The other source of tension between Jomo and the rest of the Attica Brothers and the ABLD was his belief in a different approach to his defense. Liz Gaynes agreed with his sense that many of the white lawyers in the ABLD “felt that the Brothers were too stupid to weigh in on their own defenses.”17 Neither she nor Jomo felt that these lawyers would take seriously Jomo’s desire to make his case political, and to make it part of the larger political struggle of the Panthers. In Jomo’s opinion Attica Brothers such as Shango had forgone politics and “let the lawyers do the job—like a mafia model.”18 Big Black had also said he wanted a more political defense, but Jomo didn’t particularly like Big Black and thought he actually was not political at all, describing Big Black’s Attica Now Collective as having “no platform. They would always back down. I never felt they were strong.”19
What irritated Jomo most was his sense that the other Brothers, including Black, were trying to aggrandize themselves at the expense of the less public Brothers and those still locked up. In one letter from the Erie County jail, written in July of 1974, he had called out what he referred to as the “Reactionary Niggers of Attica”—chiding them for speaking “beautifully about things” on the outside, while he and the rest of the Brothers had been left behind within “these walls of pure living hell.”20 In his view, those Brothers on the outside were the darlings of the ABLD, which was reason enough for him to want nothing to do with that organization. With Liz’s help he was being represented by Vincent Doyle, one of Buffalo’s most respected defense lawyers, whom he trusted to develop a legal strategy that would allow Jomo to bring in evidence of the crimes by the guards, while retaining his right to tell his lawyers “how to inject politics into my defense.”21
Although Jomo had formed his own defense group to raise funds and drum up public awareness of his individual case mainly for political reasons, he was nevertheless a pragmatist.22 He knew that the ABLD had resources and the ear of the press and the public. He didn’t want to alienate this group totally and insisted that he, in fact, wanted “a basic working alliance with ABLD, other defense committees, prison groups, political organizations, etc.”23 To other ABLD lawyers such as Big Black’s Michael Deutsch, Jomo’s position, while perhaps understandable, was ironic. In his view, when it came time to gear up for Jomo’s trial, all-out legal wrangling and maneuvering—not political messaging—soon took center stage.
Vinnie Doyle’s primary defense strategy would indeed be more legal than political. In his view it was clear that Jomo was being selectively prosecuted by the state. Despite the preponderance of evidence suggesting that the bulk of the crimes at Attica in September of 1971 had been committed by law enforcement officers—responsible for all of the deaths there save the three prisoners in D Block and CO William Quinn—the state of New York had exclusively, and thus selectively, prosecuted only prisoners. It seemed clear to Doyle that Jomo was one of those being selectively prosecuted. Even the press was now writing pieces about the state’s seeming single-minded focus on trying prisoners. Before Jomo’s case came to trial, Doyle successfully filed what is known as a Clayton motion, a motion to determine whether the state had singled him out. It would be heard before Judge Ann T. Mikoll.24
This hearing was a real turning point for Jomo. He was finally able to get the full story of the abuse he had suffered at trooper hands, and his myriad gunshot injuries from those same members of law enforcement, onto the record, and he was able to show the judge the physical scars that he still bore as a result of that trauma. Prosecutor Charles Bradley recalled one shocking moment in the hearing when suddenly Jomo, “handsome” and a “very big and powerfully built guy,” began to describe his scars and then asked the judge for permission just to show her.25 When she agreed, he looked to Liz Gaynes and asked that she help him, whereupon Gaynes came forward and lifted up Jomo’s shirt for the court.26
As the hearing came to a close it was clear that Judge Mikoll had been moved by Jomo’s story, and the prosecution didn’t like it. Even Jomo felt that she might be leaning more toward his side than theirs. Sometimes when he was particularly animated, even “swearing and talking like a Panther,” as he put it, the DA tried to silence him but the judge essentially declared that Jomo could speak as he wanted. Jomo’s attorney, Vincent Doyle, and the ABLD for that matter, read a deeper significance than a particular fondness into the judge’s willingness to let Jomo talk. For years, the state had been bullying the Attica defendants and had, perhaps, finally overplayed its hand with this jurist in Buffalo.
