Blood in the Water

by Thompson, Heather Ann

  Quigley was most shocked by the sheer magnitude of firepower that the state had authorized at Attica. The key here, as he saw it, was the nature of the weapons the state had allowed to be used—namely shotguns that dispersed sprays of pellets. Each of these pellets was “approximately the size of a 32-caliber bullet and lethal,” wrote Quigley, and the “the total number of pellets fired from shotguns accounted for would be between 2,349 and 3,132 lethal pellets” raining down into D Yard, which, incredibly, was in addition to eight rounds from a .357 caliber, twenty-seven rounds from a .38 caliber, and sixty-eight rounds from a .270 caliber.62 Of course, he noted, these counts did not even include the bullets showering into this group of inmates and hostages from correction officers and other members of law enforcement not fully accounted for.63

  “It is the Court’s conclusion,” Quigley wrote, “that the force used was indeed excessive, and that such conclusion is amply demonstrated in the trial record.”64 Excessive firepower was used against people already immobilized by gas, according to high-ranking officials from the National Guard, such as John C. Baker and General Almerin C. O’Hara.65 Quigley noted, “The evidence [re: excessive force] presented is so overpowering in favor of claimant that the Court does not need to resort to the rule that it may view the evidence in ‘the light most favorable to the plaintiff.’…Claimant has met her burden of proof and has established a prima facie case.”66 The award? “After a careful review of all the evidence, the Court finds the claimant has been damaged in the sum of $550,000.00 which includes funeral expenses…with interest thereon from September 13, 1971 to the date of judgment herein.”67 Lynda Jones would ultimately win $1,063,000 from the state.68 Unsurprisingly, the state appealed this ruling, but the Appellate Division upheld Judge Quigley on November 4, 1983. The state appealed once again, but in June of 1984 the higher court declined to hear that appeal.69

  A sniper on the prison rooftop wears a makeshift gas mask, September 14, 1971. (Courtesy of the New York Daily News/Getty Images)

  It was perhaps in the context of this huge settlement that Judge John Elfvin was trying to stall the prisoners who were eager to get their civil suit against the state to trial. It had to have been clear to any jurist following the Jones case that there was abundant evidence that members of law enforcement had used excessive force in D Yard during their assault, and the way the assault force had treated prisoners that day was far worse. Tragically, though, the prisoners themselves knew little of the testimony heard in this case and thus found themselves having to prove many of the same facts all over again in their decades-long court battle. Also unfortunate was the fact that the Jones victory had done nothing to bring justice to the rest of the hostages who continued to suffer their post-Attica trauma individually and alone. That is, until the Forgotten Victims of Attica, in the year 2000, came together to fight as a group to politically shame the state of New York into doing the right thing by all of its victims.

  55

  Biting the Hand

  After the decision came down in Werner v. State that the hostage survivors and widows who had “elected a remedy” by cashing their checks from the state couldn’t sue, they were left with few options but to pressure politicians in Albany. If they could just get some legislator to hear of the injustice they had suffered, and take up their cause, they might finally get some restitution.

  And so, the Forgotten Victims of Attica kept heading to the state capital. Gary Horton explained their goal as forcing a settlement by making it “too uncomfortable politically for them to ignore us.”1 They had some reason to think that the strategy would be successful. Thanks to drumming up support from various state assemblymen, the FVOA received word on June 15, 2000, that the state had given “final legislative approval today to a resolution calling for an annual day of mourning for the 11 prison employees [the hostages slain during the retaking and William Quinn]—but not the 32 inmates [the 29 prisoners killed during the retaking and Hess, Schwartz, and Privitera]—killed” in September 1971.2 More importantly, several other state legislators had responded to the prisoner settlement (and to the hostage families’ dismay at said settlement, expressed in a meeting on April 14, 2000), by proposing some monetary compensation for the widows.

  By the close of 2000, state representatives Dan Burling, Charles Nesbitt, and Dale Volker put together legislation that would give each of the eleven widows $50,000—a much lower figure than anyone hoped. Burling originally had proposed $90,000 each, but that figure had been whittled down in budget negotiating sessions. The FVOA rejected the state’s first proposed settlement outright. As one newspaper put it, “Those payments have been scoffed at by some survivors as too little too late. Some relatives said they won’t cash the checks.”3 Equally significant, the FVOA explained, the widows were by no means the only survivors of Attica. Not only were there others who needed restitution—such as the children of the slain hostages and those hostages who had survived the retaking but had been physically and emotionally damaged by it—but the FVOA had always wanted more than just money: they had rejected the state’s offer as much because of “the state’s refusal to admit any wrongdoing.”4

  The FVOA worked to build a consensus on a clear list of what it wished the state to do, and crafted a “Five-Point-Plan for Justice.”5 The plan demanded the following:

  1. An apology from the New York State government, officially acknowledging culpability for the deaths of hostages, physical injuries to Correction Department employees and emotional trauma suffered by hostages and their families, as well as “the state’s duplicity regarding compensation.”

  2. Opening state records on the riot and its aftermath…to provide closure to the families, dispel misinformation given to the public, correct the denial of due process, so the state can learn from its mistakes and to expose the cover-up that the state perpetrated.

