Blood in the Water

by Thompson, Heather Ann

  Judge Gilbert King declined to grant either of the defense’s motions.87 King did not explain his ruling, but did chastise Kunstler for using this trial to try to focus attention on the wrongdoings of the state. “As I have repeatedly held,” he said, “we are not here to try prison life in Attica.”88 When dismissing Clark’s motion he was a bit less caustic. While he would not dismiss the charges against Pernasalice, he conceded that he would reserve the right to revisit this motion, and perhaps consider a lesser charge in the future.89 And indeed, right before the jury left to deliberate, Judge King did dismiss the murder charge against Pernasalice and asked the jury instead to rule on whether he was guilty of second-degree assault and attempted murder. This didn’t appease Clark, however. In his view the lesser charge totally missed the point that there was no evidence that Pernasalice had caused Quinn any injury whatsoever.90

  Clark would try to make this same point again in his closing remarks. He used his last opportunity to speak to the jury to highlight the same weaknesses in the state’s case that he had laid out in his motion to dismiss.91 On March 31, 1975, Ramsey Clark walked the jury through the little testimony that the state had presented against his client and then systematically noted the specific flaws in that testimony: only two witnesses placed his client at the scene and only one of these claimed to have seen him commit an act of violence. Neither witness could possibly have seen what he said he did.92 The jury must now, Clark implored, set his client free.

  In contrast to Ramsey Clark’s subdued and relatively short summation, William Kunstler’s dramatic closing remarks lasted seven hours and unfolded over the course of two days.93 Deeply frustrated, Kunstler felt that he had tried time and again in this trial to bring in testimony that would have directly helped his client that the judge simply refused to allow. He believed to his core that the state’s actions at Attica, and the testimony of the governor himself, were not only relevant in this trial, but would have persuaded the jury that there was more than a reasonable doubt that John Hill caused William Quinn to die. Trying to contain that frustration, he, like Clark, painstakingly walked the jury through the testimony that it had heard, pointing out the myriad places when the witnesses’ stories did not add up and the various reasons why jurors should consider a given witness’s testimony to be unreliable because they had been incentivized to give the specific details. He noted with some bitterness that every witness the prosecution brought forward had shown a better memory now at this trial than they had three and a half months earlier at the Wade hearing.94 Kunstler conceded that one of the correction officer witnesses had himself been traumatized by all that he experienced during the Attica uprising and he confided, “I thought he was troubled.”95 But that alone should have been reason to doubt his testimony.

  Kunstler also reiterated his argument that the entire court proceeding had been set up to suggest to jurors that his client was a scary person who needed convicting. As he pointed out, “The jury was escorted by armed guards” and, worse, the judge had made what Kunstler regarded as “openly prejudicial remarks to that jury, that…if they were threatened or in any way impeded, they were to report it to the judge…to give the jury the idea that they might be imperiled or jeopardized or intimidated by these people.”96 This was absurd, Kunstler insisted; John Hill and Charley Joe Pernasalice had been “among the ‘weakest and most vulnerable’ possible suspects” and that, he suggested, was why the prosecution settled on them as the perpetrators.97 “You are sitting in a moment of history,” he impressed upon the jurors, imploring them to do the right thing by acquitting his client.98

  In the state of New York, the prosecution gets the last word in a criminal case. So Louis Aidala, his voice “frequently rising to a shout,” had the chance to speak to the jury after both Clark and Kunstler.99 It was incredible, he insisted, that the defense was trying to discredit witnesses who had, under oath, clearly identified both John Hill and Charles Pernasalice as the killers of Billy Quinn. Regarding the fact that one of his witnesses gave vague testimony regarding the physical characteristics of Quinn’s assailant—the best-described feature was that he had “slanty eyes” (a point Kunstler had made much of, Aidala scoffed)—the prosecutor asked jurors to consider whether this description was in fact vague at all.100 “Ask yourself,” he went on, “how many of those [prisoners] may have had slanty eyes?” That will tell you just “how many inmates could have committed this crime.”101 He stressed also that he had brought five men to court who claimed they had seen Quinn hit by the defendants. Despite evidence that at least four of them had been offered a sweeter deal if they gave the specific evidence that they did, Aidala continued to maintain that “there were no promises made to the witnesses.”102

  Regardless of the controversy surrounding the testimony of those witnesses, Aidala ultimately chose to spend little time defending their credibility in his closing remarks. Instead, he sought to win the case emotionally—focusing the jury’s attention primarily, and often graphically, on all William Quinn had endured on the morning of September 9, 1971. As the media noted, “often in the course of his remarks, Mr. Aidala showed the jury photographs of Mr. Quinn taken after his death, and of Mr. Quinn’s brain,” to remind everyone why they were there in court and of the magnitude of the crime for which he now sought justice.103 At one point in his summation Aidala’s finger shot out, pointing at John Hill while the prosecutor shouted that this prisoner had “literally tore away his human brain.”104 Looking over at the defense table with disgust he said, “I wonder if Mr. Kunstler ever once shed a tear for the wife of Mr. Quinn.”105

