Others, such as Major John Monahan from Troop A, who had helped plan and launch the retaking, did not. This could have been a setback to Simonetti’s team since what he knew might well be crucial to any case they hoped to build against a member of law enforcement for the actions they engaged in on September 13, 1971. But Malcolm Bell had figured out a way around this. To avoid immunizing Monahan from future prosecution, instead of calling him to the stand Bell would enter as evidence his earlier testimony before the McKay Commission, in which he had said quite a lot that prosecutors felt could now be helpful in making the hindering cases.20 To Bell’s dismay, however, Simonetti did put Monahan on the stand—granting him immunity by default—even though “he had no agreement whatsoever that once he was immunized he would tell anything of value.”21
John Monahan, the man who, in Bell’s estimation, was “at least physically, at the heart of the SP cover-up, was now fully off the hook for anything he may have done to prevent troopers from facing criminal charges.”22 He wrote immediately to Simonetti, reminding him that “evidence exists which tends to establish that it was Monahan’s decision not to obtain rifle and shotgun serial numbers from individuals who shot circa 100 people, and that at one point he shared with Lt. Col. Infante the questioning” of one of the troopers who had killed inmate Kenny Malloy. 23 Simonetti was unsympathetic to this argument. And while Bell was still fuming over Simonetti’s decision to immunize Monahan, his boss then decided to immunize Captain Hank Williams as well—even though Simonetti had seemed confident earlier that Williams would agree to sign a waiver of immunity.24 This particularly distressed Bell, since he believed they had already presented ample evidence to the grand jury that directly implicated Williams in the majority of instances where the state’s investigation had been actively impeded by the NYSP.25
In the course of processing how it was that vital hindering cases had been allowed to implode, Bell eventually came to believe that a serious prosecution of members of law enforcement had in fact been set up to fail from the moment Simonetti had told him to switch his efforts from the shooter cases to cases of hindering the investigation back in August of 1974. Simonetti would have vehemently disagreed with this assessment of his strategic choices, but as Bell carefully deconstructed his work on the hindering cases, he was increasingly persuaded that his boss had sent him before the grand jury with cases that needed much more time and care to develop. In one instance he could remember clearly, he was sent in so unprepared that he “didn’t even know how to pronounce the name of the first witness.”26
Bell also began to feel that Simonetti’s demeanor with various politicians whom he had previously held at arm’s length was suddenly much more chummy. When asked, Simonetti denied that he was behaving any differently. For instance, although he had been asked to cooperate with the FBI background check on Rockefeller during the confirmation process, Simonetti insisted that this had not made him any less eager to prosecute crimes committed at Attica. Still, Bell thought it significant that he was suddenly no longer invited to meetings, say, with the FBI—surmising that his boss had begun to see him as a fly in the ointment. According to his fellow prosecutor Charles Bradley, it was true that Simonetti no longer trusted Bell. He had even asked Bradley to keep an eye on Bell in court.27
Nevertheless, even with his boss now immunizing key officials in the NYSP from prosecution, Bell tried hard to push him to move against others in the NYSP where there remained compelling evidence of wrongdoing. Even before Simonetti put Captain Williams on the stand, Bell had written him a formal letter expressing his concern about the direction in which the investigation seemed now to be going. As Bell put it, “My basic fear, as you know, is that our investigation of a possible cover-up by the State Police may itself become a de facto cover-up.”28 When Simonetti chose not to respond to Bell’s letter and continued his plan to immunize Williams with no guarantee of getting anything useful for the prosecution’s case in return, Bell’s suspicions that the investigation was being sabotaged from within only intensified.29
In time it began to worry Bell that Simonetti himself might actually be part of the cover-up. In addition to Simonetti’s halting of Bell’s shooter presentations to the grand jury, and then his immunizing of Monahan and Williams, Bell suspected that his boss had also protected a trooper who had “watched the whole retaking from the roof of C block and swore he saw none of the scores of shots which were fired where he was looking.”30 Bell had worked hard to prepare a perjury case against this man, spelling out on paper the powerful evidence that he planned to present to the jury—a paper that he then gave to Simonetti to look over. But after he read it, Simonetti did not allow Bell to take it to the jury.31 Simonetti was, in Bell’s view, actively thwarting equal justice under the law.
