Blood in the Water

by Thompson, Heather Ann

  Multiple physical and psychological evaluations could have corroborated for the jury just how much this ordeal at Attica had scarred Black. He had received thorough evaluations, one well after the first trial had ended, and according to his physician it was obvious that this man still suffered from the horrific torture he had endured in 1971.33 The doctor’s notes read, “He reported that every time he thinks about what actually happened to him at Attica he starts crying; he gets angry; and then he becomes afraid that he will somehow lose control.”34 Notably, to deal with this trauma Big Black had turned first to drugs and then to God, which helped somewhat, but he was by no means healed either psychologically or physically. According to the doctor’s report, “His injuries to his urogenital area were such that he urinated blood for about two years” and he still had nightmares, being unable to trust anyone in his life.35 In the doctor’s view it was indisputable that Big Black suffered severe post-traumatic stress disorder and, without question, it was what Black “experienced during the retaking of Attica and more importantly, the psychological and physical torture that he experienced after the prison was retaken that caused him to develop this disorder.”36

  To the plaintiff team’s fury, however, Judge Elfvin would not allow Big Black’s physician to share his informed conclusions with the jury because if he were “allowed…to give his opinion I would have [to have] allowed Mr. Pfeil to bring in his psychiatric expert to the courtroom to give his opinion.”37

  Fortunately, Liz Fink didn’t rely solely on medical testimony to persuade the jury that Big Black had been tortured while Karl Pfeil looked on. She also made sure that the jury heard from several of the people who had testified at the liability trial in 1991, including National Guardsman Dan Callahan, who had witnessed some of the torture Black had suffered on the table in A Yard. Other witnesses to the abuses he had suffered included another Guardsman named Ronald Dill, who happened to open the door of the prison hospital and very clearly “saw the brutality committed against him.”38 Black had been on the floor writhing and begging for mercy, saying over and over again, “I didn’t do it boss, I didn’t do it boss.”39

  By the time the case came to a close on June 4, 1997, this jury was visibly shaken. In her closing remarks, an exhausted Liz Fink tried to stress how important it was for the men and women of the jury to really hear all Black had endured at Attica and every day since. True, she said, “the only thing you can do is give him money. And it doesn’t make up for it, but it justifies the fight and it heals and gives you closure. And what money is about, what the monetary award is, is that it compensates Mr. Smith for what was done to him, for the hours he spent being tortured, and it makes an attempt—an attempt, ladies and gentlemen—an attempt to make him whole.”40

  Judge Elfvin once again gave an Attica jury instructions as it headed into deliberations. With every word he uttered, Big Black and his lawyers felt the judge was trying to undermine them. Elfvin opened by telling the jury that this whole trial had been “a very emotional situation for many of the parties involved” and opined that “some of the witnesses were very emotional, wrapped up in this whole matter.”41 He reminded the jurors that the first trial had already established that the prisoners’ civil rights had been violated, so now they had to determine whether they were persuaded by the evidence presented to them in this trial as to the nature and extent of this violation of rights, and determine how those violations translated into a monetary sum.42 However, he went on, although jurors accepted that reprisals had taken place at Attica against the prisoners, they still had to “determine whether this plaintiff, Mr. Smith, suffered and/or suffers and/or will suffer the effects of such” and, should they determine that he would get money, “any monetary award of damages must be reasonable.”43

  Big Black and his legal team looked on, stunned. Just as in the first trial, Judge Elfvin was trying to shape the outcome of the jury’s deliberations by distorting his instructions by inserting his personal views of the case. They also couldn’t believe, given these instructions, that the jury must decide if Black suffered psychological “effects,” that Judge Elfvin had prevented the jury from hearing the conclusions drawn by a medical professional about the causes of Black’s psychological trauma. As Michael Deutsch noted disgustedly on the record, “Just so the record is clear we do have an exception to the way the Court formulated the instructions as the psychological testimony” because “the defense psychiatrist…never came here to testify at all.”44 Elfvin’s instructions to the jury that their award must be “reasonable” was equally galling and potentially costly to the plaintiffs. As they pointed out, what is reasonable to one party might well be unreasonable to another.

