http://www.projectposner.org/case/1988/854F2d162/
"The United States Penitentiary in Marion, Illinois, is the successor to Alcatraz as the prison designed to hold the most violent and dangerous prisoners in the federal system. The only "Level 6" prison in that system (federal prisons carry a security rating ranging from 1 to 6), it may be the most severe prison in the country, and it houses not only the worst federal prisoners but, on a contract basis, state prisoners too violent for state prisons to handle. Its 300-odd inmates are among the most dangerous people in this nation of 240 million.
To live under such conditions is sordid and horrible, and though they would have raised few eyebrows a hundred years ago, the concept of cruel and unusual punishments is an evolving one; the minimum standard of decency in prisons is a function of the conditions of life on the outside, and therefore as society becomes wealthier, more comfortable, more sensitive, more civilized, the constitutional minimum of decency in incarceration rises. There is no question that conditions in Marion deserve careful scrutiny, but they must be evaluated against the background of an extraordinary history of inmate violence and with proper regard for the limited competence of federal judges to micromanage prisons.
The defendants placed in the record a remarkable narrative of the violence that led up to the lockdown. We note a few highlights (some corroborated by decisions of this court). Two inmates, while exercising in the corridor outside their cells, garrotted a third inmate, who was asleep in his cell with his head against the bars. See United States v. Silverstein, 732 F.2d 1338 (7th Cir. 1984). An inmate stabbed another inmate with a knife while they were exercising and was in turn stabbed by two inmates with knives on his way back to his cell. An inmate fired a zip gun (a homemade pistol) at another inmate and at a guard, wounding both. Inmates have attacked other inmates and guards with a homemade bomb, with a light bulb, with a padlock, with a sharpened pencil wielded as a knife, with a sharpened toothbrush, with feces, with a chair, with a mop wringer, with a home-made mallet, and with a bucket of boiling water, as well as with the usual zip guns and shanks. (Shanks are homemade knives, often carved out of the legs of the steel beds in the cells. The steel beds have now been replaced by concrete blocks in an effort to prevent the manufacture of shanks.) A number of inmates were killed in these assaults, and in addition there were frequent riots and strikes by inmates, takings of guards as hostages, takeovers of cell blocks, and ingenious attempts to escape—once to the accompaniment of rifle fire directed at the prison from the outside. One inmate managed to detonate a bomb in his cell.
In the climactic week that preceded the lockdown, two guards were murdered in similar incidents. In each a prisoner being escorted from his cell broke away from the three guards escorting him, thrust his handcuffed wrists (this was before the innovation of placing a box over the handcuffs) into an accomplice's cell, emerged sans handcuffs but holding a shank in his hand, and proceeded to attack the guards. In one of the incidents, another guard was crippled and the third seriously injured. See United States v. Fountain, 768 F.2d 790, modified on other grounds. Throughout this period, searches uncovered an astonishing quantity of knives, zip guns, and other contraband, including many homemade keys that fit handcuffs and others that fit doors in the prison. Searches of body cavities, including the nose, the mouth, and the rectum, continue to turn up an impressive quantity and variety of contraband, including knives and hacksaw blades."
http://www.projectposner.org/case/1985/768F2d790/
We have consolidated the appeals in two closely related cases of murder of prison guards in the Control Unit of the federal penitentiary at Marion, Illinois — the maximum-security cell block in the nation's maximum-security federal prison — by past masters of prison murder, Clayton Fountain and Thomas Silverstein.
Shortly before these crimes, Fountain and Silverstein, both of whom were already serving life sentences for murder, had together murdered an inmate in the Control Unit of Marion, and had again been sentenced to life imprisonment. See United States v. Silverstein, 732 F.2d 1338. After that, Silverstein killed another inmate, pleaded guilty to that murder, and received his third life sentence. At this point Fountain and Silverstein had each killed three people. (For one of these killings, however, Fountain had been convicted only of voluntary manslaughter. And Silverstein's first murder conviction was reversed for trial error, and a new trial ordered, after the trial in this case.) The prison authorities — belatedly, and as it turned out ineffectually — decided to take additional security measures. Three guards would escort Fountain and Silverstein (separately), handcuffed, every time they left their cells to go to or from the recreation room, the law library, or the shower. (Prisoners in Marion's Control Unit are confined, one to a cell, for all but an hour or an hour and a half a day, and are fed in their cells.) But the guards would not be armed; nowadays guards do not carry weapons in the presence of prisoners, who might seize the weapons.
