Blood in the Water

by Thompson, Heather Ann

  No matter how tenacious Fink and Big Black were with their discovery subpoenas, though, the state’s lawyers repeatedly denied that they had anything worth seeing. In March 1982, Fink finally got permission to meet with state attorneys at the office of the attorney general in the World Trade Center, where all of the Attica files from the years of criminal litigation were kept. There she and two other lawyers she had known since the ABLD days, Joe Heath, who had worked on the Hill and Pernasalice case, and Michael Deutsch, who also had been central to Big Black’s defense team, returned day after day as officials allowed them to see only one box. And so they would argue to see another box. One more container would be brought out the next day, and then the whole tedious process would repeat itself. So the plaintiff lawyers went back to court.

  On June 7, 1982, they returned to the World Trade Center armed with a court order and the right to see everything the state had on Attica. Lawyers from Milbank, Tweed joined them to review the documents together. After three days, the defense lawyers, according to Fink, grew bored of the process and left. To their relief, with no defense lawyers on site, and with only one records clerk remaining in that office who was willing to give them fairly free rein, Fink was able to see virtually any document she needed to see despite the state’s instructions to allow her access to only selected items.19 Once she had seen documents that no one outside the Attica investigation had ever seen, including all three volumes of the Meyer Report and countless documents from the state’s years-long investigations of prisoners and troopers, Fink felt well prepared to litigate the case.20

  49

  Shining the Light on Evil

  Now armed with vital documents to prove their case against prison and police officials as well as against New York’s former governor Nelson Rockefeller, Liz Fink and her team were most eager to go to trial. To their dismay, however, Judge Elfvin suddenly allowed the state’s lawyers to realize their longtime efforts to remove Rockefeller from the list of named defendants. It was common knowledge that Judge Elfvin was good friends with Rockefeller’s attorney in this trial, so close, in fact, that they used to go horseback riding together.1 Still, the plaintiff lawyers thought that the judge might not protect him this overtly. Fink appealed, but even the appeals court panel slated to consider the motion had to recuse itself since all three judges on it also had close relationships with Rockefeller. Indeed, it took three separate panels of judges to get a ruling on the appeal and, even then, at the end of 1989, the plaintiffs lost their bid to keep Rockefeller in the case.

  And so Fink and her team had to move on. They had been requesting trial dates since 1987, but time and again the defendants had found reasons the dates should be moved. In December 1989, Fink again filed papers seeking an immediate trial date; the trial was set to commence on June 5, 1990. But in March of that year the remaining defendants named in the case followed Rockefeller’s lead and filed their own motions to be removed from the case, arguing that they too had immunity and thus couldn’t be named defendants. Judge Elfvin denied these efforts and confirmed that the plaintiffs’ Eighth Amendment claims would be permitted against former commissioner Russell Oswald, “for failure to plan for medical needs in connection with the plan of retaking”; NYSP Major John Monahan, “for his role in supervising the State Police officers who participated in the retaking”; and former Attica officials Superintendent Vincent Mancusi, Assistant Deputy Superintendent Karl Pfeil, and Commissioner Russell Oswald, “all for failure to prevent the acts of retaliation that took place subsequent to the prison retaking.”2

  Word that the civil suit was about to go to trial once again thrust Attica into the national spotlight. It did not escape people’s notice that, with this federal trial about to begin in Buffalo, “for the first time the full extent of the killing, brutality and denial of medical care inflicted on the men at Attica [would be] publicly exposed.”3 To make sure this case stayed in the public eye, a newly formed Attica Justice Committee got to work.

