May 1st, 2011 Comments Off on Chapter Eleven
Two sheriffs escorted Ernesto Rodriguez to Wisconsin’s state prison at Waupun, some sixty miles from Madison. The Waupun Correctional Institution, as it is euphemistically known, was built in 1851 and by the next year housed twenty-four men, two women, and one boy. By 1857 separate facilities were established for boys and in 1858 women were transferred to their own prison in Taycheedah, Wisconsin.
In a visitor’s guide published recently by the Waupun Area Chamber of Commerce the prison is described in rather glowing, if not entirely accurate terms. The visitor’s guide reports that “In early years, along with the striped clothing worn by the inmates, penal practices included the ‘silent system’ (1851 – 1938) whereby inmates were not permitted to talk to each other or to officers, and officials carrying heavy wooden canes with a brass tip as a symbol of authority used to signal inmates by rapping on the concrete. Recreation consisted of individual exercises in a cell yard.
“Today, those practices have been replaced with a modern system that treats inmates as responsible citizens. Conversations among inmates and staff members are relaxed and normal in all but a few restricted security areas.”
Waupun Correctional Institution
If prisoners are indeed treated as “responsible citizens” at Waupun it is a recent development, one that has taken place after 1980 when Rodriguez left “the hell hole”, as it is known by its inmates. Ernesto, who by then had been in prisons in Texas, Nebraska, and Michigan, immediately sensed a difference when he entered the Wisconsin prison.
The difference was noticeable in the guards’ faces, the tone of voice in which orders were issued, and by the enforced silence throughout much of the prison most of the time. No banter between prisoners was tolerated from the first day onward.
The silent system which the visitor’s guide claimed had ended in 1938 was to a very large extent still in operation in 1969. Maybe the guards weren’t walking around anymore with brass tipped canes, but most talking between inmates was forbidden and punishable. The prisoners were not allowed to talk to one another when they were in their cells or at work. In the mess hall they were allowed to talk to the inmate on their left or right, but not the man across the table. They could speak to other men during the brief smoke breaks and recreation periods, but not when they were marching lock-step from one place to another.
Ernesto, by now an experienced prisoner, had become accustomed to a much tougher, more dangerous type of inmate than he found at Waupun. The cons at Jacktown and Marquette were a different breed of cats. During the two of three week quarantine period during which he was tested for illnesses and aptitudes Rodriguez decided the Wisconsin variety of inmate was not unlike those he had known in Nebraska. Three quarters of the eight hundred inmates at Waupun were easily intimidated by a number of brutal guards, and the acquiesced without protest to the institution’s seemingly endless rules. As Ernesto discovered the hard way, by now his specialty, one learned the rules as one went along. There was little or no indoctrination into the do’s and don’ts of the prison and, thanks to the remnants of the silent system, normal information passed along by word of mouth was chopped off at its source.
The daily schedule for the general prison population at Waupun was organized as follows:
|7:15 AM||Return to cell block|
|9:30 AM||10 minute smoke break|
|12:00 PM||Return to cell block|
|12:30 PM||Return to work|
|2:30 PM||10 minute smoke break|
|4:15 PM||Return to cell block|
|10:00 PM||Lights out|
Smoking was permitted in designated places at work sites and in the cells, but never on the grounds or in other buildings. Much like recruits do in boot camp, convicts marched in groups from one place to another, unless they had a special pass. And while they were marching they were expected to stay in line and keep the same relative position within the ranks at all times. Thus, prisoners in the mess hall always talked to the same prisoners on either side of them. Needless to say, under the circumstances prevailing at Waupun, none of the marching columns would have passed muster or been tolerated in a boot camp. Every single prisoner, it seemed, was marching too fast or too slow. But then why should an uneducated Wisconsin farm boy who’s afraid of his own platoon make a good D.I.?
Ernesto’s radar told him he was in a place different in many ways and worse than Jackson or Marquette had been. It was a pettiness and constant niggling over demeaning rules that made the difference.
Michigan’s prisons had been tough, even dangerous, but a man knew what was or wasn’t expected of him. This was not so in Ernesto’s experience at Waupun. Too often the guards improvised or made rules up as they went along.
The pettiness was often infuriating to the quick tempered Mexican. Shortly after he had joined the general prison population one such episode occurred. The cons were marching from one place to another when one of them noticed a bird’s feather on the ground, picked it up, and put it in his pocket. A guard spotted the feather and called the prisoner out of line. That feather, the guard declared, was “contraband” and would not be tolerated at Waupun. For this serious infraction the inmate received a (bad) conduct report. No distinction was made between wing feathers and tall feathers. All feathers were contraband.
At Waupun every inmate was expected to work, and Ernesto soon found himself in the Laundry, far and away the most disagreeable place in the prison. Sheets heavily soiled with human excrement no one had made any effort to remove were trucked over to the prison from the nearby Central State Hospital for laundering. Working in the laundry, to Ernesto, was “the pits”, like spending eight hours each day in someone else’s heavily used outhouse.
If the state expected him to work there, Rodriguez decided he would make it as expensive as possible for the state to have selected him. Feeding sheets into a mangle, Ernesto managed to rip most of the sheets he put through and the convict on the other side of the machine folded them up in such a way that the rip would not be noticed until later when the sheet was unfolded for use.
The supervisory guards slouched in chairs, their bellies hanging over their belts, were unaware of the friendly sabotage. These supervisors were called “dunlaps” because their bellies had done lapped over their belts and these overweight sloths didn’t give a damn what happened so long as none of the prisoners rocked the boat.
The man who liberated Ernesto from his vile, noisome work place was the man who supervised the sign shop. Somehow he’d learned Rodriguez was a skilled sign painter and his shop needed one. The Mexican artist filthy sheets hadn’t yet been ripped in two.
In Late March of 1969, three months after Ernesto’s arrival, troubles erupted in the prison. Two inmates named Jenkins and “Dirty Red” who were suffering from spring fever took it into their heads to hit themselves a few guards. The best way to find a guard to hit was to stage a fight with another inmate. The closest guard to the scene was sure to rush in and try to break it up.
