Blood in the Water

by Thompson, Heather Ann

  It had been state troopers who had come across the bodies of Barry Schwartz, Kenneth Hess, and Michael Privitera up on a deserted tier of D Block back in 1971. At the time, they were disgusted but they were also deeply relieved that these three ugly killings could not be tied to any State Police or correction officers. Therefore, they worked hard to assist Simonetti’s office in figuring out who had committed these heinous acts. These were by no means easy murders to solve, however. The problem the Attica investigators faced in these cases was, in key respects, the opposite of the one they had faced investigating Quinn’s death. Quinn had been attacked in the midst of complete chaos, with hundreds of men on the scene and fists flying. However, on the day or days that Schwartz, Hess, and Privitera had been fatally attacked, it was unclear who had been there. As was also true in the Quinn case, however, prosecutors nevertheless forged ahead. By December of 1972 they had decided that several specific men had committed these murders and they were particularly interested in going after one of them: Bernard Stroble, aka Shango Bahati Kakawana.

  As one of the heads of rebellion security, along with Big Black, Shango was especially hated by the state troopers who had watched D Yard for days. What is more, Shango was not likely to garner much juror sympathy. Unlike Hill or Pernasalice, Shango was neither really young, nor had he landed in prison on some juvenile charge or mere parole violation. This was a man who had been arrested in both 1957 and 1958 on felonious assault charges and then, years later, been accused of shooting two police officers in Detroit.1 The officers had stopped Shango for a traffic violation that he had already paid, and he readily admitted that he had an altercation with them. According to Shango, though, the officers had overreacted when he went into his pocket to get his license and registration and they drew their guns. Acting in self-defense, he said, Shango in turn took out his own gun and began shooting them.2

  Shango wasn’t apprehended at that time because he fled to Chicago in a cab and, from there, went on to New York. No sooner did he get to New York, though, than he got into another altercation with yet another man with a gun—“shooting him in the head during a quarrel in a Bronx pool hall.”3 After this shooting Shango was finally arrested, but not before setting fire to his own apartment to distract the police in the hope that he would get away once more. Eventually Shango was sentenced to twenty to thirty years in prison for manslaughter in New York after first being sent back to Detroit to stand trial there. The deal was that he would serve his New York time at Attica, and then do his time in Michigan.4

  Shango had lived life as a tough guy—by his own admission, he hadn’t always been a good man—but by the time he stood trial for Schwartz’s murder, he was both demoralized and chastened. The sheer brutality he had seen in D Yard had affected him profoundly, making him both more cynical and in some ways more humble than he had been before.

  He had been singled out for particularly brutal treatment during the retaking. As he remembered, he had unsuccessfully tried to dodge a “fuselage [sic] of bullets pouring down from every direction,” and was struck three times.5 The first bullet entered his buttocks and traveled twelve inches up his back to within a hairbreadth of his spine. Two more bullets ripped open his hands. With blood pouring from his wounds he lay still, while all around him he “heard screams…infinite screams.”6

  He could barely fathom “the pain, so unreasonably excruciating.”7 Through the raindrops falling into his eyes he “could see the countless number of blood-drenched bodies being carried away.”8 Suddenly a trooper screamed at Shango, “Get up nigger!” but he could only move his arms and the upper part of his body. The trooper demanded that he “move towards the block—crawl!” Shango couldn’t do that either; he tried to drag his own body toward A Block, getting hundreds of tiny cuts as he inched along “through blood, glass, dirt and spit until they told me to stop.”9

  In time Shango was thrown into a cell, the floor already slick with blood from the men who had been “beaten and forced into cells before” him.10 Then began the torture. “One of them set a small piece of paper on fire and threw it at me. I brushed it off,” to which another trooper responded, “Don’t burn the nigger. Here, let me put out the fire” and thereupon “threw a cup of liquid mixed with filth on me. It smelt like piss and spit.”11 Later another officer flipped a cigarette butt at him saying, “Wake up nigger, we’ve come to kill you—you ready to die black cocksucker?” and then lifted his gun, cocked the trigger, and aimed it at Shango.12 “With sadistic enjoyment he said, after clicking the gun once, “I got one bullet in here nigger, now beg. Beg like a nigger. Beg.”13

