Blood in the Water

by Thompson, Heather Ann

  Statements intending to explain how a trooper got shot in the leg in D Yard during the retaking—the only trooper hit by a bullet—also troubled Bell. According to this trooper, State Police Lieutenant Joseph Christian, he had been shot when trying to get to the circle of hostages in D Yard to rescue them.

  Armed with two pistols and a shotgun, Christian stated that he had been running toward the hostage circle when a prisoner ran at him with some sort of club and proceeded to hit his helmeted head with that object. Then, in order to save Christian’s life, troopers on B Catwalk claimed to have fired their shotguns at this prisoner—in the process not only wounding Christian himself in the leg, but also killing several of the state’s own men: the hostages in the circle. According to this scenario, the hostages’ deaths, while tragic and terrible, were wholly accidental and unavoidable—and legally justifiable.

  Given that so many hostages in that circle had been hit by trooper fire, it was vitally important to Bell that the troopers’ accounts be truthful. Yet he was troubled. Joe Christian’s own statement, which was supported by a photo taken during the assault, made clear that he was right in front of the hostages when he got shot—and not well off to the side as the troopers had maintained. This could mean that the troopers had been reckless to have fired at that time, and with that much power.17 As troublingly, at least three of the eight hostages had not been killed by shotgun pellets from B Catwalk; they had been hit by rifle fire—and yet not a single rifle shooter admitted shooting at that area of the yard.

  In virtually all of the shooter cases, Bell was not investigating whether the shootings had resulted in death per se; he was trying to determine whether the shots themselves had been justified. Take, for example, the shooting of Sam Melville, the white prisoner who, having been incarcerated for bombing various buildings to protest the Vietnam War, had written the exposé of Attica’s profits from its laundry facilities, and had been a leader at the negotiating table. Members of law enforcement were openly thrilled that Melville had perished in D Yard during the retaking, and Bell found the details of this shooting disconcerting. Firstly, according to several witness accounts, Melville had been shot to death while trying to surrender. And then, the trooper who took credit for shooting Melville was a BCI investigator and claimed that he had shot only in self-defense: Melville, he said, had been trying to throw a Molotov cocktail at him. Yet Bell could see from the evidence that no such weapon was located anywhere near Melville.

  Time and again, Bell found that trooper claims of having shot prisoners in self-defense had been completely fabricated. This was particularly evident when he closely examined the killing of a prisoner named James Robinson. Robinson had initially been shot by a .270 bullet, which did not kill him outright. Another trooper came upon Robinson lying on the ground, bleeding profusely, and proceeded to riddle the wounded man with shotgun pellets. Because this trooper was shooting at such close range, those pellets went into one side of Robinson’s neck and out the other in a spray. To justify this shooting, this trooper took great pains to claim that Robinson had come at him wielding a knife. A gory photograph of the dead man showed a curved sword beside him as proof. Yet Bell quickly recognized two damning facts: first, photos taken seconds before and seconds after Robinson was shot showed him lying in exactly the same position on the pavement and there was simply no way he could have sprung to his feet after being wounded from the .270 shot, lunged at the trooper, and then lain down in the exact same position between the time the two photos were taken.18 As troublingly, in the first photo taken of Robinson by troopers there was no sword anywhere near him, but in the second photo—again an image indicating that this man had not moved—there was.19 Someone else had clearly placed it next to him for that second photograph.

  The body of inmate James Robinson lies where he was killed. In the second shot, a weapon has been placed under his hand. (From the Elizabeth Fink Papers)

