Blood in the Water

by Thompson, Heather Ann

  It was then the prosecution’s turn. Cryan’s summary took over two hours.159 He seemed undaunted as he got up to make his own closing arguments. He focused the jury’s attention on the sheer depravity of the murder of Barry Schwartz and argued not only that Shango had been there when that murder took place, but that several witnesses believed he had done the crime. Jimmy Ross, he stressed, might be troubled, but he knew what he saw.

  When Frank Cryan sat down even Goodman had to concede that, overall, the prosecutor had done a good job in his summation. His witnesses had been so weak and yet he tried valiantly to make their testimony make sense for the jurors. As he put it, Cryan had “dealt with many of the questions that had been raised in our arguments and he dealt with them generally in a fair way.”160 The fact remained that Cryan himself wasn’t particularly likable.161 As Goodman put it, what was “lacking about Cryan and it had been lacking throughout the whole trial is that he is not a concerned human being. You never felt humanity coming out of the man…and that was evident in his final argument.”162

  The next morning, June 26, 1975, from 10:10 until 11:28 a.m., Judge Mattina gave his detailed charges to the jury, whereupon it left to deliberate. As it turned out they would be voting only on whether Shango had committed first degree murder. At the eleventh hour the judge responded affirmatively to a motion Goodman had filed earlier to get the kidnapping charge against his client removed, so the felony murder charges were also dropped.163 Since many of the men awaiting trial were charged under the same indictment, this decision would have serious implications for future cases, because if there hadn’t been a kidnapping in this case, there couldn’t have been kidnappings in the rest of the cases that the state hoped to try. In fact, with this decision, the judge had kicked the legal moorings that underpinned the state’s most dramatic cases yet to be tried right out from under them. Still, Shango was hardly off the hook. The state was charging him with the murder of Barry Schwartz, a charge that could net him a life sentence.

  The jury, though, was not going to decide anything quickly. Hours after leaving to deliberate they asked for some trial testimony to be read to them and, then, an hour after that, they adjourned for dinner. After their meal the jurors were back at it but still had much they felt needed to be discussed. At 8:15 p.m. someone came out to ask for some clarification on the judge’s charges. By 8:30 p.m. they were again deliberating, and at 8:55 p.m. the jury took its vote.164

  When the jury emerged from the deliberation room on the evening of June 26, it was utterly silent in the large courtroom. So drained were Goodman and the rest of the defense team that all he could manage was to bury his head in his arms as he waited for whatever the jury had to say. The jury foreperson slowly rose and, in a somber, dispassionate tone stated that the jury had found Bernard Stroble not guilty of murder. When the words sank in, suddenly it was pandemonium. On hearing the verdict Ma Stroble fainted in her seat, right behind her son, whereupon Shango jumped up and tried to attend to her.165 Goodman wept.166

  When Ernie Goodman, Haywood Burns, and the rest of Shango’s defense team walked out of the courtroom into the dark summer night they were met by scores of ABLD supporters who applauded them as they walked down the stairs. Again, Goodman was overcome. “It was a remarkable feeling,” he remembered. “It was a defense that had been able to jointly overpower the state, without money and without expertise in many cases,” and yet it had been able to “bring some kind of justice to that courtroom.”167 Everyone assembled felt an integral part of that victory. A chant began to grow louder all around the courthouse: “Attica Means, Fight Back!” and then “Attica Means” from in the street and a slightly muffled, but still powerful, “Fight Back” from inside the Erie County jail, where many Attica Brothers still sat, awaiting their trials.168

  41

  A Long Journey Ahead

  In the wake of their embarrassing defeat in the trial of Bernard “Shango” Stroble, Attica Special Prosecutor Anthony Simonetti and his stable of prosecutors lost some faith that the state would necessarily win the cases still slated to go to trial. In every case that had already gone to trial—including in the single one that they had managed to secure convictions, that of Hill and Pernasalice—the ABLD had relentlessly done its homework, and had managed to drum up substantial support in the court of public opinion. The ABLD had, for example, blanketed the recent Erie County fair with colorful, friendly leaflets questioning whether this was indeed a fair county and asking residents to be their best selves when sitting on Attica juries. Thanks to the ABLD it was unlikely that a single potential juror in Buffalo had not at least heard of, if not actually seen, one of these flyers.

