Blood in the Water

by Thompson, Heather Ann

  Although the ABLD lawyers had little idea which cases the state would decide to try and when, they were already spending a great deal of time in Judge Carmen Ball’s courtroom. Virtually every administrative proceeding—particularly the arraignments of the Attica Brothers—packed the courtrooms with ABLD supporters who were often boisterous and were constantly watched by a heavy presence of law enforcement both within the courthouse and on its grounds, which led to a great deal of tension. At Big Black’s arraignment, for example, he became so frustrated with the judge’s seeming disinterest in what he had to say that he had summarily “ripped up his indictment” and accused Ball of being “a ‘full-fledged member of the KKK.’ ”30 The courtroom became so charged in proceedings like this that one young woman in attendance noted in a journal she was keeping: “They’ve changed the water glasses from glass (breakable—a possible weapon) to plastic (almost red in color). Must be at least 50 cops upstairs today. Metal detectors and search downstairs. Each cop has his Billy club. Milling around. Fat bellies. Joking, tense, defensive.”31

  During the various pretrial conferences that followed the contentious arraignments and calendar calls, the atmosphere grew steadily more strained. The Brothers had already waited a long time for the state to decide whether they would even go to trial. Now in these various meetings it became clear that they would not get all the resources they needed to prepare a solid defense—especially if they were representing themselves pro se. At one particularly prickly pretrial conference before Judge Ball, Big Black tried to persuade the judge that he needed money to hire an investigator, reminding him that he had nowhere near the resources to prepare for his own defense as the state had to try to convict him. As he put it, “the only people that had did any work or was authorized to get any money to do any work, had been the state. How can I prepare, really?”32 “Well, Frank,” Ball replied coldly, “these are all problems that you can put on the record in such form as you see fit and they will be reviewed at a proper time.”33 To the judge’s surprise, Big Black persisted. “This ain’t no joke, Judge. How are you going to tell me that I’m supposed to be ready in 60 days, and the state done took three years Judge; I mean is that a constitutional right, a violation? What do you call this?”34 This got Big Black nowhere.

  The Attica Brothers did have one additional way to strengthen each of their cases before their trials actually began, thanks to two landmark cases, People of the State of New York v. Rosario (1961) and Brady v. Maryland (1963), decided by the Supreme Court of the United States. These decisions meant that Attica defendants were allowed to challenge prosecutors’ prior determination that certain materials were not exculpatory in case they in fact were.35 The Rosario material they were entitled to included any statements of state witnesses who would testify at the trial, law enforcement forms that might summarize a witness statement, any signed statements by a witness, and the paperwork prepared by a testifying police officer. In addition, the prosecution was obligated to hand over all of that material before a defendant’s trial began. Additionally, under the Brady decision, “in recognition of the prosecutor’s special access to police and other information,” the Attica Brothers would be entitled to “any exculpatory evidence” the prosecution might hold.36 They were also entitled to any evidence that police officer informants had knowingly lied or that its civilian witnesses might have given false statements or been remunerated for acting as a state informant.37

  However, although “all of these rights are legally absolute,” ABLD lawyers couldn’t count on getting any of these materials. Simonetti didn’t even give them a list of possible witnesses his men might call until “finally threatened with contempt proceedings,” and, according to the ABLD, it still took state officials another full year “to comply with repeated court orders by delivering the names of the probable witnesses, as well as other documents to which the defense was obviously entitled.”38 Even when materials were turned over, the ABLD accused the prosecution of supplying “intentionally inaccurate” inmate identification numbers to thwart defense “attempts to locate witnesses.”39 The state dragged its feet so badly on turning over records that Dennis Cunningham wrote directly to Anthony Simonetti on March 8, 1974, to “remind [him] that, among the many aspects of Judge Moore’s Discovery Order with which your office has not yet complied is the direction Paragraph 10 regarding disclosure of informers in the defense camp.”40

  The most important legal tool the Attica defendants had when it came to crafting a strong defense turned out to be the Wade hearings. In these pretrial hearings, the state was required to show that the procedures it had used to identify the defendants (e.g., lineups, witness interviews) had been proper and legal.41 If the investigators’ procedures were found to have been “unconstitutionally suggestive,” that evidence could be thrown out.42 The defense could benefit twice over: in order to show that its work was aboveboard, the state had to give up the names of those witnesses who had identified the defendants—giving the ABLD lawyers the access they so desperately wanted to these formerly anonymous witnesses.