  Bell was particularly haunted by two prisoners’ deaths: Kenny Malloy and Raymond “Ramon” Rivera. Malloy had been shot twelve times in the head and body, at close range. Rivera, who had been cowering in a hole prisoners had dug under the sidewalk, was similarly pulverized with ten pellets.20 Piecing together various accounts, Bell learned that at the first sounds of helicopters and gunfire, Rivera had squeezed himself down into this hole to shield himself from the gunfire. Rivera had no firearm, nor any other weapon that could have been construed as a threat to law enforcement. Nevertheless, a state trooper lowered his shotgun into the edge of that hole and fired off a round of buckshot into Rivera’s leg whereupon he quickly bled to death.21 Trying to justify the shooting, this trooper had also claimed that he was acting in self-defense. His own embellishments in his statement, however, soon undid the veracity of this claim. He said that he hadn’t used his own weapon, it was a shotgun that he had, fortuitously, taken from a prisoner. He was in fact, he wanted to show, a hero for preventing that prisoner from killing a hostage with the same gun. But it was common knowledge in Simonetti’s office that the prisoners in D Yard had had no firearms.

  More than the discrepancies and outright lies in the troopers’ accounts of their own actions, Bell was alarmed to find as he went deeper into the investigation that higher-ups in the New York State Police seemed to be deliberately hindering his investigation by either not cooperating or, quite literally, concealing evidence. Simonetti had actually warned Bell that “the state police had refused to cooperate…withheld evidence…and generally obstructed our efforts to learn and prove what had happened,” and now he was seeing this firsthand.22 Back in October of 1971, when the U.S. Department of Justice had opened its own brief inquiry into possible civil rights violations at Attica during the course of the retaking and rehousing—one that ultimately went nowhere—its investigators had also been frustrated by the lack of candor from the State Police and their unwillingness even to provide the statements that troopers had given right after the retaking.23 For example, when FBI officials asked Henry Williams—the NYSP captain who had helped Major John Monahan orchestrate the assault and the head of Troop A’s BCI team who had headed up the initial evidence gathering there—to turn over the trooper statements he had taken, Williams stalled. Their request, he said, “would necessitate some checking on his part,” and he never did turn them all over to the Department of Justice.24

  The truth was, since BCI investigators had tainted the collection of evidence after the retaking, neither Simonetti’s office nor the FBI could be certain what evidence even existed. These State Police investigators hadn’t, for example, even asked any of the surviving prisoners “what they witnessed…while all around them the police were shooting people” and their processing of the crime scenes in D Yard and the catwalks seemed shoddy at best.25 Captain Hank Williams had requested that the Niagara County sheriff send men in right away to “remove dead and wounded inmates and hostages,” and as early as 10:30 a.m. on the 13th, he had those men start a “clean-up operation” that removed “potentially vital evidence from the yards, from storage rooms, from the tunnels and from other unoccupied buildings.”26 This cleanup detail had completed its assignment long before any independent investigator arrived on the scene. 27

  Yet Bell and his fellow attorneys at the Attica investigation suspected that there might be a great deal of evidence that the State Police had collected and simply refused to turn over. Unfortunately, every piece of evidence they managed to force the NYSP to give them seemed compromised in some way. For instance, one batch of statements that BCI investigators had taken from the NYSP troopers who had participated in the retaking read not like objective shooter reports, but more justifications for killing, complete with tales of prisoners rushing at them and trying to kill them.

  Bell soon realized that these might not even have been the first statements taken on September 13. There were rumors of “a first generation of handwritten statements” that had been “written on yellow paper”; perhaps the NYSP had instead turned over a second set of “compar
atively empty and innocuous” statements that they took on September 15.28 In Bell’s mind this could mean only one thing: someone had decided that those troopers had needed to revise the statements with clearer justification of why they had fired so many rounds and wounded or killed so many people. No one had ever accounted for the actions of NYSP troopers on September 14, which caused Bell to wonder if higher-ups in the State Police had spent that day debriefing their troopers and getting them to write new statements.

  This didn’t mean that the more fantastical statements were useless to Bell, however. The one thing that they did provide, in a few instances, was evidence of which specific prisoners were shot by which specific troopers and, as important, evidence of which troopers had fired their weapons without justification and thus, in all likelihood, criminally. This would be a valuable start. If Bell could comb through these statements carefully enough, he might find some real leads to follow. If a trooper admitted to shooting a prisoner, for example, and Bell could show that his justification was bogus, then he might have some solid cases to bring to the grand jury.

