Blood in the Water

by Thompson, Heather Ann

  Testimony about the negligence of medical care came from pathologist Michael Baden, who had been tasked with reviewing the findings of John Edland’s prisoners’ autopsies. Based on those autopsies, Baden was able to assess whether better medical care might have saved lives at Attica.44 The case of prisoner Sam Melville was indicative: Melville had died of “a shotgun slug that entered the left upper chest and caused his lung to collapse.”45 However, Baden made clear, “if he had been found and identified and diagnosed and treated in a rapid manner, this is the type of wound that could be recovered from.”46

  Equally damning in terms of specific defendants causing, via their orders, specific harm that came to prisoners, the jury heard from troopers whose testimony clearly supported the claim that Monahan was indeed the main man making the retaking decisions on the 13th.47 Drawing from those accounts Liz Fink argued to the jury that “Monahan had the biggest responsibility,” not only because he was the head of Troop A, the main State Police unit from Batavia there to retake the prison from the first day of the uprising, but also because other members of the NYSP had also testified that “he was the operational commander…that he was the person in charge.”48 Even though it was a man much higher up the chain of command than Monahan, Lieutenant Colonel George Infante, who had, for example, allowed retaking troopers such as “Mr. Barbolini to resign, rather than to prosecute him with the three counts of first degree, or second degree murder, [that would have] put him in jail for 25 to life,” Liz explained to the jury that even he was reporting to Monahan then.49

  According to Fink, Deutsch, and Heath, however, Monahan was not the only official at fault. Plaintiff attorneys established from witness testimony that some of the most egregious incidents of abuse took place in the yard during the rehousing, and during the night of the assault, when Karl Pfeil was “the highest correctional officer” present.50 Pfeil admitted that he had seen correction officers in his command “using too much power to put someone down, or that they were cursing or shouting,” insisting that he had “told several, be professional, please, keep it down. Do your job more professionally.”51 When pressed, he had to admit that he had left the COs and troopers without supervision, and had not followed up on whether they heeded his warning. Pfeil tried to shift the blame for their actions to his deputy, telling the jury that “I know that Leon Vincent was down there and I assumed he was in charge,” but his own testimony that Vincent had been with him in the administration building, not in the yard, undermined that defense.52 The plaintiffs argued that Pfeil hadn’t reined in his own people and, worse, he had “decided to go home in the period immediately following the retaking, when the risk of violence was high.”53 This was a crucial argument: the claim against Pfeil depended not upon his personally and directly participating in any acts of abuse, but on what he did or did not do as the supervisor of the men who did commit these acts.

  Throughout the trial, the defense team’s strategy had largely focused on trying to discredit witnesses, rather than defending their clients’ actions. This strategy tended to backfire, for example when Oswald’s attorney, John Stenger, tried to discredit a National Guardsman by drawing attention to his avoiding service in Vietnam. As The New York Times reported their exchange:

  Mr. Stenger noted that Mr. Burke had told the jury he had been trained as a combat medic. “But you’ve never seen any combat, right?” Mr. Stenger asked.

  “I beg your pardon?” answered the witness.

  “Have you ever seen any combat?” the lawyer persisted.

  “I think,” Mr. Burke said, “I saw combat that day, sir.”54

  By January 9, 1992, all testimony had been heard, closing remarks from both sides had been delivered, and Judge Elfvin was ready to give the jury its instructions to begin deliberation. The judge’s jury instructions, however, were confusing and included inaccurate standards for judging the case. Elfvin told the jury that “the standard was wantonness” but then indicated that context is important. Jurors, he suggested, had to decide if the situation in the yard was riotous, not riotous, or somewhere in between, then apply either a sadistic and malicious standard, a deliberate indifference standard, or some hybrid of the two.55 The plaintiffs’ attorney Michael Deutsch expressed his dissatisfaction to the judge: “We are very troubled by these jury instructions [because] you have created a situation where you juxtapose what you consider normal versus emergency. Now, obviously, it was not normal what was going on here at Attica….But what we are talking about didn’t occur where there was still an emergency either—[nothing] that would have justified excessive anything.”56 Deutsch elaborated: “We would ask that it be made specifically clear as to the medical care that it falls within the non-quelling, after the riot was quelled or within a non-emergency situation, and there’s [thus] no need to apply any kind of gradated standard on that question” of liability.57 They had proven under the law, Deutsch insisted, that state officials were negligent in this case and he was not going to sit by while the judge tried to muddy the matter with flawed instructions to the jury.

  As Liz Fink saw it, Elfvin’s instructions implied to the jury that in order to rule for the plaintiffs “everyone had to be a sadist when that wasn’t the standard.”58 She objected as well to the fact that Elfvin characterized Attica to the jury as a facility filled with “dangerous prisoners” when days of testimony had shown clearly that this wasn’t “even most of the time the case.”59 Despite the fact that she and her fellow lawyers argued these points through most of the long day, Elfvin was unmoved and Fink had to be content with noting on the record that “we believe you committed a reversible error.”60

  As the jury began its deliberations, a new drama erupted. Judge Elfvin decided to take a vacation to Barbados, explaining that he would read their sealed verdict a month later when he returned.61 The press was incredulous, and the plaintiff attorneys were furious, that the judge would take a holiday in the midst of a trial as important as this one. Everyone knew that Elfvin usually took this vacation at this time of year but had tried to dissuade him from doing so.

