Blood in the Water

by Thompson, Heather Ann

  Clearly, however, state officials had known that they would likely be sued and thus had scrambled to protect themselves by getting checks into the hands of the survivors and widows as soon as possible. State Insurance Fund employee Morris Jacobs went on the record many years later that the state’s investigators were well aware that Attica employees could sue and there was speculation about how many would take compensation versus how many would sue.14 If anyone doubted that the state had tried to stack the odds in its favor, Jacobs noted, one only had to review the procedure that had been followed in all other cases. It seemed that someone must have filled out C-62 forms on behalf of the survivors and widows, and then submitted and approved them before any hearing, which was certainly not the protocol.15 What is more, whoever filed C-62 forms on behalf of the widows and authorized payments prior to a hearing would have had no official authority to do so.16

  Even though scores of Attica survivors and widows living in upstate New York had dutifully filed the paperwork necessary to sue the state, it eventually became clear that they were going to have to fight like hell to even have the right to keep their lawsuits alive. The burden fell on their attorneys to show that elective remedy didn’t apply.17 On July 6, 1981, the New York Supreme Court Appellate Division (Third Department) issued a decision that devastated all of the hostage survivors and widows. In the case of Werner v. State the court ruled that former hostages or widows who had accepted workman’s compensation checks for the period of the uprising and afterward were barred from seeking additional monetary damages from the state.18 In practical terms this meant that despite thirteen judges having been involved in these hostage cases since 1971, suddenly all of the cases save one were dead in the water.19

  Back in the awful weeks following the retaking of Attica, Lynda Jones, widow of slain hostage Herbert Jones, just happened to mention to a friend of hers that she had received a check from the state. It also happened that this friend worked for attorney William Cunningham. Since she knew that Lynda Jones had little knowledge of finances let alone dealing with state officials, the friend advised her to stop by Cunningham’s office, just to see if there was anything she needed to know about this check before she cashed it.

  On October 21, 1971, Jones showed Cunningham the $21 check, which, she explained, officials had told her was for the “four meals the State of New York thought it owed her dead husband for the period during which he had been held hostage by inmates at the Attica prison.”20 Something about this seemed odd to Cunningham. Acting on what he later described as “gut instinct,” Cunningham recommended that Lynda not cash the check.21 What she might do instead, he suggested, was file a lawsuit against the state of New York. If they could show that it “had used excessive force in retaking the prison,” she might win a great deal of money.22 To win, she would have to prove that her husband’s death had resulted from “an intentional tort perpetrated by the employer at the employer’s discretion.”23

  Although attorney William Cunningham felt that his client was on firm legal ground, Jones’s case was dismissed on December 31, 1972—virtually at the same time that the state was handing down its scores of indictments of prisoners.24 A judge had initially ruled at the state level that she could sue, but the state appealed and that decision was reversed. Since 1971 lawyers for the state, in both the civil and the criminal courts, had been expending a great deal of energy to make sure that neither the prisoner victims nor the hostage victims could be heard. Like the prisoners, however, Lynda Jones was undeterred. Her lawyer appealed the appellate decision and the next December her right to sue was reaffirmed in a highly unusual reversal.25

  In fact, the Court of Appeals ruling said that “all of the other survivors of the Attica dead, as well as those wounded in the assault, may file suits now,” and, what is more, that it expected that “a good number of them will do so, and many may also seek to involve Mr. Rockefeller personally.”26 And so, William Cunningham and Gene Tenney proceeded with all of their hostage survivor and widow cases. Like the prisoners’ many civil suits, all of these cases had to be kept on hold until all of the Attica criminal cases were resolved, but Cunningham and Tenney made good use of that time.

  For William Cunningham the years between 1973 and 1976 were busy indeed. He was determined to take as many depositions of high-ranking state officials as possible and one of the most important of these, he thought, would be that of Nelson Rockefeller.

  To Cunningham’s frustration, however, now vice president Nelson Rockefeller was not particularly forthcoming as he sat for his questions on April 22, 1977. Quite predictably he answered the question of whether excessive force had been used with a categorical “absolutely not.” And yet, unwittingly, Rockefeller did help Cunningham’s case.27

  Although the former governor laid all responsibility for the retaking at Commissioner Russell Oswald’s door, he did acknowledge that he was the one who had insisted on using the State Police for the retaking. On this issue, he said, “I prescribed what should be done to make it possible for him to carry out his order.”28 Significantly, this meant that whatever the State Police proceeded to do at Attica, the governor himself had authorized. What is more, Rockefeller admitted on the record that state officials, including those from his office, the State Police, and the head of the Attica investigation, had in fact met in the wake of Attica to compile a coherent narrative regarding all that had happened at the prison. He also revealed that there was a physical copy of that narrative somewhere. At first when Cunningham asked him about this, Rockefeller stated that he had “made no writings, notes or any memorandum concerning the Attica uprising from September 9 to the 13th and thereafter,” and he insisted that the only account ever given to him was verbal.29 Eventually, though, the former governor admitted that he had “appointed a committee of two to prepare a written report….One was Harry Albright and the other was Eliot.”30 Rockefeller had both seen and reviewed this report.31