At Judge Mikoll’s urging, Vinnie Doyle began settlement discussions with Simonetti’s office. Over the past three years state prosecutors had tried to get various Attica brothers to plead out, including several of the men indicted under one major indictment, no. 10, who, it would later turn out, would have their cases dismissed completely because the state lacked enough evidence to proceed. Although Doyle was eager for Jomo to consider a settlement, he knew that it would not be easy to persuade his client to take it. Jomo had from the beginning been hostile to any mention of a plea deal. If he hadn’t committed the crime, he reasoned, then he should not say he did just to avoid a longer sentence. Also, Jomo had been very hard on every other Brother who had taken deals, and he was no longer speaking to them.27
Simonetti’s offer was significant: he would drop the murder charges if Jomo would plead merely to coercion. His sentence would, thus, be four years including time served.28 Even better, he could take something called an Alford plea, which allowed one to plead guilty while still, officially, proclaiming innocence. In short, Jomo could walk away from this legal nightmare and still not have to concede any wrongdoing.29 Deep down both Jomo and Doyle felt that the state’s willingness to offer this plea had less to do with Judge Mikoll’s desires than the fact that Jomo insisted he knew exactly who had shot him on September 13, 1971, while he lay on the ground, injured and bleeding. He had made clear to the prosecution that he was both willing and determined to testify to that effect; the fact that, during the hearing for Jomo’s Clayton motion, much of the testimony had corroborated his account meant that state prosecutors had great incentive to settle.30 Even before Judge Mikoll pressed for a deal, and “prior to any ruling by the court,” Simonetti’s office made an offer “to drop the charges…in return for a plea to a minor offense.”31
After careful consideration, on October 9, 1975, Jomo pled guilty to coercion—a class D felony that could carry a maximum sentence of seven years but for which he would serve no additional time.32 Importantly, both to Jomo and to the rest of the ABLD defense effort, “he did not allocute to a specific or named event, date, or victim, but rather stated in open court that although innocent, he was taking his plea solely to enable him to end a prosecution that had been initiated three years before.”33 Yet another case against the Attica Brothers had ended with mud in the state’s eye. And yet, just as in Shango’s case, thwarting the state’s efforts to prosecute did not lead to Jomo’s immediate freedom. Despite the plea deal in this case, Jomo still had to return to Attica to finish serving his original time. Something profound had shifted in his relationship with the authorities there, however. It seemed to Jomo that they were far less capricious, and less eager to push him around. When his mother died, for example, Jomo asked to be allowed to attend the funeral in North Carolina. To his surprise, they allowed him to go. As he recalled, “They paid for two officers to come with me….So many people were at the funeral home and the guard took my handcuffs off….I could have run and I did not.”34
Without question the authorities in the Attica Correctional Facility, the New York State Police, and in the state prosecutor’s office were in a far different position by the close of 1975 than when they had first announced prisoner indictments in December of 1972: the state’s cases were falling apart, and prisoners who had been vilified in the press were now being written about as the victims of state bullying. Most significantly, on April 8, 1975, The New York Times broke a story that rocked the entire N
ew York State Attorney General’s Office to its core. Someone inside the Attica investigation had become a whistle-blower.
Malcolm Bell, one of the main prosecutors in Simonetti’s office, was now claiming that his colleagues and bosses had worked deliberately and systematically to prevent the prosecution of the troopers and correction officers who had committed crimes at Attica. In fact, he alleged, Simonetti and others had actually tried to cover up these crimes entirely.
Bell had originally raised these shocking accusations against his fellow prosecutors in 1974 as Shango’s trial was beginning. But neither judges nor state officials were willing to move on his allegations and, thus, the state proceeded with their cases.35 By the time Jomo presented his evidence of selective prosecution, these revelations that could support his claims had finally gotten some attention. When Jomo entered his Alford plea, everyone in Simonetti’s office felt that they would all suddenly be subject to much more scrutiny. They were correct.
PART VIII
Blowing the Whistle
MALCOLM BELL
Malcolm Bell had entered the practice of law with conventional ambitions. When he left Harvard Law in the 1950s he felt fairly agnostic about politics but was optimistic about the way that the nation was progressing. Indeed it tended to annoy him when, in the 1960s, he saw an increasing number of protests critical of the United States erupting on campuses and city streets. Bell had served two years in the Army—first at Fort McClellan in Alabama and then in Wiesbaden, Germany—and he was a patriot. In 1968 Bell cast his vote for Richard Nixon and unapologetically supported an American presence in Vietnam.
By 1971, Bell was divorced and living in Darien, Connecticut. He had worked on corporate litigation at one of Wall Street’s most prestigious firms, and was currently doing similar work for another firm uptown. He was, however, restless. He liked the law because it had integrity. But corporate work was not always honorable, and, frankly, he found it tedious. Bell was no radical, but one of the reasons he had been attracted to the law in the first place was to do some good. He was coming to believe, however, that the civil cases he was working on made very little difference in the grand scheme of things.
In 1973, Bell found himself wondering if he might try his hand at criminal law. At least it would be more exciting. That August, he saw an intriguing ad in a law journal that would change his life. The Attica investigation had placed a rather cryptic call for “prosecutors.” He applied and soon found himself sitting across a desk from Anthony Simonetti in the Attica investigation offices in lower Manhattan. To his astonishment he learned that this was an opportunity to work on one of New York State’s largest criminal prosecutions ever. He was offered a modest $28,500-a-year job, and he accepted it with enthusiasm. Bell was to be Anthony Simonetti’s chief assistant tasked with collecting and presenting evidence to Attica’s grand jury of any crimes committed by law enforcement during the retaking and rehousing at Attica. A year into his stint at the Attica investigation, however, he had begun to wonder whether his superiors were in fact as interested in pursuing cases against members of law enforcement as they had been against prisoners. By 1975, Bell would find himself reluctantly at the heart of one of New York’s most newsworthy whistle-blowing scandals.
