Simonetti’s men painstakingly pieced together exactly where every hostage was in the circle, as well as where gunfire was coming from on the catwalks and in the yard near the circle, and which troopers were specifically assigned to those positions. Christian’s rescue detail had included twenty-five regular troopers as well as two correction officers, and investigators discovered to a great degree which of these men were shooting what and where.41 Lieutenant Kenneth Crounse had shot a round of .00 buckshot while in or near that circle, as had Milford Clayson, Thomas Griffith, and Michael Grogan.42 So intense was their firepower—at least “14 different shots or 126 pellets [had been] fired in the direction of the hostage circle”—that the investigators marveled that any of the hostages had managed to survive the onslaught.43
Quite a few of those shots “were totally unaccounted for in [the] trooper statements,” but with the information they had about other shots coming toward the hostage circle from elsewhere in the yard, there were strong indications of who else besides Crounse, Clayson, Griffith, and Grogan might have been responsible for hostage deaths.44 One trooper, identified in the records as A. Krug, had admitted to firing two rounds of .00 at a prisoner just behind the hostage circle.45 Another trooper, Jerry O’Hearn, had acknowledged that he too had shot a round of .00 at a prisoner who he alleged was “attempting to stab a hostage.”46 Yet another trooper, William Staples, stated that he had shot a round of .00 “at inmates coming at him with a knife.”47
Every detail mattered. Prison employees—the state’s own—had died in that barrage. Hostages Edward Cunningham, Elmer Hardie, Richard Lewis, and Elon Werner had died on the scene from the .00 pellets that troopers had sprayed into the circle. Hostage Harrison Whalen eventually died at Strong Memorial Hospital. Simonetti’s team would have had a difficult time connecting each of these deaths to one specific trooper’s shots—especially since unlike bullets, pellets can’t be linked back to a specific weapon. Still, they had evidence that jurors might well have deemed the shootings unjustified and, therefore, a felony—reckless endangerment if not manslaughter or murder. There could be no doubt that such shooting had put the hostages in serious jeopardy.48 As one memo stated clearly, troopers “Crounse, Griffith and Clayson fired a total of fifty-four pellets at their targets in the area of the hostage circle,” and, as important, it indicated that the location and direction of fire of the three “are consistent with causing the wounding of the deceased and injured in and immediately near the hostage circle.”49 Trooper Clayson had admitted that he had “fired his shotgun from B catwalk four times at a platoon of armed blacks who were rushing the hostage circle,” but not only did Attica’s prosecutors conclude that “no such rush occurred,” they also determined that “Clayson’s four shots (36–48 pellets)” had “likely killed and/or injured a number of hostages and inmates.”50
Even when investigators were dealing with bullets instead of pellets, it was difficult to tie the deaths of specific men in D Yard to specific troopers. Though investigators knew for certain that hostage Carl Valone had been killed by a .30 caliber slug, and they knew that this came from someone’s personal weapon and that these were mostly carried by COs on the day of the retaking, they had no idea whose gun the bullet came from.51 Several of the hostages had died from troopers shooting rifles—some in the hostage circle, such as civilian Herbert Jones and CO Ronald Werner, and also hostages up on the catwalks, such as John D’Arcangelo.