  Eventually Shango began to heal, although he was kept in segregation in HBZ along with every other man the state had singled out as leaders of the rebellion. Ultimately, the grand jury named him in five separate indictments. By 1975, Shango was facing a life sentence plus fifty-nine years for first degree kidnapping (thirty-four counts, one for each of the hostages), first degree coercion (for Hess and Schwartz), unlawful imprisonment (for Hess and Schwartz), felony murder for Hess, felony murder for Schwartz, and first degree murder for Schwartz. Because of the way that the state had grouped together the kidnapping indictments, Shango’s first trial would focus solely on the kidnapping of Barry Schwartz and charge him as well with felony murder and outright murder for his death in D Block. In 1973, when he was indicted, Shango was transported to Buffalo to stand trial.14

  Shango couldn’t believe he was being charged with this murder. He had indeed been patrolling D Block when the brutal killings of Barry Schwartz, Kenneth Hess, and Michael Privitera had taken place. He also thought he knew who had killed them—who had snapped and taken his frustration and paranoia out on helpless fellow prisoners whose worst offense had been talking to a reporter (Hess and Schwartz) and on the unstable Privitera.15 But he, Shango vehemently maintained, hadn’t killed anyone during the rebellion. He had little faith, however, that any jury would believe him.

  Although Shango originally had decided to represent himself, as the months wore on he began to grow nervous and decided to contact the ABLD.16 Attorney Barbara Handschu was assigned to handle his case. Meanwhile, then ABLD director Don Jelinek took a trip to Detroit, Shango’s hometown, that would secure him better counsel than he ever could have dreamed of.17

  Jelinek had taken this 1973 trip eager to persuade lawyers from the Motor City to come to upstate New York to help the ABLD. He particularly hoped to convince Bill Goodman, the son of the famous civil rights lawyer Ernie Goodman, to lend a hand.18 Jelinek initially had another client in mind for Bill Goodman, but when that man’s case was dismissed, he asked him to represent Shango instead.19 Both Goodman and Jelinek recognized that, given the brutality of the crime he was accused of, Shango would need excellent representation; accordingly, Bill Goodman decided to ask his father to be lead counsel on the case.20

  Ernie Goodman felt some trepidation. As an out-of-state lawyer, he was unlikely to receive any state funding for his investigation or litigation. Additionally, Goodman was unwilling to stay in a communal home with the decades-younger ABLD workers; therefore he also would have the expense of a hotel room in Buffalo as well as that of the commute back to Detroit on weekends.21 But after some deliberation, Ernie Goodman agreed to take the case. His firm, Goodman, Eden, Millender, Goodman & Bedrosian, decided to subsidize his efforts. Even better, Haywood Burns, the new director of the ABLD, agreed to help him as co-counsel. As important, when he finally met Shango, he was really taken with him.

  As Goodman described him, Shango was “a tall, well built, handsome man, who at the time wore a beard and a mustache which gave him an additional dignified appearance” and he had a certain “dignity” of both “his personality and his posture.”22 Shango was also a forceful presence. On the first day they met, Shango informed Goodman that his name was no longer Bernard Stroble and insisted that all pleadings be changed accordingly. Shango also made clear to Goodman that he would play a central role in his own defense—he too would decide s
trategy. As Goodman later remarked, with Shango he had “one of the most unusual relationships I’ve ever had with any client I have ever represented.”23 Ernie Goodman didn’t know when he took the case that Shango had grown up in his hometown, but this fact would eventually prove helpful as they “developed considerable community support in Detroit for his defense.”24