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  Testing the Waters

  Despite the extraordinary care the ABLD took to prepare for the trials of the Attica indictees, it was allowed to play only a very small role in the first case that made real news, that of Richard Bilello in December 1973. This first case didn’t even go to trial because Bilello took a very public plea to charges of kidnapping, coercion, and unlawful imprisonment. Nevertheless, it was a court proceeding that seemed to say to the nation that Simonetti’s team was making its cases of prisoner guilt with remarkable ease.

  Bilello wanted nothing to do with the ABLD defense effort. A white Attica prisoner with Mafia connections who was already serving a forty-years-to-life sentence for a barroom killing, he saw them as “political lawyers” who “really have no interest in anyone.” As he explained at his arraignment, he just wanted his own “good criminal lawyer.”1 It seemed to the ABLD that Bilello refused to put his lot in with the other Attica Brothers because he feared retaliation from his fellow Italian mafiosi for doing so. Yet Bilello also worried about antagonizing the Attica Brothers if he didn’t stand with them.2 So concerned was Bilello about making the wrong choice regarding his own defense strategy—and which prisoners he was, in effect, siding with—that at his arraignment on December 29, 1973, he begged Judge Carmen Ball “for a court order for protection.”3

  Ultimately Bilello decided to take his chances at going it alone before Judge Ball. Although he constituted quite a pathetic figure as he stood before the court, it was clear that Richie Bilello was not at all shy about speaking on his own behalf. When he finally came before Ball, after spending hours in a holding cell with other Attica defendants waiting to be arraigned, he was obviously seething. “This morning I am shabby in appearance, in shackles,” he said to the judge. “We have been in shackles since seven-fifteen this morning. It is now one twenty-five your Honor.” When the shackles weren’t removed Bilello continued more forcefully, “We must be sitting in a room, worse than any animal, the wildest animal in the zoo has no chains on it….We are held worse than convicted people….[Has the state] put us in a place where [we] lose the presumption of innocence before trial?”4 In addition to pointing out the ugly treatment of the Attica defendants, Bilello also tried to impress upon the judge how few resources any of them had to prepare even a modicum of an effective defense. He was “entitled to one phone call a month,” but in order to track down witnesses and try to prepare his case, he would need access to “a phone sometimes three, four times a day.”5

  Ultimately, Bilello’s defense was that he couldn’t have committed the crimes of which he was accused because he had been in keeplock the entire time of the rebellion. As he put it, “I shouldn’t even be in this courtroom” because “I was in a keeplock cell that I had no key to. Twenty-eight cells away from the front door where they were rounding up hostages, or whatever they were doing. And I am in the courtroom indicted for getting hostages. Th
is isn’t even logical.”6 He had naively written to state prosecutor Maxwell Spoont, begging him to find the corroborating paperwork: “What I am asking for is your personal investigation as to the effect that I speak of….I shall [then] be able to prove I was in keeplock and I shall be able to prove my innocence.”7 But it soon became clear that no one was ever going to get Bilello his “proof”—certainly not the same prosecutor who was trying to convict him—and, without that, he decided to plead guilty just to get the whole ordeal over with.8

  Simonetti’s office was delighted. If things kept going this way, the future looked bright. The state might not get outright convictions every time, but it could clearly get prisoners to admit criminal wrongdoing at Attica—certainly what Rockefeller had wanted to happen when he launched the Attica investigation.