  3. Counseling for survivors and families.

  4. A guarantee that the group can conduct a memorial service outside the prison each Sept. 13.

  5. Reparations to group members.6

  Regarding the last demand, a newspaper noted that “while group spokeswoman Deanne Quinn Miller…said no exact figure has been set, some members use the award to Mrs. Jones as a benchmark for widows, with a lesser amount for survivors.”7

  The FVOA took their demands to Albany in the summer of 2000 intending to meet with now governor George Pataki. Instead they were met by the governor’s counsel, Jim McGuire; the commissioner of corrections, Glenn Goord; and a team of both senior and junior members of the Governor’s Counsel.8 Undaunted, Dee Quinn Miller, Mike Smith, and Jamie Valone (the son of slain hostage Carl Valone), along with FVOA lawyers Gary Horton and Jonathan Gradess, launched right into their pitch. First, the FVOA hoped that the governor would agree to come to an Attica anniversary event their group was holding the next month at the prison and, second, they hoped that he would consider their list of demands in the meantime. The governor’s representatives assured the FVOA members that someone would get back to them within thirty days. Dee Quinn Miller recalled they all left the meeting feeling not only that these people would help them, but that Governor Pataki would actually come to their event.9

  Yet the thirty-day deadline came and went and the FVOA heard nothing from Pataki’s office.10 And so they began writing follow-up letters—many of them. When they still heard nothing, they decided to switch strategies. After lengthy discussions with attorney Jonathan Gradess, the FOVA decided to draft a document arguing for the need to hold Truth and Reconciliation hearings—similar to what had been held in South Africa in the wake of apartheid—regarding what they had endured at Attica in 1971 and in the decades since.

  After submitting their document and again hearing nothing for almost six months, they were surprised to finally get word that the governor would appoint a task force to look into the possibility of holding such hearings. This Attica Task Force, comprised of three members and a chair, was officially constituted on March 13, 2001. According to m
edia sources, “Pataki asked the task force to listen to the group’s concerns and make recommendations about resolving those issues.”11 Notably, however, the governor had given the task force “no time table” for doing so.12

  That this task force was formed at all came as a surprise to FVOA lawyer Gary Horton. When FVOA attorney Gradess first proposed the idea of trying to get a meeting with the Governor’s Counsel, and then to go all out for a South Africa–inspired Truth and Reconciliation committee, it had been hard to imagine anyone in Albany actually agreeing to either of those things.13 However, Gradess had been correct to assume that Governor Pataki had no desire to get in the middle of another Attica-related public relations disaster. Too many governors before him had had to deal with the fallout from Attica and it had never been pretty.

  The FVOA had mixed feelings about the Attica Task Force. It was good that the governor’s office was doing something to respond. But once the members saw who had been placed on this panel, they weren’t at all confident that the state’s effort was serious. As Dee Miller put it, “We weren’t sure if those on it were there for a stall tactic.”14 How could it bode well if the chair of the task force was none other than Glenn Goord, the current head of the very Department of Correctional Services (DOCS) that had mistreated Attica’s survivors and widows back in 1971? Dee Miller personally was incensed that State Senator Dale Volker was also appointed to this task force, since, in her view, he had whined to the media that the Attica widows were ungrateful when they had rejected his proposal to get them each $50,000. Equally worrisome was the fact that Volker, as a Republican politician from Wyoming County, had actually been “present at the Attica disturbance”; it was anyone’s guess whose side he was on.15 The appointment of the second member, former Attica observer Arthur Eve, was not much more reassuring to some FVOA members since he had always been such an outspoken advocate for the Attica prisoners. The final member was cause for some hope: Assemblyman Jeffrion Aubry, a Democrat from Queens, might be more independent as the chairman of the Assembly’s Committee on Corrections.16

  Not only was the Attica Task Force announced to great fanfare, but this body almost immediately met with the FVOA. Dee Quinn Miller, however, felt that this first meeting boded ill for the future of the surviving hostages and the hostage widows. Commissioner Goord seemed openly hostile to them in the meeting, abruptly leaving the room on two or three occasions. In turn, Dee Miller and the other FVOA leaders felt their own hostility grow because they “couldn’t agree on anything. [The FVOA] wanted open hearings. The state did not….We were specific and they were vague.”17 Whether the members had been more persuasive than they thought, or the commissioner was under more pressure than they knew, the group unexpectedly received notice just a few weeks later that there would be public hearings on Attica beginning on May 9, 2002, in Rochester and continuing in Albany.

  The FVOA had a great deal of work to do before the hearings began. If this was going to be an open hearing at which everyone would be able to get their stories onto the record, it was crucial that people from the group be willing to participate. Dee Quinn Miller and Mike Smith, along with Gary Horton, worked to persuade virtually all of the Attica hostage families that they needed to speak up. This was their long-awaited chance—maybe their only chance—to tell the world what had really happened to the Attica employees during the retaking and after.

