Hill, for one, was relieved that his parole was much nearer. He felt certain that, armed with the Carey decree, he would be released by the parole board within the month. Yet when he appeared before the parole board in January 1977, it did not go as he expected. As the board deliberated, John Hill sat in the prison’s visitor’s room with his wife, Alicia, and their seventeen-month-old son, John Jr. The board decided that releasing him could possibly lead to “widespread negative community reaction,” and they refused to consider his parole again for two more years—the longest interval the board was permitted to wait before having to reconsider his bid for release.8 When he heard this decision, Hill just shook his head in dismay.9 In his statement to the press, he was despondent, telling reporters, “If they leave it to the discretion of the parole board, I’ll never get out of these penitentiaries….The guards still want revenge for what happened.”10
The board’s reluctance to release Hill only increased the pressure on Carey. To everyone’s surprise one of Hill’s most vocal supporters became former Attica prosecutor Malcolm Bell. Bell filed a lengthy affidavit supporting Hill, and also made a public statement on his behalf that he was “aware of no circumstances which make the lack of fairness and evenhandedness of the Attica prosecution any less applicable to John Hill than it was to these [other] inmates charged with serious felonies.”11 Multiple grassroots organizations expressed support for Hill with flyers such as “Immediate Amnesty for Dacajewiah,” which reminded the public that “Carey may claim he ‘closed the book,’ but in reality he closed the door on Dacajewiah….We must make the pressure on him to grant amnesty greater than the pressure to continue the cover-up.”12 A faith-based organization, Charter Group for a Pledge of Conscience, urged people to “please write or wire the Governor today demanding that he grant unconditional pardon to John Hill.”13
In the face of this pressure, Carey’s office maintained that it could do nothing.14 It would be up to Hill’s attorneys—now William Kunstler, Margaret Ratner, and Elizabeth Fink—finally to obtain Mr. Hill’s freedom via the courts.15 Notwithstanding the flak Carey received from Hill’s supporters and that which he endured from the heads of the organizations representing the State Police and the correction officers, he and the state of New York had done their best to bury the bodies.16 Bernard Meyer certainly thought he had settled the question of cover-up, Alfred Scotti had ended the Attica investigation, and by offering pardons and clemency, Governor Carey had—at least officially—closed the book on Attica. The state hadn’t considered one factor, however: the many hundreds of men who had been wounded and tortured at Attica, and the families of the scores of men who had been murdered, who had not yet had their day in court. They were not going to let the book on Attica be closed until their story was completely and truthfully told. Though it would take almost twenty years from the time that Carey tried to end all matters related to Attica for them to take state defendants to court, take them the prisoners would.
PART IX
David and Goliath
ELIZABETH FINK
When Governor Hugh Carey “closed the book” on Attica, and the criminal trials faded from the headlines, attorney Elizabeth Fink had been living and breathing the fallout from the Attica prison uprising for almost five years. Fink was what activists in America lovingly referred to as a “red diaper baby.” She had grown up in the heart of New York City’s most intellectual and politically left milieu, and then attended Reed College. An impromptu road trip to Chicago after graduation in the summer of 1968 ignited her own passion for social justice.
That August, during the Democratic National Convention, Fink found herself exposed to a most intoxicating experiment in participatory democracy. This moment was transformative for Fink, not only because the demonstrations that rocked that city inspired her deeply and made her feel passionate about the fight against the Vietnam War, but also because she was shaken to her core by the law enforcement violence she saw directed at protesters young and old.
When Liz Fink came back to New York she joined the offices of a prominent radical newspaper but soon thereafter her father died and she left to run his business. Feeling some pressure from her mother, who had always wanted her to be an attorney, Fink then enrolled in law school. Armed with a J.D. degree, Fink suspected that she could do some very important political work, fighting the government officials and politicians who were using the courts to squelch dissent.
Attica would give her that opportunity.
