Many of the state’s witnesses shared Flowers’s experience. Time and again prisoners admitted that they had said what the state wanted to hear “out of fear of prison authorities.”53 The defense lawyers were equally alarmed when they learned that the prosecution had also been exceedingly sloppy, if not outright negligent, in the way that it handled its photo identification process and yet it was being allowed. As Ernie Goodman recalled, “a well-drilled witness unhesitatingly identified the photo [that a prosecutor] handed to him as that of the accused [Shango] as he had looked on September 9 with no beard and a shaved head.”54 The problem for the prosecution was that when that lawyer perfunctorily handed that same photo to the defense so that it might be entered in as evidence, Goodman noted immediately that it wasn’t Shango at all. The man in the photograph was actually Jomo. To the state, Goodman mused, “all blacks apparently looked alike.”55
Further evidence presented at the Wade hearing indicated that the state had heard witness testimony that clearly pointed to someone other than whom they wanted to indict, but they never called these witnesses before the grand jury. At least four prisoner witnesses who testified at the Wade hearing indicated their belief that the death in question had not been caused by those who now stood accused of the crime, but rather had been at the hands of another prisoner altogether: Thomas Hicks. Hicks was the prisoner whose deep intellect had so impressed Attica’s teachers back in 1971 and he was also the prisoner who Lieutenant Joe Christian claimed had attacked him as he was trying to rescue the hostages—the attack, he insisted, that prompted his fellow troopers to protect him by spraying that area with pellets and bullets.56
In fact, one witness who was now willing to testify that Shango had killed Schwartz not only had initially told state investigator Ernest Milde that he had never seen Shango with any blood on him, but he had then testified at the Wade hearing that he had seen Tommy Hicks with a great deal of blood on him.57 Similarly, another prisoner who was now going to testify against Shango admitted that, originally, he had told state investigators that he had seen “Hicks with a knife in his right hand and two white hands grasping Hicks’ hand, coming from the direction of the bed” and then he saw “Hicks come to the doorway of the cell and wipe a knife or sharp instrument on his shirt or his pants.”58 A third prisoner agreed that he had seen Hicks, not Shango, with shears and blood on him, but he too was now going to be a state witness against Shango.59
By the close of the Wade hearing the defense attorneys were disgusted by all that they had heard. In their opinion, Francis Cryan, one of the two prosecutors from Simonetti’s office in charge of this case, was simply “dirty.”60 Goodman felt sure he had “proved that the prosecution knew that other person or persons were responsible for that particular crime” and “it was obvious Cryan was implicated in this” since he was the main person deciding which witnesses would be brought before the grand jury.61
From his point of view it could not have been any clearer that state witnesses had been coached, manipulated, and bribed to finger his client. Even Cryan himself had, in Goodman’s view, admitted as much when he testified on December 18, 1974, that he did “write letters about inmates that had testified.” When explicitly asked if the purpose of those letters was to make the parole board look favorably on a given prisoner witness, prosecutor Cryan replied, “Well, I think that speaks for itself.”62 Goodman hoped that Judge Mattina had been paying close attention and that he would, in turn, rule at the close of the Wade hearing that the identification of Shango had not been made properly.
