Blood in the Water

by Thompson, Heather Ann

  To make sure that the task force members would not simply bury this report under a pile of papers, with great fanfare the FVOA also called a press conference. At this event were “representatives of NYSCOPBA (the correction officers union), former correction officials, prison reform advocates, and historians,” all loudly stating the importance of the Attica Task Force’s doing its job.9 The FVOA had come to see that bringing the public into its battle with the state was a good strategy. The group even got former New York state senator and Attica observer John Dunne to write an “Open Letter to Families and Friends of the Forgotten Heroes of Attica,” which won some attention. As Dunne put it bluntly, “The state, which was instrumental in the violence which resulted in the deaths of dedicated prison guards, has steadfastly denied just compensation to the victims of that violent retaking.”10 And so, “simple justice demands that the state do right by the families and survivors of those loyal and courageous state employees who faithfully held the line and were prepared to make the ultimate sacrifice.”11

  Malcolm Bell had also remained an outspoken supporter of the FVOA in the public sphere. He too wrote an open letter, in this case to Governor Pataki, on July 16, 2003.12 It was time, he argued, for Pataki to do the right thing. To Bell, “The Forgotten Victims’ ‘Five Point Plan for Justice’ ” was “reasonable, responsible, and, under the grim circumstances, modest.”13

  By 2003 the FVOA had amassed many supporters, but one of the most surprising was a group of New York State Police. Since the FVOA had formed in 2000, the Blue Knights, a motorcycle club of New York state troopers, had been holding annual fundraising rides for the group. Heading up this effort was trooper Tony Strollo, whose brother Frank had been a hostage and who himself had participated in the retaking. Strollo was personally conflicted on how that retaking had gone down. In his heart he knew it had been a disaster and that terrible things had happened as a result of it.14 But he also felt strongly that the state had placed troopers in a terrible situation by sending them into this prison tired, upset, and untrained for what they were expected to do.15 And so his way of coping was to offer his support to the hostage victims of Attica with this annual ride. In 2003, they stood with NYSCOPBA, the CCPOA, and other unions in support of the FVOA at a rally held in front of the capitol.16

  DOCS commissioner Glenn Goord noticed that public pressure was mounting and that he would soon have to issue some sort of response to the FVOA’s demands. In September of 2003, he sent the group a draft report that outlined what the task force would be recommending to the Pataki administration, including a monetary settlement of $8 million.17 The $8 million settlement figure was based on what the prisoners had received, with the idea that this amount would be shared by many fewer people in the FVOA, which meant more money for the hostages than what the prisoners had been awarded. Interestingly, the task force explained the difference by reasoning “that most, if not all, of the state workers killed would have remained employed in some capacity. Therefore we believe they are entitled to higher per person awards than inmates received.”18

  As for the other four demands of the FVOA’s Five Point Plan, the draft report attempted to dismiss them as unnecessary or problematic. Regarding the release of Attica records, the report explained that “there are no Attica records ‘sealed’ by order of any Governor.”19 Therefore, with the exception of the two volumes of the Meyer Report that a justice of the Wyoming County Supreme Court had confirmed sealed in a decision of May 22, 1979 (like Carmen Ball before him, he had believed the grand jury material they contained to be privileged), there was nothing stopping FVOA members from going to the New York State Archives and looking at any Attica document they liked.20 The task force did not feel that special provisions for counseling needed to be stipulated, recommending “that FVOA members pay the costs of counseling from any reparations they might receive.”21

  Finally, the task force stated that an apology would not be forthcoming from the state because it was its opinion that “government descends a slippery slope if subsequent administrations believe they have the authority to take their view of today’s standards and apply them retroactively to apologize for the decisions of their predecessors whose actions were based upon the prevailing contemporary social standards of an earlier era.”22 By taking the position that state officials in 1971 had “acted in accordance with policies and procedures that were the law and were acceptable at that time,” the Attica Task Force was clear that despite what the FVOA had hoped, the state did not see the hearings it had held to be in any way like the Truth and Reconciliation proceedings that had recently taken place in South Africa, where state officials were asked to apologize for actions that may have been legal but were nevertheless immoral.23

  If Glenn Goord thought that his draft report would be received with relief by the FVOA, he couldn’t have been more mistaken. The FVOA “rejected the $8 million payout as an insult,” and noted that not a few years earlier the state had mentioned paying widows a total sum of $50 million and the group considered that amount the “starting point in the negotiations.”24 Dee Quinn Miller, Mike Smith, and the rest of the men and women who had been working to keep the FVOA a major priority of the Pataki administration were furious that they had waited for more than a year for a proposal from the state that ignored most of their demands and offered monies that were not at all what the group had in mind. As Dee Miller recalled, “I wanted 50 million and I wanted the same amount to be given to everyone.”25 Since there ultimately were fifty-two families in the FVOA (totaling 152 claimants), $8 million would be inadequate.26

