Blood in the Water
Page 52
And Bell’s report had offered Governor Carey specific examples of specific crimes that had been committed by specific troopers. He named names and clearly indicated that his office had plenty of evidence with which to possibly indict many troopers and COs for crimes against prisoners and even their own fellow state employees—the hostages—ranging from reckless endangerment and assault to manslaughter and murder.
Lest the governor feel uncertainty as to why none of the trooper or CO crimes at Attica had been prosecuted, Bell emphasized that higher-ups in the NYSP had actively sabotaged any attempt to do so. He pointed out, for instance, that although reporters from the Los Angeles Times and The New York Times had managed to listen to the NYSP’s radio scanner during and after the assault and had transcribed in rich detail what troopers were saying and doing on the ground during the most crucial hours of the retaking, “there was much not included” in the NYSP’s official log of these tapes, which had been “transcribed later back at the Batavia post” by the police themselves.17 That official log indicated that there were “no messages received between 9:53 and 10:30; it reflects no messages sent between 10:12 and 11:30,” and, according to the NYSP officer who had been asked to make that transcript, it was Major Monahan, the man who had led the Attica retaking himself, who “ordered him to compile [that log] sometime after 9/13.”18
Similarly, deliberate sabotage had taken place with the NYSP photographs. Bell’s report explained how Lieutenant Thomas Constantine of the NYSP had admitted that an NYSP sergeant, perhaps on the orders of another lieutenant, had moved certain slides from the slide trays to the academy safe “before the slide trays were turned over to our Investigation.”19 Between this sort of obstruction of justice, and the fact that the State Police had “buried the tents, tables, etc. that had been in D Yard behind the prison before they could be examined for bullet holes,” Bell was hopeful that Governor Carey too would see that a cover-up had been attempted and that he would make sure that Attorney General Lefkowitz stepped in so that the Attica investigation could get back on track and operate with integrity. 20 Meanwhile, however, it was clear that Simonetti’s office was continuing to handle the NYSP with kid gloves. Even though Lieutenant Constantine had likely seen the murder of prisoner Kenny Malloy, for example, since he “went down C catwalk behind or with Capt. Malovich’s assault force and reached Times Square about the time Malloy was being shot,” according to Bell, Simonetti didn’t even push him on whether he had.21
Bell’s document claimed, in no uncertain terms, that there had been a cover-up, straight and simple. So many men had tried to prevent a true accounting of crimes committed at Attica, from the highest offices of the government to the troopers and COs at the local level. Bell pointed out that Rockefeller’s office, from the very beginning, had sought to discredit coroner John Edland and his finding that law enforcement bullets had killed hostages.22 He noted as well that from the earliest days of the investigation until as late as the fall of 1974, Rockefeller attorney Michael Whiteman “was not responding to certain requests for information that A[ttorney] G[eneral] S[imonetti] had made of him” regarding information about the killings in D Yard.23
Despite the detailed and dramatic evidence presented in his lengthy report to Governor Carey, again he heard nothing. As one week became two, Bell grew increasingly anxious because he “desperately wanted someone to do something before the second grand jury was discharged.”24 On February 11, 1975, Bell called Carey’s office; a secretary confirmed that his report had indeed arrived, but that it “was sitting on the Governor’s desk—unread.”25 Bell was disappointed but not surprised and, less than a week later, he “followed the phone call with a letter asking the governor to respond ‘with all possible speed.’ ”26
The governor did eventually read Bell’s detailed and explosive document, which he immediately shared with both Lefkowitz and Simonetti. The trio needed to figure out if there was any good way to address Bell’s charges without opening Pandora’s box—without antagonizing NYSP brass as well as many other important political figures in the state. Carey was savvy enough to realize that this document could place his brand-new gubernatorial administration at the epicenter of a public relations nightmare.
Bell, ignorant of Carey’s internal deliberations and still hearing no response to his letter, decided that he needed to get a lawyer to figure out his next steps. He secured the services of Robert Patterson, the high-profile attorney who had also been a member of the Goldman Panel—one of the groups that had entered Attica to check on the prisoners after the retaking. Governor Carey’s counsel asked Patterson and Bell to sit down with Lefkowitz and Simonetti to see if they might come to some sort of meeting of the minds.27 That meeting, however, never took place and Bell’s conviction grew that his only remaining recourse was to go public regarding this cover-up. When, by March 25—nearly two months after submitting his report—he still had heard nothing from Carey, Bell decided to go to The New York Times with his story. He first approached Tom Wicker, who he remembered had been one of the original observers at Attica. Wicker said that he would speak with the metropolitan editor about sending an investigative reporter to talk to him. The next evening reporter Myron Farber showed up at his door to hear Bell’s account of what had been happening at the Attica investigation.28
Farber knew that he had a powder keg of a story on his hands from the instant Bell revealed it to him. He remained frustrated that Bell was so principled that he would not share any grand jury evidence and wouldn’t pubicly name names, but he knew he had enough even without these specifics to make national and even world headlines.29 At that very moment, Attica was already very much in the news because the jury was deliberating in the John Hill and Charles Pernasalice case.30
Myron Farber’s story, published in the Times on April 8, 1975, pulled no punches, and unsurprisingly created quite a firestorm—especially thanks to the attention that ABLD lawyers brought to it. To them, Bell’s allegations were powerful confirmation of what they had always suspected was happening within the Attica investigation.
