Blood in the Water

by Thompson, Heather Ann

  As young ABLD attorney Elizabeth Fink saw it, this was actually a very significant loss in the courtroom. She was helping the defense behind the scenes and when she had recently visited Charley Joe Pernasalice in the Erie County jail, it was obvious to her that he had been badly beaten up. He confirmed that he had been hit in the jaw and then choked to unconsciousness by a jailer. Pernasalice’s condition was so bad that Fink had immediately demanded an examination by an outside doctor, who confirmed that he had been seriously assaulted. The doctor for the jail, however, took exception to this physician’s characterization of Pernasalice’s injuries. Judge King remained unmoved when this matter was brought before him. In fact he chastised Charley Joe for the assault he suffered, saying “you precipitated this incident in the jail by your refusal to follow the normal and accepted procedures that are in force…the ultimate problem lies with you.”36

  The defense couldn’t have been too surprised by King’s lack of sympathy for them. Following a possible security breach a year earlier, the ABLD had enlisted technicians from the Spy Shop, “an organization experienced in the means of electronic surveillance,” to see if they should be concerned.37 These technicians agreed to sign affidavits on behalf of the ABLD indicating that it did appear that their members had been under surveillance by an outside party. Eventually, on February 7, 1975, State Supreme Court Justice James Moore agreed to order an investigation into this possible wiretapping of the ABLD phones. He wrote, “Any intrusion by the government upon the confidential relationship between the defendants in these indictments and their counsel would certainly taint the further proceedings to be had herein.”38 Meanwhile Simonetti’s office filed its own affidavit categorically denying any involvement with the FBI in such illegal acts, saying that “the People have no knowledge or information concerning any such hypothetical electronic surveillance; in particular the People have no knowledge or information concerning any electronic surveillance regarding any telephone instrument of the Attica Legal Defense Group.”39 Then, essentially, nothing happened. The attorney general’s office didn’t even “investigate whether or not any eavesdropping warrants were issued by any court.”40 Kunstler filed a motion before Judge King hoping that he would hold his own evidentiary hearing on this matter, but that motion was also denied.41

  Recognizing that none of this boded well for his and Clark’s chances in defending John Hill and Charley Joe Pernasalice, Kunstler had also appealed to the judge for more time to prepare their defenses. “We have one typewriter, Judge, and we have essentially one legal worker who does typing, who has a part time job in the city, can only come in at certain times. That’s the extent of our modest resources.”42 Again, Judge King stated flatly that this was not going to happen.43 Time and again Kunstler had tried to get a favorable ruling from this judge and had failed, which, over time, led to some serious sparring between them. As one young man in the courtroom observing the trial put it, “The trial often seemed to consist primarily of a conflict between Kunstler and Judge Gilbert H. King…[particularly over] the range of permissible evidence…[and Kunstler] repeatedly question[ed] the integrity of the judge and the fairness of the trial.”44

  Meanwhile, and with tensions clearly running high between Judge Gilbert King and William Kunstler, the state had begun trying its case on February 24, 1975. In short, Simonetti’s office “hoped to prove that Mr. Hill had struck officer Quinn twice with a wooden object, once while the officer was still standing and once as he lay on the floor,” and intended “to prove that Mr. Pernasalice had also hit the officer as he lay on the floor.”45 To that end, Louis Aidala had lined up a total of eighteen witnesses, although he planned to rely on the testimony of five or fewer prisoners and one correction officer.46 The others, including two more correction officers, might be needed, but since none of them said they had actually seen “either of the defendants hit Quinn,” their usefulness was questionable.47