Sure enough, when the inmates began yelling and swinging at each other a guard named Merrill Neffstead was at their side in seconds. To his great surprise the two inmates turned on him, one hitting him from behind, and the other clobbering him from the front when he’d been driven forward by the first blow. First one guard and then another rushed over to Neffstead’s rescue when they saw a gang of other prisoners joining in. The second guard on the scene lost his cap and when he leaned over to pick it up he was driven face forward along the asphalt surface. In a matter of minutes a riot, or free-for-all was in full swing, converting the recreation yard into a gigantic boxing, slugging, and sapping ring.
Ernesto remembers, “The last inmate taken off the yard was one named Thompson who was standing in the middle of the ball diamond with a bat in each hand, daring the guards who were surrounding him to attack. The tower guard with his machine gun shouted to Thompson, ‘Drop those bats or I’ll put some holes in you!’
“About the third time the guard shouted the warning Thompson put down the bats. The guards rushed him and broke his ribs. They busted his arm and dragged him to the “Greenhouse”—that’s what the Segregation Building was called—and they was kicking and punching him all the way. Beat him within an inch of his life.
“Later on, I heard that Thompson tried to sue the state but he was told that the x-rays and hospital records had disappeared. Thompson was later transferred to the nut house at Central State Hospital, Illegally and without a court order, because no one would believe the story of any man who’d been there. Anybody who claimed the guards had broken his arm and his ribs was crazy, y’know.”
(The Central State Hospital, now known as the Dodge Correctional Institution, was a place to strike fear in the minds of prisoners in Waupun. The hospital/asylum/prison was only a few miles away from the main prison and was a convenient storage place for inmates who had been beaten up by the guards. It was thought that the stories of anyone branded as insane or requiring constant observation would never be believed. Reasonable commitment procedures and safeguards were either overlooked or ignored, if it suited the prison officials’ purposes to get rid of a trouble maker by declaring him insane.)
With Thompson’s departure order was soon restored, But, as Ernesto said, there was hell to pay in the two north cell blocks for the next month or so. The guards went all out to discover who the prisoners had been who assaulted the guards.
In Ernesto’s own words, “The next months were madness. The guards were out to revenge themselves against the cons. There were daily searches for people who might have been involved in the beating of the guards. From time to time, we would hear an inmate scream, a scuffle would follow, more screams and we would learn that another inmate had been singled out and taken to the Greenhouse. The whole institution was a powder keg, all it needed was a match.”
A convict named Richard Nickl became that match in the afternoon of September 7th, 1969 Nickl had managed to obtain a megaphone and during yard break began shouting to the prisoners that they were all having a peaceful demonstration to demand better treatment. Rodriguez remembers thinking at the time that Nickl was foolish, that if he wanted to get better treatment, taking over the license plate factory would have been a better way to achieve it.
Soon armed guards from all over the prison could be seen crawling into position on factory roofs, prison walls, and peeking out of windows.
As they had when the riot occurred in March. The fearful inmates quickly fled the field, wanting no part of what was going to happen next. For a time it was a stand-off for the two hundred and fifty angry, but peaceful, convicts who remained out on the prison yard. After an hour or two, however, things began to change.
A large group of guards, which Ernesto estimated to consist of about two hundred men, gathered on the opposite side of the yard and began to advance slowly toward the inmates when John Burke, the warden of Waupun for some thirty years, gave the order. The guards’ helmeted head gear made them look like creatures from another planet, they carried shields and clubs as they marched inexorably on the convicts who were tightly compressed in a semi-circle against the wall.
Suddenly, without warning, one of the guards, a man name Tony DeGraff, whom Ernesto describes as “one of the silliest assholes I’ve ever met“, jumped out between the advancing phalanx and the prisoners. He was carrying a 12 gauge shotgun at belt level. With his legs widespread, in the most dramatic shoot-it-out, John Wayne style, DeGraff’s theatrics succeeded only in evoking derisive laughter from the inmates. He fired off two shots into the dirt in front of the huddled men before a guard captain took DeGraff’s gun away.
A helicopter hovering overhead dropped plastic bags of tear gas in the space between the adversaries. Nickl, known to be a good jail house lawyer warned guard captain Phillips that it was a peaceful demonstration and that prison officials had no right to beat up the inmates. In the face of overwhelming force Nickl finally de-fused the situation when he agreed that the prisoners would line up and allow themselves to be taken to the Greenhouse, the Segregation Building.
The Segregation Building had cells for sixty men and most, if not all, of the cells were already occupied. Into these cells the Waupun guards forced another two hundred and fifty men. What was barely enough space for one man now held five or six, all of whom had been stripped to their underwear shorts when they’d been herded into a fenced-in enclosure adjacent to the Segregation Building.
The Segregation unit was a two story building with thirty cells on each floor. Each cell had three walls and a barred door. Because the cells were faced back to back inmates could see the wall across the tier from their cell, but couldn’t see other prisoners. Fifteen of the cells on the first tier (floor) were also equipped with wood doors which covered the barred doors. These cells were known as “Hole” cells and when the wood doors were closed no light entered them. Each cell had one electric light recessed in the wall behind steel-screened glass, but the lights could only be turned off or on by the guards, as they saw fit. The building had acquired the name “Greenhouse” because at one time it had been painted green, not, as rumor had it, because the building had a perpetual greenish mist caused by all the tear gas used within its confines.
When the two hundred and fifty protesters were jammed into the ten foot by six feet cells the guards turned off all the water in the building. The toilets in the cells quickly became too foul for use and no drinking water was available unless it was given to the men by the guards. Inevitably, guards patrolling the tiers soon came under a heavy barrage of human excrement and urine, against which even rain coats and souwesters offered inadequate protection. When they realized that their own inhumanity had backed up on them the guards turned on the water again.
The fifteen “hole” cells were more crowded than the forty-five regular grade cells because the bunk in regular grade cells could be pushed up and fastened against the wall when it wasn’t in use. In contrast, the hole cells had four legged steel bunks to which steel loops were welded on three sides. The loops permitted prisoners to be strapped or fastened to the twenty-six inch wide steel platforms.