Ultimately, it fell to Governor Carey, not Attorney General Lefkowitz, to deal with the most immediate fallout from the revelations in the Times. Realizing that he had sat on Bell’s lengthy and well-documented report that indicated major and outrageous failings on the part of New York State’s own, very expensive, Attica investigation, Governor Carey moved into high gear. Behind the scenes, the governor began a feverish attempt to protect his office from a potential public relations disaster. For starters, he requested that Lefkowitz publicly respond to the allegations immediately.31 As a new governor he simply could not have the citizens of his state, who had been paying the cost of the Attica investigation for almost four years, think that he had ignored evidence that this investigative body was corrupt. Ten days after the story appeared in The New York Times, the attorney general appointed former State Supreme Court justice Bernard S. Meyer as a special assistant attorney general “to evaluate the conduct” of New York’s official investigation into the retaking of the Attica Correctional Facility and the days and weeks thereafter.32
This decision, however, did not exactly keep the press at bay. The media had a field day once it heard who had been appointed to investigate the Attica investigation. The Boston Globe incredulously noted Meyer’s lack of “criminal experience.”33 Not only was this man not familiar with criminal law, but, as the Boston Phoenix pointed out, the “time limit given Meyer” to complete his investigation was “preposterous.”34
The time frame that Meyer had been given to complete his investigation was indeed very compressed: he was expected to be done by September 30, 1975, a mere five months later—even though the Attica investigation itself had gone on for nearly four years, presented cases to two grand juries, and indicted sixty-two prisoners whose trials were still in progress. For Malcolm Bell, though, there was once again a modicum of hope. Maybe now all of the state’s skeletons would finally be brought out of the closets—and m
aybe Attica’s victims could get some justice. Bell firmly believed that it still wasn’t too late.
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Investigating the Investigation
Democratic governor Carey’s selection of Bernard S. Meyer to head up the official inquiry into Bell’s charges was highly political. Although Meyer was also a Democrat, notably he was one of the few in New York whom former governor Nelson Rockefeller liked. At the end of Meyer’s term as a justice of the New York Supreme Court, then-governor Rockefeller had taken “the ‘unusual’ step of issuing a statement praising Meyer,” publicly recognizing Meyer’s “distinguished services to the judicial process,” and remarking that it was “most important that the judicial system does not lose…a man of outstanding ability, who has rendered great service to the people.”1 Seemingly unconcerned about his connections to Rockefeller, Governor Carey’s office assured Meyer that throughout his investigation he would have “the power to examine grand jury minutes, to subpoena witnesses and documents, and to examine under oath any persons with relevant information.’ ’2
Knowing that he had a tight timeline of only five months, Meyer got right down to business. On the very same day he was appointed to his new post, he received a copy of Bell’s so-called “preliminary report” from Carey’s office and from Bell’s lawyer, Robert Patterson, as well.3 Within a week, Meyer also received the “first preliminary submissions in response to the Bell report and charges” from Anthony Simonetti, and by June 2 he determined that his investigation would require a budget of at least $330,000.4 Without this full funding, he insisted, it would be nearly impossible “to hold the September 30th target Date.”5
From Meyer’s point of view, his job was not simply to determine “whether there was a ‘cover-up’ ” but also “whether there was venality.”6 He also wanted to determine, if he were to discover “deficiencies in the Fischer-Simonetti investigation, why such deficiencies occurred.”7 This was a tall order. It was hard to imagine plowing through the entire paper trail related to the Attica investigation in detail. Although Meyer would later concede that the time allotted had not permitted him to retrace every step the investigation had “during the now four years of its existence,” nevertheless, he dutifully tried to do so—not only making sure he had access to all relevant documents, but also asking the public to come forward if they had anything to share that might have important bearing on this case.8 Meyer and his staff ultimately reviewed “over 33,000 pages of this testimony heard by the two Attica Grand juries” and then “compiled 500 exhibit folders with 1,000 documents with tens of thousands of pages” for further review. Eventually, thirty-seven members of the public (whose identities would be kept confidential in Meyer’s report to the governor) offered information that, in turn, generated another ten thousand transcript pages.9
Meyer also had numerous meetings with Malcolm Bell. When Bell saw how much pressure this man was under to finish his investigation quickly, he worried that this boded ill for getting at the truth—as did the fact that he had “added eight lawyers to his Commission but only one investigator.”10 As troublingly to Bell, the questions asked of him seemed to suggest they were “questioning Simonetti’s mental balance and even asserting negative conclusions about it,” rather than looking at the broader systemic problems with the investigation.11
In August, six weeks before the deadline, Meyer’s commission questioned Vice President Nelson Rockefeller for five hours under oath.12 And yet, Meyer was at least willing to question Simonetti’s boss. The former governor who had ordered the Attica retaking tried his best to offer little useful information. Asked whether he felt, in hindsight, that Robert Fischer should have used the State Police to investigate its own troopers, Rockefeller responded that Fischer was “a man of tremendous integrity and great experience” and “in any case where he felt there could be a conflict of interest…he would use somebody else.”13 What is more, the former governor “did not consider the investigation was being conducted by the state police,” he said. “I considered the state police simply investigators.”14 Rockefeller was similarly unhelpful on the subject of why the head of the NYSP, William Kirwan, wasn’t on the scene during the riot at Attica, nor during the retaking, and why such an important operation had been handed off to the much-lower-ranked Major John Monahan. He couldn’t explain why Kirwan wasn’t there, and he maintained that this absence hadn’t bothered him at all.15 Still, something important did come out of Rockefeller’s deposition: the admission that he had been regularly in touch with the attorney general about the Attica investigation and, what is more, that he “got informal confidential reports from him as to the progress.”16 Rockefeller’s testimony, in fact, shattered any illusions that he had not had influence over Lefkowitz, and thus over Fischer, Simonetti, and their men charged with investigating crimes committed by his state troopers and correction officers. He admitted on the record that the attorney general “stayed at the mansion always with me there, and we traveled up and down together, and I saw him down here a great deal. So I was with him a great deal and we would discuss many points.”17 This admission was exactly what Bell had been alleging—that the higher-ups in the Attica investigation were far too close to the very people who had ordered the retaking of Attica to properly investigate it.
