Blood in the Water

by Thompson, Heather Ann

  39

  Going for Broke

  By 1974 Anthony Simonetti had good reason to feel that his prosecutors could persuade a jury to convict John Hill and Charles Pernasalice—the two young prisoners whom his office had indicted for the murder and second-degree assault of correction officer William Quinn. The case against these two Attica Brothers, the state hoped, would be its most powerful opportunity to justify why it had, to date, focused its energy exclusively on the riot-related actions of prisoners. They had brutally killed a young man for no reason, and his family, prosecutors would show, remained unimaginably traumatized by this horrific act.

  Time had moved on for the Quinn family—the baby that Nancy Quinn had been carrying back in September 1971 was now a toddler named Amy, and her eldest daughter, Deanne, was now eight years old. But time had not healed this family. Not having a husband was not easy in the small town of Attica. Nancy was suddenly without an income and had to ask others for help. She felt deep shame every time she had to go to the local bank and ask if she might have some money from the meager Attica Widows fund that well-wishers had set up, or had to ask someone else’s family to assist her and her girls in some way. What’s more, life as an Attica widow had made her a national curiosity. She was always having to take the phone off the hook to stop the incessant calls from reporters and, as the trial for her husband’s killing loomed, reporters began showing up at the house unannounced. Her own feelings about the trial were mixed. On the one hand, a trial meant that she would have to relive the nightmare of her husband’s death all over again. Yet if the state indeed knew who had killed her husband, and if it could put those men away, then at least she might be able to feel some closure and begin her life anew.

  The two individuals who sat in the courtroom waiting for their trial to begin, however, barely looked like men at all. John Hill, who went by the name Dacajewiah, had been only nineteen years old when the Attica rebellion began. At twenty-two, he still looked like a scrawny kid—although he didn’t much resemble the young men his age in the village of Attica familiar to either the Quinn family or to potential jurors. Hill was part Mohawk Indian, he had long hair, and looked very much like what the media had dubbed a “hippie.”

  That John Hill was now sitting as a defendant in this trial was itself ironic. Hill had been at Attica for less than two months when the rebellion began. The way he saw it, he was hardly a seasoned criminal. As a kid he had robbed a sub shop and had been sent to the juvenile reformatory at Elmira. The only reason that he ended up at that maximum security facility was because, when he turned nineteen, he still had a few months of penance to do. He believed he would be granted parole in October of 1971.1

  When Hill landed at Attica in August 1971 he had been housed in A Block but he immediately began trying to get moved to the metal shop, hoping to learn a real trade before his release. He wasn’t particularly politically active, although he did notice that there were lots of very political people in Attica—“lots of activists coming in from [the] street. Black Panthers. Black Liberation Movement.”2 In the short time that Hill had been at Attica he found himself thinking more about things like discrimination. He couldn’t get over the fact that so many of the white COs there were very hostile to the nonwhite prisoners. As he saw it, their racism wasn’t at all subtle, but instead very “brutal, right in your face.”3 He had been shocked one day when he watched “as two guys were beaten just for talking in line.”4 When the prison had exploded on the morning of September 9, he was not at all surprised. The place was “thick with rage at the guards there—so many beatings, so many lockdowns, so much solitary.”5 On that morning Hill had been in A Block tunnel—at the epicenter of the riot—and he admitted to being part of the huge group of prisoners that surged through Times Square when William Quinn was so viciously beaten. However, from the day he was indicted, he maintained that he had not stopped to beat any guard, let alone beat him so badly that he would die from his injuries.6

  John Hill’s codefendant had been equally young when he came to Attica. Charles Joe Pernasalice was part Catawba Indian. Like Hill, he was a slight 125-pound twenty-two-year-old with longish hair, who had landed in Attica after committing a juvenile offense and, in his case, then violating parole. When the Attica rebellion started, nineteen-year-old Pernasalice had been at Attica for merely two weeks.7 Charley Joe, as he was called, had begun his life behind bars when he was sixteen years old when he tried to run away from his home in Syracuse and stole a bike from a neighbor’s garage. For that offense Charley Joe received a two-year sentence at Elmira. When he was almost nineteen, he was finally released on parole and decided to head to California to live with a group of young people in the desert and start a new life for himself.8 However, he had failed to tell his parole officer that he was leaving the state so when he was later “picked up by the California police for hitchhiking,” he was returned to custody in New York and placed in Attica while waiting to hear his fate from the parole board.9