And yet, Bell still had a hard time wrapping his head around this. He had, after all, managed to bring before the grand jury over nine thousand transcript pages of testimony before things began to deteriorate after August of 1974. And, of course, Simonetti himself had been the one to suggest going after the men with supervisory power in the NYSP. Bell was uncertain what to make of everything that had just happened. But then it soon became clear to him that he was not going to go before the grand jury, which was going to be disbanded. On November 7, 1974, and notably with Rockefeller still not confirmed in Washington, jurors had been told that when they did reconvene, they would have only two weeks of work before them—tops.32 Bell was thunderstruck. Not only did this grand jury still need to consider indictments in the shooter cases, but it also needed to hear cases relating to law enforcement brutality against prisoners when rehousing them after the retaking. Trying to impress upon Simonetti what a terrible idea it would be for him to disband the grand jury before its work was done, Bell sent his boss another letter—this one ten pages long—on November 13, 1975.33
Simonetti had decided to deal with Malcolm Bell by ignoring him. When he failed to respond to Bell’s latest letter, Bell finally realized just how isolated he had become and how unlikely it was that members of law enforcement would be prosecuted now—even though many others, not just him, had believed the evidence was there to do so.34
44
Smoking Guns
A close look nearly forty-five years later at the Attica investigation’s own records—its internal memos, reports, and analyses of everything from ballistics to the locations of where individual prisoners, as well as hostages and troopers, were when the retaking of Attica began—reveals that Simonetti’s office did in fact have a remarkable amount of evidence against specific members of law enforcement that did not result in the indictment of those men.
With regard to the possible hindering of prosecution cases, men in Simonetti’s office didn’t just suspect that the top brass of the NYSP was involved in hiding evidence, they felt they had proof of such acts. The Attica investigation believed, for example, from the interviews it had done, and from the trooper statements that were taken right after the retaking, there was ample evidence that Captain Williams had actively “assisted in setting up the BCI interviews of State Police shooters on 9/13/71,” and that, when he did so, the men taking the statements were not “instructed by Captain Williams or anyone else to conduct a weapons accountability investigation during the interrogations [and were] not instructed to obtain the serial number or otherwise identify the weapon discharged by those shooters [they] interrogated.”1 Attica investigators also had evidence from the internal memos and other NYSP documents they had seen that Williams’s superior, Lieutenant Colonel Infante, among others supervising the BCI investigation had decided that no one was to “determine who fired what weapon.”2 Further evidence indicated that Major Monahan was also complicit in this: indeed he had expressly said to one of his underlings that discharge of firearms reports wouldn’t be necessary.3 Even NYSP Chief Inspector John Miller, “the senior [NYSP] officer at Attica [who] was ultimately responsible for this individual accounting,” had “decided not to follow that protocol.”4
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br /> Simonetti’s office even felt confident it had identified the lower-level troopers who had also covered up evidence at Attica.5 The BCI investigator from the NYSP who had been “in charge of the Identification Bureau and photographic library,” for example, had admitted that “the film had been cut and attempted to be put back together chronologically but not numerically.”6 They also knew exactly who “had deleted State Police slides…by removing them from the slide trays before the police turned them over to the Investigation.”7
As important, Simonetti’s prosecutors were also quite certain they knew which troopers had shot their weapons without justification, and thus committed reckless endangerment under the law. Troopers had themselves admitted to the extraordinary amount of times they had shot their weapons and time and again it was obvious that they had no legal justifications for the discharging of even one bullet or pellet. One trooper, J. R. Mittlestaedt, had discharged at least nine shots from his twelve gauge shotgun and admitted to hitting at least three people on B Catwalk.8 Another trooper, S. D. Sharkey, had hit another three people at least by shooting into D Yard and near Times Square.9 In fact, Simonetti’s team knew that a total of 364 trooper rounds had been fired, and the troopers’ justification for these shootings had not been corroborated.