  Nevertheless, Simonetti and the judge overseeing all of the Attica cases, Carmen Ball, were determined that all remaining cases proceed as quickly as possible. Both men were in fact facing some media criticism that, although sixty-two prisoners had been charged with committing crimes at Attica back in December of 1972 (and some of them, like Shango, had been named in numerous indictments at the same time), by 1975 prosecutors had only managed to bring five cases to trial. A key challenge that Simonetti’s team of prosecutors had faced from the beginning was the considerable amount of time it had been forced to expend on responding to the ABLD’s strategically deployed blizzard of motions. What is more, the ABLD’s myriad motions had at times been granted, which also set back prosecutors—particularly when they were required to dismiss charges against a given defendant altogether. As The New York Times noted in November of 1975, charges against twenty-seven defendants had eventually been dismissed for lack of evidence or other legal reasons.1 Six defendants had passed away while waiting for their trials.2

  The state still had plenty of Attica defendants left to try, however, and Judge Ball was committed to getting these scheduled as soon as possible.3 One of the cases still to be tried was that charging several Attica Brothers, including Donald Noble, with the attempted murder of Attica correction officer Michael Smith “by cutting [him] with a sharp instrument” up on the catwalk on September 13, 1971.4 The fact that Michael Smith himself had told prosecutors that Donald Noble had actually tried to save him from being gunned down on the catwalk on that day, or the truth that Smith’s most catastrophic injuries had come not from any homemade prisoner weapon but rather from having been shot numerous times on the day of the retaking, had not stood in the way of their desire to pursue this case against these indictees.

  The case they were most eager to get to trial, however, was the so-called leadership indictment, indictment no. 5, which had charged sixteen Attica Brothers—the ones who had been in segregation after having had Xs chalked onto their backs on the day of the retaking—with multiple offenses. Among these men were Big Black Smith, Herb Blyden, Roger Champen, and Shango. Once again Frank Cryan and Daniel Moynihan would represent the state. Judge Ball expected this trial of Attica’s most high-profile rebels would last “close to a year” and it would be “the political trial” and “it will take the longest time to try and will probably be the most explosive.”5

  As much as prosecutors would have liked to get on with the leadership indictment—since it was the most involved and would take so much of their energies—first up on the docket was to be the trial for Attica prisoner Jomo Joka Omowale (born Cleveland McKinley Davis), who stood accused of murdering fellow prisoner Kenneth Hess.6

  Jomo was the son of a North Carolina sharecropper whose family moved to Virginia when he was twelve. His father became one of first African Americans to run a service station in Virginia, but Jomo had little interest in that business. After a few years of hanging around his dad’s shop, he went looking for work in Virginia Beach, where he and a friend were arrested for unknowingly transporting moonshine. Their boss had paid them to drive a car across state lines to bring a “delivery” to a customer but had failed to tell them they were running liquor across state lines. Whereas Jomo’s white friend was allowed to enlist rather than do time, Jomo was sentenced to five years in Virgin
ia’s hellhole of a state penitentiary. When he finally got out on parole, he was a different person—jaded, cynical, and deeply disillusioned about life. Sensing this change in her son’s outlook, Jomo’s mother tried to give him a fresh start by sending him to live with one of his uncles up north in the Bronx.

  By then, though, Jomo felt a whole lot more comfortable hanging around with folks who had experienced the same things he had and, in time, he was spending all of his time with those who skirted the law and was himself committing petty crimes just to get by. Hoping to avoid getting locked up again, he changed his name to Eric Thompson. Before long, he was busted for robbing an auto parts store and he found himself locked up again—this time in Sing Sing. At this prison he underwent another transformation: he devoured every book he could get his hands on in the library and met many other intelligent people on the inside. Thanks to this education, he not only began to rethink his personal direction, but he also began to think about the nation itself in more critical ways. A pivotal moment for him was seeing the electric chair that had executed accused spy Ethel Rosenberg—he swore that he could still see where her urine had stained the concrete. The image haunted him as he tried to make sense of a country that prided itself on free speech and acceptance and yet was all right with electrocuting that mother.