  The witnesses Louis Aidala had hoped would make his case most strongly had all said, at some point in the last four years, that they could place Hill and Pernasalice near Quinn. First the jury heard from prisoner witness William Rivers that he saw “Hill striking Quinn in the head” two or three times.48 A week later, Robert Kopec came before the jury, which eagerly listened as he repeated what he had told state investigators in February 1972: that John Hill had actually said to him that he thought he killed a correction officer that morning in Times Square, “because as he was hitting him with a club, he just lost his mind and kept hitting him and hitting him until blood came out of his eyes, ears, and mouth.”49 Aidala felt that the state’s best witness was Edward Zimmer. He knew from Zimmer’s original testimony before the grand jury that he said he had seen Hill hit William Quinn, and also he claimed to have seen him holding a weapon that was consistent with the injuries Quinn’s autopsy indicated had been fatal. As he had testified then, he had seen “John [Hill] with a two by four strike Mr. Quinn in the upper part of his body. Not in the face. Just below his face, sort of across his chest….Then I saw John strike Mr. Quinn again, only this time it was in the face, I can’t remember which side.”50 As important, Zimmer had also said then that he had seen Pernasalice—whom he referred to as “Chuck”—at the scene of the assault. As he stated, “John, Chuck, Mario, and the black inmates that I know, and the other ones that I don’t know were all kicking and beating the officers after they were already down on the floor.”51 More specifically, he went on, “I seen Chuck with a night stick hit Mr. Quinn, it looked like on the back of the shoulder or across his head. And he didn’t move after that.”52

  Aidala hoped that if this jury could just hear testimony from witnesses like Zimmer, his case would be won—particularly since he knew that the testimony he was going to get from the COs who had been in Times Square during Quinn’s assault was problematic. They all were willing to say that Hill and Pernasalice had been Quinn’s key assailants—eventually—but they hadn’t always said this, and Aidala couldn’t be sure that the defense wouldn’t bring this fact to the jury’s attention.

  However, Aidala wasn’t about to let his whole case hinge on the jury’s believing the stories any of his witnesses told. He needed to appeal to the jurors’ emotions, needed to make clear to them just how brutal the assault on Quinn had been. After bringing all of his people’s testimony before the jury, he called Monroe County pathologist Dr. John Edland as his very last witness.53 There was a certain irony in the fact that Louis Aidala now hoped to benefit from the testimony of a man whom his higher-ups in the Rockefeller administration had worked so hard to discredit. But calling Dr. Edland made sense given that Aidala wanted graphic testimony. Dutifully the ME took the stand and, accompanied by horrifying images that the state had entered as exhibits, reported how William Quinn had suffered from “massive” bleeding in his stomach, as well as fluid in his lungs. His eyes had also hemorrhaged. Ultimately, he died from fractures to his skull caused by “one or two blows to the forehead.”54 Aidala could see that he had indeed impressed upon the jury how terrible this attack on Quinn had been. To a one they looked sickened and appalled.

  Once the defense began its cross-examination of witnesses, however, the prosecution began to run into some trouble. Kunstler and Clark discredited almost every witness that Aidala had called to the stand. Their questioning of prisoner witness William Rivers revealed that he thought he might be transferred, paroled, or even released if he cooperated.55 More devastatingly, cross-examination of the prosecution’s star prisoner witness, Edward Zimmer, revealed that he actually had stated initially to investigators, before they brought him to testify to the grand jury, that he had seen a black man hurting Quinn—a black man who had been kicking him in the face. Later, however, when they asked more about that black man, Zimmer couldn’t remember any clear details about what he saw because, he explained to them, “it happened three years ago, I can’t remember everything that happened.”56 Kunstler noted wryly to the jurors that it was remarkable how so very recently Zimmer couldn�
�t remember a single useful detail about who did what on the day of Quinn’s beating, and now, suddenly in this trial, he could “remember that well.”57 He continued, pulling no punches: Zimmer probably did originally see someone kick Quinn in the face, perhaps even a black man, but this wasn’t what the prosecution wanted him to have seen. A kick could not have caused “the injuries the prosecution claimed caused his death,” and neither of the men the state had indicted were black. And so, Kunstler went on, not only did the assailant suddenly change, but so did the place where Zimmer had seen that assailant’s blow land.58 What is more, he pointed out to the jury, “the prosecution’s Bobbsey Twins” Zimmer and Rivers were so helpful in no small part because these guys had been locked in adjoining cells after the rebellion where they could converse after being interviewed by state investigators, and then were bunked together in the Erie County jail as well as kept at the same motel while prepped for trial. According to Kunstler, “they were a package deal” because the state needed both men to support each other’s flawed testimony.59