  The fact that 1991 marked twenty years since the Attica rebellion greatly helped this committee bring attention to the case. Soon, events marking the anniversary and fundraising for the committee sprang up around the country, including “The Attica Prison Rebellion and U.S. Prisons 20 Years Later” in Ann Arbor, Michigan, that showcased speakers Frank “Big Black” Smith and others.4 Similarly, a “Can’t Jail the Spirit” event was held at the Bethlehem Lutheran Church in Oakland, California, on September 13 to commemorate “20 years after the Attica Rebellion, the murder of George Jackson, and the Imprisonment of Geronimo Pratt.”5 An “Attica Rebellion and US Prisons: 20 Years After Attica” event was also held on the campus of Eastern Michigan University; as was an “evening to commemorate the 20th anniversary of the Attica uprising and support the brothers and their families in their federal law suit” at the Canaan Baptist Church in New York City.6 In addition, lawyers from the New York area sent out their own fundraising letter asking “that each of us contribute $1,000 to this cause either by loaning the money for reimbursement in the event that a favorable verdict or settlement is reached or by contributing the money.”7

  On the eve of the Attica civil trial’s opening, the Attica Brothers plaintiffs had an impressive team of lawyers on their side, made up of Liz Fink, Michael Deutsch, and Joe Heath, as well as two other attorneys from the earlier days of the Attica criminal trials, Danny Meyers and Dennis Cunningham. On the defense team were Richard Moot, a third-generation trial lawyer who had been trained at Harvard and now represented Mancusi; Irving C. Maghran represented Pfeil; and John H. Stenger represented Russell Oswald (and, following Oswald’s death in March of 1991, his estate).8 This trio was supported by five more defense attorneys and numerous paralegals.

  Though the defense team was far better funded, they were routinely startled by how well the plaintiffs’ lawyers argued their case. To the defense’s annoyance, it was obvious that attorneys such as Liz Fink were at a great advantage having already spent so many years working on the criminal cases. Her team already knew exactly who had seen abuses taking place at Attica, and thus whom to subpoena. As important, the plaintiff lawyers also had at their disposal the myriad interviews that the ABLD had conducted back in 1971 with the National Guardsmen and doctors who had been at Attica on the day of the retaking. From these older interviews they knew that there were many they could call to testify. Indeed, the attorneys’ deep familiarity with Attica meant that they had quite a few disinterested witnesses such as doctors who had tried to assist the wounded in the immediate aftermath of the shooting, National Guardsmen who had witnessed prisoners being tortured following the retaking, and even high-profile former Attica observers. Some of these witnesses, such as observer John Dunne, had reported the horrors he witnessed at the time and yet they had continued—exactly the sort of evidence that could prove the plaintiffs’ arguments.9

  And the plaintiffs also had many former Attica prisoners who themselves could testify as to the trauma they had endured while state officials like Mancusi or Oswald had looked on. Although there were literally hundreds of these men who could have testified, ultimately the plaintiffs’ case relied upon just a handful—but their harrowing tales of abuse certainly were sufficient to show just how cruel and callous the state of New York had been at Attica back in September of 1971. The witness list of men from D Yard included Richard Clark, Herbert Blyden, Akil Al-Jundi, Carlos Roche, Jerry Rosenberg, and, of course, Frank “Big Black” Smith.10

  Unusually, the testimony of these witnesses was recorded in detail because of an earlier indiscretion in Judge Elfvin’s personal life. Following an affair between Elfvin and the court reporter, she was no longer allowed to transcribe trials, so they now had to be taped. There was much drama to record throughout this trial—what Elfvin’s clerk who had kept this case alive, Ellen Yacknin, called “pure theater in the courtroom.”11 Captured on the tapes were Liz Fink’s impassioned statements that, according to Yacknin, “mesmerized the jury,” as well as much heated bickerin
g between Judge Elfvin and the various attorneys, which he, at least, seemed to greatly enjoy.12

  The jury hearing all of this was a virtually all-white, all-working-class group of men and women from upstate New York. This was in no small part because in federal cases the judge questions prospective jurors and Judge Elfvin, over the strong protests of the plaintiff lawyers, had refused to consider race or a juror’s potential racial biases when conducting his voir dire. Nevertheless, the evidence brought to bear in this case left every man and woman in the jury box visibly stunned.