Rockefeller’s right-hand man at Attica, Robert Douglass, also tried to say little of value, but his deposition was also revealing. Like Rockefeller, Douglass largely avoided the discussion of why Kirwan had not been in charge of the Attica retaking. When pushed to say whether it “seem[ed] strange…that the Governor would be represented by four very high officials…and yet the assault force would not have in command a Superintendent of State Police,” Douglass merely responded that he “didn’t form that opinion.”18 However, as in Rockefeller’s interview, Douglass admitted that Rockefeller’s people had been deeply embedded in the Attica investigation from the very beginning. Although Douglass said he did not recall hearing anything on the day of the retaking about Kenny Malloy’s alleged shooter, Aldo Barbolini, who was allowed to resign quietly rather than face potential prosecution, he had “heard much subsequent.”19 Notably, though, no one in the State Police had bothered to tell the investigation prosecutors about this man or what he had done. Douglass was also quite open about the fact that from the earliest days, the top officials in charge of the investigation had “kept the Governor generally informed” regarding the progress of the investigation into the governor’s own troopers. Douglass even acknowledged that Robert Fischer had participated in the debriefing at Rockefeller’s pool house on September 24, 1971—the same debriefing attended by top men from the NYSP where the Barbolini matter had been discussed.20 The Meyer Commission lawyer deposing Douglass seemed taken aback by this revelation, asking Douglass “what would have been the point of [Fischer’s] sitting in on a conference of the persons responsible for that excessive force if there had been any, if he is supposed to be the independent prosecutor? For example you certainly would not expect him to sit in on a defense counsel conference.” Douglass responded that “I didn’t ask him to the meeting. I assume the governor did.”21 Either way, he saw no conflict of interest in this situation, nor with the fact that the BCI was investigating its own people.22
Bell’s allegations of inappropriate relationships among the governor’s administration and the investigators were further supported by the testimony of Lieutenant Colonel George Infante. Infante revealed that his own lawyer had “served as an assistant to Governor Rockefeller and the various persons in the Executive Chamber in their dealings with various investigative agencies concerned with Attica.”23 What is more, Infante admitted that this same lawyer had been contacted by Anthony Simonetti when the state prosecutor “was considering giving immunity of some sort to Lt. Colonel Infante.”24 Of course granting immunity to a member of the NYSP whom Simonetti had once dubbed the “architect” of the cover-up at Attica was tantamount to throwing in the towel on any case it might make against law enforcement for its actio
ns there.
More than a month after his deadline, on October 27, 1975, Bernard Meyer finally turned in his final 570-page report to the governor in three volumes.25 Only the first volume would be released to the public.26 Governor Carey and Attorney General Lefkowitz made clear that they wished the other volumes to remain undisclosed, citing law “which permits the Governor and the Attorney General to disclose, at their discretion, reports on investigations which they have ordered.”27
The so-called Meyer Report was detailed and critical, but also a very carefully worded document. Ultimately, Meyer came down quite harshly on the Attica investigation. Not only did the report comment regularly on the Attica investigation’s various and often glaring shortcomings, but it specifically called out decisions made by men such as Anthony Simonetti. And yet, to men like Malcolm Bell, as well to Attica’s surviving prisoners and hostages, Meyer should have been far harsher on what they saw as the Attica investigation’s kid-glove treatment of those who had committed so much harm in D Yard back on September 13, 1971, and for weeks thereafter. Anthony Simonetti’s granting immunity to top figures in the potential hindering cases, for example, had been deemed by Meyer merely “a lack of good judgment”; and the NYSP’s being placed in charge of investigating its own people from the outset suggested a “possible conflict of interest.”28 The report explained that more police had not been indicted only because of “deficiencies in evidence gathering immediately following the retaking,” which then “left so little available to the investigation” to determine whether members of law enforcement were criminally liable or not.29