It was remarkable how much Simonetti’s office managed to figure out despite the lack of cooperation and the attempts to block them. With regard to the killing of hostage John D’Arcangelo, for example, they knew the approximate location of the rifle that had killed him and therefore it became a matter of narrowing down who was shooting rifles from that area.52 In time Attica prosecutors zeroed in on several likely .270 shooters: trooper Frank Panza, trooper Richard Janora, and trooper Steven Sharkey. One internal memo noted that Panza’s shots could have hit D’Arcangelo, while another memo speculated that Janora was a more likely candidate.53 The latter memo noted that Janora had possibly hit two prisoners in addition to D’Arcangelo, and included a statement that “Ballistcs—Consistent with D’Arcangelo.”54 Still another memo suggested that prosecutors also should strongly “consider possibility that SHARKEY’s shot…may have caused the D’Archangelo [sic] fatal injury.”55
Ironically, it was Sharkey’s own convoluted statements that had persuaded prosecutors that his actions may have led to D’Arcangelo’s death. In one early interview Sharkey described looking down at the catwalk at the exact spot where D’Arcangelo stood. Then he admitted “firing on the inmates both to the right and to the left of D’Archangelo[sic].”56 Asked whether this hostage was still “on his feet at all after he fired his rounds at these inmates,” he answered that he was not.57 In another statement Sharkey said that he had “looked through the scope and saw the hostage [D’Arcangelo],” and fired his “six rounds in about three minutes.”58 The state even knew which trooper gun fired from C Block had killed D’Arcangelo, but they had no way of proving who had wielded that weapon.59
State investigators had quite a bit to go on regarding who had severely wounded hostage Michael Smith. They knew the bullets that had hit Smith had come from a correction officer’s gun, and they also knew that, among other officers, COs Ronald Hollander, Howard Holt, and Daniel Clor had been firing from A Block on the morning of the retaking.60 According to state’s records, Hollander and Holt had fired shots from rifles from A Block roof that morning, and Clor had “fired 4 shots, 3 on ‘A’ catwalk” from that area as well, but it wasn’t clear what weapon he had wielded.61 Whereas Hollander had said he was shooting a .222, and Holt said he had a .351, notably “CO Clor’s statement [was] missing” from the pile the NYSP eventually turned over.62 But Malcolm Bell’s main suspect, was not Clor. The man he suspected of shooting Smith had reported that he had a .351 rifle, but, according to Bell, may in fact have been firing “an AR-15 automatic rifle.”63
Although questions appeared to remain in the minds of Attica’s prosecutors about CO Daniel Clor’s role in wounding hostage Michael Smith, they had no doubts whatsoever about who had killed hostage John Monteleone.64 An internal memo explained, “Monteleone had been killed by a .44 Magnum rifle, and this weapon, serial number 10004, was eventually recovered from a correction officer, J. P. Vergamini, who had according to the coroner, gone ‘home, got his deer rifle, and came back and shot one of his colleagues’ from his position on the third floor of one of the cellblock galleries.”65 Numerous documents from the Attica investigation indicated that everyone knew exactly who had killed John Monteleone—everyone but John Monteleone’s family.66
Malcolm Bell wasn’t sure what he thought about a possible case against Vergamini because he felt that this killing may actually have been accidental. After all, Vergamini himself had never denied that his bullet had hit John Monteleone, but he claimed that he was trying to fire at a prisoner-made barricade. Still, Bell knew that this killing required prosecutorial attention. Even a cursory probe of this shooting had revealed to Bell some troubling details in Vergamini’s story. He had insisted that he had been trying to fire at prisoners standing by their handmade barricade but “John Monteleone was seventy feet beyond the barricade” and somehow he was still felled by the bullet he took in the chest.67 As Bell pointedly put it, seventy feet was not a small margin of error and “the effect was to kill him.”68
Either way, there was a case here. Even if Simonetti’s office didn’t want to indict Vergamini for murder, or even manslaughter, there seemed little question that his shooting had been reckless. In order to forestall the possibility of any charge, Vergamini’s attorney proposed letting his client “testify to the Supplemental Grand Jury under a waiver of immunity” that there had been much reckless shooting on the day of the retaking so that the state could build other cases with information he would provide.69 Even this was not to be. As Bell explained, at the “end of the day Tony [Simonetti] did not l
et me call him to the jury.”70
By the fall of 1974 it was clear to Malcolm Bell that no matter what evidence his office had against members of law enforcement at Attica, he would not be allowed to present it.
