Blood in the Water
Page 53
As to Bell’s charges of a cover-up at the highest levels of the Attica investigation, Meyer was unequivocal that there had not been any cover-up. The report conceded that there had been some “serious errors of judgment,” when it came to how troopers were dealt with by decision makers in the Attica investigation, but there had not, he had decided, been any conspiracy to protect them.30 The Meyer Report actually went even further than stating that Malcolm Bell’s “charge of a cover-up” was “not well founded” (despite Douglass’s and Rockefeller’s testimony in their depositions for this commission). It also stated that his claims of such a cover-up were “in some parts,” based “more on emotion than on fact.”31 Anthony Simonetti might have been a poor prosecutor, or perhaps just in over his head, the report concluded, but he nevertheless had “conducted a detailed and logical investigation of the possibility that his investigation of possible law enforcement crimes may have been deliberately hindered by the State Police.”32 To be sure “many steps should have been taken sooner,” but that was the extent of his wrongdoing.33
The Meyer Report left Malcolm Bell, and Attica’s many victims and survivors, appalled and deeply disheartened.
He compared reading its findings to “being at a holdup and then being told by the investigator, ‘the money’s gone and the bodies are here, but there wasn’t any hold up.’ ”34 Bell penned a response in The New York Times arguing that Meyer wanted it both ways: although he had to acknowledge that much covering up had happened, he chose to see those acts as unintentional. Therefore, “he did not have to decide who directed it.”35
Notwithstanding the Meyer Report’s unwillingness to support Bell’s contention that troopers and COs had been protected, it nevertheless offered some concrete recommendations that set in motion some positive developments for the prisoners who were still awaiting trial. The most important was a call for Governor Carey to appoint “a Special Deputy Attorney General” whose sole purpose would be “to review all convictions, all pending indictments and the evidence relating to possible future indictments with a view to taking, or recommending to the Governor, whatever action he deems appropriate in this wholly unique situation.”36 The report also endorsed trying “to correct the lack of evenhandedness in the State’s actions” by continuing to seek indictments against law enforcement personnel “in those cases, if any, involving serious offenses in which there is a reasonable probability of conviction,” and possibly giving the NYSP evidence that might allow it to discipline its own employees “whether or not [such was] sufficient for criminal conviction.”37 With regard to justice for Attica’s many prisoners who had “sustained serious injuries on September 13, 1971,” the commission suggested that they file “a crime victim’s compensation claim within, say, one year after passage of the amendment.”38 No mention was made, however, of dismissing the many riot-related criminal charges that Attica’s prisoners still faced. In Meyer’s view, “amnesty is not the proper solution to Attica-related problems.”39
Although Bell was disappointed with the report’s conclusions, many other New Yorkers who had long thought the Attica investigation a disaster felt it was wonderful news. One of these was Arthur Liman, who had served as the general counsel for the McKay Commission during its extensive investigation into Attica, a longtime critic of the “the grim cycle of accusation and investigation.”40 In his view, “it did not have to happen this way.”41 Liman wrote a personal letter to Hugh Carey after the Meyer Report was released, pointing out that although his commission had warned state officials that “the fair administration of justice required even-handed prosecution,” the state’s investigation had still proceeded most un-evenhandedly.42 Liman found it incredible that, despite the findings of the McKay Commission and other Attica investigations, there had indeed been “widespread physical reprisals” against prisoners as well as “inadequate medical care.” As revealed in the state’s investigation, “not a single indictment had been returned against a state official, a correction officer, or a police officer.”43 In light of the Meyer Report, Liman proposed a brand-new investigation—one that “must clearly focus on identifying those who established and condoned the order of priority that treated offenses by inmates as more serious than the transgressions by the lawmen. Even at this late date, that should not be beyond the faculties or the experiences of lawyers and investigators with a will to do justice.”44
Other New Yorkers argued against further investigations. The chairman of the McKay Commission, Dean Robert McKay, wrote to the governor that “the time has come to stop the never-ending investigations, closing out this unhappy chapter of our history as quickly and justly as possible.”45 McKay recommended that all further indictments and investigations should be dismissed, “except possibly the one remaining murder indictment,” which had charged Mariano “Dalou” Gonzalez with killing fellow prisoner Mickey Privitera in D Block where Hess and Schwartz were also killed.46
