Blood in the Water

by Thompson, Heather Ann

  The state’s first witness, prisoner George Kirk, was not that convincing. Kirk’s story kept changing on the stand, and at one point he simply broke down and said, “I’ve had my days mixed up for years, praying I’d forget the entire matter.”108 Watching the prosecution struggle to get Kirk to finger Shango filled defense attorney Goodman with relief. In his view, “the jury realized that this witness was a person that they just couldn’t believe.”109

  The state, though, regrouped and called prisoner John Flowers to the stand. Although Flowers also had a hard time telling a coherent story of what he had seen and heard, he did tell the jury something crucial to the prosecution’s case—he said that Shango had told him Barry Schwartz was going to be executed for treason. Flowers had been the medic called to Schwartz’s cell to sew up the wounds he had suffered when glass was thrown at him after he had been moved to D Block. This was, he claimed, when Shango told him that Schwartz was to be executed.

  Prisoner witness Jack Florence also helped to implicate Shango in the murder of Schwartz by placing him at the scene and giving him the same motive—he had killed Schwartz for being a traitor. Florence had testified before the grand jury earlier that he had seen both Schwartz and Hess being led, naked, to D Block by Bernard Stroble and others and that they were accusing these men, most specifically, of “treason.” The prosecution had him recount this same story for the jury.110

  Ultimately, prosecutors needed an eyewitness to Schwartz’s murder. Before introducing witnesses willing to testify to this, though, the state first decided to set the scene—to make clear to the jury just how brutal this murder had been. To do this they put a prisoner by the name of Willie Locke on the stand. Locke claimed to have seen the aftermath of Schwartz’s alleged execution and told the jury in graphic detail how he had seen “two guys laying on the bed with blood all over them.”111 This was but a prelude, though, for calling prisoner Jimmy Holt. Holt was one of only two witnesses who would tell jurors that he had actually seen Shango stab Schwartz, whereupon “he screamed and fell to the floor.”112

  But Holt’s testimony wasn’t as strong as the state hoped it would be. In fact, even the prosecution had found it hard to buy this man’s testimony. According to an internal memo in 1975 that was addressing the myriad interviews state investigators had done over the years with Jimmy Holt, lead prosecutor Cryan admitted that even he doubted Holt’s credibility. As he noted to his colleagues: “Holt related an account of a stabbing which allegedly he witnessed in 42 Company on Saturday night. Holt now informs us that his previous statements concerning these events were based upon what he had heard and not from observations he personally made from the slop sink room in 42 company.”113 Even Holt’s testimony about the events leading to those murders—about what had happened in the yard on Friday night—was, in Cryan’s opinion, sketchy; “his recollection now of the details of some of these events is somewhat different as to some particulars.”114

  Worse, the prosecutors in Shango’s case knew that Jimmy Holt was by no means their only flawed witness. They were also aware, for example, that John Flowers had also told them completely different stories at different times. For example, when he was interviewed by an Organized Crime Task Force investigator in early 1972, Flowers claimed that he had seen Stroble with “several knives down his pants.”115 Two months later, however, when interviewed a second time, he made no mention of having seen Shango at all.116 By the time he testified before the grand jury in June of 1972, he had yet another account to share—in this case stating that Shango had “what looked like an arsenal of what—knives or screwdrivers, you could see handles sticking out of his belt.”117

  But the prosecution’s star witness, it turned out, was to be neither Holt nor Flowers. Cryan and Monyihan instead were counting on a prisoner named Jimmy Ross to make their case. Ross testified that he had seen Stroble in a “black raincoat” with a “pirate’s sword,” along with four or five men, “put his hand on the man’s head…then he cut his throat.”118 It appeared to jurors that this witness was very credible. He had obviously been traumatized from having seen this horrific murder. At one point the judge “offered Mr. Ross ‘a handful of tissues,’ ” and while he told this story, “the jury of five men and seven women listened to his testimony with looks of intense discomfort on their faces, their eyes fixed on this slight and frequently inaudible witness.”119

  But whatever ground the prosecution thought it had gained with its alleged eyewitnesses to the murder of Barry Schwartz such as Jimmy Ross was lost almost as soon as Ernie Goodman, at times with his son Bill stepping in to help as well as Haywood Burns and Shango himself, began their cross-examinations and eventually called their own witnesses to the stand.

