Editor’s Note: This article contains graphic text and images, which some readers may find disturbing.
Standing at his locker inside the basement of the University at Buffalo’s School of Law building on Eagle Street, a young Joe Heath overheard two students gossiping, rehashing what mainstream media outlets had already reported from the ground at the Attica Correctional Facility: inmates castrating genitalia and cutting the throats of corrections officers.
Something in Heath knew the information wasn’t correct. His instincts were right. No one was castrated or had their throat cut during the notorious, four-day prison rebellion.
America’s single-bloodiest prison uprising began at Attica, 50 years ago today. Heath had just started his third day of law school.
“Telesca was radicalized by what he heard from the Brothers.”Joe Heath
Born in Watertown, New York, Heath initially enlisted in the U.S. Navy until realizing the idea of war wasn’t working out for him. He was discharged as a conscientious objector. Soon after, he enrolled in law school at the University at Buffalo — 35 miles away from where the uprising eventually ensued inside the maximum-security prison.
Overcrowding, limited meals, lack of medical care and rationed toiletries prompted a political revolution when inmates seized control of the prison on Sept. 9, 1971.
With corrections officers taken hostage by the same people they’re supposed to watch, a tense standoff lasted until Governor Nelson A. Rockefeller ordered New York State troopers to storm the prison on Sept. 13. Troopers fired thousands of ammunition rounds indiscriminately into a haze of tear gas for six minutes straight, killing 39 men (29 inmates and 10 guards) and wounding 89 others. In total, 43 people died in the riot.
Within days, hearings started inside the U.S. District Court for the Western District of New York, where lawyers fought to gain access to Attica. Heath had the fortune of visiting the court, which was close to his campus in downtown Buffalo.
“It was just an invaluable educational experience for me,” Heath told the News Station.
He was not the typical law student in comparison to his clean-shaven, tie-wearing conservative peers at the start of the 1970s amid the escalating ‘War on Drugs.’
“I already had long hair, a beard and a history of radicalism,” he chuckled.
Even though the truth about Attica didn’t come to public light until decades after the bloodshed subsided, it didn’t stop activists from speaking out immediately. A rally was held in downtown Buffalo, organized by William Kunstler, a legendary civil rights activist and lawyer who defended the Chicago Seven.
In the middle of Kunstler’s speech, the Buffalo police came in swinging their clubs “without any warning,” Heath recalled. He witnessed officers rough up and arrest an elderly woman. Seeing this unbridled brutality prompted Heath to continue pursuing his legal studies.
“I continued in law school because at that point, it became clearer to me that there was a good use for lawyers,” Heath admitted. “I probably wouldn’t have stayed in law school otherwise.”
Michael Deutsch and Dennis Cunningham of the People’s Law Office were looking for students to offer assistance with their legal research related to the prison riot; Heath applied.
Deutsch had unfinished business to deal with in Illinois before stepping foot in Buffalo, though. The Carbondale shootout — his first case — charged his Black Panther Party clients with 47 counts of attempted murder in an alleged shootout with local police. All of his clients were acquitted.
After the long trial in Illinois, Deutsch embarked on a retreat where he learned more about Attica, taking him to Buffalo, where he eventually met Heath.
“I do remember Joe coming around and being really committed and interested in wanting to work on Attica,” Deutsch told The News Station.
Heath got the job and began helping with the legal research. During his first year of law school, the Attica Defense Committee, a local grassroots group, was created by students and residents in Buffalo, but most of his classmates left the group by the end of the fall semester. They quit, Heath said, and sought to “go study Marxist-Leninism” instead. A half dozen or more law students, including Heath, were left working on the Attica litigation.
By the beginning of Heath’s second semester, the legal team asked him to join Deutsch and Cunningham on their trips to Attica. Routine visits were necessary to speak with their clients: the Attica Brothers — all 1,281 inmates who, in the aftermath of the riot, were beaten in D Yard and subject to “extra beatings” and simply “went through hell” while being held in solitary confinement, according to Heath.
“At first, I went in with lawyers and I would sit in the room with them, but before very long, I was meeting with [Attica] Brothers individually, because it was pretty important work,” Heath remembered. “I got to go in there on a repeated basis and get to know them pretty well.”
Their next course of action became clear to Deutsch: follow the leadership of the Attica Brothers for both legal and publicity strategies. Deutsch, who was not much older than Heath at the time, found the older Attica Brothers’ minds and souls filled with wisdom.
“I learned so much about the struggles that they were involved in and about Attica, and [they were] always like the North Star to my work,” Deutsch elaborated.
“We had relationships with them over time,” Cunningham added, “They were real people, not some stick-figure prisoners. This went on and on, and kept the sense of commitment to the cases.”
Keeping the Attica Brothers company was all Heath, Deutsch and Cunningham could do — until the criminal indictments finally arrived 15 months after the rebellion, from a grand jury assembled out of Warsaw, New York.