  Other important paperwork was still lacking, however. Each troop that had sent men to Attica had made “blotter entries of personnel and equipment dispatched to Attica,” but had made absolutely no record “as to serial numbers of weapons and to whom they were issued.”29 Then, between October and December of 1971 as the BCI had interviewed over a hundred State Police shooters from all over the state, fifteen National Guardsmen, and a group of Wyoming County deputy sheriffs, there was zero effort to link individual weapons to individual shooters in the statements they gave.30 Worse, one BCI investigator stated that he was told specifically not to conduct “a weapons accountability investigation of those shooters he interviewed.”31 Another stated that “he was assigned by Captain Williams” only “to conduct general interviews of State Police shooters….He was not instructed by Captain Williams or anybody else to conduct a weapons accountability investigation during the interrogation. He was not instructed to obtain serial numbers or otherwise identify the weapon discharged by those shooters he interrogated.”32 Still another trooper had actually started a list of which weapons he was passing out to which troopers on the night of September 9, but then destroyed that list after he found out the next morning that some of the weapons he had listed had then been given to other troopers altogether.33

  Furthermore, none of the troopers who had fired weapons during the retaking had been asked to fill out a “discharge of firearms” form, which heretofore had been standard procedure, nor had they done any ammunitions accountability paperwork.34 Bell well knew that weapons and ammunitions accountability were “basic to police procedure,” as were things like picking up expended shells and marking their location, and leaving bodies where they had fallen so that key measurements could be taken.35 None of this had been done.

  Adding to Bell’s investigative headache was the fact he needed to rely heavily on the NYSP’s own photographic and film records of the retaking—but that evidence had been tampered with too.36 A camera had been filming throughout the rebellion and all through the day of the 13th, recording “the sounds of hundreds of shots,” but there was absolutely no footage of anyone actually shooting. Even more damningly, Bell could see “that the state police shortened the tape from approximately six minutes of assault to approximately four minutes of assault before turning it over to the Investigation”37 One of the men who’d been filming for the State Police blamed the problems with the visual evidence on technical difficulties: “During the first few seconds of the assault, I had the Norelco machine recording but because of the noise and activity, I turned it off.”38 Then, as soon as the rehousing began, and during the exact time the prisoners reported so much torture and abuse taking place, the tape allegedly ran out.39 Either any visual evidence that might have incriminated a trooper had been excised, or it was never recorded in the first place.40

  Bell found similar problems with the NYSP’s collection of still photographs. He discovered “an amazing series of claimed malfunctions by State Police personnel assigned to photograph the assault in operating their cameras or in having the photographs properly developed.”41 One NYSP photographer on the roof of C Block had taken an entire series of 35mm slides, which were turned over to Bell. However, when Bell’s investigator Lenny Brown reviewed them carefully, he could see clearly that “the film as numbered by Kodak show[ed] two gaps in the sequence of photographs taken.” Significantly, the first gap was about the time when a trooper would have been “firing his shotgun through the neck of James Robinson in the vicinity of Times Square,” and the next was when troopers would have emptied their pistols into prisoner Kenny Malloy.42 The convoluted explanation offered for the missing photographs was that “all the film packs were first sent from Attica to the New York State Police Photo lab at Troop A headquarters….The color film packs were thereafter…sent to the Color Processing Laboratory of the New York State Police at Troop E headquarters,” and “Troop E did not…number their photographs in the same manner as did Batavia.”43

  The more Bell probed, though, the more apparent it was that a simple difference in numbering or errors on the part of the photo lab techs could not explain what he had before him. Key photos had to have been removed before the State Police turned them over to the Attica investigation. For example, Attica observer and highly respected state senator John Dunne had told prison officials that he had seen prisoner Frank “Big Black” Smith suffering trooper and CO reprisals while laid out naked on a table in A Yard, yet no such pictures were among those the NYSP had given his office. When Bell’s investigator, Lenny Brown, finally obtained a photo of this moment not from the State Police but from the individual Monroe County Sheriff’s Office employee who had taken the photo, every detail of the story was clearly captured on film: Big Black lay on a table “on his back in A yard balancing a football on his chest,” while troopers in the frame hovered over him.44