  And, as Aidala had feared, Kunstler also made sure to zero in on the limitations of the state’s correction officer witnesses. CO Royal Morgan fingered Hill when he took the stand in this trial and yet, on the day after the rebellion started, mere hours after the assault on Quinn actually had taken place, this then twenty-four-year-old CO had made clear to the state’s investigators that he had been hit badly, things were very fuzzy, and he didn’t know who had hurt his friend. Indeed, when he came upon Quinn, not only was he disoriented and bleeding, but Quinn was already badly injured. At that point Morgan had tried, with the help of Mariano “Dalou” Gonzalez and another prisoner, to get Quinn onto a mattress and to safety.60 Not only had Morgan made no mention of who had hit Quinn in his original statement to state investigators, but when investigators expressly asked him “at any time during this incident, the entire incident, did you overhear any inmate or any person state who had assaulted officer Quinn?” he had answered with a categorical “No, I didn’t. All I heard is that there was an officer that was real bad off and for me to help him and this was when I noticed Quinn on the floor.”61 Yet when this same CO was interviewed again by Simonetti’s office later in preparation for the trial, this time he “picked Hill’s picture from a series of three identification books.”62

  Kunstler also directed the jury’s attention to the testimony of Gordon Kelsey, a correction officer who had been in Times Square with William Quinn when the rebellion began. He too had not identified Quinn’s assailants when asked by an investigator right after the retaking. He had answered the question “Did you observe anyone assaulting Mr. Quinn?” with a reply that he did see him go down, “but as to who it was, I couldn’t tell you. Like I said, it was, there was many of them.”63 He had elaborated, “They all had their hands in on everything and a lot of hollering and yelling, but as far as who it was, I couldn’t say.”64 Then, months later, however, Kelsey changed his tune—telling investigators that he thought it was a white guy who hit Quinn with a two-by-four. Still later, he agreed with prosecutors that the assailant was John Hill, a young man with a noticeably light brown complexion, that had struck Quinn. And that wasn’t the end of the waffling. Indeed, according to the state’s own records, Kelsey later “retracted the identification” of John Hill, “because Inmate Hill did not have a brush cut” and “he felt the inmate striking Quinn had a brush cut.”65 By trial, though, Kelsey was once again willing to say he had seen Hill deal Quinn a fatal blow. As Kunstler said to the jury, “Of course he is sure, because that’s the state’s story.”66

  To further cast doubt on the credibility of the prosecution’s case against Hill and Pernasalice, the defense called its own CO witness to the stand—a man named Alton Tolbert. Tolbert’s testimony was important because although he had claimed to have seen Quinn’s killing back in 1971 when interviewed by the BCI, when pushed by the defense, he now admitted that “he had lied to state troopers in 1971 when he volunteered his account” because he wanted to be transferred to a closer prison.67 He confessed “he had made up the story…to ingratiate himself with his superiors and possibly obtain a transfer from Attica.”68 Two months after the Attica uprising Mr. Tolbert had indeed been transferred to Elmira, his hometown.69 According to reporters covering the trial, when coming clean on the stand, Alton Tolbert “appeared embarrassed and meek” particularly when he admitted that, in fact, he had not seen Mr. Quinn at all on the morning of September 9, 1971.”70 Even though he had claimed to have seen Quinn being hit “with a shovel,” this “was a complete fabrication.”71

  The defense’s own prisoner witnesses dealt even more blows to the state’s case. One prisoner by the name of Everett Burkett (whom Kunstler pointed out had come “forward to tell his story without inducement or promises”) was positioned as quite “a heroic figure” because this short, stocky twenty-seven-year-old with a “Van Dyke beard” might well experience some form of retaliation from the state for cooperating with the defense (perhaps having his parole revoked) and yet still agreed to testify for one reason and one reason only: he knew that John Hill could not possibly have killed William Quinn because Hill had been with Burkett the entire morning that first day of the rebellion. Burkett stated firmly, “In that time he had never seen the defendant hit anyone.”72

  Not only did the defense argue, via Burkett, that Hill couldn’t have killed William Quinn, it also wanted to show the jury that there were in fact legitimate witnesses to Quinn’s beating and none of them had identified either Hill or Pernasalice as the perpetrators. Defense witness Charles Raymond Cratsley testified that he had been right there when Quinn was hit and he “described in graphic detail” how one man had “landed a blow on the forehead.” Even though he wasn’t sure who that man had been, he said without equivocation that it was neither one of the defendants in this case. This man, a white witness the press noted, struck most observers as a more believable figure than the state’s various witnesses had been. As one reporter put it, this witness “contrasted sharply with the prosecution’s former inmate witnesses.”73 Unlike them, this man had received no deals to come and testify even though he now had a very menial job working as a dishwasher in a restaurant in Rochester.74 Kunstler made sure the jury knew that Cratsley had been given nothing but a hotel room and $40 to get himself to the court to testify. As important, he was risking humiliation on the stand because of his low IQ and because he had been originally imprisoned on a rape charge and yet “he still came.”75