However, Judge Mattina seemed not to hear all that had been testified, or, perhaps, did not believe the prisoners who told tales of fear and coercion. He concluded “there was no tainting of the identification made during the investigation of the deaths of inmates Hess and Schwartz…the identification procedure used by state officials was proper.”63
The trial now was unavoidable. Goodman’s team would have to put Shango’s fate in the hands of a jury and hope that it could see how this case had been rigged from the start. Even though Goodman couldn’t put Cryan himself on trial “as a principle [sic] villain in the case,” he nevertheless hoped that the jury would have a critical view of the prosecutor’s reliance upon, and sanctioning of, shoddy tactics simply to win a case.64 He would repeatedly remind jurors of “the nature of the investigation, the pressure the state exerted upon people over whom it had absolute control.”65
That argument would only have an effect if the jury was not already prejudiced against prisoners in general, or Shango in particular. Goodman was worried since it seemed that Judge Mattina was growing harder toward the defense after the Wade hearing. Beth Bonora, from the ABLD’s Jury Project, recalled that “the change in the judge’s behavior caused grave apprehension in the defense team. Only a week earlier we had cheerfully discussed whether waiving a jury and going to trial before Mattina alone might be the best strategy,” because at least at first the judge “had shown respect and sympathy for both Ernie and Shango. Now, he was putting on a cold, hard mask and seemed irritated at the smallest request.”66 As Shango’s defense team saw it, the judge’s demeanor was crucial: “The tone of a trial is determined in many subtle ways by the judge. His treatment of the parties gives the jury clues to his thoughts, which they incorporate into their evaluation of the evidence.”67
Beth Bonora and her colleague Eric Swanson were determined to get a jury for Shango that would not be prejudiced or easily swayed by an unsympathetic judge. Ernie Goodman was eager to work with the ABLD Jury Project, which, he could see, had undertaken the herculean tasks of data collection and community network building. The week before Shango’s jury selection began was particularly hectic. While defense lawyers busily argued their motion to dismiss indictments, the Jury Project was trying to amass enough information to make sure the defense could pick the best jurors. As Bonora remembered it, “We sent letters to members of the community network alerting them to the start of the case. A meeting was held to decide which of the psychologists used on an earlier Attica murder trial [the Hill and Pernasalice trial] were reliable. Then a meeting was scheduled with those we wanted to use. Data on the current composition of the Erie County jury pool was collected.”68 What they found led Bonora to recommend that Ernie Goodman immediately “file a motion to challenge the entire pool as unrepresentative of young people and women.”69
He did, and to his surprise Judge Mattina granted the motion. But there was still much work to do.70 Because Ernie Goodman was the most seasoned lawyer on Shango’s team, the plan was that he would begin the voir dire, the questioning of potential jurors, then either Haywood Burns or Shango could step in. The key to a successful voir dire was having solid research from the Jury Project; any answers a potential juror gave could be analyzed in light of the Jury Project’s data on juror attitudes. Whatever rating a given juror netted from that analysis would help the defense identify whether he or she should be questioned more closely and carefully.71 The job of collecting information for the Jury Project seemed never ending. In addition, as soon as anyone on the defense team questioned a juror, the Jury Project team immediately contacted its community network to find out any additional information that might be helpful in gauging whether that individual would or would not be a good pick for the defense.
Even with a relatively good jury pool, picking a sympathetic jury would be no easy task. As Goodman recalled, seeing the first fifty-person panel made the defense “terribly pessimistic”: they were “middle class, middle age, elderly, white, mainly men, very few young people, and one black person (possibly two).”72 They also found that a significant number of the prospective jurors had close relationships with law enforcement agencies—one was “a neighbor of an Attica prosecutor and had even asked him for a ride to court.”73
Some potential jurors didn’t even attempt to hide their contempt and racist views of black people and, yet, in Goodman’s view, the judge was trying to shut down the defense’s ability to probe their r
acial prejudices in the voir dire questioning. Goodman finally lost his patience and addressed the judge. “This has been a difficult day for all of us,” he began. “I have felt almost a sickness come over me as I have listened to this jury….The defense has a right, and an obligation, to find out how the race of this defendant will affect the jurors…[but] you have virtually instructed every juror on that panel how to answer our questions, and you have made it impossible for us to get at their true feelings on this volatile matter.”74
