Few people read the 46 pages released last week from a long-secret report about the conduct of the criminal investigation into the 1971 Attica prison uprising more closely than Malcolm Bell, the former special state prosecutor whose allegations of a cover-up sparked the inquiry. Bell’s job was to investigate crimes committed during the retaking of the prison. But in late 1974 he quit, saying his efforts to win indictments against state troopers and others had been stymied. In response, the newly elected governor, Hugh Carey, appointed a special investigator to examine Bell’s charges.
Essentially it was an investigation of an investigation, a seemingly hopeless bureaucratic tangle. But it was one fraught with political peril and at the center of a searing public debate about the nation’s bloodiest prison riot. The death toll from the four-day, September 1971 rebellion totaled 43, including 39 slain by police bullets during the retaking of the prison. Ten of those killed that day were state employees who had been held hostage; the rest were people in prison, who had armed themselves with knives, spears, and clubs, but no guns. The man who ordered the controversial assault was former Governor Nelson Rockefeller whose nomination to become Vice President of the United States under Gerald Ford was pending before the U.S. Senate at the time of the Attica probe.
Carey’s pick to head the investigation of the investigation was Judge Bernard S. Meyer, a former state Supreme Court justice from Nassau County who was later appointed by Carey to the state’s top court, the Court of Appeals. At the completion of his inquiry in December 1975, Meyer announced his conclusions: “There was no intentional cover-up.” he stated. “There were, however, serious errors of judgment” including “important omissions on the part of the State Police in the gathering of evidence.” Just how Meyer, who died in 2005, reached those conclusions, however, has never been fully explained, since the rest of his report was sealed due to the secret grand jury information it contains. Following the report, Carey, saying he wanted to “close the books on Attica,” pardoned all of those accused of crimes during the riot, a group that included more than 60 prisoners and a single state trooper charged with reckless endangerment.
That was where things stood until a group called Forgotten Victims of Attica, comprised of family members of state workers killed or wounded in the assault, successfully persuaded state Attorney General Eric Schneiderman to seek a court order allowing the release of portions of the report. The heavily redacted pages that emerged last week are the fruit of that effort. More than 400 pages of the report, however, remain sealed.
Bell, 83, now lives in Vermont where he works as a writer. In a telephone interview, we asked him if he thought the newly released material “shed light on one of the darkest chapters of our history,” as Schneiderman’s office said announcing the release of the records.
Bell: The answer is yes and no. There are cases of brutality, what I would call torture, in there that I had never heard of, and that I should have heard of, given my position in the investigation. So to that extent, that is new. On the other hand, it is more of the same. There was a lot that came out in the McKay Commission report1 in 1975 while Meyer was still writing his report. I put a lot in my book2. In the inmates' federal suit3 for civil damages, Judge Michael Telesca summarized more than 500 separate cases of law officers’ brutalizing inmates in his decision. That’s by far the largest source there is of public information about the assault crimes, and I am surprised that more attention has not been paid to it. So this is a new edition to an old story as it were.
Why should this matter to the general public more than 40 years later?
It is the difference between the general and the specific. The world generally learned on September 14, 1971 from [Monroe County medical examiner] Dr. Jack Edlund that the hostages had all been shot, the ones that were killed. There was one still alive at that point. All the dead hostages had been shot to death by the police, and that’s horrible. But when you read the specifics of just how they died, and also the injuries suffered by guys that didn’t die, like there was a correction officer who was sitting in the hostage circle in D Yard and a shotgun pellet traversed both lungs, narrowly missing his heart. He nearly bled to death on the spot. I think the enormity of Attica can only be understood by specifics such as that. You look at Sgt. Cunningham [a hostage], who said beforehand on national television that if Rockefeller didn’t come to the prison he would be dead. And then, one shotgun pellet penetrates his face and he is dead. That detail is a little more telling.
Is much of what is being withheld because of grand jury secrecy rules material that you helped create?