A few at a time, the hardnosed protesters in the Segregation Building were returned to the general prison population, to rejoin the “rabbits” who had run at the first sign of trouble. Ernesto was returned to the three story North Cell Block a week or so after the over-reaction had occurred. If the prisoners hadn’t been mad before the attempted peaceful protest they certainly were now. They raised hell in the cell blocks, tossing everything they could find or pry loose out of the cells or onto the floor below. Ernesto was on the second tier and he stuffed a plastic cup with paper, lighted it, and tossed it over the balcony. With a little luck, he thought, it might ignite some of the detritus already there. For attempting to start a fire Rodriguez was quickly assigned to the Segregation Building for an indefinite period, a period which—almost incredibly—was to last for three years and four months. Richard Nickl, who had organized the peaceful protest and who became a good friend of Ernesto’s was, of course, also in the Segregation building.
(Later, when the two men had been transferred to the prison at Fox Lake Wisconsin, Nickl escaped, and at the time of this writing remains free. Before being sent to prison Nickl had raised dogs in Illinois. In return for his freedom Dick Nickl has apparently been willing to give up dog shows, field trials, and the prospect of social security benefits)
For the first year of Ernesto’s stay in the Segregation Building prisoners in the hole cells were on bread and water, which meant that for two days out of every three all they were given was one piece of stale bread twice a day. The water to go with it was available from a spout mounted on top of the toilet tank.
Rodriguez had been through the bread and water drill before, but by 1969 all except three states had abandoned the cruel practice. Mississippi, Georgia. And Wisconsin chose to keep it. In fact, it’s fair to say that the warden and other officials at the Waupun prison pulled themselves away from the silent system and brass tipped cane days with great reluctance and usually only when ordered to do so by a court or some other high authority.
Within the Segregation building there were several gradations, with different privileges for each category. Besides temporary lock-up, or protective custody, there were—in the reverse order of their unpleasantness—first grade, second grade, third grade, and worst of all, the hole cells, which were saved for detention-isolation and observation cases.
In addition to being restricted to a bread and water diet, hole cell prisoners were forbidden to have visitors, receive mail, or possess reading materials. Nor were they allowed to smoke. Prisoners in the next grade up, 3rd grade, were permitted one visitor per month, and to send out one letter each month, but they were not permitted to have any reading materials or to smoke. In 2nd grade they were not allowed to smoke either, but they were allowed to have reading materials, two visitors a month, and to write several letters. Prisoners in the 1st grade were not only permitted to smoke, but they were also permitted one hour of exercise every day. They were allowed to have four visitors each month and to listen to music and static mixed in equal parts on a headset. They were also permitted, of course, to have reading and writing materials.
As the reader by now may have guessed, Ernesto spent most of the three years and four months he racked up in the Segregation Building alternating between the hole cells and 3rd grade. By almost any prison standard, he wasn’t exactly team player.
More than one hundred years ago. Solitary confinement crept into the United States prison system as a civilized replacement for corporal punishment. But was it a civilized replacement one wonders. A former superintendent of the Arkansas prison system regards solitary confinement as “much more damaging than the strap”.
“Bad as whipping is,” he stated, “it is finished in short order—confinement in the hole for days on end—puts a man up tight.”
There has been overwhelming psychiatric and psychological documentation of the debilitating effect sensory deprivation and social isolation have on human beings. In a California study made about the time Ernesto was in Waupun’s hole the following conclusion was reached.
“Prolonged exposure to a monotonous environment, had definitely deleterious effects. The individual’s thinking is impaired; he shows childish emotional responses; his visual perception becomes disturbed; he suffers from hallucinations; his brain wave pattern changes. A changing sensory environment seems essential for human beings.
Without it the brain ceases to function in an adequate way, and abnormalities of behavior develop.”
All prisoners in the Segregation Building, whether they were in the hole or not, were forced to observe the silent system. Not until June 30th, 1971, were the prisoners permitted to talk to one another and even then the rules were very restrictive and rigidly enforced. That meant that from September 26th, 1969, until June 30th of 1971, a period of one year and seven months, Ernesto lived in as much silence as the guards could enforce.
The visitor’s guide to Waupun mentioned at the beginning of this chapter claimed that the silent system had ended in 1938 in all but a few restricted areas. In point of fact, most of the silent system didn’t really end in the Waupun prison until 1971, and then only because Federal Judge James Doyle of Wisconsin’s Western District ruled that the Waupun officials were in violation of the United States Supreme Court’s 1969 Johnson vs. Avery decision. Whether or not Waupun treats its normal conversations with staff members, as the visitor’s guide claimed, must, of course, remain a matter of conjecture even today; many of the prison’s alumni are not pleased that two padded, sound-proof cells have been built in the basement of the Segregation Building. Facilities of that sort, they reason, are heaven for the sadist and hell for the prisoners.
The heavy steel frame beds in the fifteen hole cells were kept in frequent use. In fact, not long after Ernesto began his stay in the Segregation building two of the prison’s most sadistic guards, Harvey Hoeft and Merril Neffstead, chained down four prisoners in one morning. The four inmates Miller, German, Townsend, and Martin, had had their arms and feet fastened to the steel loops on the sides and the foot of the beds. The guards, it seemed, took a perverse pleasure in forcing prisoners to lie in their own waste.
All prisoners thrown into the hole cells weren’t strapped to the bed. Prisoners under “observation” as possible suicides were stripped to their underwear shorts before they were put in the hole, but they weren’t fastened to the bed. Inmates who really angered the guards were not only strapped down, they were injected with Sparine, a chemical which deprives them of speech. If visitors were coming through the building and guards wanted to keep a hole cell prisoner quiet, they gave him the Sparine treatment which, while rendering him mute, also made him froth at the mouth.
On August 28th, 1970, Ernesto was dispatched for the first to the hole cells. For talking to a group of judges touring the Segregation Building and was given twelve days, and at the end of the ordeal one of the guards arbitrarily gave him an extra two days on full observation-suicide status. He was stripped to his underwear shorts and all personal articles were removed from his possession.
Later, when Elmer Cady who had replaced John Burke as warden, replied to a Federal Petition Ernesto had filed against him and others, Cady claimed Rodriguez had been placed on full observation-suicide status upon instruction of the prison psychiatrist.