  The FVOA responded to the task force’s draft report by going public with a detailed forty-page response. Dee and others had heard that the full task force had not been consulted when this draft report was written, which felt even more insulting as a response to their heartfelt and agonizing testimony. Task Force member Arthur Eve apparently knew nothing about the report until the FVOA leaked it to a local newspaper.27

  The FVOA’s response to the task force’s draft report was nothing short of scathing. It was published in the form of an open letter to the New York State Legislature on January 13, 2004, and stated clearly that the task force’s “Draft Report to the Governor” was offensive to the FVOA.28 The FVOA responded point by point, beginning with how outrageous it was for the task force to claim an apology was out of order on the grounds that the state had acted within acceptable bounds. “There are not now nor were there in 1971 any prevailing contemporary social standards that would condone the death, injury, pain, anguish and neglect inflicted upon the FVOA by the state of New York.”29 As for the task force’s claim that anyone could access state-held records related to the Attica uprising, the FVOA pointed out that not six months earlier “a member of the FVOA, through FOIL (New York state’s Freedom of Information Law) application, requested access to specific McKay Commission records held by the State Archives. That request was denied.”30

  The task force’s suggestion that they pay for their own counseling was also offensive and out of touch, the FVOA declared, since it “ignores the differing costs of counseling that each member might have based either on the level of treatment needed or on existing insurance benefits…[and] further fails to recognize that the children of the hostages—some of whom suffer the most substantial psychological damage traceable to this event—may receive no immediate monetary reparations from the state should their parents still be alive.”31 Not to mention that if counseling monies were going to have to come out of each FVOA member’s settlement monies from the state, this was all the more reason to revisit the sum that the state had recommended be awarded to these same members.

  Finally, on the issue of state compensation, the FVOA response was equally acidic, accusing the task force of ignoring “the most logical benchmark of fairness, the Jones judgment, and uses instead as a benchmark the settlement [of] inmate litigation against the state.”32 That settlement had come not from a court ruling but rather from prisoners being forced to
settle. Arguably, the FVOA noted, their compensation was “insufficient and only a fraction of what might have been awarded had the litigation continued,” since, it also pointed out, juries previously had awarded only two of those plaintiffs “over $4 million,” and had this been the benchmark, the state’s payout would have been “staggering.”33 As important, the FVOA went on, why should the hostages get less than the prisoners had gotten in their settlement just because they weren’t asking for attorney fees—since their attorney, Gary Horton, hadn’t charged for the work he did for the FVOA? Even though they weren’t paying him, the costs of approaching the state for remedy had been high for the FVOA too.34

  There was one more point about compensation that the FVOA felt crucial. In its draft report the Attica Task Force had recommended taking whatever compensation funds were agreed upon from the budgets of the executive, the Senate, and the Assembly in equal shares. This was a terrible idea, the FVOA maintained: “The FVOA believes that they are owed compensation from the State of New York and that compensation should be funded by the state budget.” Otherwise, “this would merely serve to take funding away from various health, education, and social welfare programs currently supported by the legislature. The FVOA does not believe that their suffering should be ameliorated through escalating the suffering of others.”35

  Needless to say, when reporters got wind of the Attica Task Force’s draft report, and then heard how hostile the FVOA was to the proposal, they began calling Commissioner Goord and pressured him to explain what the task force might do next to address the FVOA’s concerns. To the public he did little more than offer platitudes, repeating his mantra that the state “has a moral obligation” to resolve the Attica dispute.36 To the FVOA, however, Goord wrote a far more vitriolic reply entitled simply “Commissioners Commentary.” It was clear from the opener to the reply that he was angry: “I want to update you on the work of the Attica task force which I chair, now that my discussion draft report on our work has been made public by an anonymous source.”37 He asked members of the FVOA to consider what their answers might be “to several complex questions” that, in his view, had to be resolved before any settlement could be reached between them and the state. If, for example, they now were to receive the same amount of money that Lynda Jones had been awarded, were FVOA members willing as well to pay back the workman’s compensation monies they had already received? Or, if they insisted on taking the same sort of settlement as the prisoners had secured, were they prepared to accept that as a final settlement—meaning that the state would not pay their counseling as some separate obligation?38

  The FVOA refused to get into a back-and-forth argument with Goord. Instead, the group made a fateful decision to go to the powerful California guards’ union, the CCPOA, and ask for its help to fund a lobbyist who could provide a direct connection to sympathetic state legislators. The California Correctional Peace Officers Association indeed helped them to secure a lobbyist and, in addition, to fund construction of an FVOA office in Dee Quinn Miller’s home so that she could work full-time with Mike Smith and Gary Horton on landing a settlement. With this new financial backing this trio was soon speaking around the country as well as traveling regularly to Albany to meet personally with lawmakers. This travel and PR work was costing the FVOA more money than even the CCPOA was able to offer, so it then turned to other correction officer groups around the country for help. Although NYSCOPBA and the CCPOA had offered the lion’s share of the needed funding, many other organizations stepped in to help as well, including the Correctional Peace Officers Foundation (CPOF) and Corrections U.S.A.39 From selling Attica Anniversary coins to conducting fundraising drives among their own members, these many organizations, along with law enforcement unions in Massachusetts, Pennsylvania, Ohio, and Florida, all worked with the FVOA to pressure Pataki’s office into settling.40