All told, 62 current and former Attica Brothers were indicted on 42 criminal charges. Fending off a series of criminal trials isn’t an easy task — even for a seasoned litigator — let alone a law student.
“We were scrambling to defend those indictments. There’s no other way to describe it,” Heath said. “The state clearly had designed a process where they could isolate individual Brothers and pick them off one by one. That was their plan, and we were successful in fighting back against that, but it took a lot of work, and it took too long.”
Heath had already written two discovery motions himself by the end of his second year of law school. He felt the state prosecutors thought “they could outwork us.” But progressive law offices began parachuting into Buffalo from Pittsburgh, Chicago, Philadelphia, Cleveland, Washington and Boston, offering legal assistance. They were uncoordinated and needed guidance.
That’s when Heath ventured to a National Lawyers Guild convention in Texas, searching for a legal coordinator. He met Donald Jelinek, who proved helpful, creating the Attica summer program, a student retreat started in 1973. It attracted droves of law students from across the country — just like Heath, who was eventually promoted to help direct the program.
Another year passed. Heath finished law school and started preparing for the New York bar exam. That summer, of 1974, the mettle of the students was tested while being forced to defend dozens of criminal indictments. The students were assigned to investigate the state under Cunningham’s guidance.
“Dennis saw that we were going to need this proof if we were going to win this political battle, which was showing what really happened at Attica rather than letting Rockefeller twist history,” Heath said.
Cunningham sent a couple dozen law students to track down New York National Guardsmen, corrections officers and medical witnesses — anybody who was physically present at Attica, particularly on Sept. 13, the day of the mass killing.
That same summer, Elizabeth “Liz” Fink, a rising civil rights and criminal defense attorney, joined their cause. She was the “soul of the civil rights case,” in Heath’s eyes. Fink rounded out the team of Heath, Deutsch and Cunningham — a radical collective of comrades that became the “core of the defense committee,” Heath said.
Their first defense trial appeared on the docket with jury selections beginning on Sept. 26, 1974. Willie E. Smith, 27, a Black Buffalo native, was charged with two counts of sodomy and two counts of sexual abuse against a fellow inmate during the rebellion.
“You can see that somebody was very clever in the state to have that be their first trial,” Heath said.
Two Syracuse University law graduate students, Alan Rosenthal and Susan Horne, relocated to Buffalo, researching Smith’s case. Over two weeks, they found the sole testimony of any rape victim was insufficient to get a conviction; it required corroboration, according to an outdated law which was revised later.
It was a stunning development. The state’s prosecutor “certainly didn’t make any attempt to meet it,” Heath said of the corroboration requirement. Smith’s defense attorney, James Kemp, filed a motion to dismiss. Justice Frank R. Bayger of Buffalo’s State Supreme Court granted it before the case ever headed to a jury.
The dismissal was crucial, according to Heath. Had a conviction been handed down in their first defense, it would’ve resulted in a “pretty messy” scenario, one that wouldn’t have helped their grassroots organizing, either.
Another Attica Brother, Vernon La Franque, was the defendant in the second trial. He was charged with the possession of a weapon and prison contraband, presumably a key. La Franque had his own lawyer, Frederick Hayes, who convinced the jury to acquit him on Dec. 19, 1974, in less than 30 minutes, since, in Heath’s opinion, it was “such a ridiculous charge.”
“The state thought they would just start to steamroll us one after another, and we won the first two rounds,” he added.
But the state’s tactics swiftly shifted after the defeats, targeting two young Native men: Charles Joseph Pernasilice, 22, of the Catawba Indian Nation, and John Boncore, 23, of the Mohawk Nation, who’s better known as John B. Hill or Dacajeweiah (“Splitting the Sky”). They were facing murder charges for the death of corrections officer William E. Quinn.
A private prosecutor hired by the state, Louis Aidala, is remembered for having “the most ridiculous mustache,” but the mustache didn’t overshadow his impressive legal skills. Kunstler represented Hill while Ramsey Clark, a former United States Attorney General, stood by Pernasilice’s side.
“You could not find two lawyers, and particularly two radical lawyers, with [more] opposite personalities than Bill [Kunstler] and Ramsey [Clark],” Heath said.
Kunstler had been considered a “flamboyant, almost Shakespearean actor” inside the courtroom while Clark had always been “quiet, shy and just very different.” One day, Clark couldn’t offer an oral argument, causing Heath to step up in his absence — even though he hadn’t officially passed the bar yet.
“This is my first court appearance,” Heath recalled. “I’m not admitted yet. I’m waiting to hear back from the law boards.”