  Notwithstanding Judge Elfvin’s attempts to blunt the impact of the evidence and to limit their monetary award, jurors had listened carefully to the testimony and were moved by his ordeal. On June 5, 1997, they awarded Big Black $4 million in damages. It was Elfvin’s turn to be stunned. Not only was this amount huge, but it was an amount that, given the structure of damage categories, many other former Attica prisoners would also be entitled to from the state of New York.45

  On June 23, 1997, soon after this first headline-making award was announced, the second damages trial began for former Attica prisoner David Brosig. Brosig was “selected as an example of a prisoner who suffered the average level of harm common to all of the class members not singled out for special vengeance after the assault.”46 But “the average level of harm” at Attica during the retaking or in subsequent weeks was no easier to hear about than the traumas suffered by Big Black Smith.

  Once again Liz Fink opened the trial by highlighting the importance of the jury’s job in the case. This time she was flanked not only by Michael Deutsch and Joe Heath, but also by New York City lawyer Danny Meyers, who, like her, had been working on Attica cases for decades now.47 Here it was, nearly thirty years later, she pointed out, and they still hadn’t managed to secure justice for the scores of prisoners who had been so wantonly and horrifically abused. These jurors could help to remedy this, she reminded them, by awarding Attica survivor David Brosig substantial compensation for damages. Fink explained that Brosig was only in Attica in the first place on a minor parole violation. He had gotten into trouble as a kid and then got out, but then failed to report to his parole office.48 At Attica, she went on, this young man was not only “beaten on several occasions unnecessarily,” but was also “subjected to psychological torture, which affected him for the rest of his life.”49 The jurors’ task, Fink made clear, was “to determine two things, whether Mr. Brosig suffered reprisals…actions which are taken that are sadistic, which are malicious and are for the very purpose of causing harm. And after you determine whether he was subjected to those kind of reprisals, it is your responsibility to set a monetary value, compensatory value on what he should get for those damages.”50

  The jury then heard Brosig’s story firsthand. He was a shy man, unused to being in the spotlight, and he spoke quietly. “You couldn’t crawl fast enough,” he tried to explain to the jurors, shaking his head.51 “You couldn’t crawl too fast with your hands on your head, so the bodies—the people coming through the door started piling up on top of me….I began to feel like I was getting crushed, suffocated. It was like being on the bottom of a giant pile and I know I had to get out of there. It is—I felt that there; that I would suffer—I would get hurt.”52 And so, Brosig went on, his impulse was to try to get up so that he might get some air. As he tried to stand, though, “a state trooper came up and he pointed a shotgun at my head and [said] pretty much the effect of nigger lover, you are going to die…and he hit me with the shotgun…it was enough to see stars.”53 “We were called nigger lovers,” Brosig, who was white, explained. “We were told at times that we deserved to be killed. We were told that we didn’t deserve to live, that we were nothing but garbage. Nobody would care.” At this point, like Big Black before him, Brosig began to weep. And he too was embarrassed that he was so emotional—the jur
y heard a muffled “I’m sorry” as he tried to gather himself.54 Eventually continuing, he told the story of his ordeal after the shooting stopped, being forced to get through the gauntlet of troopers and COs in A Tunnel. “You could hear the sounds of pain of the people being hit and you could hear angry remarks,” he said sadly. “Pretty much racial epithets. Nigger, nigger lover…”55

  As in the damages trial for Big Black, Fink made sure that the jurors heard plenty of corroboration of all that David Brosig had experienced from other witnesses. Just as Big Black’s jury had, this jury also heard of retaking horrors from men such as observer John Dunne and National Guardsman Daniel Callahan. They also heard medical testimony, and, most movingly, from Brosig’s former wife, Gail, about how much this man suffered in the years after the trauma of Attica’s retaking.