This was not the truth because neither Dr. Nemeth nor Dr. Geocaris, the two prison psychiatrists, had ever even talked to Rodriguez to find out if he was suicidal. Any diagnosis concluding that the Mexican was so inclined had to be pulled off the wall by the good doctors. But then, Cady alleged in the same reply that solitary confinement was never imposed for periods longer than nine days. Maybe Cady didn’t know what was going on in his prison because during Ernesto’s sojourn at Waupun Rodriguez served consecutive periods in solitary confinement which ran for fourteen, seventy-seven, thirty-seven, and thirty-eight days respectively.
The American Correctional Association’s 1966 recommendation was that solitary confinement not be meted out for more than fifteen days at a stretch. Hello, Waupun.
One of Rodriguez’ fellow prisoners found himself in one of the hole cells shortly before Christmas of 1970. Henry Luter, nicknamed “Madcap”, is a tall, lanky black man much given to leather clothing and other high style menswear. In his own words, Luter describes his visit to the hole. “It was Christmas time. I lay there in my cell humming, while everyone else was just being silent, perhaps lost in their own thoughts and their own world. The guards in the Segregation Building had come by my cell so frequently that it made me feel they were up to something.
They were. “I lay there humming a song whose words went, ‘I won’t be home to help you decorate the Christmas tree. No, I won’t be home to help you decorate your Christmas tree, but I’ll be thinking of you and I hope you think of me.’
“It was a song many blacks were aware of and enjoyed. So I was into it when Officer DeGraff came to the front of my cell and said, ‘You shut up or I’ll come in there and shut you up, Luter.’
“I looked at this fool with hurt in my eyes. Here I was minding my own business and saying nothing, just humming and singing to myself when this clown came and threatened me. He stood there with his chest out and mouth twisted up like he was some gangster from the Al Capone days.
“You are not going to fuck with me,” I immediately said, and started singing out real loud, ‘I won’t be home to help you decorate your Christmas tree, but I’ll be thinking of you and I hope you think of me.’ “DeGraff ran from my cell screaming, ‘Give me the keys, I’m going to shut his mouth once and for all.’
“I got off my bed and swung it up against the wall, hooking it, so it wouldn’t fall down because I had made up my mind that if this pig came in my cell I was going to seriously hurt him or kill him if I could. I heard someone holler, ‘Madcap, man, they are coming in your cell, brother, so be cool.’
“I just stood there in the middle of my cell when Officer DeGraff came around the corner and fumbled with his key in the lock of my cell. He got the door open and dashed in, trying to grab me. I side-stepped and pushed him towards the toilet where he stumbled. I struck him behind his head and pushed his head toward the toilet.
“He was trying to get his face from the toilet when someone screamed, ‘Cap watch out, man!’
When I looked around I saw Officer Neffstead’s big stick coming down at my face. I dropped my head a little and Bam! He struck me directly on top of the head. My head busted and blood shot out of like a water fountain. I felt the blood rolling down my face and it partly blinded me. I reached out and grabbed Neffstead and the other two officers, DeGraff and Hoeft, all joined in and started beating me in my cell. I held onto Neffstead, but DeGraff was hitting me in the back as hard as he could.
“‘Luter we’ll kill you,’ the guards yelled. ‘You fucking prick, we’re going to kill you!’
“I believed them. I was fighting for my life. While they were trying to drag me out of my cell, I grabbed the barred door’s hinge with my right hand and held on. “
“I could hear the inmates screaming and rattling the bars. ‘Leave him alone! Leave him alone!’
“The next thing I knew was that Hoeft got behind the door and closed it on my right hand. The pain was unbearable. My body stiffened and I said, “Motherfuckers, goddamn you! You smashed my hand…”
“By this time several other guards had joined in, Sergeant Pick, Lt. Brown, and Sergeant Hoeft walked me to the top of the stairway. I looked at my hand, I knew every bone was broken and it was swollen ten times larger than normal. I was so angry that I plowed into the guards and we all went tumbling down the metal stairway. Sergeant Pick broke his ankle of hip, one or the other, and Lt. Brown who weighted about three hundred, was injured going down the stairway, DeGraff and Hoeft had busted lips. I had injured my left hand and noticed it was swollen too.
“The Segregation Building was in an uproar and everyone was screaming and hollering. They were yelling and cursing at the guards.
“I was chained to the iron bed and the pigs put leather shackles onmy arms and legs to fasten me down with. When they managed to strap me down I could feel the strength leave my body. Blood was still coming from my head and drying all over my face. One of them, Neffstead, took a large flashlight and looked down at me. ‘You’ll never hit another officer here, you son-of-bitch!’ he told me. I answered him by spitting in his face and that’s when he began beating my left hand with his flashlight. I passed out at that point.
“The nurse from the prison, an inmate, was ordered to clean my face and he informed the guards I had to be taken to the University Hospital in Madison. I was given medication for the pain and swelling in my hands. I had surgery on all the knuckles on my right hand and had the other hand operated on sometime later. The prison staff lied to the hospital and told them I was always boxing and repeatedly beating my hands on the wall.
“That’s the kind of shit the guards pulled in Waupun. People won’t believe it, but that’s what goes on.”
In a way, Henry Luter got even with his oppressors. Like Rodriguez, Luter was a pretty fair jail house lawyer, which may explain why the guards picked on the two men so relentlessly. Luter brought suit against Waupun’s Associate Warden-Security, Harvey Winans, for not allowing inmates in the Segregation building to talk over or help one another with their legal problems. In the United States Supreme Court’s 1969 Johnson vs. Avery decision the court had ruled prisoners must be allowed to help each other with their legal work. As I’ve mentioned, too, Federal Judge James Doyle agreed with Luter and on June 13th, 1971, he handed down his decision, which was to be the beginning of the end of the cruel and inhuman silent system, so much a part of Waupun’s history for so long. The prison’s hierarchy was dragged kicking and screaming into the twentieth century.
At the root of the Waupun prison’s system of discipline was the conduct report, something a guard wrote any time an inmate broke a prison rule. Inherently unfair, the system lent itself to abuse and provoked antagonism. It failed for two reasons; infractions of prison rules which were often invented on the spot by the guards themselves, and the hearings which determined the punishment for the infraction was often presided over by the guard who had himself written the conduct report. Unlike the Michigan and Nebraska prisons Ernesto had been in, Waupun had no rule book to clearly spelled out all the offenses for which an inmate could be cited.
