Blood in the Water

by Thompson, Heather Ann

  And even when Oswald had left the position of commissioner of correctional services in April of 1973, the NYSP still had supporters in high places. Senator Ronald B. Stafford from the 43rd Senatorial District of New York, where Clinton prison was located, responded with “shock and outrage” to the news of a second grand jury convened, possibly, to indict “law enforcement officers.”55 He was disgusted that after “years of intense pressure from radical groups and individuals, a decision was made to capitulate and use our law enforcement personnel as scapegoats for this tragedy.”56 The Police Benevolent Association of the New York State Police also came out swinging and demanded that the state provide troopers a legal fund to defend against possible indictments, claiming that it had already “spent $200,000 of union funds to provide legal assistance” to its members.57 It also hinted that more monies might be due to address “the mental anguish endured by the troopers and their families,” which was “considerable,” the PBA president, Patrick J. Carroll, said.58

  Undaunted by this backlash, Malcolm Bell began building his cases for reckless endangerment and even for murder. Throughout February and March of 1974 he had met with Simonetti and others for shooter conferences, in which the main task was to sort out how many of the 128 shooting deaths and woundings at Attica had not been justified. Bell estimated that there were a minimum of fifty-five shots fired which “could be considered criminal.”59 Simonetti agreed that there was enough evidence to bring at least thirty-two cases against troopers and COs to the grand jury for a range of crimes including “a few attempted murders, a few perjuries, and mostly reckless endangerments.”60 By April of 1974, Bell had managed to identify about seventy State Police and correction officers whom the grand jury might well indict, and, in his view, there were still more cases that could be pursued.61

  Malcolm Bell began presenting before the new Attica grand jury on May 8, 1974, along with fellow prosecutor Charlie Bradley.62 Although Bell felt that he had a chance at indicting law enforcement with this grand jury, this new jury had some very close connections to that group. Two of the chosen jurors were aunts of one of the former hostages, Don Almeter. (Another former hostage, Pappy Wald, had actually been considered as a possible juror, although he was dismissed.) In addition, the main State Police lawyer, Bernard “Bud” Malone, had decided that any trooper witness called by the state would help “the prosecution as little as they civilly could,” and, accordingly, they were, at times, outright obstructionists on the stand. Still, the jurors seemed interested in hearing why Bell thought that troopers and COs had committed many provable crimes at Attica. Not a few of them eventually wore looks of dismay as they heard about all that the prisoners had suffered on the day of the retaking.63 Jurors seemed particularly to pale when they heard that one trooper had shot four pellets into a prisoner’s thigh and then, as that man writhed on the ground, another trooper became “so irritated by his screaming from the pain of the pellets, [he] fired a shotgun slug through his ankle.”64

  Jurors also seemed taken aback by former Attica hostage Michael Smith’s appearance on the stand. Smith exemplified the costs of so much shooting on the day of the retaking. He had been a young CO when he was taken up on the catwalk as the retaking began, and then found himself shot multiple times. For years officials had maintained that Michael’s severe wounds—including bullets that had exploded in his abdomen—were accidental; that he had been hit by the fragments of a single bullet intended for one of the prisoners on the catwalk. Prosecutor Bell was able to show the jury that something far more diabolical had taken place: Michael Smith’s wound pattern, four bullet holes shot in quick succession and in a straight line, indicated that he had been shot by an automatic weapon and that he may well have been deliberately shot.65 Only correction officers had wielded weapons that day that could have inflicted this wound pattern—and no correction officer could have mistaken Mike for a prisoner on that catwalk.66 There was no doubt in Bell’s mind that the CO who had shot Michael Smith had committed a crime.

  Still, he had to proceed carefully with all of his cases—particularly if the victim had been a prisoner whom jurors had seemed to care little about. He knew there was much inherent sympathy for members of law enforcement on this jury and, if he overplayed his hand, they might balk when it came to voting to indict. A key problem was that the troopers’ and COs’ accounts of self-defense made for some persuasive testimony. One trooper, for instance, testified on June 13, 1974, that any prisoner who had been struck was absolutely resisting and, indeed, he personally had witnessed prisoners who “refused to cooperate.”67 And so Bell had to show jurors just how unable to resist Attica’s prisoners actually were once the shooting began. Most effectively he pressed troopers who claimed to be acting in self-defense to describe the condition of the prisoners they saw all around them that day. Under oath one trooper made clear that there had in fact been “a lot of people screaming” as a result of so much shooting, and that one man, a prisoner who had been shot multiple times in the thigh, was “screaming quite a bit.”68 Bell could see the impact of this testimony on the jury.

