Whatever their legal standing in their own defense, many of the Attica Brothers came to develop close relationships with their attorneys—including some romantic ones, which generated wholly new tensions between the Brothers awaiting trial. By 1974 there were significant romantic relationships between lawyer Elizabeth (Liz) Gaynes and Jomo, between legal investigator Linda Borus and Shango, and between attorney Barbara Handschu and Mariano “Dalou” Gonzalez. All of these men were still locked up and awaiting trial.
The relationship between Barbara Handschu and Dalou was the first to generate suspicions and tensions among the Brothers. On one occasion a conflict arose when two defendants were overheard besmirching Dalou, suggesting that he was using Handschu to save his own skin and cared nothing for the rest of them. In response, one of Dalou’s defenders wrote to some of the other men awaiting trial, “I for one feel that there is nothing Bro. Dalou would do on a personal level that would subordinate the interest of the Brothers/people to his personal interest,” but others in the group felt that his relationship with his lawyer suggested otherwise.13 Attica Brother Richard Clark, for example, was openly hostile to Handschu and, as she reported to Dalou, he “unjustifiably attacked” with some critical words about her promoting women’s rights when she should be worrying about the “the real struggle at Attica.”14 Whatever jealousies or suspicions her relationship with Dalou generated, Handschu’s myriad motions filed and hours logged on behalf of the other Brothers indicated that she was committed to getting all of them acquitted.
By 1974 virtually all of the Attica lawyers had come to care deeply for the Brothers on a personal level. What the Brothers thought about the lawyers, though, was more varied and fraught. Big Black would go on to have a lifelong friendship with his legal advocates, particularly Elizabeth Fink, and Jomo eventually would marry Liz Gaynes, but Dalou seemed to be much more ambivalent about his relationship with Barbara Handschu. Although Barbara repeatedly expressed to Dalou how passionately she felt about him, writing, “I miss you, perhaps more than you know. Te quiero, b,” his replies were more political and practical.15 As one of his letters to her began, “Power b: With the dialectical understanding evolving in the universe, I greet you with a clenched fist of love, power and solidarity! Palente!” In another, he mostly focused on making sure that she had done something for him (get a letter he wrote on Puerto Rican prisoners to The New York Times) and on ensuring that she did not let on to anyone that they were in any kind of romance. To his fellow Attica Brothers, Dalou maintained that Handschu was merely “a comrade at arms,” who also facilitated “Y.L.P. [Young Lords Party] communications with me and NYC” and who sent him books that were “meant for the collective,” and he signed his letters to her “In struggle: Bro. Dalou.”16
Another source of tension and suspicion among the Brothers was the fact that some of the Brothers had managed to make bail, and were free to speak around the country and work on their own defenses, while others remained locked first at Auburn in segregation and then in the Erie County courthouse jail, where they were all moved in 1974. Shango, for example, did not make bail and as he languished month after month in a tiny cell awaiting his trial, it infuriated him that other indictees such as Richard Clark and Roger Champen were becoming minor celebrities and seemingly living the good life. Worse, he felt that these bailed Brothers were exploiting the trauma they had all suffered in order to become famous. As he saw it, “the death of the brothers was being opportunized by everyone” and certain men on the outside had begun “backstabbing, lying, exaggerating, distorting the facts, projecting false personality’s/politics, etc., etc.” merely so they could “win the attention and favor” of outsiders.17
This sense of betrayal only became more acute when, just as trials were about to begin in 1974, it was discovered that some of the bailed Brothers, namely Herb Blyden and Roger Champen, had stolen ABLD defense funds to feed drug addictions.18 Shango blamed them for causing Big Black to break off into his Attica Now group, since Black now worried that the ABLD couldn’t be trusted to protect the defense funds he and others would need. In Shango’s view, Attica Now had arisen “from the ashes of the burning bank accounts ignited by the greed and lust of so-called Attica brothers Richard Clark, Roger Champen, Herbert Blyden, et. al: media projected ‘leaders’ of the Attica rebellion.” In 1974 Attica Brother Jomo also formed his own defense camp, an organization called Attica Bond to Free Jomo.19
By the time the trials got under way, there were four major camps operating within the ABLD—Big Black’s Attica Now, Jomo’s Attica Bond to Free Jomo, the Friends of Attica Brother Shango group, and those not affiliated with one of these groups who were represented by myriad other attorneys who volunteered their services to the defense.20 Despite these divisions, the ABLD remained a remarkably effective organization.