The second jury panel seemed “just as bad” to Goodman’s team, but, thankfully, the third panel was better.75 The people on this panel appeared to be less prejudiced, even though the lawyers hadn’t really been allowed to probe jurors based on their racial views. By then the defense team was well versed in how to most effectively use “the voluminous data” given it by the Jury Project and this had helped them pick a better jury despite the limitations placed on the voir dire process.76
By taking seriously the information provided by the Jury Project, Shango’s team felt fairly good as the jury selection process drew to a close. To Goodman, the Jury Project had been a godsend. He was surprised at how efficiently the ABLD lawyers had been able to utilize its community network to receive feedback—he “knew very quickly whether a juror was one we would obviously want or one we would obviously reject.”77
Simonetti’s office was upset that the ABLD had been “conducting a telephone interview program with all the prospective Attica jurors to attempt to determine their prejudices in this matter”—particularly since they had to concede that such interviews were “essentially legal.”78
Just before the final jurors were chosen, however, the prosecution and defense alike were hit with a lightning bolt. One of the ABLD’s legal volunteers, Mary Jo Cook, revealed that she was, in fact, an informant for the Federal Bureau of Investigation. The twenty-six-year-old white woman had first come clean to a lawyer on Barbara Handschu’s staff, who, in turn, persuaded Cook to go to the press. Her admission, they knew, would have major implications for the myriad cases they were trying to defend, including Shango’s, as well as the one they had just lost.79 John Hill’s lawyer, William Kunstler, immediately called his own press conference to insist that, in light of this revelation, the verdict in both his client’s and Charley Joe Pernasalice’s cases should be overturned.80 This request was denied.
Judge Mattina agreed to halt Shango’s trial in the midst of final jury selection to hold a week-long hearing on the matter of the informant.81 Testimony revealed that Mary Jo Cook had been an employee of the FBI from June of 1973 until November of 1974. Her boyfriend was already informing for the bureau, while also reporting to someone named Jack Steinmetz at the New York State Police. Since Cook very much needed money, she was excited when asked if she too might want to become an informant.82 The FBI, it turned out, had a very specific group that they wanted her to infiltrate—Vietnam Veterans Against the War/Winter Soldier Organization.83 She was given the code name “Jo Leroy” and she made between $50 and $80 each month for her reports.84 According to Cook, she delivered these reports to her control agent, a Mr. Gary Lash, “in a park or a cemetery that was a really peaceful place.”85 Gary Lash, she insisted, was not just any FBI agent. He had already, in the course of the FBI’s official investigation called for by the Justice Department back in 1971, “talked to every witness, hundreds of witnesses, state troopers, guards and other people.”86 Although Mary Jo Cook had been asked, officially, to spy on the VVAW, by September of 1973 she had also become a regular around the offices of the ABLD.
Cook remembered her first Attica defense meeting well. At a storefront on Connecticut Street, they showed a recent documentary by Cinda Firestone about the Attica Brothers, and Big Black as well as John Hill and Charley Joe Pernasalice had all been there.87 From that moment forward she began volunteering for the Jury Project. She gave Lash everything she could, she testified, “even down to telephone numbers, any little piece of information….I supplied him with details about people that I considered important, whether or not I understood what their importance was.”88 Wondering where that information went, Cook actually asked Lash. “Most of it stayed in Buffalo,” he told her, but a summary of it also “went to Washington,” which she already knew because, as she testified, “I got a specific telephone call from Washington twice as to the information that I know.”89
According to Cook, she had, in fact, learned a great deal that the FBI wanted badly to know. For example, during one of the first Attica trials—the one in which Willie Smith was charged with raping John Schleich—she had heard from fellow volunteers “that he had a problem with his lawyer…that his lawyer was not working well with the ABLD,” among other matters.90 Additionally, Mary Jo said, she had “received information about Mr. Stroble’s defense last summer,” whereupon she was called into Judge Mattina’s chambers to describe in more detail what she had learned.91 Perhaps her arrangement with the FBI would have continued indefinitely, but the longer Cook worked for the ABLD, the more sympathetic to the defendants she became and her conscience began to plague her.