The actions of COs as well were identified as likely or possibly criminal. One CO, Nicholas De Santis, for example, had shot more than twelve rounds from his .45 caliber Thompson. Even if it were true, as he claimed, that all of these shots—six into D Tunnel and six into D Yard—were misses, his firing, in the state’s view, might still be deemed reckless.10 As might the eighteen rounds CO Howard Holt had fired with his .351 rifle, all onto D Catwalk where prisoners stood.11 On the day of the retaking, correction officers had fired more than seventy rounds into Attica’s yards and onto its catwalks, and state prosecutors were able to determine who had fired the vast majority of the shots, even when they seldom knew whom the shots had hit.12
Most damningly, Simonetti’s office believed it knew exactly which trooper or CO had killed specific prisoners on the day of the retaking. Internal memos suggest that investigators had evidence that trooper James Mittlestaedt shot prisoner James Robinson through the neck “at a range of two to five feet, breaking his neck and killing him instantly.”13 Simonetti’s office also indicated that it knew who had killed prisoner Bernard Davis. Davis had died from more than twenty-three gunshot wounds, and one internal memo identified that officer as P. F. Stringham.14 According to other documents CO Stringham had also likely killed another prisoner—Milton Menyweather.15 One Attica investigator testified that Paul F. Stringham, armed with his “own personal brownie [sic] twelve-gauge shotgun loaded with five deer slugs,” had “identified a photo of P-5, Milton Menywether [sic] lying on the catwalk to the right of Times Square, as the one he shot.”16
State investigators in fact had a long list of troopers and COs whom they had evidence had killed or severely wounded prisoners. A trooper named Malcolm Hegeman had himself “identified photo 1C5, of inmate Melvin Ware, as the inmate he shot.”17 They also seemed to know the trooper whose shots had hit prisoner Milton Jones, and that trooper Gregory Wildridge had been reckless with his shooting, as well as hitting several specific prisoners who then perished.18
Prosecutors also knew a great deal about the killing of prisoner Tommy Hicks. According to his autopsy and internal investigative memos, Hicks had been “riddled by five bullet wounds from both a .270 rifle and .00 buckshot” and investigators believed they had sufficient evidence to show that the .270 had been “wielded by Trooper Milford Clayson,” and that trooper M. [Michael] Grogan was also a likely shooter in this case.19 Notably, investigators had also linked trooper Clayson to the shooting of prisoners Lorenzo McNeil and William “Taxi Cab” Allen.20
New York’s Attica prosecutors had far more evidence to work with than the lack of law enforcement indictments implied, even for some of the most high-profile prisoner killings. For instance, although no one was indicted for the killing of L. D. Barkley, the twenty-one-year-old prisoner with the granny glasses whose passionate speech in D Yard had been nationally televised, prosecutor memos suggest that they had some serious leads. For starters there was the testimony and statement of CO Ronald Hollander, who reported that he had fired one solid round “at an inmate in D Yard wearing granny glasses and [a] sweat shirt,” and investigators noted his subject “was inmate Elliot Barkley.”21
Whether it was Hollander’s bullet that actually killed Barkley, or that of another CO who had also bragged of his killing and claimed to have kept the glasses on his mantel as a trophy, is not clear in the state’s records.22 What is clear, however, is that a number of COs knew who had killed this high-profile prisoner and the state also had a number of promising leads to ascertain who that was.