Heath appeared calm and spoke for two hours straight. It didn’t change the case’s outcome, though. Hill and Pernasilice were convicted of their respective felony charges. Pernasilice faced up to two years for attempted assault on the deceased guard while Hill had been sentenced to 20 years to life with the possibility of parole after nine years.
After their first legal defeat, Heath returned to the Erie County Courthouse. It was April 1975 and he walked with his legal entourage through a cordon of Buffalo police officers while thousands of university students surrounded the courthouse. A sergeant approached Kunstler; they agreed Heath would stand outside as a legal observer and a liaison between the police and demonstrators while he went indoors and offered a summation of the convictions.
“Almost within minutes of him going inside, the police started moving on the crowd in a way they promised Bill [Kunstler] they wouldn’t,” Heath remembered.
As the chaos ensued, an officer approached Heath, asking why he was there. He replied he was a lawyer.
“You look like a tramp,” Heath recalls the officer replying. “You’re under arrest.”
The young lawyer was locked up for about an hour, charged with “refusing the reasonable request of a police officer.” His case was dismissed the next day inside the Buffalo City Court.
“It was indelible in my political development and my understanding of prisons and racism. Attica basically launched me on a political journey that I remained on for 50 years and still are involved in.”Michael Deutsch
All of the Attica criminal trials ended by February 1976, less than five years after the rebellion, when then-New York Gov. Hugh Carey pardoned seven former inmates and commuted the sentence of an eighth.
That eighth inmate was Johnny Hill, who became eligible for parole, but his fight for freedom was far from over. Heath kept traveling to see Hill at Green Haven Correctional Facility in Stormville, New York, where he and an entire political movement “were determined to get him out.”
Hill was finally released on parole four years into his sentence. It was “an amazing political victory,” said Heath.
All of the pending indictments were subsequently dismissed. Carey believed granting clemency to inmates would finally close the book on the rural upstate New York prison riot — but, in many ways, the struggle was just getting started.
* * *
A $2.8 billion class-action lawsuit related to the Attica prison rebellion was filed in 1974, but the suit wasn’t resolved for another 26 years.
Lawyers from New York City filed the lawsuit and didn’t pursue it for whatever reason, forcing the Attica Brothers Legal Defense to prevent the dismissal of the case. With the clock ticking — just one day before the class-action suit would be thrown out — Fink championed the massive case, after the Attica Brothers kept pleading with her, Frank “Big Black” Smith in particular.
“We all became very influenced by the leadership of the Attica rebellion, particularly ‘Big Black,’” Deutsch said. “These were incredible people, who had been through a lot, and knew a lot and were able to express the horrors of prison.”
When Heath was asked by Fink, Deutsch and Cunningham to work on the class-action suit, he answered: “There’s no way I’m capable of doing that.”
Heath’s private practice in Syracuse struggled, as he barely kept afloat financially.
“[The criminal] trial took a toll. There’s no doubt about that,” Heath said. “And yet, we had to do it. There was no choice.”
Federal Judge John Elfvin of the U.S. District Court for the Western District of New York was assigned to adjudicate the class action. He hated prisoners, Heath claims to this day, and believed “it was his personal mission to keep us from getting any justice.”
Elfvin initially didn’t allow a motion for discovery to proceed. Eventually, the prosecution got their hands on the state’s records, which included a startling surprise.
“We got access to a room full of documents in the World Trade Center that the state had just stuck everything in,” Heath said. “Liz [Fink] spent hundreds of hours in there, really going through every record, and that proved to be invaluable.”
Over the next decade, Fink prepared the case before the trial began in September 1991.
This round of litigation forced the entire team back to Buffalo. Two decades after the uprising, Heath, the University at Buffalo School of Law grad, returned to the city for the highly anticipated civil trial. It was far from a homecoming celebration. A daunting challenge awaited the legal team.
Judge Elfvin, according to Heath, sought to “show these over-serious leftists that they’re not going to get any justice in my court,” especially when it came to Smith’s case.
As the appointed head of security during the Attica rebellion, Smith formed a security detail made up of Black Muslims tasked with protecting the corrections-officer hostages. Smith ensured their safety, and some officers backed him during the New York State Commision on Attica or the “McKay Commission.” In return for his acts of heroism, he was beaten mercilessly — even tortured. Both of his wrists were broken, and he was forced to walk on shards of glass before a football was placed under his chin while lying flat on his back, naked in Attica’s D Yard, with guards threatening to castrate and kill him if he were to fumble the ball.
During the pretrial phase, Heath located New York National Guardsman Ronald Gill who mistakenly opened the door to a room where Smith was being brutalized by corrections officers. With photographs from the incident entered into the court’s record system, the jury requested to review the evidence.
“And the judge refused to let us hand it to the jury,” Heath said. “This is a critical piece of evidence and things specifically requested fit in evidence, and he wouldn’t let us show it to the jury.”