The public offered still other solutions for proceeding in the wake of the Meyer Report. A group of clergy in Rochester recommended “clemency for all who have been sentenced and dismissal of the remaining indictment.”47 This was exactly what various folks working to defend the Attica Brothers thought as well. As Big Black Smith’s Attica Now group stated, “The Brothers’ demand for amnesty in 1971 is more compelling for 1976.”48
Governor Carey committed himself to reviewing all existing cases before deciding how to proceed with the investigation. On the same day that Carey and Lefkowitz released the first volume of the Meyer Report, they announced that Alfred J. Scotti, former chief assistant district attorney of New York County, would be appointed special deputy attorney general as the Meyer Report recommended. Scotti’s appointment was big news: not only did it effectively remove Simonetti from any position of influence at the Attica investigation, but it opened up the possibility for a more balanced prosecutorial inquiry in the future.
When Scotti began his probe, the prisoner indictments stood as follows: eight of the sixty-two inmates who had been indicted had pled guilty to get their ordeals over—some had pled right away, others later as their cases wore on. Only two men had been convicted after standing trial, John Hill and Charles Pernasalice, and three others had been acquitted after standing trial: Willie Smith, accused of raping James Schleich; Vernon LaFranque, accused of subduing hostages with a gas gun; and Shango, accused of murdering Barry Schwartz. Meanwhile, charges against thirty-nine prisoner defendants had been dismissed entirely, either because Simonetti’s office conceded there was insufficient evidence to go to trial, or because the defendants had not been granted a speedy trial. When Scotti began his investigation cases were still pending against twenty-seven prisoners and one state trooper, Gregory Wildridge, who had been indicted by the second grand jury quite suddenly during the Meyer Commission’s investigation.
As far as the New York State Police were concerned, trooper Wildridge’s indictment stank of politics. Simonetti’s office had clearly scrambled to show that it could indeed indict a trooper once all eyes were upon it. Simonetti asked a prosecutor from his office to persuade the grand jury, just before it was to be dismissed, that Wildridge’s actions at Attica “evinced a depraved indifference to human life.”49 Wildridge was charged with reckless endangerment for having fired ten rounds from his shotgun into D Yard, including some into a tent where prisoners were huddled. According to the indictment, Wildridge callously said he had fired so much “to keep up the noise.”50 Wildridge, a thirty-eight-year-old, fourteen-year veteran of the force, was visibly supported by his NYSP fellows. At his arraignment, he was flanked by Captain Hank Williams; and Patrick Carroll of the Police Benevolent Association of the New York State Police told every media outlet he could reach that it was “a travesty of justice to indict a trooper who was risking his life to quell a prison riot.”51 High-powered lawyers from the firm of Hinman, Straub, Pigors & Manning of Albany were ready to defend Wildridge from prosecution. They would argue that Wildridge had been under enormous stress
at Attica, “constantly and continuously exposed to tension-filled hours,” given “little effective sleep or rest,” and subjected to days of “rumors of inmate atrocities”; now the state of New York was “prosecuting him for following orders in the line of duty.”52 Worse, these lawyers argued, their client had been ordered by his superiors to give statements of what he had done during the retaking “without any constitutional warnings,” and was “repeatedly forced to give evidence against himself” in the form of his own “coerced written statement.”53
Simonetti’s office must have been pretty shaken up by Bell’s letter of resignation and his subsequent detailed and condemning report to the governor because not only was Wildridge indicted in the wake of Bell’s departure, but the Attica investigation also chose then to present cases against several other low-level members of law enforcement. According to Scotti’s office, Simonetti’s office ultimately scurried to present evidence against four troopers and three correction officers before the second grand jury.54 In that mix was, for example, trooper James Mittlestaedt, whom prosecutors insisted had killed prisoner James Robinson and severely wounded others on the day of the retaking. He faced the possible charges of murder in the second degree, manslaughter in the first degree, attempted murder in the second degree, and attempted manslaughter in the first degree.55 Similarly, prosecutors had brought evidence to this grand jury against correction officer Nicholas De Santis for reckless endangerment in the first degree. Even though by his own admission he had fired more than twelve rounds from his .45 caliber Thompson into the heavily populated D Tunnel and D Yard on the day of the retaking, he was not indicted.56 Neither was Mittlestaedt.