Simonetti’s office also failed to take to the grand jury another member of law enforcement, BCI investigator Vincent Tobia, who had actually signed two statements admitting that he had shot a man whom he described as threatening him with a basket of Molotov cocktails. Simonetti’s investigators believed that the man who was shot was Sam Melville, Attica’s famous white radical prisoner, also known as the “Mad Bomber.”23 The McKay Commission’s report from 1972 indicated that the man who shot Melville had indeed admitted to doing so. As that report put it, “He was shot by a law enforcement officer who admitted aiming at him and stated his belief that he was justified in shooting him.”24 The photographic evidence did not support Tobia’s claim. Only a jury could actually have determined whether or not this was murder, but lawyers for the prisoners had always felt strongly that Melville had been “murdered in cold blood with his hands in the air in surrender.” According to them, in a later civil trial, Tobia “testified proudly that he had indeed killed this famous prisoner.”25
One of the ugliest prisoner deaths was that of Kenny Malloy, who had been viciously shot at close range. His skull had been riddled with so many bullets that his eye sockets were shredded by the shards of his own bones. Indeed so gruesome was this shooting that one of the two troopers whom investigators knew to be responsible for shooting at this prisoner later spoke of “having nightmares about seeing brains.”26 This trooper, according to an internal investigative report, was a man named Aldo Barbolini. He had shot Malloy with his .357 Magnum Smith & Wesson.27 The Attica investigation was persuaded that Barbolini also had killed Ramon Rivera, shooting “directly into this tunnel where Rivera fearfully lay.”28
From the earliest days of the investigation, Simonetti’s office had looked closely at Barbolini but all NYSP brass had been making sure that the investigators were told nothing. Significantly, the highest-ranking officials in the NYSP, including Lieutenant Colonel Infante, knew of Barbolini’s actions that day and, as Bell saw it, they conspired to cover them up. According to an internal NYSP memo, trooper Barbolini had been asked to resign on September 17, 1971, and, according to a New York state senator who later contacted the Attica investigation about the matter, Barbolini had specifically been told by his superiors “that if he resigned he would not be prosecuted.”29
Through the rest of 1971, there was much internal discussion of how to deal with Barbolini; the NYSP brass was clearly still worried that his actions might come back to haunt them.30 In October, Captain Hank Williams had called a fellow NYSP captain to advise him that two members of “Fischer’s staff travelled to the residence of former trooper Barbolini to interview him in regard to the investigation.”31 But, because “Barbolini refused to speak to the two investigators,” and the brass played dumb regarding what it knew, the Attica investigation limped along with regard to a case against this trooper.32 Meanwhile, Barbolini, who had only worked as a trooper since May 6, 1968, liked his job and he kept trying to get it back. This clearly wasn’t what his bosses had in mind, however, and they shut him down in January 1972.33 Barbolini wrote again to ask not only to get his job back, but also to have his .357 Magnum Smith & Wesson revolver returned. At that point
NYSP chief inspector John Miller personally replied with a curt “no.”34 The gun—which wasn’t even legally registered—was potential evidence against the NYSP.35
Ironically, had the NYSP brass not expended so much energy on Barbolini in those early days, and had Lieutenant Colonel George Infante not involved himself personally with the internal investigation into this trooper’s actions in D Yard, prosecutors might never have known about him. Instead, they wondered what was so interesting about this particular trooper’s actions.36
Whenever anyone from Simonetti’s office asked this question, though, the NYSP responded that this “task of investigating Barbolini” was merely an “administrative issue.”37 No one bought this—particularly since this very trooper, and his actions in D Yard, had been the topic of discussion on September 24, 1971, in the private meeting that was held at Governor Rockefeller’s pool house. This was the first of the three meetings in which state officials worked to get the Attica chronology straight.38
Another trooper’s shots, Simonetti’s office suspected, had also contributed to Kenny Malloy’s terrible and untimely death. According to an internal memo from state prosecutors, that officer was Gary Van Allen.39
Simonetti’s office not only believed that it had important evidence regarding who had killed prisoners, it also believed it had evidence relating to whose firing on September 13 had caused hostages to die. Take the case of those COs and civilians who had been shot to death in the hostage circle in D Yard. The story state investigators had been told regarding why troopers had shot so many pellets and bullets into that area was that they had been trying to save fellow trooper Joseph Christian from a prisoner who was attacking him.40 From the beginning, of his inquiry, Malcolm Bell had seen some real problems in this story, specifically with regard to where exactly Lieutenant Christian was, versus where he claimed to be, when the shooting spree commenced. But even if there were some discrepancies, the real issue was whether the extraordinary number of shots that had been fired into that area were reckless—had this shooting, which had led to hostage deaths and could have killed Christian, been justified.
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