Some of the punishable offenses were ridiculous, such as the one which forbad prisoners in the Segregation Building to look at visitors walking through. If an inmate stared at one instead of averting his gaze, he was cited for reckless eyeballing. No kidding. If a prisoner kissed his wife half way through her visit instead of at the beginning or end, he was punished. There didn’t appear to be any end to the petty, niggling indignities, the chicken shit, as the men called it.
By now it was quite apparent that the guards in the Segregation Building didn’t like the cut of Ernesto’s jib. And to say the he didn’t care for theirs would certainly be to understate matters. Rodriguez had been born with a fuse somewhat shorter than most men’s, and many of the demeaning rules and procedures in the Segregation Building touched off the fuse. One procedure was especially offensive, the strip search. Even if Ernesto was escorted by a guard to the basement where he disciplinary hearings were held and then escorted back to his cell, he was not permitted to enter his own cell without a strip search.
When the prisoner was buck naked he was told to face the guard and open his mouth. Then it was lift your tongue, then run your hands through your hair. Next, the prisoner was told to lean over and show the guard his ears. After that it was raise your arms, spread you fingers, and show your palms and the back of your hands. The prisoner was then told to lift up his testicles, to raise his penis, and, if he hadn’t been circumcised, to peel the foreskin back, with that done, he was told to first stand on one foot and the other. The final indignity was worked when the prisoner was told to face away from the guard, to spread his legs, bend over, and pull apart his cheeks. It was at that point, according to Ernesto, when most of the fights began between guards and prisoners.
Even when Ernesto was moved from one cell to another or when he had been escorted to the small exercise yard adjacent to the building, he had to be strip searched before he could reenter his own cell. But as the visitor’s guide to Waupun wrote, the bad practices of the past had been replaced by a modern system that treats inmates as responsible citizens.
Some system. Some citizens.
Ernesto had gone into the Segregation Building on September 7th, 1969. Eight months later, on May 14th, 1970, a Federal Court in New York State issued a landmark ruling which would affect prisoners all over the country. In Sostre vs. Rockefeller the court ruled that prisoners were entitled to due process of law, if prison disciplinary actions impinged upon certain or their rights. Specifically, good time couldn’t be taken away from prisoners or prisoners put in solitary confinement, where good time couldn’t be earned, without representation and a fair hearing before an impartial Judge. The United States Supreme Court upheld the Sostre decision and prisoner treatment across the country would never again be quite the same. A few years later the United State Supreme Court even went so far in Wolff vs. McDonell to say that although a prisoner’s rights are diminished by incarceration, there is no iron curtain drawn between the Constitution and the prisons of this country. It took more than two years before the Sostre Decision made any difference in Waupun, but in December of 1972 an effort would be made there to give disciplinary hearings conducted in the Segregation building’s basement at least a semblance of fairness.
The biggest break the prisoners at Waupun received between 1851 and modern times was when Wisconsin voters elected Patrick Lucey, a Democrat, to be their governor. Almost from the day of his inauguration in January of 1971 Lucey took an interest in the State of Wisconsin’s prisons. Perhaps Ernesto played a part in attracting the governor’s attention to the problem.
It was either January or February, as nearly as Rodriguez can recall, when the new governor toured Waupun, during the course of which visit he inspected the Segregation Building. By a stroke of good luck, Ernesto was housed in a corner cell on the second tier, past which Lucey walked. “Governor!” Ernesto called out, recognizing the visitor instantly, “did they show you the hole cells?”
Lucey stopped when he heard himself addressed and walked over to Ernesto’s cell. “Did they show me what?” he asked.
“The hole cells down on the first tier, the ones with the wooden doors,” Rodriguez explained.
“Yes they did. They showed me one on the way up here.”
“Did you see a man strapped down, lying in his own filth, and frothing at the mouth?” Ernesto asked.
“Doing what?” the governor asked incredulously.
“Strapped down, lying in his own filth. And frothing at the mouth. Maybe beaten up, too. They’ll tell you he’s strapped down so he can’t kill himself. That’s bullshit, Governor.”
Rodriguez had the governor’s full attention now. “Where?” he wanted to know.
“Behind them wooden doors on the first tier. Make them show you all the hole cells, the ones numbered one to fifteen, make them show you what really goes on here, Sir.”
Lucey spun around and instructed the guards escorting him to take him back downstairs. He wanted to see each of the hole cells. It didn’t take long. In one of the cells, hidden behind bars and a double bolted wooden door, the Governor of Wisconsin found exactly what Rodriguez said he would. A prisoner was strapped down by his arms and legs to a metal bed, lying in his own excrement with foam dribbling from his mouth, was an inmate who had been injected with Sparine to make him mute. The prison officials had known the governor was coming. Patrick Lucey was deeply shocked by the sight, the noisome odor of the cage, and must have decided then and there that during his watch, at least, prison conditions would be improved, and that certain practices in the Segregation building would be ameliorated and soon.
Almost from then on prisoners in the Segregation building had an open channel of communication with people in Madison who were interested in improving prison conditions. Ernesto warned one of the visitors—he forgets which one—unless the state did something about the deplorable working conditions in the old Laundry Building the prisoners would wreck it, or burn it down. He wasn’t making polite conversation, as it turned out.
In the cell next to his was a prisoner known as “Dirty Red”, who liked Ernesto, had worked in the laundry, or was still working there before his temporary stint in segregation. In whispered conversations he told Rodriguez that the inmates had tried several times to burn the building down, but that guards had always spotted the fire before it could do any damage. That’s all Ernesto needed to know.
Back in the Gatesville Texas Reformatory—don’t you love that word?—Ernesto had learned how to make fuses out of match booklets, thread, and shoe laces,]. By meshing half a dozen or so booklets with one another and then attaching the end of a shoelace to the sulfur tipped end of the matches a fuse was made. The length of the shoelace determined how long the fuse would burn. It was a simple matter to cut a lace long enough to smolder the two hours, three hours, or for whatever length of time was required. The match booklets formed an arc and the arc was suspended by a thread which hung over a pile of combustible materials such as rags, trash, or dry clothing. When the burning shoelace reached the first booklet the sudden burst of flame burned the thread and the lighted bluster of matches fell into the trash which, ideally, would be close to one of the aged wood support beams.