  One witness, a medical specialist and a sergeant major in the New York National Guard named David Burke, had been assigned to deal with the many wounded men who covered the yards at Attica. He testified that troopers and COs at Attica had prevented him from loading the ambulances, and that certain Attica staff physicians had treated the prisoners cruelly.13 One doctor was “speaking to the inmates and saying, you say you’re hurt? You’re not hurt? We’ll see if you’re hurt. And he was kicking and hitting them,” disregarding their “visible wounds.”14 Sickened at the sight of “more blood, more gunshot wounds, and more injuries that day, than most people see in a typical day of combat. Certainly in Vietnam,” Burke as well as his fellow National Guardsman Dr. John Cudmore had tried to stop the abuse—to no avail.15

  Other disinterested parties corroborated this witness’s testimony. Dr. David Breen, who had been a third-year medical resident at the State University of New York at Buffalo in 1971, had headed for Attica in an ambulance “with seven or eight people, including several surgical residents and blood bank technicians” as soon as Mancusi finally called for some doctors.16 Breen confirmed that Attica’s own doctors had been abusive toward the wounded men in the yard. He repeated a story he had originally told years earlier that no one had been interested in hearing at the time: he had seen Dr. Selden Williams near a Spanish-speaking prisoner with a serious gunshot wound to his leg who was hysterical and nearly delirious with pain.17 While the prisoner kept trying to sit up, the doctor kept trying to force him back down. Finally this wounded prisoner had been “struck on the head with a blunt object by a security guard…a very severe blow to the head” while Dr. Williams, according to this witness, just looked on impassively.18 While on duty in the prison’s poorly staffed hospital, Breen had watched as “a number of inmates [were] struck by security personnel, whether they were guards or prison guards or National Guardsmen, I don’t know,” he said, “but a number of prisoners were struck with clubs and other objects in the process of forcing them to comply with the demands that were being made on them.”19 The witness had been so upset by the trauma that he “made the contact with a newspaperman who put [him] in touch with the federal authorities”—who never did contact him.20

  When Breen first arrived, he had been stunned to see that absolutely no medical care was being given to the hundreds of wounded prisoners in the yard.21 Many men needed surgery but the medical facilities at the prison were spartan at best, and disturbingly, there was no “post-operative monitoring or care being provided at all” to those who had to undergo primitive emergency surgery.22 Without such care, the prisoners had suffered horribly; they faced “respiratory obstruction, urinary tract obstruction, pain, bleeding; [and] a variety of complications [which] may occur following surgery, not the least of which is pain.”23 Yet despite the obvious agony of Attica’s many wounded, this then-young medical resident noted, he saw no “meds being administered at all.”24

  A third witness, National Guardsman Dan Callahan, added further detail to the stories of abuse. Callahan testified that he had seen a gravely injured light-skinned black man being seriously hurt by a high-ranking CO: “They forced him to his knees, and at that point, the correction sergeant backed up a short distance and then ran forward and kicked the man in the face….He immediately went limp and his head was hanging down, he was bleeding.”25 That same day, Callahan had also seen “a larger group of inmates who had been undressed. They were lying on their backs with their legs drawn up and shotgun shells had been placed on their knees.”26 Among that group Callahan had been particularly disturbed to see “an inmate who was lying on his back on what looked like a ping pong table, his feet touching the ground. He had been stripped, and a football had been placed either on his chest or on his neck;” and he was crying and begging for mercy.27

  This man on the table, the jury could clearly see, was none other than Frank “Big Black” Smith, sitting near them in the courtroom flinching as Callahan recounted his nightmare.

  Jurors also heard the gruesome account that former Guardsman James O’Day had originally recounted in 1972 to both state officials and federal employees of the Justice Department.28 O’Day had witnessed a correction officer dump a wounded inmate from his stretcher onto the floor and then demand that the man “move and go down the walkway from Times Square towards C Block.”29 When he was unable to do so, the CO had taken a Phillips head screwdriver and, with “this prisoner…lying on his back with his knees up in the air and the guard reached down in the genital area of the rectum and poked this man four or five times and told him to get moving.”30 Even though O’Day’s eyewitness account had not, back in 1972, persuaded the U.S. Justice Department that civil rights violations had taken place on the day of the retaking, Liz Fink very much hoped that O’Day’s account would now persuade the jury.