Liz Fink arrived in Buffalo on July 4, 1974, less than two months after she was admitted to the practice of law, and she hit the ground running as a key person in the Attica Brothers Legal Defense (ABLD). On July 5 she first went into Auburn prison to meet with the men there awaiting trials. Soon Fink was one of the main liaisons between the indicted Attica Brothers and the many people working on their behalf. She had become particularly close with fellow Attica lawyers Dennis Cunningham, Michael Deutsch, and Joe Heath. These four worked closely with Big Black Smith and, like him, believed that politics must be central to any defense strategy. Fink was very much aware of the gender politics of the ABLD as well. As much as she liked and admired her male colleagues, she often felt sidelined by them. That is, until the 1980s.
In that decade and into the next, Liz Fink would find herself in charge of the highest-profile Attica case to date. Big Black was not about to let the state of New York close the book on Attica and was counting on her to ensure that he and the rest of the prisoners finally had their day in federal court.
48
It Ain’t Over Till It’s Over
Although Governor Carey had authority to pardon those who had already been convicted of an Attica crime, he did not in fact have the legal power to pardon anyone in advance of a possible conviction. In other words, while it might have been politically expedient to claim that there now would be no legal actions taken against members of law enforcement for what they had done at Attica, his pronouncement held virtually no weight as “a judicial decision or a legal decision.”1
Many of Attica’s surviving prisoners had actually been trying to make the state of New York accountable for the horror of the retaking via civil actions since 1971. In fact, 508 of them had filed notices of intent to file suit in New York’s Court of Claims by December of that year.2 Undoubtedly there would have been many more, but by law, prisoners who were still incarcerated were not allowed to file these suits—and even those who were released only had a window of three years in which to do so. Then, in 1974, the Court of Claims decided that it would hear no Attica civil case until all of the criminal cases had been dispensed with—which meant that in 1977, in the wake of the Carey pardons, numerous lawsuits related to Attica were finally ready to proceed.3
These cases already comprised “one of the largest and most complicated set of claims ever brought against the state,” according to one newspaper report.4 Of course, more suits were now likely to follow, particularly since the Meyer Report had made clear that the state had made many mistakes in its handling of Attica. As the press pointed out, it would now “be very difficult for the state to deny culpability” in the civil arena.5 Attorney General Louis Lefkowitz noted tiredly, “With motions and appeals, this could go on for years.”6
It did go on for years, in part because it was so hard for the prisoners to get their cases heard. The Court of Claims eventually ruled in fourteen prisoner suits that had been filed in the early days after the rebellion, but only nine of these were “resolved in favor of claimant, and 5 were dismissed.”7 As important, even the cases that eventually did win prisoners a damage award took so long to wend their way through the system that some plaintiffs did not live long enough to see the money. This process was in fact so drawn out that one of the Attica plaintiffs wrote to the clerk of the court in March 1983 to remind everyone that his “life has been shortened by the Attica incident,” and that if his claim was “not tried soon, neither my witnesses nor myself will be alive for the trial.”8 That plaintiff
died the following year, but his estate was finally awarded $164,000 in damages in 1989.9
Nineteen eighty-nine would be a good year for a number of Attica prisoners thanks to the decisions of one judge, who was willing to rule that the state was in fact “liable for damages and injuries ‘resulting from the intentional use of excessive force.’ ”10And yet, while it was true that nine prisoners, or their estates, eventually were awarded a total of $1.5 million in damages, as one legal scholar noted, for so many others of Attica’s surviving prisoners “there was little or no redress.”11
Still, this wasn’t the end of Attica legally. Indeed, as far as New York was concerned, the case most threatening to it had, even at the close of the 1980s, still not been resolved. This case, Inmates of Attica v. Rockefeller, had originally been filed in federal district court in Manhattan on September 13, 1974, at the very last minute before the three-year statute of limitations ran out. This class action civil rights suit on behalf of the Attica Brothers—one that had originated in that first injunction against violations of prisoners’ rights that lawyers had sought before Judge John T. Curtin back on the night of the Attica retaking—argued that the main officials in charge at Attica, from Governor Rockefeller to John Monahan of the NYSP to various officials at the prison, should be liable for $100 million in damages. They had “violated the rights of prisoners by using excessive force and unrestricted firepower ‘calculated to cause unnecessary and inexcusable death, serious injury, terror, and suffering.’ ”12
While the energies of the Attica Brothers and their lawyers were consumed with the defense of the sixty-two men indicted in the criminal courts, this civil case had bounced among various judges in Manhattan. The first judge recused himself for being too connected with various litigants in the case; the next worked in the same firm that now represented Nelson Rockefeller. Rather than recuse himself and give it to another jurist in New York City, however, the second judge suggested moving the case upstate—bad news for the Attica Brothers.