  When Liz Fink made her closing remarks on June 26, she felt that they had done all they could to make it clear in this courtroom that even those who had suffered the least torture at Attica would be permanently scarred. Through her witnesses she had proven that David Brosig had endured a sustained “terror which continued unabated for days and which reappears to this day, twenty-six years later, when he’s close to fifty years old.”56 She reminded jurors how Brosig had described “the beatings; the screaming of the inmates, the sounds of sticks on flesh….Here he is, twenty-one years old, naked, vulnerable, terrorized.”57

  Then, after the beatings, there was the period where Brosig had been ordered to stay standing for hours on end and threatened with death if he swayed or fell. “What was the justification for this?” Fink asked the jury, “There wasn’t one….They were made to stand because they wanted to terrorize and torture them. They were made to stand there for cruel and unusual punishment; for a malicious reason.”58

  “Imagine the terror,” Fink said sadly. “And really, you don’t have to stretch your imaginations, because you saw the effects of what happened to him when he testified. You saw him break down.”59 Perhaps worse than anything, “the torture that was inflicted upon Mr. Brosig…was not by the actions of law enforcement existing in places where barbarism is the law, but what happened here happened about fifty or so miles away, committed by people who are sworn to uphold the law and the constitution.”60

  In his closing remarks, defense attorney Mitch Banas focused on trying to make the jury question whether any of this horror was really Karl Pfeil’s responsibility, even though the original trial had already determined that it was.61 “Now I’m not here to tell you that nothing happened to Mr. Brosig at Attica on September 13, 1971,” he stated in his closing remarks. “Obviously things happened to him. What I am here to do is to try to help you place what he says happened to him in the proper context.”62 That context, Banas suggested, was the utter chaos of a riot and a moment when ordinary people were simply trying to restore some semblance of order. As Banas said in conclusion,

  One of the things that’s certainly beyond dispute in this case, is that there were extraordinary conditions prevailing at Attica on September 13th 1971. It was hardly a picnic there. Portions of the prison had been destroyed, Hostages were being held. Violent inmates had weapons that they could use against law enforcement officials…yes there was a need to conduct continuous head counts, even if it meant waking inmates up. Obviously, there was a need to strip the inmates and search them for weapons and make them lie down and move on the ground to make room for other inmates in D yard. None of that was retaliatory, and none of it was, in any way, malicious.63

  “You have to ask yourself,” he said in closing to the jury, “what injuries did Mr. Brosig really receive from that?…Most of the nightmares Mr. Brosig testified about were abstract….How often does Mr. Brosig have those nightmares, regardless of what they are about?”64

  Yet again, though, even with Banas’s alternative narrative at their disposal and with equally problematic jury instructions from Judge Elfvin, the jurors hearing this case had been appalled by the treatment that David Brosig had endured as a young man during the retaking of Attica. On July 16, 1997, they awarded him $75,000 in damages.65

  Now the state was in real trouble. On the high end of the damages scale it was on the hook for $4 million, and on the low end it would have to pay out $75,000 to a class of 1,200 men. The state decided, immediately, to appeal the original liability case because, if that were to be overturned, the damage awards would go away.

  As this appeal went forward, Liz Fink and the rest of the plaintiffs’ attorneys were worried because they feared that the Second Circuit Court of Appeals would rule in such a way that protected the state from liability for the tens of millions of dollars the two damage verdicts indicated that the prisoners were now owed. They were correct. A three-judge panel of the United States Court of Appeals for the Second Circuit heard this case on July 16, 1998, and decided on August 3, 1999, that “jury verdict in the class liability phase ‘failed to establish Pfeil’s class-wide liability’ ” and thus the court “therefore reverse[d] both the liability and damages verdict.”66