  No matter how young they were, though, Hill and Pernasalice needed strong representation to face the charges against them. Over the previous years, various ABLD attorneys had made sure that they were properly arraigned and filed motions on their behalf, but for quite some time it remained unclear who would represent them at trial. Ultimately John Hill would be defended by none other than William Kunstler and Margie Ratner, Kunstler’s wife. Hill was “amazed and grateful” by his fortune at securing this help.10 Charley Joe was as thankful when he learned that he would be defended by Ramsey Clark, the former U.S. attorney general, as well as by onetime Attica observer Herman Schwartz and Joe Heath, the ABLD’s newly minted lawyer who had been an activist in Vietnam Veterans Against the War.

  News of the defense’s power team of lawyers sent Simonetti’s office into a panic—particularly Louis Aidala, who was scheduled to try the state’s case. They would without a doubt need to bring their A game. Kunstler had already gained a national reputation from his defense of the Chicago 7, and his work in other high-profile cases had shown him to be loud and uncompromising on behalf of his clients. Ramsey Clark was equally famous, but he cut a very different figure in the courtroom. His style was more refined, perhaps even aloof. He was also quiet. Whenever he questioned witnesses, pacing and gesticulating all the while, Clark would stand very close to the stand and, according to one reporter, could “scarcely be heard across the room.”11

  These defense attorneys were set to face a prosecutor who was also known as “a bit of a showman.”12 Aidala sported “an old fashioned mustache that is curled at each end,” and also argued every point loudly with much gesturing and bravado.13 Aidala had been known to ask witnesses he was questioning to step out of the box so that they might bring the case to life by acting “out the movements of the defendants they have described in their testimony.”14

  State prosecutor Louis Aidala, left, and prisoners’ defense attorney William Kunstler (Courtesy of the Democrat and Chronicle)

  Before any of these lawyers could speak to the jury, however, the ABLD insisted on holding a thorough Wade hearing. It was crucially important in this case to make the state explain how it had come to identify Hill and Pernasalice as the men who killed William Quinn, and their lawyers also very much needed the myriad state documents that would be given to them in the process of conducting such a hearing. The Wade hearing for Hill and Pernasalice was presided over by Justice Gilbert King and the courtroom was always full. As one reporter described it, “in the spectator’s section sit the relatives of the two defendants…others are members of the Attica Brothers Legal Defense organization…and one is an Indian spiritual leader named Mad Bear, who wears a feather headdress in court.”15

  The Wade hearing took months to conclude, but from the defense’s perspective, the time was well spent. They had learned a great deal to indicate that the state’s case against Hill and Pernasalice was shaky at best. It became clear, for instance, that a key state witness had only agreed to testify after being harassed
and coached. As important, one prisoner had never been asked to testify before the grand jury even though he indicated that he had crucial testimony that was in fact favorable to the defendants.16 It also came out that another witness had been interviewed by Attica investigators on February 12, 1973, and made it clear that he didn’t want to be there because he had no information to help them. That mattered not. According to this prisoner, investigators told him “to sit down you bastard you will stay until I decide to let you go” and kept on peppering him with leading questions.17 This same witness said that he then asked for counsel but was informed that he had “no rights.”18

  Another witness stated in affidavits filed in both July and October of 1973 that since his first meetings with the BCI investigators he had “been deeply troubled” by the interrogation methods they had employed—particularly as he had “mounting fear,” was under “heavy medications” because he had been shot seven times, and, thus, was in a serious “state of confusion.”19 He had been hounded and threatened by BCI investigators to say that he had seen things that he didn’t think he had seen, but he was scared to death that if he did not cooperate, the police would kill him.20

  Learning that the state’s identification of the defendants had often taken place when its so-called eyewitnesses were under serious duress, and that even the statements from some of the state’s CO witnesses were contradictory at best, suggested to the defense lawyers that they had a shot at getting this case dismissed. Furthermore, the grand jury had not been able to hear potentially exculpatory material before it indicted Hill and Pernasalice. But Judge King, while not at all pleased with what he had heard over the course of the Wade hearing, maintained that there were insufficient grounds to dismiss the cases outright. Jury selection thus began on January 5, 1975.