  Jomo, now living as Eric Thompson, increasingly questioned the world around him, he also found himself gravitating toward the teachings of Islam. He converted, and it was then that he became Jomo Joka Omowale. He liked the name Jomo because it was a powerful moniker that meant burning spear, snake, or dragon. After becoming a Muslim, Jomo also joined the Black Panther Party for Self-Defense because he found its ideology empowering. Every political group had a following at Sing Sing: the Panthers, the Republic of New Africa, the Five Percenters, and others, and their growing appeal greatly alarmed correction officials. Trying to neutralize the perceived threat, Sing Sing administrators decided to round up the apparent militants and send them, as a group, to Auburn prison. As a defense minister in the Panthers, Jomo was one of those transferred to this new facility. Jomo was also one of those transferred to Attica after his activism during the Auburn uprising of 1970.

  When Jomo arrived at Attica he couldn’t get over how miserable the conditions were there. He couldn’t believe that the men there were so desperate for time outside their cells that they would literally stand outside in the sleet and rain just to catch some fresh air. Jomo was also taken aback by how cold the guards were at Attica. Attica’s correction officers barely spoke to the prisoners—preferring instead to convey their wishes with the butt of their batons. In his view, Attica’s officers treated the men in their charge like animals that needed neither shelter from the elements nor the camaraderie of conversation. He realized, however, that there was an upside to the COs’ attitude toward prisoners. Since they didn’t see them as feeling and thinking human beings, they paid no attention whatsoever when prisoners like him wanted to hold political meetings in the yard.

  When the Attica rebellion of 1971 began, Jomo was working in the barbershop. Although guards knew him as a militant, in the initial chaotic hours of the riot “he protected [a correction officer named] Heller and civilian staff from harm.” When the retaking of Attica commenced, however, Jomo was shot multiple times. He was struck on his upper left arm with shotgun pellets, which, he later explained, “ripped open the inside of my left arm.” Jomo was shot six more times in his neck and back. Then he was one of the hundreds forced to run through a gauntlet of troopers and COs raining blows down on them. Jomo was suffering from gaping wounds and a collapsed lung. That night, he begged prison officials to take him to a real hospital. They refused. There he remained, in four to five inches of standing water, without sufficiently warm clothes, real food, or even a mattress. He had attempted to keep his wounds clean to avoid infection and to rehabilitate his own lungs by doing intensive breathing exercises in his cell. It was so cold in that cell that Jomo shivered and his wounds continued to bleed. After eventually losing so much blood that he looked near death, and with investigators from the Jones and Pepper commissions now poking around, prison officials finally took Jomo to a hospital in Buffalo for a transfusion. The doctors there were shocked by how severely injured he was.

  But in the hospital, the ugly threats and serious harassment from law enforcement continued. During the night, Jomo insisted, “a guy came in and he was acting strange. He had trouble putting the blood unit on the pole” and suddenly Jomo felt a cold liquid entering his arm. He started to hyperventilate, having a terrible reaction to whatever the stranger had given him; hospital staff had to give him something else to stabilize him.7 Jomo and his roommate worried over who it might have been in his room that night. “No one knew who he was. He wasn’t an employee,” he later explained.8 On another occasion, Jomo cowered in his bed as a state trooper walked into his room, looked at him coldly, and then said to the nurse, “This bastard ain’t dead yet?” On another occasion a different trooper planted himself next to Jomo’s bed and passed the time playing Russian roulette. “He would play with me putting bullets in and taking them out and threatening to shoot me,” Jomo recalled, shuddering. “He would click it pointed at my head and then it wouldn’t go off.”9 Once Jomo finally left the hospital, he was placed in HBZ.