In January 1974, a highly respected black lawyer named W. Haywood Burns replaced Don Jelinek—who seemed particularly to raise the hackles of the Attica Now–affiliated lawyers and volunteers—as the ABLD’s new legal coordinator.
Burns’s background was no more revolutionary than Jelinek’s. He had graduated from Harvard, received his law degree from Yale, and then served as federal judge Constance Baker Motley’s first clerk as well as general counsel to Martin Luther King’s Poor People’s Campaign. In addition Burns was one of the founders of the National Conference of Black Lawyers. However, Burns was much more comfortable than Jelinek had been with allowing the Brothers to help shape their own defense strategy; thus, the radical lawyers liked him much better. As a sign of this new cooperative spirit, when Burns took the helm of the ABLD, Big Black became the organization’s executive director. Thanks to this new leadership structure, as well as Don Jelinek’s hard work throughout 1973 making sure that crucial pretrial work had gotten done (particularly overseeing the filing of an avalanche of motions that would make later defense work both easier and much more effective), the different defense teams were now able to proceed with the trials as they wished and yet remain under the auspices of the ABLD. Every Attica Brother could count on a remarkable and vast network of people in the ABLD who would work both together and separately to make sure every one of them was ready to face state prosecutors when the time came.
37
Laying the Groundwork
Before trials were to begin in the fall of 1974, the Attica Brothers Legal Defense team still had three major tasks to accomplish. First, it needed to ascertain whether there would, in fact, be a trial for every indictee. The prosecution was making noises that it might consider some deals; given that there were forty-two indictments for more than 1,400 crimes, and that this was well on “track to be…the largest criminal defense effort in American history,” any overtures to dismiss indictments would be welcome.1 Second, if there were going to be trials, the ABLD needed to have completed whatever groundwork could be done ahead of time to make sure that the jury pool would be as representative and reflective of the Brothers as possible. Given the high concentration of prison employees in Erie County, this was a daunting task. Finally, the ABLD needed to make sure that all of its lawyers took advantage of every opportunity that could potentially net the Attica Brothers exculpatory evidence. Under New York State’s so-called Rosario rule, they could request state-held evidence; they could also request that their clients have something called Wade hearings prior to the actual trials. The Attica Brothers particularly wanted these latter pretrial hearings because in them the state would have to disclose how it had identified the defendants—whether their procedures had been aboveboard.2
Whether all the Attica Brothers would in fact go to trial had been a topic of serious discussion between Attica Special Prosecutor Anthony Simonetti and Don Jelinek in early 1974. Even though Jelinek was no longer serving as ABLD coordinator, he was determined to stay involved. Jelinek and the Attica special prosecutor discussed the possibility of plea deals or even the dismissal of indictments. Jelinek had hoped that his talks with Simonetti would lead to what he
later referred to as “the mother of all plea bargains.”3 To Jelinek’s frustration, however, Simonetti kept giving him mixed messages about what would be possible for the Brothers.4
These discussions first began in February 1974 and involved Victor Rabinowitz, former Attica observer Tom Wicker, and Haywood Burns, as well as Jelinek and Simonetti. Initially, Simonetti intimated that a deal might be struck in which no one indicted for their actions at Attica would serve time (including the troopers, if any, who might be indicted in the future).5 By March 4, 1974, however, Simonetti was backtracking on the issue of jail time for the prisoner defendants; he suggested instead that individual prisoners be offered deals determined by a judge. Jelinek rejected this outright, playing hardball: “You know that dismissals are your only route to avoid indicting your people”—meaning that Simonetti would never have to indict state troopers.6 Simonetti weighed his options, ultimately declaring that any prisoner who was interested in a plea deal would have to make it known by April 29, 1974. Jelinek decided to take the decision to the Brothers themselves by secret ballot.7 He was leery of recommending a deal since it wasn’t clear what the terms would be, and he wasn’t persuaded that Simonetti really had the power to make the deals he was hinting at, but he felt the defendants should make their own decision.8 However, Jelinek had not previously sought advice from any of the Attica Brothers regarding the negotiations that had led to this current deal; this made them suspicious. Big Black announced that if someone wanted to take a plea deal they could, but there would be no secret ballot. And that was the end of that. Trial dates were now a certainty.