When Alfred Scotti stepped into the Attica investigation he could see clearly that getting indictments against troopers and correction officers would be nearly impossible at this late date, in front of a grand jury that was feeling rushed, and with this team of prosecutors. Having looked closely at the evidence, it frustrated him because he could see cases where “the evidence presented to the Grand Jury warranted an indictment,” but in one of them, for example, “since that state trooper had already received immunity from the prosecution, prior to my appointment, he cannot now be legally prosecuted.”57 Still, he promised that he would continue to “seek indictments against law enforcement personnel and others in those cases, if any, involving serious offenses, in which there is a reasonable probability of conviction.”58 There were at least two cases against law enforcement that he wanted to pursue, including “one matter [that] involves a possible intentional killing by a state trooper and [another that] involves a possible serious obstruction of the Attica Investigation by a member of the State Police.”59
However, Scotti did not pursue these cases. Instead, he recommended on February 26, 1976, that the only pending law enforcement indictment, against Gregory Wildridge, be dismissed, and that no reattempts to indict troopers or COs should be undertaken. Although Scotti claimed that “the action we recommend today should not be misconstrued as condoning…the brutal acts of some law enforcement,” it effectively did just that.60 The truth was that there was no will to make these cases against law enforcement officers in the wake of the Meyer Report—if ever there had been.61
Once it was clear there would be no more trooper or CO indictments, Scotti felt more pressure than ever to take a close look at the remaining cases against prisoners, which everyone now agreed were sloppy at best and, at worst, downright unwinnable. Even when the state had managed to find evidence against the prisoner defendants, its highly questionable provenance made the cases weak if not tainted. In this context, less than three months after having been appointed to assess the existing and potential Attica cases, Scotti recommended dismissing “all pending indictments with the exception of one [Mariano “Dalou” Gonzalez].”62 Scotti even recommended that the one prisoner defendant who had already pled in a still active indictment be allowed to retract his plea and be cleared.63 On April 22, 1976, Governor Carey proudly announced, “On Mr. Scotti’s recommendation, State Supreme Court Justices Frank R. Bayger (Jan. 26, Feb. 26) and Carmen F. Ball (Feb. 26) dismissed 11 indictments, naming 24 inmates and the only state trooper indicted.”64
The Attica Brothers and all of their lawyers and supporters were relieved to hear this news, yet it was hard for them not to feel deep bitterness as well. Ernie Goodman wrote a heartfelt letter to his Attica client Shango on February 27, 1976, after having attended one of the hearings in which indictments were vacated.