  By January of 1975 the city of Buffalo was teeming with crowds of young Attica Brothers supporters from all over the country. In explaining the outpouring of support, the National Alliance Against Racism and Political Repression compared Attica to “certain other villages and hamlets” that had “come to represent for peoples of conscience the world over a name imbedded in history for its savagery and intolerable shame. Ludlow and Dearborn and Gastonia, Wounded Knee and Sand Creek, My Lai in South Vietnam and Simchon in North Korea and now Attica—unnoticeable points of geography, not to be found in an Atlas, but never to be forgotten.”21 And though supporters did indeed see Attica in this broader context, they called for immediate and practical redress for those now standing trial. They circulated petitions that demanded “all further criminal proceedings involving the Attica rebellion be immediately ceased,” and they held marches throughout Buffalo and the nation on a regular basis.22 One “March on Buffalo” originated in a “chartered bus leaving Pittsburgh,” which cost travelers $10 round-trip and culminated in speeches by “Big Black, Haywood Burns, Angela Davis, [and] William Kunstler.”23 These marches, like an earlier one in Buffalo’s Niagara Square, were lively with street theater and huge signs that read “Drop the Charges NOW!,” “Stop the railroad,” and “Free the Attica Brothers.”24 In all the demonstrations there was a sense among participants that Hill and Pernasalice were facing political trials akin to those “of the Panther 21 in New York, the Chicago 7, the Vietnam Veterans Against the War in Gainesville, Fla., Daniel Ellsberg in Los Angeles, Angela Davis in San Jose, California, [and] Bobby Seale in New Haven, Connecticut.”25 By bringing people out into the streets day after day, the people would make clear that they refused to accept these “governmental attempts to continue this openly political use of courts and prisons” just as they “refused to accept the government’s fabrications.”26

  This sort of street activism clearly unnerved Judge Gilbert King. Judge King, described by reporters as “a round-faced man with pink cheeks and a pink-skinned bald dome,” had no doubt that his courtroom’s forty-two spectator and press seats would be filled each day and, having the trial covered by The New York Times, the New York Post, a wire service, and one of Buffalo’s two papers, The Evening News, might well lead to political theater.27 The judge in charge of the Attica cases writ large, Carmen Ball, had already taken key steps to make sure this wouldn’t happen, ordering tight security in the Erie County courthouse and even authorizing the “hiring of additional security personnel.”28 Anyone who caused a disruption during an Attica proceeding in front of Ball, including a young man who refused to lower his clenched fist in solidarity with the defendants, had been summarily “removed from the courtroom.”29 Rumor had it that seats in the spectator section of the courtroom had been removed so that fewer supporters of the Attica Brothers could attend and, according to one such supporter who waited in line most of the morning and had finally gotten in when others left, “ample distances between the rows of seats supported this theory.”30

  Supporters of the Attica Brothers march (Courtesy of David Fenton/Getty Images)

  The security measures at the Erie County courthouse were equally unnerving to the many men and women who were summoned to Room 301 as potential jurors. This level of security implied, not all that subtly, that the Attica defendants and their supporters were highly dangerous—not at all helpful for the defense team. Still, William Kunstler had always had remarkable success in front of juries and he was confident that he could, with hard work, secure John Hill’s acquittal in front of this one. Also, in part because Ramsey Clark felt it was a good idea, Kunstler was willing to work with the Jury Project in this case.