  The FVOA knew, however, if the state were to settle, they would also need noninterested witnesses who could back up their stories of trauma and neglect, and to corroborate the FVOA’s claim that the state had manipulated their members into taking workman’s compensation so that they would never be able to sue the state. And for that matter, they would also need people who could really speak to the lengths that state officials had gone to to keep them from getting any restitution for all that they had suffered as a result of the forcible retaking of Attica back in 1971.

  For the first point, the attorneys Gene Tenney and William Cunningham could provide ample evidence that excessive force had been used against hostages during the retaking (much of the same evidence that they had presented in Lynda Jones’s suit). For the second, Morris Jacobs, the man who had worked for the State Insurance Fund, was willing to testify as to the workman’s compensation manipulation. And finally, to the state’s undoubted dismay, the FVOA elected to bring whistle-blowing Attica prosecutor Malcolm Bell in to testify to state officials’ efforts to cover up their wrongdoing at Attica.

  Getting Malcolm Bell involved was no easy decision—particularly for Dee Quinn Miller. She knew that when John Hill, the man convicted of killing her father, had sought to receive clemency from Governor Carey in 1976, Bell had supported his bid. Deep down, Miller wasn’t sure what to think about whether Hill really had or hadn’t killed her father, but she was nevertheless leery, at least initially, of turning to his lawyer for help. But Mike Smith had, through Frank “Big Black” Smith, made contact with Bell and he persuaded the rest of the group that Bell’s testimony would be vital for the FVOA’s cause.

  Gary Horton, Mike and Sharon Smith, and former hostage John Stockholm and his wife, Mary, all descended upon a quiet and rustic area of Vermont where Bell now lived. He greeted them warmly; he was ready to do anything he could to help the FVOA.18 Come to Albany, they said. The public hearings would be the FVOA’s one shot at making its case that the hostage survivors and widows also deserved restitution from the state of New York.

  56

  Getting Heard

  During the six days of public hearings that the Attica Task Force held between May and August of 2002, eighty-five people came to tell their story. Originally there were only going to be two days of hearings at the Rochester Institute of Technology in May and two days of hearings at the Empire State Plaza in Albany that July, but so many people wanted to be heard that a third set of hearing dates at the Rochester Institute of Technology was added in August as well.

  Department of Correctional Services commissioner Glenn Goord opened the first public hearing at RIT’s Chester Carlson building on May 9, 2002, by recognizing the “historic public hearings on the plight of correction officers and civilian employees.”1 In these hearings, Goord made clear, the roughly twenty-two people who testified would only be asked for statements, not for evidence. “We will be willing to take each victim and survivor at their word. We will not interrogate the victims or their survivors.”2

  The surviving hostages and family members who testified found their experience emotionally wrenching. They had been talking about Attica in FVOA meetings and had felt support doing so, but to speak formally, with so much at stake, and to the general public, was much harder. John and Mary Stockholm were the first to the microphone. John Stockholm said quietly, “We were repeatedly hurt and disappointed by the poor treatment we received. We were told to take time off after the riot. But no one told us by doing so, we would forfeit our rights to compensation, to sue for remedies. We did not know.”3 His wife, Mary, brought a more personal story to bear. “I did not know how to deal with my husband’s mood swings, the night sweats and, worst of all, the silence. At the age of 24, we were expected to get over it, to get on with our lives; which we did, although the events of Attica are just under the surface.”4

  The family members of the late Richard Fargo also made sure that their pain was clearly expressed. Fargo, a hostage, had survived the retaking but had suffered greatly until his death in 1992. His wife, June, spoke of feeling swindled by the state—how they had been called with other hostages to a meeting at a Presbyterian church soon after the prison was retaken, at which Commissioner Russell Oswald had told the surviving hostages to relax, to take time off, and that all would be well. She also noted that they were all “told not to talk about what had happened” to them at Attica.5 Most importantly, according to June Fargo, taking time off hadn’t helped her husband.

  Richard had long-term physical and emotional effects from being held hostage. He took heart and diabetic medicine for 20 years. H
e had bouts of aggression and anger, and nightmares. He would wake up in the middle of the night with severe chest pains….He tried very hard to put the whole ordeal behind him and he drank too much to do that. Our family lost a happy father and a husband….I never knew what I would find when I got home. I literally shook….Our quality of life was severely impaired…we couldn’t go into crowds, he was always looking behind him. Panic attacks set in when helicopters flew over our house, which happened frequently….Our life was governed by Richard’s moods….He died, still needing counseling, on May 29, 1992. He never got over the fact that his employer could treat him and fellow hostages and widows and survivors so badly.6

  Testimony from Fargo’s daughter Susan echoed her mother’s story: “He could become very angry very quickly, or very emotional, crying, choked up, shaking, volatile. I never knew which father I would be coming home to.”7

  Dean Wright, another hostage survivor, also testified that day. He declared that not only had he been lied to by the state officials who said they would take care of the hostages, but he also had been badly used by the state in helping Anthony Simonetti’s office make criminal cases against prisoners. He explained how members of the Attica investigation had hounded him to identify prisoners, bombarding him with pictures and peppering him with leading questions. “It got to the point,” he said bitterly, “where it didn’t make any sense to me…they tried to put words in your mouth that he was where he wasn’t or was doing something that you didn’t see him do.”8