  Once the arguments for Hill’s and Pernasalice’s innocence and guilt concluded, the jury shuffled out of the courtroom for lengthy deliberations—twenty-five hours in total. As they left, the defendants and defense attorneys felt optimistic, especially when the four alternate jurors “exchanged ‘power handshakes’ with the defendants before leaving the courtroom” and one of them, a twenty-five-year-old postal worker, was actually heard saying, “I would acquit both.”106 As the hours dragged on, the defense felt even more heartened; usually lengthy deliberations were “an indication of a close vote favoring acquittal.”107 Surely, the jury would see this whole sordid picture and do the right thing. As John Hill remembered it years later, “I really thought that there was a good chance of acquittal….They had no evidence. Even Newsweek said that.”108

  The crowds outside the prison still rallying and protesting on behalf of the defendants weren’t quite so confident of the trial’s outcome but, for that matter, neither were the scores of police also flanking the courthouse. The result was much tension in the air. Earlier that morning the police had ordered one rally outside the courthouse to disperse, which had resulted in a confrontation and some arrests.109 During the closing arguments about four hundred more people came to demonstrate outside the courtroom and five were arrested. John Hill, who remained free on bond during the trial, had grabbed a bullhorn during a recess and “implored the demonstrators to heed the directions of the police.”110 Feeling that his chances for acquittal were looking pretty good, it made him nervous to think that clashes between his supporters and the police might now turn jurors against him.

  On April 6, 1975, the jury finally reached its verdict.111 To a one the spectators had grown deathly quiet. The jury forewoman, “one of two blacks on the panel,” announced solemnly that John Hill had been found guilty of murder and Charles Joe Pernasalice had been found guilty of second-degree attempted assault.112 As the defendants stared numbly at the jury, John Hill’s pregnant wife sobbed and “the crowded courtroom briefly erupted into pandemonium.”113 When Justice King then “ordered Sheriffs deputies to handcuff the defendants…and jail them,” the crowd exploded.114 As utter chaos enveloped the courtroom William Kunstler jumped to his feet demanding to know why they were being remanded before sentencing when real criminals like Watergate’s John Mitchell hadn’t been, and the crowd roared its agreement. Meanwhile Judge King was shouting for order
in his court. It took several hours to clear the courtroom, and long after that ABLD supporters still filled the lawn outside, some in tears, all with a deep sense of foreboding about the many cases still left to go to trial.

  Charles Pernasalice (with hand at mouth, left) and John Hill (right foreground with feathers in hair) and supporters on April 5, 1975, the day before the verdicts were delivered in their trial for the death of guard William Quinn (Courtesy of the Associated Press)

  This verdict had “stunned” and it seemed a very bad omen for the scores of men who still awaited trial.115 If the state’s case had been this weak against John Hill—so full of contradictions, bribes, and lack of concrete evidence—and yet prosecutors could still manage to send this man to prison, possibly for life, then how little evidence would they need to make the rest of the Attica defendants languish in prison for the rest of their lives as well?

  This jury had, in fact, been divided as to whether John Hill and Charley Joe Pernasalice had caused the death of William Quinn. As the first juror who spoke to a reporter explained it, “In the first poll the eight men and four women divided ‘roughly in half’ on the question of whether the defendants…had struck William E. Quinn.”116 This particular juror was himself conflicted. “I felt sorry for the family of Mr. Hill,” he explained, “but I also felt sorry for the family of Mr. Quinn….It’s not something I’ll forget for a long time.”117

  Undoubtedly it had mattered to this jury that its members had never felt any real connection to the defendants. The media also had not taken particularly well to them, although they liked Pernasalice far more than Hill. One paper published typical descriptions: Charles Pernasalice was someone who “smiles a lot and wears a bell on his belt that tinkles when he gets up, as he frequently does, to whisper a suggestion to a defense lawyer,” while John Hill was characterized as a man who “seldom moves from his seat facing the jury, and often slumps forward on his elbows over the defense table in a posture of boredom. His face is almost invariably set in an expression of discontent.”118 It wasn’t that the media or jury particularly liked Charley Joe either, though. Indeed Pernasalice often tried the patience of the court, coming into court late.119 When he was late for yet another appearance one morning, Judge King angrily threatened to revoke his bail. Former ABLD coordinator Don Jelinek also felt that these defendants were not respectful enough in the court and, in his view, did not pay “proper homage to the victim.”120 Jelinek feared their “hippie-like” style alone may have turned off working-class jurors from small towns across Erie County.121