  Unpredictably, however, their willingness to use scientific jury selection techniques backfired. Although investigating potential jurors was not only legal—assuming they weren’t harassed, intimidated, or threatened and weren’t approached personally—and even though prosecutors also did this regularly, a potential juror told the judge that someone had called him to ask him questions about his views that might shape his objectivity in this case. This accusation halted the jury selection process and the Jury Project members were flabbergasted by this claim, vigorously denied it, and believed that someone from the other side had impersonated them to derail their ability to shape the jury in Hill’s and Pernasalice’s favor. When the trial resumed Kunstler decided to scrap use of the Jury Project when picking the remaining jurors.31 In recognition of how biased the Erie County pool was likely to be, Judge King allowed the defense ten more peremptory challenges than the prosecution. The prosecution appealed this decision, however, and these extra challenges disappeared.32 On February 21, 1975, the jury was sworn in with only two African American members.

  The trial began on February 24. Both men would stand trial together, but the lawyers for each defendant would handle things in their own way. Kunstler was guided by one major premise throughout the trial of his client, whom he called “Dac” in honor of his chosen Indian name, Dacajewiah: the jury must hear as much evidence as possible about the state’s ugly actions at Attica rather than focusing exclusively on the he said/he said of the chaotic events leading to William Quinn’s death. This was little surprise to anyone who knew William Kunstler since every one of the cases he had taken on in recent years had been very much a political case, and each time he mounted his defense accordingly. However, Kunstler’s plan to politicize this case did not sit well with some on Pernasalice’s defense team—namely Herman Schwartz, who had been battling fellow Attica lawyers for years now on this very issue of whether politics had any place in the courtroom. Schwartz believed Kunstler was about to make “a dreadful mistake,” because they already had a “hostile judge” and this would further prejudice the judge and the “upstate jury” against both defendants. Whatever the jury thought of Hill and his attorney, he worried, they would also think of Charley Joe. Ramsey Clark also “agreed that it shouldn’t be a political case,” but he felt it was Kunstler’s call as to how to handle his own client’s defense. Upset, Schwartz tried to have himself dismissed from the case, but the judge wouldn’t allow it.33

  Noting Schwartz’s objections, Kunstler proceeded with his plan to bring
before the jury examples of trooper brutality, investigator incompetence, and outrageous actions on the part of high-ranking state officials. Kunstler tried to subpoena Nelson Rockefeller himself so that he could tell the jury the Attica story from the top down rather than from the bottom up. Ramsey Clark agreed that having the jury hear directly from Rockefeller might be helpful to both of their cases—particularly since the governor had repeatedly claimed that Quinn had died from being thrown from a second-story window. This would at the very least make it clear that even state officials couldn’t get their stories straight regarding what had led to Quinn’s death.

  Judge King refused to grant this subpoena, going on record that he simply would not allow any evidence having to do with the state’s actions at Attica to be introduced into the trial proceedings. The state was not on trial, King admonished the defense. And yet, from Kunstler’s point of view, it was—not just rhetorically or polemically, but literally. One key argument that he had hoped to make before the jury was that William Quinn’s death, though clearly due to the head trauma he had suffered on the first day of the Attica uprising, would have been entirely preventable had the state not been so negligent in giving him care. It had taken an inordinate amount of time for state officials to move him from the prison to the hospital, even with prisoners begging them to come get him off the mattress and to medical care. And once hospitalized, he had received slipshod care—he had never been moved to intensive care.34

  Early in the trial it was clear that King wouldn’t budge on this matter, or allow any other tack that Kunstler tried. No sooner had King decided against the Rockefeller subpoena than Kunstler asked him to address a more immediate issue: Kunstler felt that the defendants and the prisoners who had agreed to testify on behalf of the defense were being threatened and intimidated by the many law enforcement personnel the judge had positioned around his courtroom, making the defense’s job hard to do effectively. These tactics were of “an immoral and illegal nature,” Kunstler asserted, and their effect on defense preparation had been “disastrous.”35 Kunstler argued that King needed to arrange for all of the defense witnesses to receive protection as they were ferried to and from the courtroom each day. King denied this motion, too.