By placing the incendiary mechanism along the top of the building’s wall, the smoke from the smoldering fuse would rise and not be noticed by the guards while they were still in the building, The idea was to set the fuse for early evening, when the laundry would be locked up, the prisoners fed, and many of the guards off for the day.
It was about five o’clock in the afternoon of January 27th, 1971, and already dark outside when Ernesto’s attention was drawn by a flickering red reflection on the wall opposite his cell. The light was coming from a window down the tier and it was a lovely, dancing, cherry red. The Segregation Building was adjacent to the laundry and those beautiful flames were consuming the wretched old laundry. Dirty Red and his pals had proven themselves to be apt students of their master.
The Segregation Building echoed with cheer after cheer when those who couldn’t see the flames were told what they were by those who could. Many of the men had worked in the laundry and none would ever forget its stench. To see or smell its end was a great joy to all.
Working in the convicts’ favor was the fact that most of the day shift crew was home and the smaller number of second shift guards weren’t enthusiastic about swinging open the main gates to admit the array of blinking, flashing fire engines. No one on the second shift wanted to be responsible for a break-out. Inmates out of their cells on a pass might skip out in the confusion. The short delay in opening the gates did much to guarantee the building’s complete destruction. All the equipment, of course, was destroyed with the structure. Only portions of wall here and there remained upright.
Burning laundry at Wisconsin State prison Waupun
Burning laundry at Wisconsin State Prison Waupun
Several weeks after the fire a team of investigators crawled through the charred timbers and twisted machinery of the building to determine the cause of the blaze. It was the type of fire which did occur occasionally in an old building, but if Ernesto didn’t like the working condition within the building the odds of it happening became quite a bit greater. Of course, the fire investigators didn’t know about Rodriguez, or that several weeks earlier he had warned the burning would take place, if working conditions weren’t improved.
Ernesto, L’enfant terrible of the Segregation Building, succeeded in getting himself in trouble with the guards on May 26th, 1971, the same two guards Luter had fought. The trouble began at the start of the day shift when Merril Neffstead and Harvey Hoeft took the banging the stainless steel food containers against the wall and floor. Ernesto believes the two guards always made as much racket as possible, knowing that the echoing clatter irritated the prisoners. Under normal circumstances the noise might not have been much more than a passing irritant, but under the conditions prevailing in the Segregation building, where silence was the order of the day, the guards’ noise was a prickly irritant to men whose nervous systems were under almost constant strain.
Neffstead and Hoeft knew this, of course, and took pleasure in making as much noise as they could.
Ernesto was feeling poorly, losing about six pounds a week and his nerves were on edge. His cell was directly above that of an inmate named Mallo, who made a practice of stripping naked and rubbing his own excrement all over his own body and walls of his cell.
(Mallo, certifiably crazy, belonged in the nearby Central State Hospital, not in Waupun’s Segregation Building. When he was recovering from a very necessary hemorrhoidectomy, Mallo called one of the guards over to his cell and, before the guard horrified eyes, inserted several fingers into own rectum and pulled out the stitches.)
With the constant stench from Mallo’s cell, Rodriguez lost most of his appetite. He had to force himself to eat any prison food. He became jittery and cross and on the morning of May 26th he complained about the racket of the pots and pans to the inmate in the next cell.
“I could kill those sons-of-bitches,” he whispered to the other inmate. “They’ll do anything to get a rise out of us.”
“Harvey Hoeft was on the tier below me,” Ernesto remembers. “I didn’t know he was there. I thought he and Neffstead had gone around on the other side, because the racket stopped. Hoeft suddenly stepped out from below the gallery, put his hands on the hips, and glared up at me. Big tough guy. He didn’t say nothing”, just glared.
After breakfast I was lying on my bunk, writing a letter, and three guards came to m cell door. Hoeft and Neffstead I remember, and I think the third guy was Phelps, a pretty decent fella.
“Neffstead had the keys. He unlocked the door, stepped aside, and kicked it open. ‘Come outta that fucking cell!’ he ordered.
“Come out for what?” I asked.
“’You’re going in the hole.’
“Why don’t you write a conduct report and let me have a disciplinary hearing? You know damn well it’s against the rules to send an inmate to the hole without the a approval of the Associate Warden of Security.
“‘Come on outa there!’ Neffstead growled, motioning at me.
“When I passed through the doorway I felt a sharp, hard blow on my arm, below the shoulder. They were the big bunch of keys Neffstead was carrying. They were sharp and cut into me. That’s when I knew they were going to beat me up, that I was in for an ass whipping.
“I was carrying my pen so I tried to get Hoeft in the eye with it, where it might do some good, but it hit his glasses. They flew off his nose and Neffstead was doing his best to choke me. The other guy grabbed my legs. I managed to elbow Neff stead a couple of times across the jaw, but it was a losing fight. We all three went down and the next thing I know they were hitting me in the face and on the head with a bunch of them big jail house keys.
“I thought my right eye was gone for good. My nose was broken, and they dragged me down to the hole. To this day that eye doesn’t work as good as the other, but they claimed all I had was a black eye. Yeah. Some hematoma. It was some time later when Hoeft came to my cell and told me I was going to a disciplinary hearing. I told him I didn’t care where they were taking me but when I got out I was going to bust him one in the fucking mouth.
“They sent four guards to escort me to the hearing in the basement. They were still judging the case before me so they made me sit on the steps at the bottom of the stairway. I had my feet bunched beneath me and I wasn’t more than six feet from where Hoeft was sitting in a chair. He was kind of sneaking looks at me, daring me to come at him, but I didn’t say nothing. Right behind him was a basement window with one of them metal cranks, y’know.
“I waited till the guards, the four of them, that had escorted me were relaxed and shooting the shit with one another. That’s when I sprang at Hoeft. The son-of-a-bitch saw me the split second before I got to him, but when he turned to run he ran smack into the window crank which was about eye level. I got him with a combination, left and right, to the mouth and spun him around. He tried to grab the chair he’d been sitting in, but it was on rollers and he went over it. He hit his head hard on the cement floor. His legs were spread wide when he went over the chair, so I kicked him hard, dead center, in the nuts. By then the four guards grabbed me, but let me tell you something, it was the sweetest day of my life. I got that son-of-a-bitch Hoeft good, real fucking good.