  Others speculated that some of the jurors were put off by Kunstler’s litigation style. Of course Aidala was a yeller too, and whenever there was a conflict he and Kunstler would both be “shouting at each other simultaneously.”122 But somehow Kunstler didn’t get the same pass for his bombastic style that Aidala did—undoubtedly because he, unlike Aidala, was known as a “Marxist lawyer” and because Kunstler wasn’t at all shy about challenging Judge King if he felt that Hill wasn’t getting a fair shake. At one point in the trial when Kunstler was trying to make a case that his client had been selectively prosecuted, for example, this discussion got derailed into a debate between him and Judge King over whether the United States was a great country or totalitarian in nature.123 As one reporter put it, “Showman Kunstler could not resist the temptation to flay witnesses and have a go at State Supreme Court Justice Gilbert H. King.” King was clearly hostile to Kunstler as well every time he tried to present a motion or mount a defense of his client that the judge disapproved of. Ultimately, however, it can be argued that the jury had not voted to convict on the evidence before them and thus, probably no lawyer, even one meeker and less of a radical than Kunstler, could have won acquittals. Someone needed to pay for William Quinn’s death.

  The defense team hoped that they still had a chance to do right by their clients at sentencing. First they tried to vacate the jury verdicts altogether by arguing that there had been selective prosecution of their clients and, as important, because the defense had just learned that “a sheriff’s deputy, on duty in the courtroom, had told a radio news reporter early in the trial that ‘four or five jurors’ had indicated to him that they were ready to convict even before they were empaneled.”124 Although this motion was not successful, it did delay sentencing and it gave time for the defendants to prepare arguments so that King might show some mercy in this phase of their case. John Hill spoke before the judge on May 8, 1975, but when he began his speech the frustration and anger that he felt for having been reimprisoned overwhelmed him. First he accused the jury of racism and of never thinking about the scores of people “murdered by the state” or the “fourteen million Indian peoples who have been killed in the 19th century.”125 The “real” criminals, Hill continued, were in Vietnam and they killed students at Kent State. Then he read a prayer for the Lakota Sioux.126 Before finishing his speech Hill said passionately, “I just want to tell my people that we will win, we will overcome everything,” and then he embraced Kunstler.127

  Judge King was clearly displeased with John Hill and sentenced him to twenty years to life. As King levied Hill’s sentence he looked at him coldly and said that William Quinn had “had a right to continue his life to whatever end it came to. He had a right to continue his life as a husband and a father,” and, the judge continued, Hill had taken it upon himself “to make certain he would live no more.”128 Thereafter Hill was removed from the courtroom and taken directly to prison to begin his time. Since he would now be forever branded as Quinn’s killer Judge King decided that he shouldn’t go back to Attica and sent him instead to Green Haven.129

  The afternoon’s sentencing hearing for Charley Joe Pernasalice went much better than Hill’s but not as well as Clark had hoped. For some time Clark argued hard before King that his client should be given probation since there was no evidence whatsoever that he had assaulted Quinn.130 As important, he argued, this was a young man with a future if the judge could just see his way to being lenient. As he put it to King, “I love this young man, I believe in him. I believe he has enormous worth and potential and I see in him a world of chance, necessity, and free will being cruel to him.”131 Further, he went on, “I believe he can attend Syracuse University in the fall.”132 While the judge was not willing to forgo sentencing Pernasalice entirely, he did give him a relatively light indeterminate sentence not to exceed two years.133 He then realized that, because of the wording of the penal code, an indeterminate sentence had to be for three years.134

  After the sentencing, the full weight of this trial loss hit the ABLD. Even though Herman Schwartz was often at odds with the ABLD and its lawyers, he recalled that “the night the verdict came in was one of the bleakest nights I can remember. It was snowing and we went to have supper. The only time I ever saw Ramsey snap at me. We were very tense. We came back to the dimly lit courtroom. It was awful. Guilty of murder. Wails of grief at the courtroom.” Michael Deutsch also remembers that moment as a “terrible blow” to the Attica Brothers and the seeming good fortune they had had thus far defending themselves from state prosecutors.135

  Simonetti’s office was as elated as the ABLD was distressed. It had, until now, had a rough go of it in the courtroom with two major losses and then, recently behind the scenes, having had to drop charges against another thirteen prisoners “for insufficient evidence.”136 As one reporter noted, with this victory, “Aidala and other prosecutors made no attempt to hide their satisfaction.”137 Now that they had succeeded in sending John Hill and Charley Joe Pernasalice away for the murder of William Quinn, they were ready to turn their attention to the case of Attica Brother Bernard Stroble, aka Shango. They were prepared to argue that he had brutally murdered fellow prisoner Barry Schwartz in cold blood and, as with Hill and Pernasalice, their goal was to make him pay.

  40

  Evening the Score

  Simonetti’s office was delighted to learn that Shango’s trial for the murder of fellow prisoner Barry Schw
artz would be right after the Hill and Pernasalice win. They had been preparing for this case for several years now, relying heavily on the witness accounts netted by BCI investigators in the immediate aftermath of the Attica rebellion. They were now ready to get to it.