  So, as soon as Governor Hugh Carey ended the Attica investigation and all criminal trials related to the uprising, Cunningham felt pretty good about his chance of getting some restitution for his clients. Lynda Jones’s suit came before Judge Robert Quigley of Rochester in October of 1977, and Cunningham was eager to proceed. The trial was recessed almost as soon as it began, however, because lawyers for the New York State Police had decided to fight tooth and nail to prevent Cunningham from using the many trooper statements that had been taken in the immediate aftermath of the retaking. Whereas Cunningham argued forcefully that these statements were essential to his ability to show excessive force, the state brought out the big guns, Attorney General Robert Abrams and Assistant Attorney General John R. Steward, to prevent their use.

  There was a great deal at stake here. The only reason Cunningham had gotten his hands on the many hundreds of correction officer and trooper statements in the first place, and knew that they would help his case, was because lawyers for the state had overplayed their hand with the judge in this case.32 In short, Cunningham had gone to Judge Quigley seeking a subpoena duces tecum allowing him to ask the attorney general for any Attica documents that might pertain to his case—much as Liz Fink would do almost a decade later. Predictably the state stalled, and implied that it really had nothing relevant to share. Judge Quigley, however, was getting increasingly frustrated with the defense and, knowing this, Cunningham went to him and told him exactly where these documents were in One World Trade Center. The judge wanted to see for himself what was there before issuing a new order. And so the two of them went to the World Trade Center and spent forty-eight hours combing through file cabinets. They hit pay dirt. After first setting aside the hundreds of parking tickets stuck in those cabinets that state troopers were hoping the attorney general would fix, they located the statements. Once he had these, Cunningham remembered, “I knew I had won.”33

  Armed with these statements Cunningham still had the challenge of figuring out how he “was going to get them into the record.”34 There was really no way
to enter them into evidence one at a time, so he made the bold decision to try to enter them all at once. This was a dramatic moment as lawyers for the state immediately jumped up and began their effort to block this move.35 Cunningham had feared that this would happen and so, the night before, he had asked his secretary to help him get these many statements to a copy shop in Rochester. Once there they asked the shop to close down and he would write them a healthy check as soon as they were done copying the pile. He had already told the judge he would bring the statements back to court, which he then did, but he suspected that this would be the last he saw of them so he made sure he had copies back in his Buffalo office.36 The state’s lawyers managed to halt the trial once again because a higher court now had to rule on the question of whether these statements were admissible. The statements were indeed removed from the plaintiffs, but Cunningham had ample time to study his copies carefully back in his office. This, in turn, gave him a clear trial strategy. “All I had to do was subpoena the troopers who fired,” he realized. Even if they had been given immunity in the criminal trials, their immunity did not hold in a civil case.37

  When the Jones trial finally resumed in November 1978, the state suffered a major blow—Cunningham was going to be able to use “the ‘debriefing’ statements the guards and troopers made shortly after the riot.”38 But even with statements that placed specific troopers in specific locations engaging in specific acts, these same troopers could still invoke their Fifth Amendment rights—thus not confirming anything that these statements said. As trooper after trooper refused to testify, Cunningham’s patience thinned. They wouldn’t answer any questions at all, not even basic ones such as whether they had worked at Attica. This was particularly frustrating to Cunningham because he knew from their own statements, just as Malcolm Bell had, exactly who was guilty of excessive use of force. And so he chose his witnesses carefully, including troopers such as Gregory Wildridge and COs like John Vergamini, and high-ranking troopers such as Lieutenant Colonel George Infante. He even tried to bring New York’s longtime attorney general Louis Lefkowitz to the stand. Every single one of these men, however, refused to answer his questions.

  As infuriated as Cunningham was by this refusal to cooperate, Judge Quigley was even more livid and, to everyone’s surprise, the judge slapped these men with contempt of court charges—of the twenty witnesses cited with contempt, eighteen were sentenced to jail.39 Most of the contempt charges were for refusing to answer questions, but Lefkowitz’s charges were for “refusing to produce certain documents and reports.”40 All jail terms ultimately were stayed pending a hearing before another judge, however.41 Everyone would have to wait to see how the other judge would rule regarding the recalcitrant witnesses’ liberal use of the Fifth Amendment.42

  By November 30, 1978, this question still hadn’t been decided, but the standoff between the plaintiff and law enforcement continued.43 In one remarkable instance, Judge Quigley had ordered a superintendent of the New York State Police to appear in court and state “for the first time the names of 10–12 troopers recommended for disciplinary proceedings.”44 This man was actually supposed to bring into court the letter sent to him by Alfred Scotti, the man Governor Hugh Carey had appointed to resolve the remaining prisoner indictments in the wake of the Bell revelations and the Meyer Report. However, when the NYSP superintendent arrived in court, he did not have the letter and claimed that “he did not understand the instructions.”45 When pushed, he acknowledged that he wanted “to keep those names in confidence.”46 Disgusted with the superintendent, Judge Quigley “leaned back in the cushions of his courtroom chair…rolled his eyes, held his temper,” and told him icily, “The Court orders you to take yourself to the nearest telephone…you are to call your secretary [and] make sure she understands the document you have in mind, and whoever you wish to authorize from your office is to get in a motor vehicle and proceed, within the speed limits, to this court with the document today.”47