  In addition to Cratsley, the defense called two other witnesses who had also identified completely different men, neither Hill nor Pernasalice, as the ones who had fatally beaten Quinn. Kunstler pointed out to jurors that Simonetti’s office had been well aware that these men existed, and that they would have told the grand jury this very different version of events had they been called. That they were not called, Kunstler suggested, was deeply unethical. The eyewitness testimony of prisoner Melvin Marshall would have been a problem for the state’s case, so the prosecution did not allow him to testify. “He saw Mr. Quinn. He saw him hit on the head by what he thought was a two-by-four or a baseball bat,” but “the person he saw was a black person.”76 How certain was Marshall about whom he saw? Well, Kunstler pointed out, he was close enough to see Quinn suffer tremendous bleeding after that hit, but also close enough to yell at the assailant, “ ‘For Christ’s sake, don’t kill him,’ ” which did in fact make him stop.77 The second witness, Joseph Nance, was even more specific that it couldn’t have been Hill or Pernasalice who killed Quinn. This prisoner not only insisted that he saw who beat Quinn, but he had been denied early parole despite his stellar record because he hadn’t been willing to say it was Hill. As Kunstler noted, “He saw the wrong people, he didn’t see the people they wanted to be seen, so Mr. Nance…never got any of these nice benefits.” Pushing the point harder, Kunstler went on, “Why would he lie? He doesn’t know John Hill…what is the motivation for this man?”78

  Bo
th Kunstler and Clark felt that they had put forward a strong defense of their clients. Clark had, like Kunstler, systematically questioned witnesses in such a way that the light shining through the holes in their testimony was bright indeed. It was challenging to defend two different people in the same trial but it had been surprisingly easy to show just how weak the state’s witnesses were. Both attorneys were so confident that the prosecution had been unethical in its efforts to build a case against their clients that they were eager to file motions to dismiss the case before it was time for closing arguments. Arguing his motion with great passion, at times almost yelling, Kunstler said that what “has taken place in this court since the case began on a regular daily basis” has been nothing short of “rank perjury.”79 Not just correction officers had perjured themselves, he suggested, but shaking his head he said bluntly, “I think your honor, what you have in this case throughout, is the fine details planted in witnesses by the state, in what I consider…a totally fraudulent prosecution in order to have somebody answer for Mr. Quinn’s death.”80

  Clark’s motion to dismiss charges—delivered less dramatically—also argued that the state had no credible evidence and that this lack of evidence suggested Charley Joe Pernasalice should go free immediately.81 Clark declared in wonder, “I have to say that I have never in…twenty-four years now at the bar, seen any office of prosecution submit on a charge of murder such inconsequential, insubstantial and insupportable evidence, and I implore you to end this anxiety now and dismiss charges as to Mr. Pernasalice.”82 Clark reminded the judge that only one man claimed to have witnessed Pernasalice commit a violent act against William Quinn and only one other claimed to have even seen him in the area, but neither of these witnesses were at all credible. Two witnesses contradicted each other: Edward Zimmer’s testimony that he had seen Pernasalice strike Quinn over the shoulders with a stick didn’t fit with Dr. John Edland’s statements that Quinn had had no injuries to his shoulders and, even if he had taken such a blow, it would have had nothing to do with Quinn’s death.83 Clark called Zimmer’s “by far the vaguest, most contradictory and the most inherently impossible or incredible” testimony in the entire trial. Tom Collins, another prisoner witness who placed Pernasalice on the scene, not only then admitted that he hadn’t met Pernasalice until the 10th or 11th of September, but also acknowledged that he hadn’t even been in Times Square when the fatal beating took place.84 Summing up, Clark concluded his argument: “There is no believable evidence to find Charley Joe Pernasalice guilty of any offense other than being an inmate of Attica on September 9, 1971.”85 What is more, he went on to say to the judge, “I am personally so distressed that this young man would be kept living in this staggering anxiety for three years, by the state of New York, on evidence so clearly inadequate.”86