  The future was not so bright for Richie Bilello. On his way to a counseling session at the Clinton Correctional Facility on September 29, 1974, forty-four-year-old Bilello was stabbed repeatedly in the chest and back by another prisoner, mobster Donald Frankos.9 Although even the FBI knew that this had been a mob hit, state officials still tried to imply that his death might have been on the hands of an Attica rebel, stating suggestively: “there was no way to ascertain whether the stabbing was related to the three-year old Attica Rebellion.”10

  Emboldened by Bilello’s guilty plea, Simonetti’s office proceeded right away to take an Attica case to trial—one that given its salacious nature might be won easily and also serve to undermine any public sympathy that clearly existed for the prisoner defendants. As ABLD lawyer Michael Deutsch saw it, by choosing to try this case before any of the others, the state was “really, really trying to prejudice the media.”11 African American prisoner William Smith had been charged with first-degree sodomy and the sexual assault of a young white prisoner. He faced a possible thirty-two-year sentence for subjecting “James Schleich to sexual contact by forcible compulsion” and for having “deviant sexual intercourse with James Schleich by forcible compulsion,” and the case was to be tried by seasoned prosecutor Brian Malone.12 Twenty-seven-year-old Willie Smith’s defense lawyer hailed from Rochester and was known to specialize in rape and sodomy cases. He was, however, not particularly close to the ABLD and had not partaken of any of their pretrial work—for example, he didn’t utilize any of their Jury Project research. Worse, many of the ABLD members did not think much of his attorney; in their view, Smith’s attorney was totally incompetent (for example, not making obvious objections when he clearly should have). Still, the state’s evidence against Willie Smith was so thin, they remained hopeful.

  Jury selection had begun on September 26 for Smith’s trial and, without use of the Jury Project, there ultimately would only be one black juror. Still, things didn’t go at all well for the prosecution. During the first full week of the trial, for example, investigators from the Bureau of Criminal Investigation were called to the stand and, when asked for the notes they had taken while conducting their interviews of the state’s witnesses in this case, they claimed not to be able to do so because “paper shredders had been installed in the prison for use immediately after each prisoner interview.”13 Then, another BCI investigator testified that, for the first time in his seventeen years on the job, “he had been ordered not to take notes during prisoner interviews” because, he admitted, the NYSP wanted to “evade the legal requirement that all such notes be turned over to the defense before a trial as Rosario material.”14 The judge was not at all pleased to hear such testimony and the jurors were bothered by it as well.

  Whereas the ABLD felt that this information alone should have led to Smith’s case being dismissed—since the evidence the state was relying on was gathered in violation of clear-cut rules and laws—ultimately it was a technical error on the part of the prosecution that undid the state’s case against Willie Smith. In short, as ABLD lawyer Elizabeth Fink recalled later, “Brian Malone made a crucial stupid mistake. In sexual cases back then you needed corroboration. There was a statement that Schleich [the victim] had made that they admitted under evidence. But they hadn’t read rules on evidence which said that they couldn’t use this statement as corroboration.”15 Ultimately Justice Frank R. Bayger felt “the evidence was too flimsy to warrant a jury’s consideration” and told the jury pointedly that “the state had failed to provide the necessary corroboration for the testimony of the alleged victim,” and on October 9, 1974, he officially dismissed the charge of sodomy and charge of sexual assault against Smith, thus freeing him.16 When the news broke, throngs of young people gathered outside the courtroom and enthusiastically chanted, “Free the Attica Brothers.”17

  Although the ABLD had every reason to celebrate the outcome of this first official round with the state, the behind-the-scenes story of how victim James Schleich had been used by the state’s investigators was heartbreaking. There was little doubt that James Schleich along with his twin brother, John Schleich, had been raped during the first hours of complete chaos in the Attica rebellion. That very day, they had gone straight to the men in charge in D Yard, begging them to find the perpetrators, which they duly set out to do. Even six weeks later, when doctors examined the brothers on October 27, 1971, they still were clearly traumatized from being “forced into anal sodomy the first day of the Attica Riot.”18 What was equally clear, however, was that the victims of this crime had no idea who the men who had hurt them were and, despite knowing this, the state had proceeded with its case—dragging them, and eventually Willie Smith, into a years-long legal ordeal.