  William Cunningham remained tenacious. Rather than relying on trooper admissions, he made sure that some surviving hostages gave their own firsthand accounts of the retaking. This was itself startling testimony for Quigley to hear, and to have on the record, since few in the nation had yet heard what these survivors had in fact endured. And, indeed, it wasn’t always easy for Cunningham to get these people to come forward to relive their trauma. Reporters like Tom Goldstein of The New York Times found the stories riveting. As he put it, “Some of the surviving hostages have told how they developed nervous conditions, must take medication, often drink heavily and sleep irregularly. The Attica riot brought on ‘almost a reverse personality’ Richard Fargo, a former guard testified last week. Now, he said, he is ‘jumpy, nervous and can’t stand to be in crowds.’ ”48

  Cunningham’s other triumph in this trial was getting Russell Oswald, the former commissioner of corrections, to admit that troopers and COs had indeed used excessive force in the retaking.49 Oswald began by saying that he couldn’t understand why the COs, for example, had “transcended our orders” and shot their weapons during the retaking, but then stated on the record that their use of firearms at Attica had indeed been “reprehensible.”50 When Cunningham pressed, and asked pointedly whether Oswald thought that CO John Vergamini had used excessive force when he shot John Monteleone, Oswald said, “I would say yes.”51 Getting a state official to acknowledge under oath who had shot John Monteleone, a hostage who had later died from that same shot, was huge. For the purposes of this lawsuit it confirmed just how excessive and brutal the shooting during the retaking had been. Of course it also confirmed that state officials were aware who had killed whom at Attica—the very point that Malcolm Bell had been trying to make when he went public back in 1975.52

  Attorney William Cunningham also made major headway for Attica’s hostage victims in general, not just Lynda Jones, when, over the state’s objection and after yet another hearing, he was allowed to use grand jury testimony to refresh the recollection of recalcitrant witnesses.53 This was crucial since it meant that when Cunningham had one trooper from the NYSP on the stand who refused to talk, for example, he was able to put this witness’s previous grand jury testimony into the record—evidence that confirmed he had hit four “targets” during the retaking and there was no evidence that any of them had been resisting his authority. Armed with this testimony, Cunningham was able to state for the record, “Well then, we can further presume you killed four people.”54

  Judge Quigley issued his decision in the case of Jones v. State on August 31, 1982. It was a scathing denunciation of the way the state of New York, as well as its troopers and COs, had handled the retaking. It had been a long trial—one that had been stalled repeatedly as Cunningham battled the defense for access to the post-retaking statements, volumes 2 and 3 of the Meyer Report, and grand jury minutes. No matter how hard they had tried to conceal evidence, though, lawyers for the state had not managed to prevent Quigley from hearing enough to write a scathing decision. He noted, for example, that “at trial, Major Monahan testified he once had most of the items described in the subpoena, but that he had burned them in the fireplace at his home,” an act the judge found appalling.55 He also made clear that he just didn’t believe state witnesses—such as their repeated claim that evidence didn’t exist or had been lost. As he put it, “It is incredulous to believe that all copies of the overall plan for the retaking of the Attica Facility are, somehow, ‘missing.’ ”56 The judge was also infuriated that the highest officials of the NYSP simply would not take responsibility for the retaking—preferring instead to pass the buck regarding who was actually in charge of the retaking. Monahan had admitted to the court that he, “with the assistance of Captain Malovich,” had drawn “up a plan for the retaking of the prison,” but then he claimed to have “placed Captain Henry Williams in charge of that post and ordered him to stay there” and had “selected Captain McCarthy to be in charge of the rescue crew.”57 Quigley wasn’t having it, though. As he wrote in
his decision, despite Monahan’s attempts to dodge responsibility, “his planning, direction, choice of subordinate leaders and his commands to cease firing were actions that clearly indicate he was functioning in the command position.”58

  Not only did it matter to Quigley that Monahan was responsible for the overly brutal retaking, he found it unconscionable that this man had clearly admitted hearing gunfire after he “gave the cease fire order,” and that he knew the “the names of certain troopers who had shot either inmates or hostages,” but that he refused to share that information with investigators at the time or the court now.59 Quigley just couldn’t get over how unnecessary the force used during the retaking of Attica had been. He took particular note, for example, of the fact that even General O’Hara of the National Guard had admitted that the gas used in D Yard was so immobilizing, and thus so ineffective for riot control, that he personally had “ordered it out of the inventory of the National Guard,” and yet this was exactly what the NYSP had used and then had also used ammunition.60 Perhaps worse, Quigley noted, O’Hara had testified that “it was the general consensus of opinion by all the officials present that the hostages would be killed one way or another” and indeed that “everybody had that impression.”61