I went to Buffalo in the expectation of dismissal. I had anticipated it would be a happy event. I was mistaken. It was bittersweet. Bitter, because Scotti’s assumption that belated justice proved the essential fairness of the system, was hypocritical. The reason there was any belated “justice” was only because of the struggle of those who had to fight or die. And the struggle was long and heartbreaking. During its course many wavered, weakened and gave up. Some capitulated. Others, like yourself, stood fast, gained strength and fought back, gaining understanding and support as we revealed the cruel and unconscionable efforts of the State to prove that the leaders of the rebellion were barbarous sadists.65
The prisoners and their advocates were angry that they had been put through so much for so long, and sickened that Governor Carey was, in their view, still trying to protect the troopers. Carey insisted that any law enforcement officers the state had been looking to indict would remain unnamed and that their names should only be revealed “if and when disciplinary hearings are undertaken” within their various state agencies. Even Scotti, who originally had recommended the release of all volumes of the Meyer Report, ultimately “endorsed Judge Meyer’s suggestion that the second and third volumes should not be made public,” undoubtedly because these volumes had grand jury testimony in them that might specifically name troopers and COs who had committed crimes at Attica.66 Meanwhile, though, the prisoner who the state thought had killed fellow prisoner Mickey Privitera in the midst of the uprising, Dalou Gonzalez, was not going to be afforded any such consideration.67
With the dismissal of all but one Attica indictment and with the promise that no indictments would now be sought against troopers, there was no longer any need for the Attica grand juries. And so, Judge Carmen Ball dismissed both panels on March 30, 1976.68
47
Closing the Book
Dismissing the remaining indictments as well as the grand juries, however, had not quite ended the Attica headache for Governor Hugh Carey. In fact, in the wake of his April 1976 press conference, which announced that the indictments were being vacated and, thus, the Attica investigation was effectively being dismantled, much of the public, however, thought still more should be done. He received hundreds of letters calling for him to grant executive clemency to all prisoners who had pled or been convicted of an Attica-related offense since they had been so selectively prosecuted and, also, to prevent a later governor from deciding, for whatever reason, to reopen the Attica investigation.1
After much deliberation and consultation with Scotti and others, Carey tried once and for all to end any more talk of Attica. On New Year’s Eve 1976, Carey called a press conference to make the stunning announcement that he was going to pardon every prisoner who had pled out in an Attica case, grant clemency to every prisoner who had been found guilty in an Attica case, and drop all inquiries into the potentially illegal actions of any state officers and employees at Attica back in September 1971—even disciplinary actions against them would now be off the table. “Attica has been a tragedy of immeasurable proportions,” the governor stated, “unalterably affecting countless lives. Too many families have grieved, too many have suffered deprivations, and too many have lived their lives in uncertainty waiting for the long nightmare to end….[The] time has come to firmly and finally close the book on this unhappy chapter in our history as a just and humane state.”2
Carey explained why he was taking this bold step. In short, all of the inquiries into the recent years of the Attica investigatio
n had persuaded him that “the state, through its highest officials, failed abysmally” by being wholly insensitive to its “constitutional responsibilities” and now, “equal justice by way of further prosecutions is no longer possible.”3 In his view, state officials had bungled the investigation so badly that they had “effectively precluded the possibility” of now bringing anyone to justice for crimes that may have been committed at Attica.4
But instead of settling the Attica question for good, the governor’s announcement brought it back into the public eye once again. Surprisingly, the most hostile responses came from the people who had dodged the biggest prosecutorial bullet as a result of it: the New York State Police and New York State correction officers. Patrick Carroll of the Police Benevolent Association made major waves in the press, sharing how “appalled” he was to hear that the governor had pardoned Attica’s prisoners, and both the PBA and the correction officers union were critical of Carey’s statement that he would not pursue disciplinary action against officers who had been on duty at Attica. On behalf of the PBA, Carroll “called the Governor’s statement ‘a slap in the face’ because it suggests that the guards and troopers had in fact committed disciplinary infractions.”5 According to a CO union official, “it leaves a cloud of suspicion over our heads.”6
The Attica Brothers had a more complicated response. Everyone was relieved that the indictment ordeal was over and that, better still, anyone who had received time as a result of having been indicted would have their records cleared. But there was still much anger over the many years of so many lives that had been spent living in fear of prosecution. They were also angry that even though John “Dacajewiah” Hill was included in the governor’s clemency decree—his sentence was commuted—Hill had not immediately been released from prison. Hill wasn’t slated to get out until October 23, 1994; the commutation only ensured that he would be eligible for parole in January 1977. Governor Carey would do nothing sooner.7