Prisoners’ Abuse Suit Nearing Its Day in Court

In 1980, former Attica inmate Frank Smith stood before a judge and pleaded: “Give us our day in court. We ain’t never had that.”

More than 11 years later, Smith and more than 1,200 inmates who were in the prison’s yard when state police and corrections officers opened fire still have not had their day in court.

At long last, it may be near.

U.S. District Judge John T. Elfvin has set a Sept. 30 start for the long-delayed trial of the inmates’ claims against four former state officials who played key roles at the September, 1971, prison riot.

Former Attica Warden Vincent Mancusi and former Deputy Warden Karl Pfeil are the only ones still living--and their lawyers say it may be impossible for them to get a fair trial so long after the fact.

“What mistake did my guy make? He survived,” said Richard Moot, Mancusi’s lawyer. “He can’t call on any of these people to testify on his behalf. His defense is that he wasn’t in charge. The people who were in charge are dead.”

The suit blames Mancusi and Pfeil for the abuse that inmates suffered at the hands of correctional officers after authorities regained control.

Former Corrections Commissioner Russell Oswald, who died in March, and former state police Maj. John Monahan, who died in 1987, are represented by their estates. They both are accused of allowing abuses and of poor planning and control of the assault that took back the prison.

The inmates are seeking up to $4 billion in compensatory and punitive damages--far more than any of the defendants or their estates could pay. (Gov. Nelson A. Rockefeller, one of the original defendants, left an estate valued at $66 million when he died in 1979.)

Elizabeth Fink, a lawyer for the inmates, said the state of New York would be required to pay any damage award.

Damages would be paid to the 1,281 inmates who were in the prison’s yard when the police opened fire. Fink said she does not know how many of them are alive.

“We’re in touch with more than 200,” she said. “Certainly, if there’s more publicity, hopefully, more will come.”

The case is the only remaining unresolved lawsuit from the Attica revolt. Two inmates and the heirs of five others won a total of $1.3 million, plus interest, in 1989 from a state court that ruled excessive force was used to retake the prison.

Most of the dead hostages’ cases were settled through workers’ compensation. One hostage’s widow refused to accept workers’ compensation for her husband’s death and won a judgment against the state.

The six-foot-thick court file tells a tale of bungling by the inmates’ legal team during the first years after the suit was filed in 1974.

Elfvin dismissed several of the original defendants from the case without ruling on whether they did anything wrong, because the inmates’ lawyers had not served papers on them properly. The judge, for similar reasons, refused to allow the inmates to sue the troopers who fired the shots.

Two years ago, Elfvin ruled that the governor could not be sued because he was not involved in planning the details of the assault. Hence, Rockefeller’s estate is not liable.

The case nearly fell apart at the end of the 1970s when the inmates’ original lawyers found it to be too big for them to handle. It was then that Smith pleaded with Elfvin not to throw the case out of court.

The inmates hired new lawyers, including Fink, in 1981, and Elfvin permitted them to continue pressing their suit.

Each side blames the other for the last 10 years of delay. Elfvin, in a ruling in July, said delays caused by the inmates “can only be said to have been equalled, if not surpassed, by the defendants’ skilled delaying tactics.”

The trial is expected to last at least three months. Fink said she plans to show the jury state police films of the assault.

She also wants to “call” some of the dead officials to the stand by playing videotapes of their testimony to a state commission that investigated the Attica events. Defense lawyers have asked Elfvin to forbid that because those witnesses cannot be cross-examined.