The deck seemed stacked against the plaintiffs in several ways. First, any legal help they might secure was likely to be in New York City, and they had few resources to manage traveling back and forth to Buffalo. Furthermore, in their desperation to get the case filed by the deadline, the prisoners had originally filed a very general complaint—it listed many “John Does” as defendants because there had not been enough time to figure out who all of the potential defendants might be. Fortunately, an attorney from the National Lawyers Guild in Manhattan decided to take the time to read the McKay Commission’s detailed 1972 report and amend the complaint to name specific defendants—shooters, officers, state officials, prison administrators. But then the ball was dropped again.
Back in 1974 when Inmates of Attica v. Rockefeller was filed, anyone who was named in a civil case like this one had to be served by a representative from the federal Marshals Service. The key here was that someone from the plaintiff group would have to arrange for a U.S. marshal to serve every potential defendant—not as simple a task as it might seem. In the chaotic years of the criminal defense, this procedure simply did not happen for many of the individuals. By 1979, the only five defendants who had been successfully served and remained in the suit were former governor Nelson Rockefeller, former commissioner of corrections Russell Oswald, NYSP Major John Monahan, former Attica superintendent Vincent Mancusi, and former Attica assistant deputy superintendent Karl Pfeil. Many key figures, from NYSP Lieutenant Colonel George Infante to Attica deputy superintendent Leon Vincent, could breathe a sigh of relief that they had dodged a potentially deadly legal bullet.
When the case was moved to Buffalo, into the court of the Western District of New York, the prisoners’ class action suit was assigned to Judge John T. Elfvin. From that day forward, the state’s lawyers tried to get Elfvin to dismiss the case but Elfvin denied their motions and made clear that the case would proceed. He insisted on knowing, however, who would be representing the plaintiffs. That was a good question. Officially the Attica Brothers’ civil case was being handled by a New York City lawyer named Bob Cantor, but the fact was that it had been hanging around for so long that no one was really in charge anymore. (If someone had been on top of things, Elfvin might not have been able to dismiss the defendants who hadn’t been served by a U.S. marshal; an attorney could have argued for more time to serve them.)
Attica Brother Frank “Big Black” Smith was well aware that if there were no lawyers who had the time to commit themselves to this civil case, it would soon be over without any satisfactory results. By this time, Big Black was working in Bob Cantor’s office and he could see that this man, alone, would have a hard time taking on a case of this magnitude, especially one that would be argued so far away from Manhattan. Big Black very much hoped that someone else—someone specific—would agree to take on this case: Elizabeth Fink. Fink was a criminal lawyer, not a civil lawyer, but Big Black had seen her in action during the Attica Brothers Legal Defense efforts and had always thought she was just the sort of fighter they all had needed then and still did. Black and his fellow Attica Brother Akil Al-Jundi approached Fink about taking on the Attica civil case. She was flattered, but initially refused; she was recovering from a recent illness, and also working around the clock trying to get another client, Black Panther Dhoruba al-Mujahid bin Wahad (aka Richard Earl Moore), released from prison. The Brothers grew alarmed when Judge Elfvin announced that if the plaintiffs did not commence discovery in this case by February 21, 1981, he would pull the plug.