You know I’ve assumed that. I created the bulk of the information about the retaking. The first grand jury, which I had nothing to do with, focused on crimes by inmates. And the second grand jury, which I had great respect for and had the pleasure of working with during the spring and summer of ’74, was focused almost exclusively on the shootings by the police and a few correction officers during the retaking of the prison, up until the August switch, as I call it. That switch brought a sudden screeching halt to the investigation of the shooting cases; and it switched the jury’s focus over to the state police cover-up, which was a serious but unready case that was handily available to serve as a way to stop investigating stuff that would have embarrassed Rockefeller during his confirmation hearing. He had claimed that the troopers did “superb job.” I have supposed, and I suspect my superiors feared, that if several dozen troopers were indicted for felonies, it would be harder for the Senate to confirm him as vice president.
Describe that moment if you would.
I’d been going great guns, in my perception, in presenting evidence to the grand jury. And I knew I had a great deal more evidence to present to them about the retaking, which included the shooting of 128 men, most of whom had done nothing to justify being shot. I wasn’t getting too much information from any one witness, but altogether it was adding up to quite a bit of evidence that supported a host of reckless endangerment cases against the police for firing their weapons at people who did not deserve to be fired at. And so things were going fine. Anthony Simonetti4 was all for it, as he’d told me. Then he mysteriously wouldn’t let me present three indictments that I’d prepared for the grand jury before we took a three-week recess at the end of July. He didn’t have any reason that I could comprehend. We closed down and I went on vacation with my kids.
Then I got a call to come back early and suddenly things had changed. This was within days after Nixon had resigned, Ford had become president and had nominated Rockefeller to be vice president, and slam, the lid came down on the shooter cases and I was told to start in on the hindering prosecution case, which is New Yorkese for obstruction of justice.
Meyer criticizes former deputy attorney general Robert Fischer for starting with crimes committed during the riot, instead of focusing on deaths and injuries. What was the reason for that?
If you are an historian writing a dissertation or thesis or a history book, that chronological approach might make sense. But when you have 39 homicides at the end of the rebellion, that sequence makes no sense whatsoever. So do you prefer I not use my normal language in this interview?
No, say what you feel.
Yeah, starting almost exclusively with the inmates’ crimes early in the riot was a very clever ploy to avoid prosecuting the state police. I mean when you have 39 gunshot homicides, you go for the fucking case if you’ve got it. And they had it and they pissed it away.
In what way?
Number one, they should’ve gotten a larger staff right off the bat. Meyer does a superb job of blaming the subordinates for the decisions of the superiors not to get enough people to do the job. According to Meyer, the buck stops with the little guys, not the big guys. Meyer is quite critical of Fischer and Simonetti in certain ways, but he never goes to where the buck belongs, which was with Rockefeller and [state attorney general Louis] Lefkowitz. Lefkowitz was the chief prosecutor of the state of New York.
At the time of Meyer’s report, Rockefeller was already vice president. Do you think that affected Meyer’s pursuit of the investigation?
No. Meyer announced right at the beginning of the investigation, much to my amazement, that his life’s ambition was to sit as a judge on New York’s highest court, the Court of Appeals. And if you want to get there, you have a choice between your integrity, which he said meant everything to him, and not rocking the boat too hard in New York state politics by coming out with a report that would say what actually needed saying about the culpability of Rockefeller and Lefkowitz and the politically powerful state police.
As a Democrat, why should Carey have cared about Rockefeller’s reputation at that point?
Well what you’re saying is what I was telling myself when I sent my report on the cover-up to Governor Carey in January ‘75. I can’t say for sure why Carey didn’t grab the ball and run with it in the right direction, but I believe he just didn’t want to rock the boat either at that point. He was in a very difficult position. He was new to the job. I am sure he would have much preferred not to have dealt with the cover-up charges, and he didn’t deal with it until Tom Wicker5 took my cover-up charges seriously. I went to Wicker in March of ‘75 and told him about the cover-up, and he put [investigative reporter M.A.] Myron Farber on the case. And it was April 8, 1975 that the story started in the Times, and it was every day for two weeks, often on the front page. And that is basically, as far as I can see, what forced Carey and Lefkowitz to appoint Meyer.
After the Meyer report, you wrote an op-ed in the Times in which you said that “Attica’s prisoners were sentenced to a prison, not a game preserve. It is never open season on humans.” Later you titled your book, “The Turkey Shoot.” Why?