  After three intense months of Bell presenting evidence to the grand jury, Simonetti called Bell into his office to discuss a three-week recess he had requested from Judge Ball. This was fine with Bell until he realized in the midst of it that this wouldn’t be just a short break; Simonetti was suspending only the cases he had been presenting and had, in fact, “cancelled the fifteen or so Shooter Case witnesses” that Bell had been planning to call before the jury.69 Stunned, Bell would plead with his boss to be allowed to continue, to no avail. Although Simonetti had appeared to be fine permitting him to take shooter cases before the grand jury, now Bell’s efforts were being halted—in his view, counterproductively delayed—even though there was still much evidence to present.70

  Bell has a very hard time understanding this. He was well aware that “prosecutors and police were natural allies” and, therefore, it was understandably awkward for them to charge troopers with crimes.71 But being unsettled by the prospect of indicting troopers was a whole lot different than actively preventing him from doing so—which, Bell realized, was what was happening. Although Simonetti gave no real explanation for this abrupt turn, Bell suspected the chain of command led all the way to former governor Rockefeller.

  On August 20, 1974, newly sworn-in president Gerald Ford had nominated Nelson Rockefeller to be the vice president of the United States. Rockefeller had tried to reach the White House many times. He had made a bid for the presidency in 1960, 1964, and 1968, and some thought that he had only resigned as governor of New York to do it again in 1976.72 Rockefeller would certainly be unhappy if Attica got in the way of his chance to be the vice president, which well could happen if the troopers he had ordered into action were suddenly indicted for murder and other felonies. Confirmation hearings were about to begin, and the Attica investigation, should it be effective, might well make it hard for him to be confirmed.

  The subject of Attica would indeed come up many times in these proceedings. Countless witnesses testified about the role the former governor of New York had played at Attica: Representative Bella Abzug, New York assemblyman and observer Arthur O. Eve, Lyndon LaRouche of the U.S. Labor Party, and Curtis Dall of the Liberty Lobby.73 Even some of the Attica prisoners came to speak.74

  None of this testimony was kind. Attica Brothers Legal Defense coordinator Haywood Burns and Angela Davis, the former Black Panther leader and now co-chairperson of the National Alliance Against Racist and Political Oppression, both came to the hearings and argued forcefully against confirmation. Among other things, they called attention to the former governor’s “moral duplicity” in supporting Nixon’s pardon while rejecting all consideration of amnesty for the Attica Brothers. Burns argued, “The case for full and unconditional amnesty for the Attica brothers is as strong in every detail, as the reasons advanced for pardoning Richard Nixon.”75 Rockefeller had indeed recently commended President Ford for forgiving the imp
eached former president Richard Nixon his sins—even called his pardon “an act of conscience, compassion, and courage.”76 Davis pointed out that somehow, though, he didn’t see the lives of more than a thousand people at Attica, “most of whom were black and Puerto Rican, as valuable.”77 She argued that Rockefeller’s “support of Richard Nixon’s pardon while at the same time being responsible for the Attica massacre” showed “his contempt for equal justice under the law, his callousness and complete willingness to adopt the most lethal and brutal solutions to desperate social crisis born of human misery.”78

  Perhaps Bell’s suspicion that his cases were now being sidelined because of Rockefeller’s political ambitions was overblown. The former governor in fact had a number of hurdles to overcome in these hearings, including having given major gifts to administration officials such as Henry Kissinger, using his fortune to undermine political opponents, and taking questionable deductions on his federal income taxes. Nonetheless, by waylaying Bell’s hearings, there would no indictments of his troopers to cause any media uproar. On December 19, 1974, the former New York governor was confirmed. Bell very much suspected that Rockefeller supporters, including the Republican who succeeded him as governor, Malcolm Wilson, had wanted no chance of Attica making new headlines now—and Bell suspected that someone had made this very clear to his boss.

  43

  Protecting the Police

  Although the state officials would later contest Bell’s characterization of the decisions made by the Attica investigative team, something major had changed. In August 1974, when Bell’s attempt to seek felony indictments against troopers was suspended, Simonetti explained his decision in a way that gave Bell some hope that his cases were being deferred for an even deeper investigation. According to Simonetti, they would now be trying to make cases against higher-ranking officials in the NYSP for hindering the investigation itself.1

  The plan had always been to go after the big shooting crimes first, and then to go after those high-ranking members of the NYSP who had made the job of investigating those shooting crimes so difficult by tampering with, or withholding, vital evidence. The fact that key slides had been removed from slide trays, that bullets had gone missing, and that entire swaths of film as well as radio transcriptions no longer existed, suggested that the protection of trooper shooters was being orchestrated from on high. This would also explain why state troopers had descended upon funeral homes after the retaking. A superior would have had to have dispatched these troopers, whom prosecutors had dubbed “night riders,” to lean on morticians to contradict Edland’s account of how the men had died. At least one undertaker had been pressured to sign a written statement to the effect that there were no bullet holes in John Monteleone even though he had obviously died from a gunshot.2

  Initially, it appeared to Bell that Simonetti was serious about going after the big fish in the NYSP. Bell estimated that out of the possible thirty or more cases of murder or manslaughter they might have been able to make against law enforcement shooters, only five to seven cases were possible thanks to “the State Police’s destruction of evidence (e.g., photos, death scenes) and their failure to collect evidence.”3