Fortunately, a pro se clerk in Judge Elfvin’s office, Ellen Yacknin, had worried about this possibility for months as she had watched Big Black check in with her again and again to make sure that this case was alive and well. It seemed to her that he needed some help. When Judge Elfvin gave a firm deadline for the plaintiffs to identify their counsel, Yacknin asked the judge if she could try to find some attorneys for the case. Yacknin and Elfvin had a heated debate as he argued for the case to be dismissed and she begged him to give her just a bit more time to find some lawyers. Ultimately, he did allow her to try.13
Yacknin’s first call was to a local attorney she knew, who declined. She then turned to Prisoner Legal Services, who also said no. Feeling a bit desperate, Yacknin then decided to call every lawyer that she had seen named on the original complaint; each of them also declined to take on the case. Any lawyer worth their salt could see that this was a classic David and Goliath case which would require enormous resources and energy, as well as spending a tremendous amount of time in upstate New York. Every time Ellen Yacknin called another attorney for help she was told the same thing: Call Liz Fink. So she did.
Fink, though, also said no. She explained to Yacknin that she was unusually busy with other cases and, what is more, she was a criminal not a civil litigator. Two days later, however, Yacknin’s phone rang. It was Liz Fink, who had talked at length with Big Black Smith; they had decided that they, together, would try this case. Yacknin called it “a very brave thing to do,” which was putting it mildly.14 The state’s defendants had hired the best-connected and best-funded lawyers in New York, and the only way that the prisoners might be able to prove their case would be to get the state to turn over evidence in discovery. Given that this case was, at bottom, about murder, torture, and abuse, Fink and Big Black had little doubt that the defense would continue to make every effort to block their access and to continue the now time-honored strategy of insisting that the prisoners, not the state, bore all of the blame for what had happened at Attica.
Nevertheless Fink and Big Black came into Judge Elfvin’s court prepared to argue their first discovery motion. As Yacknin recalled, “the other lawyers were blown away.”15 Still, Fink had to fight hard for every single thing the plaintiffs would need to proceed in this case. Not only did defense lawyers persist in trying to have the case dismissed, but they also insisted that the class suing them was invalid. Judge Elfvin seemed to enjoy what he viewed as a game of cat-and-mouse between the
defense and the plaintiffs, and he played right along.16 In an order he issued on October 30, 1979, Elfvin agreed the plaintiffs were, legally, a class—a group who had shared a similar enough experience to stand together as one to seek damages from the state. Then, almost a year later to the day, he changed his mind on this point and revoked the plaintiffs’ class certification; it would be another five years before he once again granted the plaintiffs’ motion to recertify as a class.17 To Liz Fink’s frustration, this sort of waffling on the judge’s part would continue for years, in her view capricious and childish power-tripping.18
Frank “Big Black” Smith and Elizabeth Fink, 1981 (Courtesy of the Democrat and Chronicle)
Fink’s biggest fight with Elfvin and the state lawyers alike was trying to get meaningful access to state documents via the discovery process. Unwilling to leave any stone unturned, Fink filed fourteen subpoenas as well as numerous requests for admissions—paperwork that asked specific questions of the defendants that, once answered, could then be accepted as fact as the trial proceeded. For example, she asked: “Do you admit that 39 people were killed on September 13th?” In lieu of a response, the defendants’ lawyers from the elite firm of Milbank, Tweed, Hadley & McCloy stalled on her requests and filed their own motions to have her case dismissed. Some of those motions backfired; for instance, the argument that the plaintiffs did not have the resources to litigate the case opened the door for Fink to argue that the entire case was clearly about an imbalance of power and, therefore, that this was all the more reason why it should proceed. She maintained to the judge that she could handle this case even while, behind the scenes, she worried mightily about their limited resources. Fink was almost single-handedly footing the ever-growing cost of the case—dipping into family savings and borrowing money when she could to cover phone bills that averaged $1,500 a month, exorbitant commuting costs, and the staggering amount of money needed to get documents typed, copied, and filed.
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