I called it The Turkey Shoot because during his instructions, before the retaking, Major John Monahan, who was in command of the New York State police at Attica, called his top officers in and told them he did not want this to be a turkey shoot; that he did not want them to be shooting fish in a barrel. And the police went out and disobeyed him. They rioted with their guns. They treated it like a war, like mopping up on Iwo Jima or something like that. There was no need for it. It was wrong and it was unrestrained. At least half the officers did restrain themselves, but a lot of them didn’t and it was, as I say, a riot.
I think a lot of these men who fired, if they’d been in a similar situation by themselves, they would have been more restrained. But there was a fever that caught them. Whatever it was, they fired just wantonly and without cause. I mean the law says if you are a policeman, or anyone else, you cannot shoot at somebody unless you perceive that your own life, or someone else’s life, is in danger of being taken, or that a person is going to suffer grievous bodily harm. And that just wasn’t the case. The first shots that saved the hostages from the [inmate] executioners, that had to be done. After that, there was little or no justification.
How many rounds were fired in the retaking?
That raises a very interesting question. The McKay Commission cites 2,200 lethal missiles, at least, having been fired. Now that has deceived a lot of people because that includes all the shotgun pellets, and it is very hard to count shotgun pellets especially when there was no ammunition accountability. Those shotguns were firing either 9 pellets or 12 pellets or a single rifle slug every time they fired. So it was at least 450 rounds that were fired, but that many rounds resulted in over 2,000 lethal missiles being fired because of multiple bullets coming out of the shotguns.
Meyer stated that no one could have predicted the level of bloodshed.
Bullshit. That’s just plain bullshit. The night before the retaking, Tom Wicker, Herman Badillo, and others were on the phone with Rockefeller, telling him there will be a bloodbath if you order this assault by these angry troopers. That’s not consistent with the “hardly foreseeable” that Meyer so blithely puts out there. It was totally foreseeable. Anybody who was there, and Rockefeller’s executives were there, [Secretary to the Governor Robert R.] Bobby Douglas and [Counsel to the Governor Michael] Whiteman and [assistant counsel Howard] Shapiro were there. They knew, or should’ve known, what Wicker and Badillo were telling Rockefeller, that this was going to be a bloodbath.
What are the charges that you think would have been filed if the prosecution had been allowed to go forward unfettered? Would there have been murder charges?
Yes. Two state police emptied their pistols into [inmate] Kenneth Malloy who was lying up on the catwalk at Times Square. A lot of people who were there remember seeing that because it was quite striking: Malloy’s eyes were shot out. Bullets did not actually penetrate his eyes, it was bone splinters that punctured his eyeballs, but that was a very striking scene. If you’ve seen the picture you won’t forget it. So there were two trooper murder cases right there, and there was a third trooper who came down C catwalk and saw inmate James Robinson lying on the pavement, bleeding to death from a bullet in his lungs. This trooper just fired his shotgun through Robinson’s neck, executing him instantly. And even though the guy was dying, that’s still murder. It was just as much murder as though someone walked into a hospital intensive care unit and killed a patient.
Another case where I think there was evidence for a murder indictment was the execution of [inmate] Sam Melville, the so-called Mad Bomber. A BCI6 detective admitted firing a round through his chest, but claimed Melville was about to throw a Molotov cocktail. This was well into the retaking. The detective’s defense was basically that Sam Melville was trying to commit suicide by cop, whereas there was significant eyewitness evidence that Melville actually had his hands up and was trying to surrender.
But the big mass of cases in the turkey shoot was reckless endangerment in the first degree, which is a felony that carries a 7 year possible penalty. It occurs where someone shoots at somebody and you can’t prove that he hit the person, but there was no justification for firing the shot, but rather the shooter had a reckless and wanton disregard for human life. A typical case was a trooper who admitted that he fired his weapon at a man who he claimed was running at him with a knife, and we could prove by photographs and other evidence that at that time and place no one was running at anyone, so there was no justification for the shot.
And I think there were a great number of those cases. I keep using the figure six dozen and that’s conservative. And one of the things I have been curious about for almost 40 years is how Meyer could possibly have gotten rid of all those cases. With Lefkowitz’s approval and Simonetti supervising me, I was putting all these reckless endangerment cases into the grand jury. And suddenly they disappeared from Meyer’s consideration. He put himself in the enviable position of saying there were only a few possible cases if there was a cover-up. It’s much easier to dismiss a few possible cases than it is 70 or so cases. The 46 pages of his report that were just released do not address this question at all.