“I was tossed back in one of the hole cells and they wrote ‘Rodriguez has lost total control of himself. He is a danger to himself and the staff. He needs to be sent to a mental institution.’ They tried to get me to talk to one of the prison psychiatrists, a guy named Geocaris. When Geocaris asked me first thing, right off the bat, what color my bowel movements were, I’d had it with him. I suggested he go find out what color his mother’s were and that was the end of our conversation. Geocaris worked for Dr. Nemeth who was kind of strange himself. Nemeth spoke several languages and always wore gloves. Had a thing about dust or something and never wanted to touch the bars.
“Called me ‘Ernie’ and was always sneaking up on me and peeking in my cell trying to catch me doing something odd or out of the norm whenever he made his rounds in the Segregation Building. But I would always tell him that I was not yet that far gone. We always spoke in Spanish to each other, and I had my chance to tell him about the crazy shit the guards were always pulling on me, trying to make me look crazy. The guards did not like it when They couldn’t understand what I was saying to Dr. Nemeth. But they were a couple of odd balls.
“Seventy-seven days after they’d thrown me in solitary, five or six guards with shields came to my cell. With one of them, a guy named Hilt, beating on me with a blackjack they forced me out. I was carted off to Central State Hospital which was just a few miles away.
When Ernesto arrived at Central State he was given a cursory physical examination and questioned about the bruises on his body. Asked whether he needed anything before he was assigned to his cell, he requested a piece of paper and a pencil. It was his intention, he explained, to petition the Federal Court for his release.
Guards attacking Rodriguez in his cell with a plastic shield.
In his petition Rodriguez claimed that he had been confined in a mental institution by people who failed to go through the required legal process before they initiated the action. He wanted to sue the doctor who accepted him at the hospital and the Department of Health and Social Services, under whose jurisdiction all prisons came. Ernesto knew the law because other prisoners before him had been shanghaied into the crazy house without first being evaluated by competent authorities. The Central State Hospital was a convenient place for trouble makers because the officials assumed no one would take the word of a mental patient over that of a union guard, if the prisoner claimed he was the victim of excessive force of brutality.
The Honorable James Doyle of Western District Federal Court ordered the Department of Correction and the Central State Hospital to release Mr. Rodriguez immediately or return him to the state prison or face contempt charges. The officials at the hospital who interviewed Rodriguez agreed with him that he didn’t belong at Central State. They wrote a letter in his behalf requesting that the Department of Health and social services order Rodriguez to be returned to Waupun. Twenty-two days after his arrival at the hospital he was returned to Waupun’s Segregation Building, his spiritual-home-away-from-home, where he was put on third grade status, next to solitary the most restrictive grade.
1971, Governor Lucey’s first year in office, saw a large number of small but important changes made in prison rules, ones which did much to improve communications between prisoners. Most of the improvements had their roots in the Johnson vs. Avery and Sostre vs. Rockefeller decisions mentioned earlier. In February Warden Cady issued an order authorizing sealed letters to be sent to or received from certain authorized people, such as the governor, state and Federal judges, etc. In July there was a further relaxation which permitted prisoners who weren’t in solitary confinement to talk to one another during recreation periods. The silent system was slowly tumbling down almost thirty four years after it had supposedly ended.
Dr. William J. Crowley, a prominent Milwaukee psychiatrist, had this to say about Rodriguez and his enemies, the guards: “Under conditions of extended segregation and isolation, an individual’s capacity to conform his conduct to the standards necessary to terminate that isolation becomes more and more compromised. The compromise is a result of perceptual distortions and pathologic feelings resulting from the isolation itself in combination with the reality of that individual’s total dependency upon security personnel. He is dependent upon the guard for any human interchange, for creature comforts, and for food; in essence for life itself. It should be emphasized that the interaction between guard and inmate is a bilateral one; as the inmate becomes more and more primitive, distorts reality more as his anxiety increases, he become more and more difficult to relate to as another human being. The guard begins to see him as the animal he has been driven to become, thus enhancing the inmate’s perception of the guard as a hostile, all powerful individual upon whom he, the inmate is totally dependent for his very existence.”
One of the puzzles surrounding Rodriguez’ stay at Wakupun was whether the warden, Elmer Cady, and other wardens before and after him, knew what was going on in their own prison. It’s perfectly possible that the indignities and the abusive treatment meted out by some of the guards against a particular prisoner was concealed from the warden.
“What they did or did not know,” Ermesto remarked, “is of little consequence. I prayed that I would live to see them buried in their graves, and indeed all have died of heart failure.”
Among the many minor irritants to which Ernesto was subjected were whispered racial slurs. Hoeft and Neffstead, Hassenstab and others (guards) would whisper “greaser” and “nigger” to Ernesto when they passed his cell. It was whispered to prevent any other person from testifying that he had heard the slur. Serving Ernesto his food offered additional opportunities. Seasoning the food was done by the guards, not the inmates. It wasn’t unusual for the guards to add so much salt or pepper it became inedible, or they’d season the wrong food. Sometimes they would cough in his food. Other times he’d find insects, or human hairs too numerous to be accidental decorating the entrée.
There were other little tricks they had, too. All three shifts would cooperate in keeping him awake, or waking him, if he was asleep. A club dragged across the bars worked very nicely. He was not allowed to speak Spanish with his visitors or to write letters in Spanish. (His mother neither read nor spoke English) Mail was often held back for a week or two, and the clothing he was issued was very deliberately too big or too small.
In the federal petition he had filed in 1971 Ernesto had sought to get out of the Segregation Building and away from Hoeft, Neffstead, DeGarff and Hassenstab, the worst guards, by obtaining an a court order which would return him to the general prison population. Harvey Winans, the Associate Warden for Security, filed an affidavit in response to Ernesto’s petition which said in part, “From my own personal knowledge and from my examination of prison files concerning Mr. Rodriguez, it is my opinion that Ernest Rodriguez has been and continues to be an unpredictably violent, hostile, and aggressive person whose presence in the general population of the prison would constitute a most serious threat to the personal safety of staff employees and other inmates.” If Dr. Crowley’s theory about prisoner-guard relationships was correct, Ernesto’s behavior certainly seemed to suggest the chicken-or-the-egg argument.