  Upon hearing that Elfvin had actually departed for Barbados, Liz Fink and her fellow lawyers tracked him down by phone, pleading once more to get him to come back to Buffalo. All Elfvin said in reply was “They tell me there’s a lot of bloviating in the paper this morning. I haven’t read it myself, about the fact that the judge is leaving and the jury is continuing deliberations, so I guess you better put it on the record whatever you feel.”62 Michael Deutsch replied, “Judge, I guess what we’re concerned about is what happens if you’re gone and the jury has a substantive issue that needs to be addressed?”63 “They cannot be addressed,” Elfvin stated bluntly. “Now, if they get stuck in that situation on all four [defendants],” he went on, “the best I can come up with right now is they’d have to wait for me to come back.”64 Joe Heath then erupted. “The fact that substantive issues could not be resolved and the jury deliberations would have to be truncated and they would have to move on, is certainly a problem to us….As you know this is a very serious matter.”65 The judge remained unmoved.

  To Elfvin’s surprise his own boss, the chief judge of the Western District, Michael Telesca, then got involved.66 As Telesca recalled, he immediately ordered Elfvin home because over that weekend the jury had a really tough time. The phone system wasn’t working so they couldn’t contact Elfvin with their questions and, meanwhile, The New York Times was asking Telesca for his reaction to Elfvin’s having abandoned the case for the beach. So he called Elfvin himself, and they had “a spirited discussion.”67 Elfvin came back to New York the next day.

  But Elfvin returned to the courtroom furious and spiteful. He punished the jury for its role in cutting his vacation short by instructing them that they would now “work around the clock to come to a decision.”68 Outraged, the jurors wrote to the judge on January 22, 1992, “We, the Attica jury, feel an urgent need to register a response.”69 These men and women acknowledged the historic significance of the At
tica case and the honor they felt to be considering it, but they took their duty as jurors “conscientiously, seriously, diligently, and steadfastly.”70 For many of them, “a good night’s sleep had become but a vague and illusive memory of days gone by,” and now they suddenly felt “pressured and in a very real sense punished” because they were unwilling to rush their verdict.71 In closing, they wrote, “Our goal is justice, whether it takes two weeks or two months….The pressure and stress at times seems unbearable, but we continue to persevere.” 72

  Judge Elfvin’s treatment of the jury, combined with the plaintiffs’ evidence against the state officials, did not seem to bode well for the defendants. If one were to lay bets, most would have said that the Attica Brothers would finally be able to hold state officials accountable for all that had been done to them at Attica. And yet the judge’s instructions had confused the jury, and had, additionally, “caused major confusion with the jury sheets [by offering jurors] too many options.”73

  Liz Fink and the victorious Attica Brothers outside the courthouse in Buffalo, 1992 (Courtesy of Mike Groll/The New York Times)

  In the end, the jury found that the civil rights of Attica’s prisoners had been violated during and after the retaking of the prison but, when it came to deciding which of the four defendants on trial should be held responsible, it was split. Ultimately jurors were only able to agree that one man, Attica’s Assistant Deputy Superintendent Karl Pfeil, had been responsible for the acts committed at Attica—they believed he had been “part of the planning and then personally oversaw the brutality.”74 With regard to the responsibility of the other three—Superintendent Mancusi, Commissioner Oswald, who had died in March of 1991, and Major Monahan of the State Police, who had died in 1987—the jury was hung.

  Although disappointed that so many defendants had escaped legal censure, Attica’s surviving prisoners were still elated that their ordeal had been acknowledged in the verdict against Pfeil and that they would finally be awarded some damages. Importantly, if any defendant was found liable, the state was liable, and this was no small thing. First Assistant Attorney General of New York Richard Rifkin was already telling reporters that he was willing to begin negotiations regarding the “state payment on behalf of Mr. Pfeil.”75 However, when exactly they would receive the money, and how much they would get, was not yet clear. As one newspaper speculated, the issue of damages would be resolved “either through a settlement or a final legal ruling years from now.”76 And yet, so much time had already passed, it was hard to imagine holding on through more delays.

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  Delay Tactics

  While the plaintiffs were satisfied, the defendant Karl Pfeil felt the trial had been supremely unfair. In his view, he had been one of the least powerful men in the chain of command at Attica during the rebellion there. Somehow the governor of New York, the commissioner of corrections, his own boss, Vincent Mancusi, and even Major John Monahan, who had actually led the assault on the prison, had not been found liable, but he was. To be sure, both Oswald and Monahan had passed away, but that mattered not. If he was liable, then surely they, or more technically their estates, should have been as well. Though Pfeil couldn’t comprehend the reasons for the verdicts, Liz Fink and her team understood just what had led to such a strange outcome in this case and she had every intention of using this knowledge to make sure the other defendants did not, in fact, get off scot-free.