  As a defense attorney Goodman made it a practice never to ask a client whether they committed the crime for which they stood trial. This rule held true with Shango.25 This was strategic: the less he knew, Goodman reasoned, the easier it would be “to develop the defense more from outside sources, from objective evidence, from physical evidence.”26 However, Shango wasn’t willing to let the question of his innocence linger between them. It was vitally important to him that Goodman know that he had not killed anyone during the rebellion. He wrote to Goodman vehemently asserting his innocence: “I can only ask that you believe my innocence. Not as a matter of legal presumption, but as a matter of fact—I am in no way guilty of any murder at Attica.”27 In another letter he reiterated, “I am not guilty of any murder—please believe me.”28 In yet another letter he explained why Goodman’s faith in him mattered so much. “I am a very good person, Ernie, this I know deep within….I want to prove myself badly, to all of those especially who think I am such a bad person….I have made some bad mistakes in my life, as we all have. But most of my mistakes have been recorded which makes me look like such a terrible person. I want to deal with this image honestly and correctly and prove it to be wrong….I want to prove many things, but most of all I want to prove that I am a decent and good person.”29

  Bernard “Shango” Stroble (second from right) returns to D Yard with attorneys Ernie Goodman, Haywood Burns, and investigator Linda Borus. (Photograph by Michael Layman. Courtesy of William Goodman.)

  In time it would become important to Shango not only that Ernie Goodman believed in his innocence, but also that they were friends as well as colleagues in this long battle that they faced together. After one of the many tense meetings they had debating trial strategy, Shango felt compelled to apologize to Goodman as well as to express his fondness for him. “I do hope you understand that there was nothing personal or feelings of dissatisfaction with the work you’re doing,” he wrote. “On the contrary, you have been a source of great inspiration, hope and strength to me—please understand this. Without you, I’m sure this matter would be almost impossible to deal with.”30

  Although there was certainly tension between Goodman and Shango regarding defense strategy—who should testify, which witnesses should be called, how much should be revealed and held in reserve—on the most important matters, they agreed. They had spent some time early on discussing various possibilities for how to defend Shango, but after the terrible loss in the Hill and Pernasalice trial, both men concurred that this defense would center on the legal particulars not on the case’s political implication.

  Still, Goodman’s trial team devoted considerable energy to managing its public relations both inside the courtroom and out. The team wanted to avoid any perception of “defense spectators as loud and disorderly,” which the press portrayed as a “lack of concern about the judicial proceedings.”31 So, for Shango’s trial, the ABLD made a deliberate effort to work with various established community groups to “bring black middle class spectators into the courtroom.”32 Outside the courthouse, one young woman, Devon Hodges, was specifically tasked with sending out press releases and both monitoring as well as massaging the media. Hodges had been chair of the English Department at George Mason University and so knew about communications.33 She had expressed concern that she had neither the contacts nor the budget to forge a good relationship with the media, but was determined to make it happen on $12 a week and much mimeographing. She managed to send out a press release to fifty newspapers each week.34

  Perhaps the team’s best public spokeswoman was Shango’s own mother—known affectionately by all as “Ma Stroble.” She was a Baptist minister in Detroit, where she had developed a community center in the heart of the city that provided many social services, particularly for children. Both in Detroit and around Buffalo, she became a tireless advocate for her son and a regular presence at all court hearings; perhaps “the single person who was respected and trusted by all the different factions.”35 She acknowledged that her son was no angel, as she phrased it, but she believed him when he said that he hadn’t killed anyone at Attica, and was determined that he get a fair trial no matter his past.

  To that end, Shango’s trial team, and specifically five law students from the University of Buffalo, devoted countless hours to researching the ins and outs of every charge he faced and how these charges might most effectively be countered.36 For this team there were thousands of pages of witness statements and testimony to wade through in the hope that there were obvious contradictions or competing eyewitness accounts. The good news, one of the student researchers explained about these witnesses, was that “we had the person’s original criminal record, we had his grand jury testimony, and we had his Wade hearing testimony. We also had, for some of them, their original interviews with the state police.”37

  It was also vital to make sure that the state’s witnesses had not been in any way coerced, so the defense relied heavily on a lead investigator named Linda Borus. A member of the New York City branch of the National Lawyers Guild, Borus had come to Attica right after the retaking. She had seen the hate in troopers’ eyes firsthand and had suspected that the state was determined to see the prisoners pay even more than they already had for their rebellion.