  In the fall of 2004 the FVOA had collected sufficient money to finally pay for a lobbyist. The man they hired, Artie Malkin, normally commanded anywhere from $4,000 to $12,000 a month for his services but agreed to work for much less as long as the FVOA would do much of the scut work—making the calls, writing the press releases, and such—so that all he had to do was glad-hand and negotiate in Albany.41

  And the FVOA lobbyist was good at doing just that. His credentials were impressive, and he had a client list ranging from the New York State Defenders Association to the Drug Policy Alliance to the American Lung Association, the Police Benevolent Association of the New York State Police, and even Teach for America. This meant that he had major connections in Albany and indeed he had a close relationship with Governor Pataki’s counsel, Jerry Connolly, as well as with New York attorney general Eliot Spitzer and even First Assistant Attorney General Richard Rifkin.42 As Thanksgiving 2004 neared, the FVOA had the sense that something was finally happening in the governor’s office. The lobbyist was calling Dee Miller more frequently to let her know where the governor’s office was in terms of a monetary amount for the settlement, and, at these junctures she would run the news by the FVOA members and then, in turn, go back to him with a counterproposal.

  Then in December 2004 the FVOA told its lobbyist that a settlement couldn’t wait any longer. Frances Whalen, the widow of slain hostage Harrison Whalen, had just died and she was the fourth widow to die since the FVOA had begun its work in Albany. Only seven widows remained who might hope to see restitution from the state and Dee Quinn Miller feared that time was running out.43 By the end of December 2004 discussions between the FVOA lobbyist and Pataki’s counsel were taking place virtually around the clock and, finally, as Dee Quinn Miller put it, they “hammered this out.”44

  On January 14, 2005, the state of New York formally agreed to a $12 million settlement with the hostages who had survived Attica and the family members of the hostages who had not. As a show of good faith, Pataki’s office agreed to disperse $2 million to the fifty-two families right away, with the remainder to be worked out at a later date. The FVOA had earned its victory. Or so it seemed.

  58

  A Hollow Victory

  Even though the surviving hostages and hostage widows had finally settled with the state, it was still not clear how the money awarded to them would be distributed. The eventual decision would once again, now thirty-five years later, link their history with that of Attica’s surviving prisoners and prisoner widows in powerful and poignant ways.

  As a key leader of the Forgotten Victims of Attica, Dee Quinn Miller had learned early on to reach out to anyone who might help her get some sort of justice for families such as hers, and, in turn, she had come to learn much more about what had happened at Attica than she had known before coming to that radio show with such anger in 2000. She had, for example, reached out to Frank “Big Black” Smith and talked for hours on end, so that she might better grasp what had really happened to him. Dee Quinn Miller came to love Big Black and to trust him completely. After talking to him she decided that she should reach out to Judge Michael Telesca to decide how the FVOA settlement should be distributed just as he had done with that of the prisoners.

  The more she thought about this, it felt right. After all, Judge Telesca had expressly written in his August 31, 2000, document awarding the prisoner survivors their money that he very much regretted that this settlement still did not help the families of the hostages.1 And so Dee Miller had actually reached out to Telesca quite early on in the FVOA’s battle with the state. Indeed, she had hoped Telesca would help make state officials recognize that the FVOA was serious, and not going to go away, so she had kept in close communication with him throughout 2004 as negotiations intensified. Those negotiations definitely took some heated twists and turns, and Miller came to know, and to trust, Telesca quite well as they had unfolded.

  Back on December 18, 2004, for example, the FVOA lobbyist had gotten the state to agree to $10.5 million, but Miller rejected this offer because she had faith that Judge Telesca could lean on First Assistant Attorney General Richard Rifkin on the
ir behalf and get more. As she had waited for a response to the FVOA’s rejection of the $10.5 million, however, Dee’s faith was tested and indeed the pressures of trying to get a settlement worked out before any more Attica widows died shattered her nerves and landed her in the hospital. From her hospital bed she called the lobbyist, Artie Malkin, in utter anguish. “I just I can’t do this anymore!”2 And in this crucial hour, Dee watched as Telesca worked to help the hostages with as much energy as he had the prisoners. Thanks to the behind-the-scenes pressure levied by Telesca, when the lobbyist went back to the Governor’s Counsel and mentioned that Dee was ill, that another widow had just died, and that this had to end now, the state finally agreed to $12 million—the figure that it had also granted the prisoners and their lawyers.3 At a jubilant Christmas Eve party at a local church, Dee Quinn Miller and Gary Horton gave everyone the news and the FVOA decided unanimously to accept this offer.4 As Miller remembered it, “We had the best Christmas we had had in quite a long time.”5

  A guard looks on while one inmate carries another, badly injured, inmate. (Courtesy of Judge Telesca)