  This decision was devastating and deeply ironic. The plaintiffs had argued vehemently that Judge Elfvin was committing “reversible errors” in the way that he had instructed the jury before its deliberation, but in their view these errors only benefited the defense. In this Circuit Court decision, however, the judges saw these same flawed instructions as working unfairly against Pfeil. In fact, Judge Ralph K. Winter wrote, Elfvin’s jury instructions had “virtually ensured that the juries in the damages trial would be forced to consider issues of Mr. Pfeil’s liability—a violation of the Seventh Amendment’s bar on different, successive juries trying the same issue.”67

  In another irony, the court confirmed that Judge Elfvin had also caused serious problems with the jury verdict sheets he had issued. Winter’s decision explained that the verdict sheet that the original jury had been given was flawed because the wording “did not require findings sufficient to support class-wide liability or even liability to particular, identifiable plaintiffs.”68 Rather than see this error as, again, benefiting the defense—since, for example, these flawed sheets were, in part, what let many defendants off the hook—in the court’s opinion, this error had harmed Pfeil and therefore “the damage awards of Smith and Brosig must be reversed.”69 Pfeil’s rights had been additionally violated, the decision went on, because Elfvin had allowed “the damages phase juries to revisit many of the same issues as were considered by the liability jury,” and indeed Elfvin was directly chastised in this ruling for causing “confusion” in the damages trials when he “equivocated as to what had actually been established in the liability trial.”70 One of the most alarming aspects of the appeals court’s decision, however, was that it “questioned the wisdom of Judge Elfvin in certifying a class action to begin with.”71 If the Attica Brothers were not determined to be a class, then any future attempts to hold anyone liable for their pain would have to be done one by one. Potentially, and unimaginably to lawyers like Liz Fink, justice would have to come via litigating 1,200 separate cases against the state.

  Still, the Second Circuit made it clear that those 1,200 men had every right to have their concerns addressed, to come to some sort of resolution with the state of New York, now and not a minute later. Indeed, the decision made clear that “the defendants in this case” had “done all they could—frequently not without the court’s acquiescence—to delay resolution” and “that strategy can no longer be tolerated.”72 And, “given the long history of this matter,” it concluded, “we direct the district court to give it expedited treatment. We stand ready to exercise our mandamus power [to order a lower court to do this court’s bidding] should unreasonable delay occur. We respectfully suggest that the Chief Judge of the district court consider assigning this matter to the judge that is best able to expedite its resolution.”73

  No matter how much it chastised Judge Elfvin, this panel’s decision was heartbreaking to every one of the Attica survivors who were still alive as well as to the fami
ly members seeking justice for deceased relatives. Liz Fink too was bereft. She had known that Elfvin’s jury instructions weakened the plaintiffs’ chances of victory, but when the defense had appealed on the grounds that it weakened Pfeil’s chances with the jury, she was forced to argue that these problematic instructions had, at worst, been harmless in light of the preponderance of the evidence they had presented of the state’s liability. And, according to Ellen Yacknin, Fink was utterly “brilliant in mounting her argument” when she came before the Second Circuit.74 Still, she was unable to stop that three-judge panel from undoing everything she had fought so hard to win in 1991 and 1997.

  Yet giving up was, in Fink’s view, not an option—especially considering how much had gone into the trials. At least the Second Circuit had not disputed the facts that the plaintiffs’ lawyers had spent years establishing, and it also called for the state to stop dodging its responsibility to resolve this issue with the plaintiffs. It was time, Liz Fink decided, to reapproach Judge Michael Telesca. This time, the state of New York would be brought to the table.

  52

  Deal with the Devil

  By the time the Second Circuit Court upended the Attica civil case victory, it had been nearly three decades since the state had retaken the Attica Correctional Facility with extraordinary force. There was, Liz Fink hoped, still a chance to make the state officials take some responsibility for the trauma caused back in 1971. There was still the possibility that they could force the state to reach a settlement. That would at least be something. And so she called Ellen Yacknin and asked her to ask Judge Michael Telesca of the Western District if he was still willing to try to settle the case. He was. And, as Yacknin reassured the plaintiffs, he was a damned “good settler.”1