What really bothered her, Cook said, were the tactics used by state investigators to build their cases against the Attica defendants. For example, she said, the only reason that they had started their cases against Willie Smith was that they wanted the public to be swayed against all future Attica defendants—get it thinking of them all as deviants.92 The fact that the Brothers had suffered so much physical abuse also really got to Cook. In fact, she soon became so obsessed with the question of whether there had been atrocities during and after the retaking at Attica that she went to her FBI handlers to ask them what really had happened. On the stand she recalled one meeting with Lash and another agent, “an old Irish Catholic” named Ed, who kept trying to reassure her that there had been no atrocities. “I kept telling them that I knew there had been atrocities at Attica. Their response was a categorical denial.”93
No denials, though, were able to combat what she had learned from the Attica defendants themselves and, in time, their accounts of torture kept her up at night. By the time Cook was helping the Jury Project, she was already torn. Although she had not admitted it to her FBI handlers, she had actually volunteered there because deep down she actually thought what it was doing “was a good thing.”94And then her guilt pushed her to admit that she was an informant.95 According to Cook, she was by no means the only FBI informant in the ABLD, and indeed asserted that there was one still there named Kevin Ryan, so she wanted to do the right thing and tell the ABLD what had been going on.96
Even though it was clear from the hearing that Mary Jo Cook had been privy to the defense strategy, and she insisted that she had shared what she knew, she had a hard time proving this and proof is what Judge Mattina wanted. Cook insisted that she “did in fact pass on” the information that she had “obtained from the defense people”—including vital information regarding “the jury project, legal defense strategy, courtroom strategy, communications between lawyers and clients, specific information on defendants’ positions and personal problems and the internal structure of the ABLD as a defense effort and how it was coordinated.”97 Mattina, however, wanted corroboration. Although she came to his courtroom with “a large leather briefcase” filled with various reports, that wasn’t enough.98 She would have had even more documents, she explained to the judge, but suspicious fires had broken out both at her residence and at ABLD lawyer Barbara Handschu’s office and everything not with her now had been destroyed.99
Although Cook had, in Mattina’s view, insufficient corroboration that she had passed defense secrets to the FBI, notably, no one in the Bureau denied that Cook was an informant. Cook’s control agent, Gary Lash, confirmed that he had been specifically assigned to “security matters” in 1971 and to the VVAW, that Cook reported to him, and that he also knew state policeman Jack Steinmetz. But Lash insisted that “he had never requested Miss Cook to spy on the Attica defense camp.”100 Even when anoth
er FBI agent admitted that he too had been placed “in charge of monitoring the Attica defense effort,” had also received information on the ABLD, and had even been in contact with prosecutors from Simonetti’s office, it seemed to satisfy the judge when he then insisted “that he ‘did nothing’ with the information.”101 Simonetti’s prosecutors James Grable and Charles Bradley confirmed that they had talked with the FBI about the ABLD, but both denied that they used information on the ABLD provided to them by the FBI. That too seemed to satisfy Judge Mattina.102
To the stunned reaction of the entire ABLD, Judge Mattina’s twelve-page decision concluded that “there was no evidence of governmental interference with the Attica legal defense team” and that Miss Cook’s “allegations” were not “supported by her testimony, which I must characterize as general and extremely vague.”103 When New York Times columnist and former Attica observer Tom Wicker learned that “the FBI had planted a paid informer among the defense workers” to him it had seemed obvious that the trials, such as Hill’s and Pernasalice’s, that had just taken place were “not fairly conducted.”104 Not to Judge Mattina, however. The trial against Shango would proceed.
And so jury selection resumed. Jury Project captain Beth Bonora now worried that even the research the defense team was relying on might be tainted. “There was the possibility,” she noted, that Cook “had messed with the statistical studies and the resulting info they were getting to pick a jury was faulty.” They had no choice, however, but to go forward.105 Jury selection finally ended on May 15. Opening statements commenced five days later.106
Prosecutors Frank Cryan and Daniel Moynihan approached the jury with great confidence. Bernard Stroble, they insisted, had caused “the death of Barry Schwartz by stabbing him with a sharp instrument.” In addition, he was charged with kidnapping Schwartz, which allowed the perpetration of the murder.107
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