  A key reason why so many of the defendants had skated was because of the way the case complaint had been written. In essence, the original complaint had named specific defendants in connection with specific violations—for example, naming Monahan for his role in the assault but not for the reprisals, Mancusi for his role in the reprisals, but not in the neglectful medical care. The jury was asked only to consider if Mancusi was liable for the ugly reprisals; therefore it could not even consider other ways in which each defendant may have been liable for other actions they had or had not taken in 1971.

  Determined to leave no stone unturned in this regard, Fink decided to file a key motion “to amend the complaint so as to add causes of action against Defendant Mancusi for failure to provide the plaintiffs with medical care in violation of their constitutional rights and against the estate of Monahan for the reprisals that plaintiffs suffered after the retaking,” and filed a similar motion to add in Oswald for the reprisals.1 In the first motion she argued that “the facts presented during the 1992 liability trial make it clear that there is more than sufficient evidence to support a verdict against Defendant Mancusi for failure to provide medical care and a verdict against the Defendant Estate of Monahan for the reprisals suffered by the plaintiffs.”2 Ultimately Elfvin dodged these motions. Although he eventually ruled that “the verdict against Pfeil should be taken as ascribing responsibility to Pfeil and Oswald and Mancusi for any and all reprisals for which any of them had the requisite…involvement” per the Civil Rights Act, it didn’t alter the jury’s decision and, thus, Pfeil alone remained legally liable.3

  Pfeil refused to accept the jury’s decision in his case.4 He would try to capitalize on Judge Elfvin’s convoluted jury instructions and verdict sheets, arguing in his own appeal that the plaintiffs had failed to show liability because “the special verdict questions were not properly submitted or correctly phrased in accordance with the facts of the case and the applicable law,” and, thus, that “jury and counsel misconduct deprived him of a fair trial.”5 What is more, “the passage of over twenty years since the events deprived him of an opportunity to be heard at a meaningful time and in a meaningful manner as is required by due process.”6

  Judge Elfvin was tired of being challenged. He responded firmly: “This court finds that there was sufficient evidence for reasonable jurors to return the verdicts which were rendered against Pfeil. This Court has considered all of Pfeil’s other contentions and also finds them to be without merit.”7

  While Judge Elfvin was not willing to let either the plaintiffs or defendant Pfeil revisit the jury’s decision, or what had led to it, he also seemed unwilling to move the case forward to determine damages in the wake of that decision. Elfvin’s clerk Ellen Yacknin put it bluntly: “Judge Elfvin made decisions to deliberately delay the cases.”8 There were a number of ways to handle the damage awards in the case and Elfvin seemed loath to embark on any of them. There could be negotiations with the state that would result in a settlement of an agreed-upon amount; or there could be a jury trial, or several of them, to determine damages. At one point Judge Elfvin was so frustrated with the plaintiffs’ mounting pressure on him to settle the issue of compensation, he threatened to insist upon 1,200 separate damages trials, which would be impossible for their lawyers to handle.9

  From Liz Fink’s point of view, the best thing that could happen for her clients, many of whom by now were very ill or had already died, was to settle this case. Yet even for this to happen, there was much work to be done. She and her team first had to go through “incredible work” to make sure that any potential class member in this class action suit was notified that they had a right to this settlement. As she recalled, “Judge Elfvin made me pay notice to the class in the most expensive way possible. He, for example, ordered that I put a notice in USA Today.”10 Then, to facilitate the distribution of monetary awards, the plaintiffs’ attorneys had to devise a questionnaire to determine who had suffered exactly which violations of their Eighth Amendment rights—cruel and unusual punishment.11

  In 1994 a frustrated Liz Fink wrote to Judge Elfvin indicating that they had settled upon six clear categories of damages and that she had all of the information regarding which of the plaintiffs fell into which category:

  1. those “who suffered physical reprisals before they were locked in their cells”

  2. those “who suffered physical reprisals before they were locked into their cells and who were subjected to mental torture after they were locked in their cells”

  3. those “who suffered physical and mental reprisals both befo
re and after they were locked in their cells”

  4. those “who were subjected to special and extraordinary physical reprisals before they were locked in and who were subjected to mental torture after they were locked in”

  5. those “who were subjected to special and extraordinary physical and mental reprisals both before and after they were locked in”

  6. those “who suffered injuries sustained in D Yard who were also subjected to reprisals”12

  Judge Elfvin’s response made it abundantly clear that he still was in no hurry to move forward. In fact, he actively muddied the situation by suggesting, for example, that Pfeil should, now three years after the liability trial, appeal the verdict.13 Incredulous, Fink penned a scathing letter to the judge reminding him of the extraordinary time and resources her team had put into preparing for the damages trials, which, she noted, had already been scheduled for that November.14 “Now, suddenly, on the brink of trial,” she wrote, “Your Honor unilaterally—and without consent of counsel—has cancelled the scheduled damage trials,” and worse, he had invited Pfeil to appeal at this late date.15 Pulling no punches, Fink declared, “this suggestion is unconscionable and not consistent with fairness and justice.”16