  Ernie Goodman’s first blow to prosecutors Cryan and Moynihan’s case came during the cross-examination of the state’s first witness, George Kirk. Not only was it already obvious that his testimony made little sense since it had changed even as he testified, but, as Goodman pointed out, the state knew this was a totally unreliable witness. For starters, prosecutors knew that this man suffered from mental illness and had been so unstable that even the state couldn’t rely on him despite granting him parole for agreeing to testify against Shango. No sooner did he get let out than he skipped town and went to California. When he ran out of money, he was so desperate that “he called the state troopers for funds with which to return.”120

  Goodman then took time to dismantle the credibility of the state’s second witness, John Flowers. Unbeknownst to anyone in Simonetti’s office, before he had taken the stand for the state, Flowers had already given Shango’s defense investigator, Linda Borus, a statement that “became extremely important at his trial, one of the highlights.”121 Written in longhand on yellow legal paper by Flowers himself, “his own statement in his own writing, in his own language,” made it clear that he had told the state investigators something completely different from what had happened in order to secure his own parole.122 So, after Flowers had just testified against Shango as Frank Cryan hoped he would, Goodman then presented him with his own handwritten refutation of that same testimony. According to that statement, Shango had not, in fact, told Flowers that Schwartz was there to be executed. What he had actually said was that it was good Flowers was patching Schwartz up and he was trying to keep things calm. “Look,” Shango had really said, “we don’t want anybody to get at these people, those who want to hurt them and we are trying to safeguard them and we can’t let anybody in here who might do something to them. So we don’t want anybody coming in without a pass and that’s why it is important that everybody coming in do have a pass.”123 The jury just gaped at this completely different portrayal of what had gone down in D Block on the day in question. Even if they weren’t sure which of the accounts to believe, one thing was certain: Flowers “had proven to be a liar” and, as Goodman saw it, that in itself “was really a devastating blow” to the prosecution’s case.124

  Things didn’t bode well for the rest of the state’s witnesses under Goodman’s cross-examination either. Willie Locke, for example, had told the gory tale of throat cutting and seeing the bloody victims on their cots and had, very clearly, put jurors in a mood to make sure that, if Shango had done this horrific crime, he should pay for it. Goodman, however, meticulously walked Locke through the other statements he made to investigators and, most importantly, the testimony he himself had given to the grand jury previously on July 19, 1973. He then asked him directly, “Did you ever see Shango with blood on him at any time?” to which Locke, hanging his head, simply said, “No.”125 Goodman then did the same thing with Jimmy Holt.126 Very quickly he had Holt admitting in front of the jury not only that it “was difficult for him to remember what he saw and what he heard later, he gets mixed up” but that, in fact, he had actually told the state that someone altogether different than Shango had murdered Schwartz. According to Holt, he had explicitly told state investigators that Tommy Hicks had gone “crazy and kept stabbing” Schwartz u
ntil he was dead.127

  Ernie Goodman, however, most needed to discredit Jimmy Ross, since he had such graphic testimony of Shango actually killing Schwartz. Goodman had to think hard about how he would tackle this particular man on the stand because Ross was already such a pathetic figure. Whatever happened he, Goodman, didn’t want to appear to be bullying or belittling this “very thin, small, white, gaunt looking, sallow-faced, pock marked man,” this “pitiful object.”128 So rather than push Ross around on the stand, Goodman decided instead to make clear to the jury just how easy it had been for the state’s investigator, Ernest Milde, to get Ross to say anything he wanted him to. As Goodman pointed out, Ross “had tried to stay away from him, try not to answer his questions, try not to say what he wanted to say [but] Milde had put things in his mouth, had suggested to him certain answers to certain questions…[pushing] again and again to get in something more and more and more and at the same time suggesting what that ‘more and more’ ought to be.”129 Ultimately Goodman’s cross was very successful. As the jury could now see, Milde had suggested so much to Ross that, ultimately, he was willing to make the statement the state wanted him to, under oath, about the killing.130

