Despite the fact that there had indeed already been “three years of status conferences concerning the damages issues,” and that defendant Pfeil was in the plaintiffs’ view now raising a “specious argument that damages upon the reprisals verdict cannot be awarded until after there has been a determination of liability for the assault,” the judge still refused to set a date for any damages trials.17 The years continued to drag on.18
Meanwhile, Liz Fink and the rest of her team worked to be sure they would be ready in case they could move Elfvin to begin the damages trials on schedule. They pored over scores of depositions that had been taken which indicated who had been tortured at Attica and in what manner. In one deposition, Akil Al-Jundi (aka Herbie Scott Dean) told how he had been forced to crawl from D Yard to A Yard, and run a brutal gauntlet, and then received an ugly beating from CO Donald Jennings.19 “Call on your Allah now. See, Allah can’t save you,” Al-Jundi said Jennings had shouted while landing blow after blow.20 Al-Jundi endured all of this after suffering a gunshot in the hand during the retaking—from an unjacketed bullet that literally blew out the back of his hand. The wound was so big that one could see daylight through it, and it would eventually require “16 major and 16 minor operations” to heal.21
Fink and her team spent untold resources getting many of the Attica Brothers seen by doctors, including psychiatrists, so that there would be a clear and dispassionate assessment of just how much damage had been done to these plaintiffs by officers of the state. Every report that came back made clear that the physical and mental damages these men had suffered were extensive. As one doctor wrote of an Attica prisoner he examined, “He describes being in a cell with four other men without water, food, or clothing for two days or more” and recorded this man’s own words: “I know what a person can do to me now, I have become withdrawn and introverted. I want to be left totally alone.”22 Another physician diagnosed a prisoner with suffering severe post-traumatic stress syndrome in addition to physical trauma because this man had been stripped and, as he had described it to the doctor, been “paraded around” naked like a trophy by the State Police who were making all kinds of “obscene statements…jokes about penis size, etc.”23
Liz Fink knew well that it could still be a long time before Elfvin would begin damages trials where she could actually use these depositions or psychiatric reports. She now had years of experience watching Elfvin drag his feet in the original case and thus had no reason to think he would act any differently in the damages phase. Perhaps, she thought, there was a way to settle this directly with the state of New York. After all, when the Pfeil verdict was handed down, First Assistant Attorney General Richard Rifkin had seemed open to discussing this. So in 1992 Fink decided to contact Elfvin’s boss, the man who had yanked him back from Barbados, Chief Judge Michael Telesca, to see if he would be willing to help broker a settlement with the state. She assured Telesca, “The defendants have no objection to a settlement process and agree that a judicial intervention might be helpful.”24
Telesca was well aware that this settlement was going to take political finesse. As he later put it, “I knew that all roads led to Albany. It was going to be a political decision before any money was had.”25 Telesca was not sure that he was the right one to oversee such negotiations so he punted the task to another judge. He explained to the plaintiffs that he would help them manage a settlement if one was brokered, but he felt that Magistrate Judge Edmund Maxwell (a jurist who years earlier had heard testimony from prisoners regarding abuses at Attica) should conduct the actual negotiations and report back to him.26 Behind the scenes, even though Maxwell was officially in charge, Telesca too “made a number of discreet inquiries and let them know that all I wanted from them was the money. The cases would go away forever. In short, they would be buying a hell of a lot of absolution.”27
Telesca was having a hard time making any “headway with the state.”28 The biggest barrier to settling with these plaintiffs was “the idea that it would be tantamount to an apology. The state was not about to apologize.”29 He even tried to address this issue head-on, assuring the state, “There will be no apologies (since I knew one wasn’t forthcoming),” and yet still he could see they weren’t ready to budge.30 Even the affable Magistrate Maxwell was getting nowhere with the state. So Fink decided that the attorney general’s office needed another firm push.