  Borus had been paying attention when Shango had initially contacted the ABLD for help, and she was one of the first to meet with him about the indictments he faced. At their first meeting, Borus was taken aback in equal measure by how handsome he was and how suspicious of everyone he seemed. Over the next several months, Borus eventually earned his trust and they fell in love with each other. When Ernie Goodman took on Shango’s case, Borus offered to help in any way she could to prove his innocence.38

  The more investigative work that Linda did, the more Goodman became convinced of its value. As he saw it, “One had to understand the whole uprising” to put on a good defense.39 There was no way to do this “on any narrow basis of just ascertaining who had done what” but doing it more fully was clearly netting the defense dividends.40 For starters, there seemed to be substantial evidence in this case, as there had been in Hill’s and Pernasalice’s, that the state’s witnesses had been terrorized and coerced. As one state witness described his experience, the most persistent investigators had included Milde and Simonetti, and their “initial approach was with how much time I had left to finish up my time…that both inmates and officers alike had praised my actions in helping everyone; how I deserved to be rewarded; how they could insure me my upcoming parole, etc….They believed I could help them, it would be beneficial to me, etc.”41 This particular prisoner admitted that he was tempted by this offer—especially after he was locked up in HBZ “because I wasn’t helping them.”42 He was even more tempted to tell them what they wanted to hear when he was sent to another facility, Wende Correctional Facility, and when officers there told him that he was already on an “execution list” because prisoners there thought he had already cooperated with investigators. The prosecutors, he was told, could protect him if he helped them. So this man agreed to talk. But when he told them that he knew who had killed Schwartz, but that it wasn’t Shango, an investigator told him bluntly that “they were only interested in convicting Stroble, Champion [Champen], Dalou, Jomo, Frank Smith and Blyden”—precisely the men who were indicted for the murders of Schwartz, Hess, and Privitera.43

  Trying to nail down as much evidence of state bullying as possible, Goodman’s team also wanted a Wade hearing, hoping it would clearly show that the witnesses’ “unlawful out-of-court identification” of Shango “was so unnecessarily suggestive as to amount to a denial of due process.”44 For twelve weeks
, beginning January 6, 1975, and while the trials of Pernasalice and Hill were in progress, Wade hearings commenced for Shango and four other Attica Brothers: Big Black, Herb Blyden, Roger Champen, and Jomo.45 With so many defendants and so many defense attorneys as well as prosecutors jammed into his courtroom in Erie County, Judge Joseph Mattina had a lot to contend with. By the time the Wade hearing ended, the transcript numbered 8,412 pages.

  The hearing itself took place in a nearly one-hundred-year-old courtroom with no air-conditioning. It was unseasonably hot in the room, and hostilities between the court employees and the defendants who arrived each day were palpable. Judge Mattina was bombarded with stories of investigative impropriety.46 State witness John Flowers told the court how Ernest Milde had questioned him sometimes for eight hours a day, five days a week for months.47 Each time they met, Flowers said, Milde pushed and pushed at him to name Shango and the other indictees as killers and made abundantly clear to him, as Flowers now testified, that “If I had any information which was helpful to them, it possibly would be helpful to me.”48 Flowers told the court that Milde “tole me that they knew that Stroble and BB [Big Black] and Champ and Brother Herb and Jomo had committed these murders. And that if I could give the information verifying this that it would be helpful when I went to the Parole Board…to show I was interested in helping the state.”49 These words were seductive for a man who wasn’t due to get out of prison until at least 1988.50 Nonetheless, Flowers did not implicate any others, and he was keeplocked indefinitely.51 Flowers’s terror was made worse by being unable to distinguish between State Police investigators and Simonetti’s staff investigators. To him they were “all the same,” and given all he had endured on the day of Attica’s retaking back in 1971, he feared anyone connected to the New York State Police could really hurt him.52 When he eventually did agree to testify for the state, Flowers was paroled.