  For jurors, however, the question remained: If Shango hadn’t killed Schwartz, then who had? Goodman felt fairly certain that the jury would want to have some sense of this before it would be willing to render a not guilty verdict for his client. So he went for the state’s jugular, calling four witnesses whose other statements and testimony supported the defense’s claim “that the attorney general deliberately—and not by mistake or neglect—deliberately withheld from the grand jury testimony that would show that it was not Shango who killed Schwartz.”131 More specifically, Goodman referred back to what the defense had learned during the Wade hearing: these witnesses had named another man, Tommy Hicks, as the killer but—and this point was key—the state didn’t want Hicks to be the murderer because he had already been killed in the retaking.132

  As proof of these assertions, Goodman noted that Frank Cryan had not brought any witness who identified Hicks as the killer before the grand jury or to this jury. Why? Because at least one of them would have, according to Goodman, “directly contradicted Ross’s testimony that Stroble was inside of the cell when this murder took place; it completely eliminates him, and on that testimony he [Cryan] actually had three supporting corroborative witnesses, all of which tend to prove that it was Hicks, not Stroble.”133 Goodman noted that another prisoner reported he had “heard Thomas Hicks say, ‘I have cut two dudes’ throats,’ ” and seen Hicks “covered with blood, everywhere, hands, clothing, chest, face, and carrying a straight razor, beige colored, burned handle in his right hand.”134 A third witness—who was also known to the state—had not only “looked in the cell and observed Tommy Hicks cutting a white dude’s throat,” but had also pointed out that the state’s main witness against Shango, Jimmy Ross, hadn’t even been there when this murder took place—he had already left the gallery.135

  Even after decimating the state’s witnesses, and showing the ways in which they had, in his view, engaged in prosecutorial misconduct, Goodman couldn’t be entirely confident of Shango’s chances of acquittal. He had seen what had happened in the Hill and Pernasalice trial, where neither defendant had benefited a whit from the jury’s knowing of the state’s unsavory deeds, pressuring and bribing of witnesses. Goodman hit upon the only way he might eliminate any doubt that remained in the jurors’ minds regarding Shango’s innocence: compelling the jury to look carefully at exactly when Schwartz had been killed.136

  Goodman had spent a lot of time poring over the autopsy that John Edland had done on Barry Schwartz. He was no pathologist, but he was struck by the presence of rigor mortis in Schwartz’s body on Tuesday at 5:00 a.m., which certainly suggested that he “had been killed probably not more than thirty hours before the autopsy.”137 This was important. “If that were true,” that meant that Schwartz had died after Saturday—the day that prosecutors said Shango had killed him.138 Goodman began to wonder: if medical evidence indicated that Schwartz didn’t die until after Saturday, that meant not only that his client was in the clear, but that troopers might have actually killed Schwartz and Hess during the retaking.139 Not a single state witness placed Shango anywhere near the murder scene after Saturday.

  Goodman was worried about getting Shango to agree that Edland should be their parting shot to the jury; neither was he sure that he could persuade Edland to testify. Goodman decided that he, Shango, and Linda Borus all needed to sit down and decide, together, what the final strategy should be. So he went to the jail. “It was a miserable, horrible day,” he recalled. “The depressiveness, the heat, just being within the bars on a beautiful day outside, not being able to smell the air except through those bars…was enough to destroy the morale of everybody.”140 They persevered, however, arguing, bantering, and reviewing “everything that was available and the witnesses that were possible.”141

  Whatever strategy they decided upon, Shango asked, would it be enough to convince the jury of his innocence?142 Goodman couldn’t promise that. All he could say was that he felt his “approach to the defense was better, more effective, and less fraught with dangers” than, for example, allowing Shango to testify on his own behalf as he still wanted to do.143 Shango wanted to speak to clear his own name—but he more desperately wanted “an acquittal on all counts….He wanted no compromise verdict. He wanted and believed he was entitled to a complete acquittal.”144 Maybe Dr. Edland could be the surprise witness that would make all the difference.