  In extensive and wrenching testimony, James’s brother, John, had told the grand jury the story of what had happened to him and his brother on the morning of September 9, 1971.19 He had seen his brother dragged away to a bathroom by a group of men and then he too was captured at knifepoint and taken to that same remote location where the two of them were raped by “a group of five or six individuals” for “about 30 to 40 minutes.”20 As much as John Schleich wanted the grand jury to know that he and his brother had endured a terrible assault during the Attica rebellion, however, he had been clear with the BCI well before coming to that grand jury that they couldn’t identify their assailants then or later. When they were shown photographs of Willie Smith, neither he nor his brother had ever indicated that Smith was one of their rapists.

  John Schleich had nevertheless agreed to testify before the grand jury because he actually hoped it would address the brutality that state troopers had meted out during the retaking. He told these jurors of his dismay and fear when a trooper had grabbed him and aggressively ripped off his St. Christopher medal, and then snatched his “watch and hit that as a baseball bat—or like it was a baseball.”21 John also wanted grand jurors to know just how terrible it was that the state had placed him and his brother somewhere like Attica in the first place. As he told the jury, he had been placed in this maximum security facility at the age of nineteen for a mere parole violation—for the “unauthorized use of a motor vehicle”; his brother had missed his curfew while on parole for the crime of cutting a hole in a convertible top. John had desperately addressed the grand jury: “I want to know if anything ever going to be done about this stuff going on in these prisons?…There’s a whole lot more kids it happened to….Now, you’re the people, you should be able to do something about this….Is that any place for a kid to be, nineteen years old?”22 Instead of trying to respond to John Schleich’s questions, the jurors had instead chosen to indict Willie Smith.

  Needless to say, losing this case was a real blow to Simonetti’s office.

  Still, Assistant Attorney General Simonetti felt hopeful. His team was reasonably confident that it could convince jurors in the next trial up that Vernon LaFranque had used a gas gun to subdue the hostages. Not coincidentally, LaFranque was yet another Attica prisoner who had not worked particularly closely with the ABLD to mount his defense. At his arraignment on December 18, 1972, LaFranque had entered a plea of not guilty. By June 16, 1973, he had retained Don Jelinek so tha
t he might file some motions, but by the time his trial began LaFranque had gone through two more attorneys.23 Fearing that LaFranque’s defense wasn’t in very good shape, and knowing that the state’s prosecutors were extremely eager to recover from their loss in the Willie Smith case, the ABLD tried its best to stay involved.24

  On December 19, 1974, the state prosecutors were thwarted yet again. A jury comprised of nine women and three men issued its unanimous not guilty verdict after only half an hour of deliberations. In short, they had been not at all persuaded by the state’s witnesses. As an ABLD newsletter explained, “all three witnesses for the state changed their stories several times, and their earlier written statements turned out to be ‘lost.’ In addition, a former prisoner testified that he saw the state’s star witness pull Vernon out of a line of prisoners after the assault and beat him to the ground.”25 Several jurors later told the press “they believed the state’s testimony against Vernon had been fabricated.”26

  Two major trial victories were just what the ABLD lawyers needed to marshal the energy to face the series of far more challenging cases just on the horizon. Such victories were a boon to fundraising, and helped attract several prominent people to put their names on fundraising pleas, including political luminaries Bella Abzug, Julian Bond, Noam Chomsky, Daniel Ellsberg, Jessica Mitford, and Charles Rangel.27

  The next case up would be the most challenging and significant to date for the ABLD—and the state’s most important case to win. In January of 1975, the state would try the alleged killers of Attica CO William Quinn.