Toward the end of the trial, Elfvin left the courtroom for a two-week vacation in Barbados, but he refused to give up his gavel. The judge chose to handle jury questions from a sunny beach in Barbados. With spotty technology, his voice echoed inside the courthouse through a little office desk phone and tin speaker.
The vacationing judge and, after a multi-month trial, weary jury could not hear each other. Elfvin was quickly ordered back to Buffalo by Rochester-based Supervising Judge Michael Telesca.
Ultimately, the jury found the state of New York liable for the actions — or inactions — of their four defendants. Paul Fail, a deputy warden at Attica, was found guilty of violating prisoner’s civil rights during the uprising, prompting a monetary settlement to cover incurred damages.
Settlement talks began shortly after the 1992 verdict and continued for the next five or so years, with prosecutors pushing for no less than $57 million for the entire class-action lawsuit.
Smith received only $125,000 for the beatings he endured inside the gauntlet and D Yard.
Almost half of all those on D Yard received bruises, both physically and psychologically — running through a fury of wooden batons, crawling through bloody and muddy puddles after being forced to strip naked.
Eventually, David Brosig’s case received a $75,000 settlement. That doesn’t seem like much until it’s multiplied by 300. When all those other individuals who endured the same level of treatment were included, the total soared to $22.5 million. Just for that subclass alone.
However, two years later, the U.S. Second Circuit Court of Appeals threw out the class-action lawsuit, based on a legal technicality, claiming Smith’s case should not have been separated from the others.
It was a crushing blow. Two decades of litigation was nullified in a single stroke.
For Deutsch, the implication of the Court of Appeals’ decision was that the Attica Brothers Legal Defense team would have to try 1,281 individual cases against the state — an infeasible task on all fronts.
“That’s pretty devastating after all of the work and all of the personal sacrifices that the four of us had been through and the Brothers,” Heath said. “We can’t see our way to do that again.”
But it wasn’t all bad news; the case was reassigned as part of the reversal’s decision, which was as “far from ordinary as it could be,” Heath said. “They would never reassign a case. It’s an insult to the judge, and it’s a reflection that he did a very incompetent job up to that point.”
It didn’t seem like it then, but the decision was ultimately a blessing, Heath admitted.
Unlike Elfvin, the new judge, Telesca, seemed more sympathetic to the Attica Brothers’ plight, allowing them to enter his Rochester courtroom and tell their stories without being cross-examined. He later summarized those testimonies in a powerful report, which led to his decision on Jan. 4, 2000: a $12 million settlement.
Lawyers divided individuals into multiple subclasses, those who were shot versus those who went through the gauntlet, for example. There were at least five subclasses, but “Big Black” was “clearly in a class by himself,” Heath believed. He was awarded $4 million in 1997.
“Telesca was radicalized by what he heard from the Brothers,” Heath said. “He got us a $12 million settlement, and that’s the best we could do.”
An agreement was eventually reached with the state. The court awarded $8 million in monetary damages, half of which went to Smith, while another $4 million was earmarked to cover the plaintiffs’ legal fees.
It was one of the largest monetary settlements from any prison litigation in history. Even though it’s not “chump change,” Heath recognized it was still “a significant victory, but it’s not enough.”
In the end, Heath, Deutsch, Fink and Cunningham each made lifelong commitments to the Attica Brothers and their collective struggle against abuses of power in prisons.
Before Attica, Cunningham had already gained credibility as a highly respected lawyer, after suing the Chicago Police Department for the murder of Fred Hampton, the young and mesmorizing chairman of the Black Panther Party’s Illinois chapter. And the Attica Brothers class-action suit, Cunningham recalled, had an “enormous, profound effect on our lives” for more than two decades — one that followed him through his private legal practice and the rest of his career.
“We were caught up in that, and committed to it and kept getting pulled back into it,” he added. “It was already a permanent feature in your life.”
As for Deutsch, who went on to work plenty of high-profile political cases — like political prisoners from Palestine and even the Puerto Rican independence movement — over the next five decades on behalf of the People’s Law Office, none ever came close to rivaling Attica. It was undeniably one of the top cases of his career.
“It was indelible in my political development and my understanding of prisons and racism,” Deutsch said. “Attica basically launched me on a political journey that I remained on for 50 years and still are involved in.”
Heath has served as general counsel for the Onondaga Nation since 1983 and a legal advisor to the Haudenosaunee Confederacy’s traditional governments — even embarking on a journey to Standing Rock as a legal observer in 2016. He just became an adjunct professor at Cornell University and is set to assist Michael Sliger, adjunct professor of law, with his Federal Indian Law Practicum at the Cornell Law School.
Their collective drives and motivations were far more than accruing money or achieving critical acclaim; it’s been about correcting the record — albeit almost three decades after blood was spilled on Attica’s soil.
“I’ve been very determined to not let that be the way history records this event,” Heath said.