45
Going Public
Malcolm Bell was well aware that his predecessor Ed Hammock had tried and failed to indict troopers before the first grand jury. After he had been there a while, he had watched as fellow prosecutor Frank Cryan also tried unsuccessfully to indict another trooper. As it turns out, however, there were other attempts to indict troopers and COs that Bell did not know about—both before he joined the Attica investigation and after he had been sidelined in it. The Attica investigation had, at some point, tried to indict CO Daniel Clor for murder, manslaughter in the first degree, and manslaughter in the second degree; CO John Vergamini for manslaughter in the second degree and criminally negligent homicide; and trooper Frank Panza for assault in the first degree.1 They also would try to indict Major John Monahan on the charge of perjury, even though they had immunized him from other possible criminal charges. In each case, however, the first Attica grand juries had voted to No Bill these troopers and COs, which meant that they had declined to indict.
However, even if Bell had known about these attempts to indict members of law enforcement—attempts that Simonetti could certainly point to as proof that he was not ignoring or avoiding cases against law enforcement—his own suspicions of a cover-up at the Attica investigation would likely have persisted.
For some time after he arrived in Simonetti’s office, Bell had been told by his boss that the first grand jury was simply too sympathetic to law enforcement to indict—no matter what the evidence. This might well have explained Ed Hammock’s earlier disappointment before the grand jury, and this is certainly how Bell understood his colleague Frank Cryan’s more recently failed attempt to indict trooper Gary Van Allen for murder, manslaughter in the first degree, and assault in the first degree.2 Indeed this is a key reason why Simonetti had pushed so hard to get a second Attica grand jury impanelled, and why Bell had been so relieved to learn that he would get to present his cases to a totally new body.3
But while Bell certainly had begun to see Simonetti’s actions vis-à-vis his cases as his attempt to protect law enforcement, he now began to think that his colleagues who presented before the first Attica grand jury might also have been thwarted from on high. The more he considered his own situation, the more he felt that even before he was told to stop presenting his cases, his boss had made it unnecessarily difficult for him to call the best witnesses, or to utilize the best strategies in front of the jury. Yes, some of his colleagues had been allowed to take law enforcement cases to the grand jury, but Bell wondered if they had really been allowed to make the strongest case they could have. Was it the case that the first grand jury was unwilling to indict troopers and COs because they were biased toward them, or were the cases presented by the prosecution too weak to support? Bell couldn’t know for sure, but his suspicions that the prosecutors really didn’t want indictments might well have been confirmed by the fact that, according to Newsday reporter Edward Hershey, the Attica grand jury had actually voted to indict a trooper whom prosecutors said had killed John D’Arcangelo—but then someone in the Attica prosecution chose not to proceed.4
By the close of fall 1974, Bell had begun to worry that he had stumbled upon an outright conspiracy to protect Attica’s shooters, one that reached to the highest level of his own Attica investigation as well as to the office of the former governor, Nelson Rockefeller. On December 4, 1974, Bell received a phone call that he believed would allow him to test Anthony Simonetti’s commitment to equal justice in the Attica investigation. The caller was a man “with high State Police connections” who was reaching out to Bell because he said he had vital information for the investigation.5 This evidence, Bell learned, might significantly bolster the hindering cases—those against the highest officers in the NYSP for preventing the Attica investigation from doing its job—as well as the original shooter cases. Two days later Bell met this informant at the Tarrytown Hilton and confirmed the value of his information. This man indicated that key NYSP tapes from the retaking did still exist, though the police had sworn under oath that they did not, because all tapes were routinely recorded over.
Bell typed this good news into a memo for Simonetti. To Bell, however, Simonetti seemed unsettled by this lead, and was not at all eager to use this information. After barely discussing it, Simonetti demanded to know the name of Bell’s source. Bell explained that he couldn’t reveal that—at least not yet; Simonetti responded that Bell was hereby suspended.6 To Bell it seemed clear that Simonetti feared such new evidence could make the fire that he had been trying to put out under cases against top NYSP officials suddenly “flame out of control,” and he wasn’t about to let that happen.7
While suspended, Bell contemplated all that had happened in his shop over the previous year, and tried to figure out how to turn things around if that were still at all possible. If he had any hope at all of getting the state of New York to prosecute anyone who wore a badge, Bell finally decided, he would have to go above Simonetti’s head—maybe to Attica Judge Carmen Ball, maybe to the attorney general of New York, Louis Lefkowitz, or maybe even to New York’s incoming governor, Hugh Carey. And yet, as Bell mulled over this possibility, it dawned on him that it could well put him in harm’s way. A great many people had gone to great lengths to make sure that what he knew wouldn’t become public. Wouldn’t he now be seen as a threat by a whole lot of troopers who had shown themselves to be trigger-happy? Bell decided he would have to both lay low and to resign from the Attica investigation so that he could shine needed light on it.