It just so happened that Liz Fink and Michael Deutsch were at this time also working on another case currently being tried in front of Judge Jack Weinstein, “the most impressive judge in the court,” as far as Fink was concerned. Weinstein was “one of the top five district judges in the country” and, as important to Fink, “he was Mr. Class Action—he had settled cases related, for example, to Agent Orange.”31 When Fink found herself in front of Judge Weinstein, she broached the subject of the Attica case and asked for his help. Weinstein was reluctant to get involved but she pushed, assuring him that Maxwell would appreciate his help. The next day, Weinstein had to be out of the court so a different magistrate was in charge. Unexpectedly Judge Weinstein arrived with Ken Feinberg, another attorney known for his mediation and settlement skills. Feinberg seemed eager to get involved and offered to take advantage of his regular communication with the attorney general’s office to suss out whether the state was really serious about settling. He said, “I will ask Cuomo.”32 This was big news since he was talking about approaching the then governor of New York, Mario Cuomo.
A few days later, according to Liz Fink, Feinberg confirmed that the state had no intention of compromising and also that First Assistant Attorney General Richard Rifkin, whom Fink had been counting on, had no authority to make any deal. When Fink called Rifkin to see if this was true, he was surprised to hear that he had no power to make a deal. He ended the call to look into the situation, and called Fink back almost right away to say, “You’re right, I don’t.”33
Demoralized, Fink again turned to Telesca and, with the help of court clerk Ellen Yacknin, managed to get him more overtly and actively involved in trying to seek a settlement. But Telesca also got nowhere with the state and so he decided to lean on Elfvin again, to hold some damages trials. Under pressure from his boss, Judge Elfvin finally scheduled two damages trials: instead of one main trial to decide damages for each Attica prisoner in the class, there would be one trial that would set the highest level of damages a prisoner in the class could get, based on the case of the torture suffered by Frank “Big Black” Smith, and a second trial to set the lowest level of damages a prisoner in the class could receive, based on what an Attica prisoner by the name of David Brosig had suffered on the day of the retaking. Frank Smith’s trial was set to begin on May 29, 1997.34
51
The Price of Blood
Finally, more than twenty-five years after the smoke had cleared over Attica, a damages trial began on behalf of Attica survivor Frank “Big Black” Smith. But this Attica Brother had not just been waiting for justice to be done. He had worked as Liz Fink’s paralegal to bring the original civil rights case to trial in 1991 and had labored since to make sure that all surviving Attica prisoners were told of the class of which they were a part and were informed that damages trials would now begin. He would have to relive everything one more time, in order to make sure the jury knew how barbarically he and his fellow prisoners had been treated in 1971, but this time he would make sure he was really heard.
The damages trials would be quite different from the 1991 trial that determined Karl Pfeil’s liability. Entirely new juries had to be constituted, and the issues they would hear were also very different from those in the previous trial. Since liability had already been established, each jury simply had to decide the amount of the monetary award the plaintiff would receive. The idea was that Big Black Smith’s trial would set the high end of the damage award—no one in the class would receive more money than he did, and the only men to receive an equal amount would be the Attica Brothers who had already been placed in Category One—
those who had suffered the most severe violations of their Eighth Amendment rights.