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Joining the Team
From Malcolm Bell’s first days on the job at the state of New York’s Attica investigation it struck him as odd that so much effort was going into prosecuting prisoners from Attica when “the officers had killed ten times as many people as the inmates had.”1 However, the decision to investigate prisoner crimes before police crimes had been made well before Bell was hired.2 In 1972, Deputy Attorney General Robert Fischer wrote to his boss, Louis Lefkowitz, that the prisoners’ killings of CO Quinn, and that of fellow prisoners Schwartz and Hess, were “more obviously homicides” than the killings of correction officers John Monteleone or John D’Arcangelo.3 And, as he put it to an attorney from the Justice Department in these early years, any crimes members of law enforcement may have committed against the prisoners while rehousing them after the uprising were “of a lower priority.”4
There had been pushback on this perspective. In October 1971 the Goldman Panel had noted uneasily that the Attica investigation was concerning itself solely with the prisoners and not with members of law enforcement.5 Even some of the individuals who had witnessed trooper abuse firsthand, such as National Guard surgeon Dr. John Cudmore, began publicly airing the view that the state’s disinterest in trooper crimes was outrageous and unacceptable.6 State investigators had not even asked Cudmore about the horrific acts he had seen troopers commit until a full two and a half years after Attica’s retaking and, as Cudmore pointed out to the press in disgust, it would be hard even to identify one’s own children if this much time had passed since you had seen them.7
As Malcolm Bell saw it, there wasn’t anything wrong, per se, with his bosses investigating and indicting prisoners so zealously. If prisoners had committed crimes at Attica, Bell reasoned, then they should be held accountable. He too began to find it troubling, though, when it seemed that his colleagues were pursuing prisoner cases even when the “the scantness of evidence against the defendants” was quite glaring.8 It specifically bothered him that the witnesses whom the state relied on to make its cases against prisoners, for example, had clearly changed their stories over time. It also seemed to him that these witnesses’ memory of past events was vague at best. He had noticed with some serious discomfort that his colleagues were not above leading and coercing these witnesses to make their cases.9
Bell’s boss, Simonetti, and his fellow prosecutors were also uncomfortable with the ways in which at least the early evidence in their investigation had been collected—that is, by the investigators from the NYSP’s own Bureau of Criminal Investigation—but they felt that they had gotten it back on track. They had not, in their view, done anything inappropriate to make their cases.
And, in the early days, Bell was happy to see it this way as well. In fact, it was a good sign, he thought, that Simonetti would also allow him to work on the so-called shooter cases, the incidents during the Attica retaking in which a member of law enforcement had fired his weapon at a prisoner or hostage without legal justification. Simonetti might have started with the indictment of Attica’s prisoners, but he was clearly gearing up to indict troopers and COs too.
Simonetti had, even before Bell’s hire, brought a case against a New York State trooper before the Attica Grand Jury in 1972. He had assigned the case to the only African American prosecutor on the team, Ed Hammock—a former New York County assistant district attorney and head of a respected Manhattan narcotics rehab program—but no indictment followed.10
Even though Hammock no longer worked in the office and Bell couldn’t ask him what had gone wrong with his cases, Bell could see why he might have failed.11 For starters, precious little groundwork had been done on any case involving a trooper or a CO—even by the time Bell had joined the team. No one had pieced together the evidence secured against members of law enforcement in such a way that an airtight case might be made. Bell had little more than “inconclusive memos about the fatal shooting of two hostages on the catwalks” and “fragmentary memos about the deaths in the Hostage Circle, but there was no coherent story” waiting for him when he was assigned to the shooter cases.12
This, however, had advantages. Bell could approach the shooter cases with his mind as open as possible, vowing to work “as hard to find evidence of officers’ innocence as of their guilt.”13 And yet, the closer Bell looked at this evidence, and the more he compared the statements that troopers and COs had given to explain their actions with other evidence such as photographs from D Yard, the more apparent it was to Bell that the statements didn’t add up. For instance, the troopers who had fired from A and C Blocks insisted that they had aimed only at prisoners who were trying to attack hostages, yet even a novice investigator could see from the photographs that “there were no hostages or anyone
else in the direction to which the inmates were running.”14 Countless prisoner witnesses had also made clear that if they had been able to move at all, they had actively fled away from the troopers’ fire, certainly not run toward it.
And it wasn’t just the evidence that didn’t support the troopers’ statements, neither “did common sense.”15 One NYSP sergeant who officially admitted to firing at prisoners offered three completely different versions of why he did so. At one point he said the prisoner was about to throw an object at him, but didn’t state what it was. In another statement he said that he had been unable to make out exactly what that prisoner had in his hands because there was so much gas in the air and he had been wearing a gas mask. Yet this officer had also claimed on yet another occasion he knew for certain that the inmate had been wielding a Molotov cocktail.16
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