While at a friend’s house Bell penned his resignation letter to Attorney General Lefkowitz. Then he began going through the many Attica investigation documents he had in his possession. In the meantime, just to be safe, Bell also carefully instructed another friend to send all of these many documents to either Tom Wicker at The New York Times or to Jack Anderson, a journalist in D.C., should he “end up in, say, a perfectly plausible accident with a truck.”8
On Tuesday, December 10, Bell sent his letter of resignation to Lefkowitz and laid out precisely what he hoped would happen next: “My objectives have been to see that all the facts which are necessary for the Grand Jury’s votes and report are placed before it, and that equal justice applies to inmates and officers….I would like nothing better than to complete the full investigation before the Supplemental Grand Jury, and participate in any trials thereafter. It is clear to me, however that the investigation is being aborted, beyond my power to help.”9 After sending off his letter of resignation to Lefkowitz, Bell also decided to phone Judge Carmen Ball. It was important to Bell that Ball not disband the grand jury as he knew Simonetti was going to ask him to do.
Judge Ball seemed wholly uninterested in hearing Bell’s concerns, and rather than being moved to act, New York’s highest-ranking legal official, Lefkowitz, simply accepted Bell’s resignation on December 23. Lefkowitz then delivered a copy of Bell’s four-page letter to Mr. Justice Carmen Ball and also sent one on to Governor-elect Carey.10
Bell’s resignation letter set off a firestorm of worry and finger-pointing within the Attica investigation. Prosecutor Charlie Bradley was “surprised that Simonetti did not have a nervous breakdown” in the wake of Bell’s “surreal” suggestion that he was overseeing a cover-up.11 The only saving grace Bradley could see was that “Bell had been an outsider from the very beginning,” and therefore maybe no one would pay his allegations much mind.12 Bell had heard nothing from his former boss so he just assumed that no one had even given one thought to his claim that crimes were being covered up. A full ten days after submitting his letter to Lefkowitz—the same day that the attorney general sent a copy to the governor-elect—Bell finally received a letter from the attorney general which merely accepted his resignation and wished him success in the future.
If Lefkowitz or Simonetti hoped that their highly disgruntled employee would eventually just go away, they were bound for disappointment. As Malcolm Bell waited for some sign that the Attica investigation might reenergize itself, or formally respond to his charges, he thought about ways to take his information to someone who might act. In January of 1975 Bell wrote up a systematic account of what evidence he and his fellow state prosecutors thought they had regarding crimes committed by members of law enforcement at Attica, and exactly what his bosses had done, in his view, to make sure no one was held accountable for those crimes. Underscoring his certainty that troopers and COs were being protected, Bell noted that there were “8,000 pages of testimony in the grand jury proceedings on possible crimes by law officers,” pages that the highest-ranking politician in New York should carefully consider.13 On January 30 he sent his report, eighty-nine typed pages with an additional seventy-one pages of supporting documents, off to now-governor Carey.14
Once again, Bell heard nothing. His report had pulled no punches; it was crystal clear that he wanted his charges reviewed right away “in the interest of salvaging the Investigation and completing a proper presentation to the jury, insofar as these objectives are still obtainable.”15 Bell promised the governor that “unless files of the Investigation have [been] destroyed,” everything he claimed was fully provable and that the myriad documents that Simonetti and others had in their possession were “evidence of the Investigation’s lack of integrity.”16
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