From the very first day of the trial, it was obvious to the press and jury why Big Black Smith’s case had been selected as the benchmark for the high-end damage amount. Liz Fink refused to sugarcoat the brutality at the heart of this case; in her opening statement she also emphasized just how long prisoners like Frank Smith had been fighting to get some justice from the state of New York. That first morning, she told the jurors how Smith had tirelessly “led the fight for justice with the prisoners who are at Attica,” even after he was released from prison in August 1973.1 She reminded the jury that “what this case is about, ladies and gentlemen…is torture….This was torture that lasted for hours, that was physical, was race-based, and was psychological. This was torture that was witnessed by others and these witnesses will come in and testify before you about what they saw happen to him and their reactions to what they saw.”2
Unsurprisingly, the lawyer now representing Karl Pfeil, Mitch Banas, tried to paint a very different picture for the jury. He stated bluntly, “You will hear very little medical proof of what actually happened, injuries actually suffered by Mr. Smith. You won’t be hearing about casts or stitches or surgery, what you will hear about are bumps and bruises and bandages.”3 Further, he argued that Smith’s injuries “have not prevented him from earning a living, have not diminished his earning capacity, have not significantly impacted the way he lives his day-to-day life, and have not otherwise stopped him from leading a productive life.”4
But Banas’s words seemed absurd from the moment that Big Black took the stand. By now, Big Black was sixty-four years old. He had been fighting to be heard, and for the state of New York to be held accountable for its actions, for much of his adult life; he was going to make sure that the jury understood exactly what had happened to him. Black’s testimony transported the jury back to the hazy, gas-choked prison yard where he and hundreds of other men had been forced to strip naked and crawl or stumble across the muddy rutted yard while suffering repeated blows from troopers and COs. He testified quietly,
I kept hearing my name, I was crawling as everyone was made to do and I kept hearing my name, Where’s Big Black, where’s Big Black and then eventually someone said, there he is, there’s the nigger, we got him now….He came over to me and said, get up nigger, and kicked me and I got up….It was Mr. [Howard] Holt…officer I worked for in the laundry….He said, get up nigger and I got up and walked some and he pushed me some and I fell back down and then I got up and I walked across the yard with him pushing me, other officers joined him and they led on the side up to A block tunnel and placed me on the table.5
According to Black, the officers kept saying “that I had castrated an officer…and they was gonna do it to me.” He had pleaded with them, “I didn’t do it, I didn’t do anything like that, you all know I didn’t do anything like that, why you doing this to me.”6 These men, however, were unmoved. “They say you like to play football, we going to put this football into you, nigger and then we gonna kill you.”7 On the stand, with tears streaming down his face and voice choked up, Black explained to the jurors how these men had shoved a football under his chin and told him that if he let it drop, they would shoot him. His voice choked up as he tried to convey to the jurors what it had felt like to lie on that table for more than five hours being tortured, trying to keep that football from falling, looking beseechingly up to the catwalks where state employees and officials were looking down, and to have known that none of them would intervene to stop his abuse.8
As the men on the ground struck him repeatedly in the testicles and shouted threats, the men above “were spitting on me, dropping cigarettes on me and the shell casings from fired weapons was dropped on me and kicked from the catwalk down onto me….I was scared and they told me not to move, and I would flex my body to make the cigarette fall off me, hopefully, so it wouldn’t burn too long.”9 His legs hung over the edge of table for six hours, until they started to go numb. “I kept trying to move them to keep some kind of feeling in them,” he explained, but he was terrified of moving too much lest the football fall. Ironically, he recalled, “the football became a part of me. I felt that it was good that the football was there, it gave me something to concentrate on and to deal with how I was feeling….I was afraid that if it wasn’t there, if it would fall that they would do something to me.”10
Frank “Big Black” Smith (on table) and other prisoners were tortured for hours as their fellow prisoners were marched past them. (From the Elizabeth Fink Papers)
Looking at the jurors, Big Black wept more as he told them, “I was scared, you know I was afraid, and I kept thinking…how could a person say that and do these things to another person, regardless of the fact that I was an inmate.”11 He spoke of the pain he had been in: “My head was hurting and my side was hurting, my back was hurting, my leg was hurting and the most excruciating pain I had was in my testicles….It was a very excruciating pain at that time that I was laying on the table in my genital area.”12