  Prison officials on the catwalk looking down into the yard in the immediate aftermath of the retaking (From the Elizabeth Fink Papers)

  Even if jurors might have doubted O’Day’s testimony, the testimony of another state trooper who had participated in the retaking, Gerard Smith, made them suspect that O’Day hadn’t seen the worst offenses. Trooper Smith pointed out that the NYSP men had deliberately removed every bit of identifying information—badges, nametags, and so on—so that authorities “couldn’t identify what troop or…pinpoint the individual in case something happen[ed].”31 Captain William Dillon of the New York State Police testified that he personally had told troopers to take off their identification and he, of course, was reporting to his superior, defendant John Monahan.32 Gerard Smith also had terrible stories of prisoner abuse: One prisoner had lain motionless on the pavement, while a trooper “had his gun up to his head and…was shooting, the, this gentleman.”33 Some troopers “were going through tent city and different foxholes they [the prisoners] had built and…one that I saw explicitly just stuck the rifle into the hole and pulled the trigger and then check[ed] the area out.”34 Smith saw another trooper drop a prisoner “off of C Catwalk into the yard, 15 feet down, and he was already hurt”; meanwhile, other prisoners were “being hit in the head.”35

  As horrible as the stories from these disinterested witnesses were, the testimony from the men who had experienced the abuses firsthand had the greatest impact on the jury. One Attica prisoner had been cowering near the hostage circle, and when he didn’t lie down to the liking of a state trooper, he “was shot above the knee.”36 Another prisoner, who had been shot twice, testified to finding himself in the midst of countless bodies on the ground, “like they had those slave ships….There was people packed on top of people. I was pushed, I fell down and I couldn’t breathe and somebody was on top of me, I was on top of somebody else, and there was like stacks and stacks of people.”37 He had panicked because he couldn’t breathe, but “they was telling us, keep your head down, so I’m trying, I can’t breathe, I’m trying to crawl and I’m trying to get the person up off of me.”38

  Later that night, he had found himself in a cell, naked: “There was a lot of hollering and a lot of cells open and they were trying to take people out….I did hear a lot of noise. I heard gunshots. At one point when it was very quiet, then the lights went on, then there was hollering, and then they were shining lights in your face and you know, they shined the light at my face and everybody’s face in the cell. They was going from cell to cell doing it.”39 The guards were looking for so-called leaders to bring to HBZ. The prisoner went into shock
from his two gunshot wounds, and from the cold air pouring in through the shattered windows.40

  For the Attica Brothers and their lawyers, it was imperative in this case that the jury should not only be persuaded that reckless torture, abuse, and medical neglect had taken place, but also that the defendants had known about it, had overseen it, and may even have ordered it. Although many of the defendants from the original list had been absolved, either because they hadn’t been properly served, or because the judge had allowed them out, Liz Fink believed that key officials could still be linked to the abuse. After all, Commissioner Russell Oswald was in charge of the entire Department of Corrections, Superintendent Vincent Mancusi and his assistant Karl Pfeil had been in charge of the prison from the moment the retaking shooting ceased, and Major John Monahan had been the leader of the NYSP’s assault on the prison. The plaintiffs had to show the jury that these individuals had been instrumental in creating the situation that had led to so much suffering and trauma during the retaking, or been liable for not stopping the horrific abuses that continued later.

  Numerous witnesses, even when they didn’t necessarily intend to help the plaintiffs, provided strong support for the plaintiffs’ case. Former Attica observer and New York state senator John Dunne’s time on the stand left no doubt that Attica’s own prison officials had been all too aware of the abuses taking place on their watch. By 1991 Dunne was serving as the U.S. assistant attorney general for civil rights, appointed by George H. W. Bush, and thus he made a highly credible witness. As Dunne told the jury, on the morning of the retaking he had been touring the facility on a catwalk looking down into the yard, and he had seen “naked men running in a direction toward me through a row of correction officers who were striking them with their batons on buttocks.”41 Dunne and his guide, DOCS deputy commissioner Walter Dunbar, both saw two long lines of correction officers “hitting men.”42 Dunne “was shocked….Horrified….Embarrassed on the part of the establishment,” and he told the jury that he had actually told Dunbar “Walter, I am seeing something I shouldn’t be seeing and it better stop.”43