  As Bell understood it, Simonetti was planning to present evidence to the grand jury against several ranking officers who had authority over the collection of evidence and who, Simonetti’s office felt, had “deliberately hindered the case.”4 Simonetti’s main targets in this case included Lieutenant Colonel George Infante, the senior BCI man who had been at Attica right after the retaking as the police were collecting evidence in the yard; Major John Monahan, the Troop A commander who had been in charge of the retaking itself; and Henry Williams, the Troop A BCI captain who had also been instrumental in carrying out the retaking as well as taking trooper statements and collecting evidence when it was over.5 Their intention was to show that Captain Williams had failed to order the recording of rifle serial numbers or the collection of expended shells, and he had ordered his men to bury evidence behind the prison, and instructed his “BCI interviewers to stop short of asking about assault and brutality that followed” the retaking.6 Malcolm Bell, for one, believed that Williams should be implicated as well in preventing the Attica investigation from seeing incriminating photographs or troubling information in the State Police’s radio log, in sending the “night riders” to local funeral homes, and in making it so difficult to identify which trooper or troopers had been responsible for the death of prisoner Kenny Malloy.7

  NYSP Captain Henry Williams outside the prison (Courtesy of the Democrat and Chronicle)

  The state felt it had a lot of damning evidence against Lieutenant Colonel George Infante, as well. If, according to Simonetti’s office, Williams was the man who had carried out the cover-up at Attica, then Infante—the highest-ranking BCI officer at Attica on September 13—was its “architect.”8 As they saw it, George Infante had not only been aware of what men like Williams had done to hinder a sound inquiry into trooper actions at Attica, but he also had played his own role in the cover-up. Bell, for example, suspected that Infante, who had supervised “the BCI investigation to determine who fired what weapon,” had gone to great lengths to protect at least one of the troopers suspected of killing Kenny Malloy.9 That trooper claimed that he had acquired the gun used to shoot Malloy from a prisoner in D Yard, but his story later changed. According to Simonetti’s office, Infante not only knew this, but he was personally involved in spinning the case.10 In Bell’s view Infante “certainly was aware of all the discrepancies,” and as the commanding officer he should have made sure that all deaths were investigated thoroughly.

  The Attica investigation felt that it had the evidence to prove that Infante had instead tried to make the problem of this prisoner’s death go away. When it was clear that the shooter’s initial story wouldn’t hold up, that trooper claimed that “a nearby trooper handed him a shotgun.” But the gun that he had admittedly used to shoot Malloy and fire several shots into the hole where prisoner Ramon Rivera lay cowering was a pistol.11 According to an internal report dated September 27, 1971, this trooper gave “six different versions of the incident in Times Square on the 13th” and yet Infante, his main superior, never shared with Simonetti’s office any of this evidence that one of his troopers may have committed a crime in D Yard.12 Later, whenever any prosecutor directly asked Infante about these deaths, all of his “answers seem[ed] evasive, argumentative, and [gave] little if any information.”13

  The deeper Simonetti’s team dug, the more Infante’s impeding of the investigation looked to them like an outright cover-up of his trooper’s crime. First, he had encouraged the trooper, a man he knew to have killed a prisoner, to resign and make himself scarce—which he had difficulty making the trooper do.14 The man did submit his resignation letter on September 15, 1971, and the head of the NYSP himself, Superintendent William Kirwan, acknowledged this in a September 20, 1971, internal memo. But according to another memo sent on September 28, 1971, the trooper then balked and new pressure had to be exerted on him to go away. What was clear to Simonetti’s office was that well before this, and certainly at any time thereafter, Infante, and indeed Kirwan himself, should have turned this trooper’s name over to investigators.15 It was possible that Infante had at least committed perjury and, if so, he should be held accountable.16

  Simonetti’s office managed to get its hands on a number of internal memos that indicated quite a few high-ranking officials had vital information about the killing of Kenny Malloy but had concealed that knowledge. An NYSP inspector named A. L. Bardossi, for example, sent Infante a report regarding the Malloy killing way back on October 6, 1971; two days later, Infante had written another report to Kirwan, the head of the entire state police force, who had been noticeably absent when the Attica retaking went down.17 Both documents indicated that real work had been done to ensure that the Malloy matter would just disappear.

  Even with these memos, as well as other evidence against high-ranking members of
the NYSP, it seemed to Bell that Simonetti was now dragging his feet in these “hindering” cases too. Worse, Bell suspected that Simonetti was using the grand jury process to let the people in charge off the hook by granting them immunity.

  Under New York law, grand jury witnesses are automatically granted immunity from prosecution for their testimony. Therefore, it had been standard procedure for the Attica prosecutors to ask any member of law enforcement who had shot weapons, or had knowledge of such shooting, to sign a waiver of immunity prior to testifying before an Attica grand jury. Very few troopers willingly signed one for obvious reasons, yet putting someone on the stand without a waiver was always risky for prosecutors. The witness could, of course, reveal nothing of use and still be immunized from prosecution himself. And so prosecutors tried to bargain with such witnesses—if you give us something good, we are willing to put you on the stand without a waiver.18 Some high-ranking members of the NYSP did willingly sign waivers—including Captain Anthony Malovich, the officer who had led the assault down C Catwalk; Captain John McCarthy, the trooper who led the team into D Yard to rescue the hostages; and Superintendent Kirwan, the head of the NYSP.19