabeth Fink remembered it, defending the Brothers was not just about trying to prove that they hadn’t committed a crime, it was also about going on the offensive and investigating the state and its wrongdoings, because “politics belonged in the courtroom.”3 As for the upcoming trials of the Attica Brothers, the key would be to make as much noise as possible about how these men were being railroaded by the state by making sure, for example, that “hundreds of people demonstrated in Buffalo where the trials were to be held.”4
Because not everyone who had come to Attica to assist the indictees agreed with this view, two defense camps existed at all times. One insisted that the attorneys should mount effective and straightforward legal arguments of the Brothers’ innocence only, and one argued that attention should also be trained on the reprehensible actions of the state both in and outside of the courtroom, and where even the illegal acts of prisoners might be defended as justifiable given the broader repression of that same state.5
Without question Don Jelinek included himself in the former group. The focus on the politics of Attica, in his view, was mostly just grandstanding and a distraction from the grunt work of filing motions and doing the legal research that would lead to sound arguments in court. Even worse, he feared, such tactics might end up alienating the very jurors the Brothers would be relying on for acquittals. NLG lawyer Ernest Goodman tended to agree with this view and worried as well about the “considerable differences of opinion” among those working on the Attica defense. He, however, felt it important not to draw a line in the sand and, instead, to really think through how cases ought to be handled, the role of the lawyer, the relationship between attorneys, the Brothers and the legal workers, and the correct approach to a ‘political’ case.”6
Even the sixty-two Attica Brothers themselves were at times deeply divided over questions of strategy. By 1973 when most of the pretrial work was taking place in the ABLD, clear camps were developing in the prisoner ranks as well.
For example, Big Black was close with some of the more radical attorneys, like Dennis Cunningham, and he argued strongly for making the trials as political as possible. He felt that Attica’s main defense struggles should not “be waged in the courtroom” but instead belonged “in the communities and in the street,” because the law did not serve “everyone’s needs on the same level” and, thus, there was no guarantee of fairness let alone victory in the courtroom.7 The system needed outside pressure to respond to injustice meaningfully.8 Big Black was so disillusioned with the more legalistic strategy of men like Jelinek that he came to create his own defense group, the Attica Now Collective (ANC). This group did not break formally from the ABLD but focused its attention on political work. Eventually this group would include Dennis Cunningham as well as another People’s Law Office lawyer, Michael Deutsch, and newly minted J.D.s Elizabeth Fink and Joe Heath. The ANC published a newsletter called Attica News out of a storefront in the heart of the black area of Buffalo; one of the key missions of this broadsheet was to get word out nationally about the Attica Brothers’ cases.9
However, Attica Brother Shango Bahati Kakawana, known by the state as Bernard Stroble, did not see things as his fellow indictee Big Black did. Shango had been indicted for the murders of Barry Schwartz and Kenneth Hess. At
first he too was deeply suspicious of the state and of his chances within any New York courtroom. Yet as his trial date came closer, he found himself gravitating toward a more traditional defense strategy and would come to rely on Detroit’s Ernie Goodman to save him from a devastating sentence. The way Shango saw it, it was impossible to make an effective political point without first winning a legal victory. Further, in his view fighting for one’s innocence in the courtroom—through legal channels—was political because it was a concrete way for him and the rest of the Attica Brothers to challenge their oppression. “I’ll accept A[ttica] N[ow]’s position,” he explained in a public exchange with Big Black, “ONLY if they are prepared to give me other means towards securing liberation.”10 All struggles were legitimate, he maintained, and they needed to take place “in the courtroom or wherever oppression exists.”11
The Attica Brothers also differed mightily in their opinions of the role that they themselves should play in their own defense efforts. Some, such as Willie Smith, Vernon LaFranque, John Hill, and Charles Pernasalice, were content to have outside lawyers do all of the defense work on their behalf, deferring totally to their judgment. But others felt strongly that they must play an active role in their defense and, although they agreed to have lawyers represent them, they insisted on making any strategic decisions in equal partnership with those attorneys. This was exactly how Big Black, Shango, and Jomo Joka Omowale felt, and they joined with lawyers in their own defense. Legally they had every right to represent themselves, and while more traditional NLG lawyers such as Goodman believed that working alongside pro se–designated clients made court appearances awkward, lengthy, and at times confusing, the more radical lawyers such as Michael Deutsch held that it was crucial to let the Brothers speak for themselves. This way, he said, “we weren’t coaching brothers with rhetoric—they came to it on their own.”12
Blood in the Water Page 37