And so, beginning in May of 1974, ABLD teams were hard at work to make sure that the Brothers would have the least biased juries possible hearing their cases. The primary leader of this effort was a twenty-four-year-old member of the National Lawyers Guild, Beth Bonora.9 Bonora had been inspired by a comprehensive 1966 study of juries that suggested a scientific methodology could be used to make sure jury panels were less prejudiced than they otherwise would be when relying on the usual process of selecting eligible voters. She was interested in seeing if this was something the ABLD could use to help the Attica Brothers.
It was well known that even with a careful voir dire during jury selection (the process in which potential jurors were questioned as to their views and potential prejudices), jurors regularly lied “to make themselves acceptable or unacceptable to one side or the other.”10 Jurors’ prejudices could matter a great deal to a trial’s outcome. Bonora wasn’t alone in thinking that it was possible to do research that would, in turn, impact a jury’s composition. In 1971 a Columbia sociologist named Jay Schulman had published an article that suggested concrete ways a more open-minded jury could be attained. In one particular 1971 Pennsylvania trial (in which the Harrisburg 8—nuns and priests and a Pakistani journalist, all antiwar activists—were tried for “conspiring to kidnap National Security Advisor Henry Kissinger and blowing up steam tunnels under government buildings in Washington, D.C.”), defense lawyers had used so-called scientific jury selection to great effect.11 That defense team had worked closely with social scientists to analyze the community from which jurors would come as well as “to develop juror profiles for use in jury selection.”12 When these efforts led to a jury that favored dismissal of all charges against the eight defendants, progressive lawyers around the country took notice—particularly Beth Bonora. With the Attica trials looming, her “job was to work with social scientists, attorneys, the many volunteers, and community members to put the jury system under the microscope.”13
Thanks to the investigative efforts of Bonora and her team, the ABLD managed almost immediately to get a court order to inspect the jury commissioner’s records that indicated ways in which the jury selection process was clearly discriminatory. For example, “the qualification process used in the office included handwritten notations about the race of black citizens.”14 After a flurry of filing motions, the newly formed “Fair Jury Project” of the ABLD (usually just called the Jury Project) was able to reconstitute the entire Erie County jury pool: “some 115,000 prospective jurors [were] dumped and a new system instituted.”15
Needless to say, this was a major victory. However, few in the ABLD were naive enough to think that the next pool would be much better. It was still comprised of Erie County residents—many of whom didn’t trust African Americans or prisoners. And so Bonora and her team then began the arduous process, recommended by Schulman’s research, of compiling data from surveys of potential jurors that could be used “to select as favorable a jury as possible.”16 Such careful and intensive research into what demographic characteristics generally indicated about a potential juror’s viewpoints yielded the ABLD some predictable, and alarming, information, but also some surprises. On the one hand, in any sample of the potential jury pool, “approximately 23% of the people surveyed felt that they could not accept the court’s instructions concerning the presumption of innocence,” “almost 42% of those surveyed volunteered some form of demeaning racial stereotype in response to a question concerning black people,” and “31% of Erie County voters believe that ‘radicals’ and ‘black militants’ should be imprisoned solely because of their beliefs, whether or not a violation of law had occurred.”17 Unexpectedly, they also discovered that “New York Times readers in Buffalo were not necessarily good choices for the defense.”18
These kinds of tools for scientific jury selection were already in regular use by prosecutors. As Schulman’s guide to successful jury selection explained, similar research was already “regularly conducted by federal and state prosecutors and various commercial investigating services.”19 Such work was much harder for the Attica defense effort, since they had far fewer resources than either group.
