Gary Craig, Democrat & Chronicle staff writer
Taking action long sought by survivors of the Attica riot, state Attorney General Eric Schneiderman is pushing for a judge to unseal investigative records about the 1971 inmate insurrection at the Wyoming County prison.
On Friday, attorneys in the office of the attorney general filed a motion with state Supreme Court in Wyoming County that could lead to the opening of records sealed for more than three decades.
WEB EXTRA: 2 On Your Side's Dave McKinley reported on the start of the attorney general's initiative in April (in the video player above)
"Attica was a tragic event in the history of our state," Schneiderman said in a statement. "It is important, both for families directly affected and for future generations, that these historical documents be made available so the public can have a better understanding of what happened and how we can prevent future tragedies."
The records, if released, could shed light on the actions of State Police troopers and others who stormed the Attica Correctional Facility on Sept. 13, 1971, killing 29 inmates and 10 prison employees held hostage by prisoners.
In all, 43 men died at Attica during the uprising, standoff and retaking, making it the nation's deadliest prison riot.
The sealed records, known as Volumes II and III of the Meyer Report, partly detail grand jury testimony given during an investigation into the riot and retaking. The first volume of the report of the commission headed by the late Bernard Meyer, a state Supreme Court justice who later joined the state Court of Appeals, was released in 1975.
The Meyer commission was charged with an investigation into the riot, which broke out on Sept. 9, 1971, when inmates overwhelmed corrections officers and grabbed prison employees as hostages. Gov. Nelson Rockefeller approved the seizure of the prison on Sept. 13.
"I think eventually the truth is going to come out," said Michael Smith, a corrections officer at Attica who was held hostage and shot five times in the retaking. "I look at this as a steppingstone to having all the truth come out some day. I've really got to commend (Schneiderman) and his staff for taking this step and getting the ball rolling."
Part of the Meyer investigation focused on allegations of a cover-up of crimes committed by police who seized control of the prison behind a cloud of helicopter-dropped tear gas and a chaotic fusillade of gunfire. Those allegations came from Assistant Attorney General Malcolm Bell, who had been part of an investigation into fatal shootings and other possible crimes committed during the retaking.
Bell resigned his post, claiming that state officials were blocking prosecution of likely crimes by law enforcement officers. In 1976, Gov. Hugh Carey, trying to put Attica to rest, pardoned inmates accused of crimes and ended possible prosecution of law enforcement personnel.
The Meyer commission determined that, while the state's response to the riot was marred by bad decisions, there was "no intentional cover-up" of crimes by law enforcement.
The release of the records has long been a goal of the Forgotten Victims of Attica, an organization of surviving prison workers and relatives of those slain at Attica. In 2005, the state awarded the group $12 million in compensation, the same amount awarded five years earlier to a group of inmates and their lawyers who had sued New York.
The state also honored other demands by the Forgotten Victims, including counseling for those who wanted it and the right to an annual ceremony at the prison. Two demands - an apology and the opening of sealed records - remain unresolved.
In recent years, representatives of the Forgotten Victims have continued to push for access to the records, pulling prominent state legislators into the ranks of supporters.
Momentum for the release of records picked up steam in the spring after Gov. Andrew Cuomo told the Democrat and Chronicle editorial board that his lawyers would look into the steps needed to open the files. Schneiderman's office has been doing the same thing.
The key obstacle to release of the records - and the reason they were initially sealed - is the prominent presence of grand jury testimony within their pages. Grand jury testimony is typically protected by secrecy.
In the court papers filed in Wyoming County Friday, the Attorney General's Office says the "privacy-related concerns of identified grand jury witnesses and other individuals ... can be fully addressed with narrowly tailored redactions," especially since four decades have past since the uprising.
The release of the report is now justified because "of the enduring legacy of the Attica uprising and its place in the history of this State and the nation" and because all civil litigation connected to the riot long ago concluded, the motion contends.
The filing from Executive Deputy Attorney General Martin Mack maintains that the allegations of a cover-up "are no less disturbing and no less compelling now than when the (Meyer) Report was first issued more than three decades ago."
"Indeed, the passage of time has made clear that, like the shootings at Kent State, the violent police attacks on civil rights demonstrators in the 1960s, the My Lai massacre, and the Watergate scandal, Attica is more than just a profoundly tragic event; it is an historic event of significance to generations of Americans," the papers state.
The release "would only help to correct misinformation and eliminate speculation and allegations of a State-sanctioned cover-up that still surround this tragic episode in American history," the legal papers state.
In sterile legal terms, the Attorney General's Office is simply asking the court for approval to renew applications it made in 1977 and 1980 to unseal and publicly release Volumes II and III. But the history of the previous requests is illustrative of the tensions that then surrounded a release of the reports.
Unions for corrections officers and the State Police challenged release of the documents, requesting heavy redactions if publicly unsealed. The Attorney General's Office was also in a predicament, representing the state in 1980 against 40 separate lawsuits seeking upward of $34 million.
In 1980, a state Supreme Court justice ordered the reports sealed. That decision has never been appealed.
With its submission to the court Friday, the Attorney General's Office included Volumes II and III with proposed redactions.
Under its proposal, the names of witnesses who testified or were mentioned before grand juries would be redacted except for elected officials; those injured or killed at Attica; judges and prosecutors; and law enforcement and medical personnel who "played a secondary or inconsequential role in the criminal matters that were the subject of the Attica investigation and prosecutions."
Jonathan Gradess, executive director of the New York State Defenders Association, has worked with the Forgotten Victims group to try to get records released. He noted that there are other troves of Attica documents held by other agencies that also remain sealed.
"We want them all," Gradess said.
The release of Meyer II and III would be a good step forward, Gradess said.
"It's wrong to suppress the truth of this story, but the beauty of truth is it's never ultimately suppressible," he said.