  As upsetting as the missing photographs were on their own, the fact that troopers had actively tampered with the photographic evidence seemed worse to Bell. Had he not seen the photo of slain prisoner James Robinson without a sword in his hand, he would never have known that a weapon had been planted in the later photo that the NYSP gave him.45

  Infuriated but undaunted, Bell pushed on with his investigation. His first order of business was to ask Anthony Simonetti how he might get the State Police to turn over more evidence, and how prosecutors might address the tampering of the evidence they had discovered thus far. Bell recalled that Simonetti had asked him early on, in the fall of 1973, to explore whether they might go after police officials for conspiring to impede their investigation; it seemed like this might now be prudent.46

  As he considered his options, Bell devised another plan for holding troopers accountable for their shooting spree. The only way a trooper could be legally justified in firing his weapon was if it were demonstrably necessary to save himself or someone else from grievous bodily harm. If a trooper stated that he had fired in the direction of another person when there was no imminent danger, and if Bell could show that “the justifying act had not happened,” then he could perhaps indict that trooper on a charge of reckless endangerment in the first degree—a class D felony.47 To determine whether threats to troopers or hostages had really existed Bell could examine photographs, video, and numerous verbal accounts from nonshooter troopers. Although not officially witnesses to the shooting in the assault, other very credible and totally disinterested people such as Dr. Warren Hanson, who had been brought into D Yard during the rebellion to tend to the sick, shared the view that troopers had exaggerated any threat to their lives or even the lives of the hostages on the morning of September 13, 1971. In Hanson’s view, one based both on having come to understand the dynamic between the prisoners and hostages in the yard and then seeing footage of the assault, “for most of the hostages no attempt was made to kill them and…when the shooting started, the executioners just dropped down
to protect themselves.”48

  While Bell remained committed to going after those who had killed prisoners and hostages, he was equally eager to pursue lesser indictments. As he put it, even if “the highest crime for which most of the admitted shooters could be prosecuted was reckless endangerment,” at least that was something.49

  Even going after reckless endangerment indictments, Bell suspected, was going to be difficult given the grand jury currently sitting in Wyoming County. After all, Hammock had tried to secure trooper indictments and from what he knew of at least one of those cases, the jury’s decision to let them slide was ludicrous.50 Bell marveled: How “could the jury consider the evidence and not indict this trooper?”51 All he could figure was that this particular grand jury had just been too close to law enforcement to consider indicting any officers.

  For this reason Bell was delighted in early 1974 to learn that Simonetti was going to ask Judge Ball to empanel a second grand jury.52 There was still no guarantee of trooper indictments, but at least they’d get to select new jurors in this Supplemental Grand Jury, and this just might make the difference.53

  The news that the state of New York was going to convene a second grand jury to assess crimes committed at Attica terrified the Attica defendants, who saw this as yet another attempt to frame them. The ABLD was filled with serious concern as well. The indictments rendered by the original grand jury had taken so much work, and so many resources, and the idea that there would now be a second one to contend with was alarming.

  The only group more unnerved by this news was the New York State Police. They knew well that this meant they were soon to be in the Attica investigation’s sights and they felt blindsided and not a bit betrayed. From the moment the gas cleared from the air in D Yard, the highest-ranking officials in the state of New York had praised the troopers for their actions at Attica. Governor Rockefeller himself lauded their professionalism and hard work, as had Commissioner Russell Oswald, who had been subjected to much criticism from those same troopers. In an open letter Oswald had written for the January 1972 issue of Trooper, the magazine of the New York State Police, he appealed to them: “I am sure that you are as painfully aware of the criticism of both our agencies resulting from the events at Attica as I am. However, I am convinced that when all of the facts are known, both of us can be even prouder of the work of our respective staffs.”54