It took an enormous amount of both time and money to create a large enough community network to know how a potential juror might view prisoner defendants. If a potential Attica juror was a member of the League of Women Voters, for example, the ABLD Jury Project needed to already have a network in place in that community, which they would canvass to see if anyone knew the juror or shared a mutual acquaintance. Contacts would then be interviewed to determine whether the potential juror had any black friends, had ever used racial slurs, and so forth.20 Undaunted by what it would take to build these networks and score the demographic characteristics of potential Erie County jurors, the ABLD’s legal volunteers got to work. They talked to as many people in the county as they could—meeting them “outside churches, shopping centers, and sports arenas,” and surveying them about their affiliations, religion, heritage, habits, and views.21 In time the ABLD Jury Project managed to sample seven hundred voters from the Buffalo metro area, which had 1,400,000 residents, while keeping the costs down to about “$400.00 in basic research expenses.”22
The Jury Project’s systematic research complemented the ABLD’s other massive investigative efforts. Many in the ABLD believed that in order to defend the Attica Brothers successfully, they needed to know as much as possible about what troopers had done at the prison on the day of the retaking and over the subsequent days and weeks, and also who had ordered and overseen their actions throughout that time. They hoped, in effect, to “put the state on trial” in the Brothers’ criminal trials, and also, one day, to use this evidence in a civil case against the state. Such evidence of trooper violence could also mobilize people outside the courtroom to support the Brothers.23 So, while the Jury Project surveyed Buffalo residents to facilitate jury selection, scores of other young ABLD workers began a sustained effort to interview anyone who had been in D Yard on the day of the retaking and the days after.
The most comprehensive interviewing effort involved National Guardsmen, who had not participated in the retaking but who had gone in shortly thereafter to deal with its carnage. The ABLD managed to obtain a list of about five hundred guardsmen who had been called to Attica that day and decided they would send two people “to a Guardsman’s house, unannounced, and ask to talk to the
m…[hoping to] document the crimes of the state which we knew existed and were not being investigated by anyone else.”24 In addition to locating the rank-and-file guardsmen who had been in D Yard, these ABLD investigators also wanted to speak with the National Guard physicians who might be able to provide firsthand accounts of the medical impact of the retaking.25
The ABLD learned much from the interviews they conducted, including blow-by-blow descriptions of how brutally the State Police had treated the prisoners. However, to their frustration, it was difficult for these witnesses to identify the men who had perpetrated this trauma. The guardsmen usually did not know these troopers’ names. Given that three years had passed and that the troopers had deliberately removed their badges on the day of the assault, it was hard for the guardsmen to remember specific faces from the “hundreds of people running around in uniforms—C.O.s, S.T.s [state troopers], Sheriffs, etc.” on the day of the retaking.26 Nevertheless, the project was considered a great success. ABLD workers compiled the interviews, numbered them, and created an index of the forty or so salient points that had been revealed.27 The ABLD managed to gather crucial information on what briefing and instructions the National Guardsmen had received, their command responsibilities, the way in which medical treatment had been doled out, the gauntlets and beatings they had seen, and how state officials had ordered them not to discuss any of it.28 By the time they were ready to begin pretrial hearings, the Wade hearings that were allowed them by law, the ABLD attorneys were well armed. They had requested an enormous amount of material from the state via countless discovery motions and had set up a complex system for organizing and analyzing those materials.29
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