  At first, John Edland had no interest in testifying in Shango’s case. He had over the last four years suffered so much abuse—so much hate mail, so much hostile press—that he wasn’t eager again to reenter the fray. He wrote to Goodman, “I would prefer to remain intellectually detached from the prosecution or defense of any of the Attica tragedies.”145 Eventually, however, Goodman persuaded him to explain his autopsy to the jury. The morning that he was to testify, Edland and his wife, “a very concerned and interesting person…[who] was terribly supportive of what he was doing,” met with Goodman over breakfast to go over what would happen.146

  When Edland walked into the courtroom that day, the state’s surprise was palpable. To Goodman’s relief, Edland was a great witness. He didn’t come off as coldly intellectual and detached, but as “a straightforward kind of guy, talking in a straightforward type of language that jurors could understand rather than testifying like a professional or an expert witness.”147 This was good because Goodman needed him to explain some rather complicated science having to do with the time of Barry Schwartz’s death and the way that rigor mortis manifests in the body. Speaking clearly and without hesitation, Dr. Edland stated that, based on rigor mortis at the time that he had autopsied the victim, “Schwartz had died on Sunday.”148

  Frank Cryan went ballistic. He hopped to his feet and began peppering Edland with questions, all of which seemed somehow sarcastic and disrespectful. At one point Cryan approached Edland with a heavy medical book in hand and tried to suggest that there were many medical experts who would totally disagree with his analysis of rigor mortis vis-à-vis time of Schwartz’s death. The more Cryan questioned Edland, the more aggressive he became. However, the prosecutor’s bombastic style seemed to backfire. After enduring one particularly aggressive question from Cryan, Dr. Edland finally lost his patience, responding in “such a dramatic, powerful, emotional way,” Goodman recalled, that it “knocked all of us back on our feet including the members of the jury.”149 It was as if a long-blocked dam in Edland finally burst. He spoke of how he had been “isolated, tortured, [and put] under extreme pressure” even though his findings had been independently verified and he had autopsied over five thousand bodies in his career.150 And before he stepped down from the witness box, jurors had seen this man’s pain. Earnestly, he said, his voice breaking, he had done “the best job he could,” and though others were welcome to disagree with his
findings, “he was confident of his conclusions.”151

  As Edland left the stand, the courtroom was hushed. Ernie Goodman was struck by “the tone of his voice, his expression…the intensity of his voice, the way he looked directly into Cryan’s eyes…his whole appearance showed the jury the amount of pressure under which this man had been living simply because he had told what he had seen, with no motivation other than to state the truth.”152

  Perhaps Goodman could have rested his case at that point. He would later concede, “It was the highlight and the most dramatic moment in the whole case for me.”153 However, he had two more defense witnesses to follow Edland on the stand: the first a former prisoner named Albert Victory who was to testify to the positive role Shango had played throughout the rebellion—particularly in trying to ease any tensions in the yard that might erupt between white and black inmates. Then former Attica observer James Ingram testified about Shango’s reasoned character in the yard as well as to the broader fears that had led prisoners to detain Schwartz in the first place.154 It was time for the closing arguments.

  On June 25, 1975, the defense made its summation. Goodman walked the jury through the myriad inconsistencies in the state’s witnesses’ testimony as well as reminded the jury of the many witnesses who had seen something utterly different from what the state claimed had happened. Goodman had hoped that this case would have been dismissed long ago; as far back as the Wade hearing, it was obvious to him how much evidence had been suppressed, so much that it should, in his mind, now “force an acquittal.”155 It seemed incredible to him that the state’s entire stable of witnesses in the Attica cases had “all paroled after cooperating.”156 Even more unbelievably, he argued, the state’s entire case against Shango rested on the testimony of only one man, Jimmy Ross, who the jury could see “had been used by the prosecution because he was a weak, pitiful figure to establish a case they couldn’t get through any other witness.”157 As Goodman made his way to sit down after his long review for the jury, it was clear he was satisfied that he had done all he could. Even the judge, in Goodman’s view, despite not having dismissed this case, had been pretty fair to Shango. He had, for example, made sure that Cryan couldn’t make any reference to Shango’s previous record before the jury and, when Shango came into the courtroom each day, the judge had ensured that “he was brought in by the deputy in a way that people wouldn’t see the handcuffs and through the judge’s own office and into the courtroom without handcuffs.”158 After Goodman walked the jury through his defense against the murder charge that morning, Haywood Burns summed up the defense’s arguments against the charges of kidnapping and felony murder that afternoon.