  There his harassment continued, albeit in a different vein. As Attica’s narrow halls filled with investigators from the Bureau of Criminal Investigation of the New York State Police and Simonetti’s office, Jomo understood that he was going to pay still another price for having rebelled—beyond that of having been shot so many times. And, sure enough, when prosecutors presented cases against him before the Attica grand jury, Jomo ended up with more indictments than any other prisoner.

  Ultimately, Jomo found himself facing thirty-four counts of kidnapping as well as four counts of coercion and unlawful imprisonment for taking hostages. He also was charged with kidnapping and murdering Kenneth Hess.10 The latter case was the more sensational one, and it would be tried first. At least Jomo’s murder trial came after Shango’s, and this turned out to advantage him quite significantly. Because Judge Mattina had decided in Shango’s trial that no kidnapping “in the traditional, legal or actual sense of the word” had taken place in D Yard during the uprising, Judge Ball was forced to bar the prosecution from relitigating the same issue in Jomo’s case.11 In fact, not only did prosecutors have to dismiss felony murder charges against Jomo in his upcoming trial—charges that could only be brought had there been a kidnapping—but they were forced to drop them against Herb Blyden, Frank Smith, and Roger Champen in their pending trials as well.12

  Jomo, however, still stood charged with the first degree murder of Kenneth Hess. Even though his trial was commencing years after the retaking at Attica, Jomo was still struggling physically and mentally from all he had endured on that day and those following and he worried about his ability to marshal an effective defense. In addition to having flashbacks and nightmares, he was also in a great deal of pain. After the indictments came down in December 1972, he was skeptical about the idea of a joint legal team representing sixty-two Brothers with potentially divergent interests. He wanted to get a “real lawyer,” not necessarily a political lawyer, because he believed he should manage the political aspects of his case. He asked Liz Gaynes, whom he had met earlier in the year when she was a law student working on the Auburn 6 defense, to help him retain his own lawyer, separate from ABLD, and to help create his own defense committee—the Attica Bond to Free Jomo.

  Liz had heard of Jomo before meeting him: in the course of interviewing potential witnesses for the Auburn 6, she was invariably told by those who were Black Panthers that she needed to speak with Jomo before they would talk to her. While it at times annoyed her, Liz was impressed with how tight this group was in the New York prison system and how much they revered Jomo.

  The day that Liz first met Jomo in February 1972 he was on a list of six prisoners that she was supposed to talk
to, but when she walked into his room she was transfixed and stayed longer than she should have. From the moment they began talking she was taken by his political knowledge and analytical mind, and he was also, in her view, an incredibly beautiful man. She could see right away that “he was a brilliant strategist” and, indeed, out of the many Brothers she had already spoken with, she didn’t know any who had Jomo’s level of perspective on the politics not only of the Attica struggle but also of the struggle against racism in America more generally.13 In fact, so moved was she by this man that walking out of his room she realized that she had just met her “first real love,” and later that night she actually called her mother and said “that this was the guy I was going to marry.”14

  Jomo, it turned out, was equally struck by Liz. She was not only smart, opinionated, and passionate, but was also determined to speak her mind, which Jomo found captivating. Over the coming months, they met again and again to discuss his case and their love affair intensified. The closer they grew, though, the more eyebrows were raised in the larger ABLD community. Over time, tensions began to develop between Jomo and Liz on the one hand, and some of the other Attica defendants who felt that the two of them had isolated themselves. Just as the relationship between Dalou and Barbara Handschu had caused rifts between some of the men awaiting trial, so did the relationship between Jomo and Liz. “Anytime you have a couple and a team it is tricky,” recalled Liz Gaynes, but in Jomo’s opinion what was really at issue was the fact that Liz was white.15 He felt compelled to pen a defense of his relationship with Liz and the fact that she was white. He wrote, “A white woman don’t ever make a black MAN any less black by standing at his side in trying times, it’s just that that woman has committed herself to stand and realizes that their struggle in life is one and the same….So don’t think I have copped out on my people or rounded on them for a white woman to hide my face from black struggle.”16