When he had at last been ordered off of the table, he had been there for over six hours; when he tried to shift his weight, he could hardly move. “I sat up and my legs were dead and, you know, I fell to the ground, to my knees and I tried to get up again, trying to balance myself on the table and I got pushed, I got hit then and I finally got enough strength to get up and to go to the doorway. I was scared, I was beyond scared.”13 Somehow Black managed finally to get himself to the door of A Block, but his heart almost stopped at the sight of “twenty to forty, maybe fifty officers on two sides and in the middle they had glass on the floor and I was told to go through there.” Still completely naked, he endured the blows of “ax handles and the baton and pig handles”14 as he ran this gauntlet. “I was pushed, I was hit, I fell down, I was drugged [dragged]; I went through a lot, lots of licks to my arm, to my leg, to my back, to my head.”15 The pain, Black repeated, had been horrendous. “I mean pain, it’s just pain, unbearable pain…my testicles…my fingers cut and arms and back is sore…I’m just, I’m full of pain.”16 There was ugly emotional pain too as he was forced to endure an endless barrage of “vile racial attacks, slurs.”17
From A Tunnel, Big Black was forced to run through another gauntlet on the way to HBZ where he knew he would be in more danger.18 When he arrived in Housing Block Z, Black “was knocked to the floor and they was beating me on my arms and on my legs and on my back, they bust my head….I passed out, blacked out, because the next thing I remember, I was in a dark room by myself.”19 By this time he had blood running down his face; yet the ordeal was still far from over.20 Once he had been placed in a cell, troopers and COs made Black lie on the cold cement floor, still naked, legs spread-eagle. “Open your legs for us nigger, we gonna take it,” at least three correction officers were shouting at him as they continued to hit his genitals and began playing Russian roulette at his head.21
Finally, someone had put Black on a stretcher, ostensibly to take him out of HBZ to get some medical care for his injuries. “They put me on a stretcher,” he recalled for the jury, “and I could remember that first someone came in and put like a little gauze or something on my wound and I was placed on a stretcher and I was taken in the pharmacy’s part of the hospital where a bunch of other people was laying all over the floor.”22 Suddenly, though, Big Black was yanked back up to HBZ and, on the way, he was summarily “dumped on the floor [of the elevator] and was made to scoot my buttock up flush against the wall with my feet up on the wall with me laying on my back” while being threatened with more injury.23 When the elevator doors opened he was told, amid jeers, shouts, and laughter, to run along the hallway to his cell, and was once again beaten along the way.24 Indeed, Black said, some of the worst pain he had experienced that day was actually in his wrists, which were fractured because he had used them for so many hours to protect himself from the countless vicious blows to his body. His entire body by then was swollen.25 More than twenty year
s later, he showed the jury how he still couldn’t fully raise his right arm up over his head, his legs still swelled terribly from the damage he had suffered, and he still had burn marks everywhere.26
Although he was now once again contained in a cell, Black remained terrified, especially when correction officer Howard Holt came by. As he began praying as hard as he could for some protection, Holt, he told the jury, had pointed a gun at his head to play Russian roulette. While all of this was taking place, Karl Pfeil had passed by and looked into the cell. As Big Black recalled, “Mr. Holt was saying to him this is the person that castrated the officer and Pfeil is looking at me that uh-huh, and we gonna castrate him, oh, he’s the one that castrated the officer, yeah, we gonna castrate him too.”27 Seeing that even an Attica supervisor like Pfeil was unmoved to protect him convinced Black that he had no one to help him in this isolated area of the prison and, should he die, no one would know or care. Still, even though Pfeil had merely looked on as Holt played Russian roulette with him, Black remembered, “I’m still praying and hoping that the real truth would come out” because he knew he was innocent.28 “I didn’t do this, and I was hoping someone would understand.”29 As he prayed his urine ran red with blood and both of his fractured wrists dangled limply.30
In the courtroom, Black felt good about having finally told his story on the record. But he was also embarrassed by his own tears and his inability to tell it more formally and perhaps clearly. “I think the crying is anger,” he tried to explain to the jury.31 His tears came unbidden, he went on, due to “the fact that I felt violated, helpless….I could be walking the street, I could be driving the car, I cried at night in my bed, it’s just something that bothers me.”32
Blood in the Water Page 57