The two murders involved in these appeals took place on the same October day in 1983. In the morning, Silverstein, while being escorted from the shower to his cell, stopped next to Randy Gometz's cell; and while two of the escorting officers were for some reason at a distance from him, reached his handcuffed hands into the cell. The third officer, who was closer to him, heard the click of the handcuffs being released and saw Gometz raise his shirt to reveal a home-made knife ("shank") — which had been fashioned from the iron leg of a bed — protruding from his waistband. Silverstein drew the knife and attacked one of the guards, Clutts, stabbing him 29 times and killing him. While pacing the corridor after the killing, Silverstein explained that "this is no cop thing. This is a personal thing between me and Clutts. The man disrespected me and I had to get him for it." Having gotten this off his chest he returned to his cell.
Fountain was less discriminating. While being escorted that evening back to his cell from the recreation room, he stopped alongside the cell of another inmate (who, however, apparently was not prosecuted for his part in the events that followed) and reached his handcuffed hands into the cell, and when he brought them out he was out of the handcuffs and holding a shank. He attacked all three guards, killing one (Hoffman) with multiple stab wounds (some inflicted after the guard had already fallen), injuring another gravely (Ditterline, who survived but is permanently disabled), and inflicting lesser though still serious injuries on the third (Powles). After the wounded guards had been dragged to safety by other guards, Fountain threw up his arms in the boxer's gesture of victory, and laughing walked back to his cell.
The prudence of requiring shackles in this case was shown by Fountain's and Silverstein's extraordinary history of violence in the face of maximum security precautions, the fact that most of the witnesses were murderers, and above all the fact that, as we shall explain when we discuss the sentencing issues, the defendants are wholly beyond the deterrent reach of the law. If they were not shackled, there would be a grave danger of their attacking people in the courtroom or trying to escape. Silverstein's long disciplinary record includes one escape, while Gometz 's includes three episodes of planning and attempting escape.
Violent men are not necessarily liars, and indeed one class of violent men consists of those with an exaggerated sense of honor. Now Silverstein had testified on direct examination that he had killed Clutts because Clutts was planning to let Cubans out of their cells to kill him, and on cross-examination had added that he hadn't been "out to hurt anybody or anything." If this statement could be construed as putting the peaceableness of his character in issue, then he laid himself open to cross-examination designed to show the violence of his character.
Fountain at his trial testified that he too had been acting in self-defense when he attacked his guards; and while he admitted that he had had a knife, he testified that it was for self-defense. This testimony laid him open to the cross-examination of which he complains: an inquiry about his prior activities with a knife, which included killing an inmate whom he stabbed 57 times, crying "die, bi-ch, die."
Fountain complains about the court's refusal to subpoena as witnesses inmates Bruscino and Gometz. He says they would have contradicted a guard who testified that Fountain, shortly after the murder, had told Bruscino, who was in the second cell down the corridor from Fountain (Gometz was in the cell between them), that "it would have been fun if he [Fountain] could have killed Hoffman, Jr." — the son of the guard Fountain had killed, and also a guard at Marion.
Fountain also objects to testimony by a guard that two months after the murder Fountain had said to him, "what are you looking at, b-tch?," and then asked him whether, when it was his turn to die, he "would scream like the other two b-tches screamed." Fountain argues that the alleged conversation was irrelevant and that it wasn't even shown that he knew that another guard had been killed the day he murdered Hoffman. At all events, any error was a harmless one; the circumstances of Fountain 's mad dog attack on three guards negated any inference of self-defense."
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Originally Posted by David Jamieson
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