As a result of Ernesto’s brawls with Hoeft and Neffstead the prison Initiated assault charges against Rodriguez. The assault charges would be heard in Dodge County Circuit Court. The charge dealt with the fight which had taken place on May 26th, his attack on Hoeft, the one Ernesto described as “the sweetest day of my life”.
On June 15th Rodriguez was told that he was scheduled to go to Juneau, Wisconsin, where he would appear in Branch two of dodge county Court before Judge Clarence G. Traeger. Ernesto was perfectly willing to go to court on one condition: he insisted that he first be allowed to shower and shave. And he preferred street clothes to prison garb. He would not be paraded into the courtroom, he told them, smelling and looking like a wild animal. His requests were refused.
Instead, Judge Traeger came to the Waupun prison the next month. Before there could be a preliminary hearing an initial hearing was required. Ernesto consented to meet with Judge Traeger in the Administration building by the prison because the guards had told him the judge was holding a John Doe investigation, not the initial hearing into the charges against Rodriguez himself. Shortly after he entered the room and found the judge slouched behind a table Ernesto learned he had been mislead and that he had no choice but to cooperate.
In the following month on August Ernesto was driven over to Juneau for the preliminary hearing which would determine whether there was probable cause for the charges against him. At that hearing Rodriguez requested Judge Traeger to grant him a sixty day delay, time he needed to raise funds to pay for his own lawyer. The guards had not allowed him to write his brother Paco to ask for the needed five hundred dollars.
They had refused to permit him to send out a sealed letter describing the beating he had taken from Hoeft and Neffstead. Traeger granted him the sixty days he sought.
Four or five days later Ernesto, the jail house lawyer, filed a writ of mandamus with the Wisconsin Supreme Court in which he claimed the proceedings against him violated accepted legal practices. He cited three reasons, first, the person who had filed the complaint, Darold Strege, the prison registrar, hadn’t been present when the alleged assault took place. Second, there was no mention made in the charges of Ernesto’s intent to do bodily harm, and third, the charges against him had been filed two months after the incident, rather than within the twenty-four hours required by law.
On October 19th the Wisconsin Supreme Court agreed with Ernesto and ordered Judge Traeger not to proceed with the case until Ernesto’s complaints had been looked into. If the Rodriguez complaints had merit the complaints against Ernesto were to be dismissed without prejudice and a new complaint could be filed. Ernesto received copies of the high court’s instructions, but it appeared that Traeger didn’t take the Wisconsin Supreme Court’s instruction seriously because he ordered Rodriguez to appear before him on October 25th, six days after the high court’s order. What happened then is best told in Ernesto’s own words.
“They put me in belly chains. That’s when they attach your handcuffs and ankle cuffs to a chain that goes real tight around your belly. The cuffs weren’t round like the regular ones but was square so they cut into you when you move. They are tied to the ankle cuffs too short so I had to take doll steps or I’d fall on my damn face. I went about a hundred feet and quit. They had to lengthen them.
“When I got into the courthouse I shuffled through the halls and the security room with people gawking at me. It was that old shit, y’know. Step right up folks. Watch him walk and talk, and crawl on his belly like a reptile. When it was my turn they led me to a chair in front of the judge, but when I tried to say something to him he didn’t answer me, he just snapped, ‘Sit down!’
“I told him I wasn’t going to open my mouth until they took the shackles off my feet. After a while they did, but we weren’t getting anywhere. Just going back and forth at each other. I was acting as my own attorney and still trying to stop the preliminary hearing until I could find an attorney who would work for me.
“Your Honor,” I said, “it’s my understanding that you were supposed to stop all proceedings in this case and—“
“‘Wait a minute, Mr. Rodriguez,’ he said, tapping the gavel, ‘I’m going to proceed with this preliminary hearing and I don’t want any interruptions.’
“But your Honor, I’ve got an order from the Wisconsin Supreme Court that you’re supposed to stop all the proceedings and give me a hearing to determine if the complaint is legal no not.” I held up a copy of the order.
“‘I don’t have a copy of that,’ the judge said.
“You can have a copy of mine,” I told him and held it out to him.
“‘If you say one more word, I’ going to have you gagged! He threatened me. I had him cold, he knew it, and he sure as hell didn’t want to be made look stupid in front of all the people and the reporters in the courtroom.
“I’m only trying to give you a copy of the order from the Wisconsin Supreme Court. You—”
“‘Gag him!’ the judge ordered.
“I think the guards there were Neffstead, Rohr, Heeringa, McDowell, and a sheriff named Nels or something. Captain Heeringa was the guy who was trying to get the gag in my mouth. I was holding my hands away to keep him from sticking the gag in. That judge he was dancing up and down yelling, ‘You put this in the record, stenographer. He’s fighting viciously. It’s taking five guards and he’s hitting them. They’re unable to contain him.’
“I was trying to keep that gag out of my damn mouth and I wasn’t hitting nobody and not fighting. But I was able to call that judge a fucking liar before they succeeded in shutting me up. They dragged me out of the courtroom and when they got me into the security room they closed the door and bounced me off the walls several times, beat me up pretty good. The way I was chained up a ten year old could have whipped my ass and those guys took advantage of the opportunity to do it.”
When Ernesto was returned to Waupun he was immediately stripped to his underwear and placed in the hole as “full observation-suicide status.” There, like kids going after the fastest gun in town to prove how tough they were, the guards in the Segregation Building took a perverse pleasure in working over the most intractable inmate. It would, they thought, add to their stature in the eyes of the other prisoners.
Traeger having disqualified himself, (“Thank God!,” Ernesto remarked, “I lived to see old Traeger bite the dust too. They threw dirt over his face, and he well deserved it. Thank God I lived to see it!”) Judge Joseph E. Schultz of dodge County Circuit Court Branch One, took over the case. It was on November 10th, 1971, that the oft-postponed preliminary hearing finally took place in Judge Schultz’ court.
Ernesto’s court-appointed attorney—he had not yet hired his own—was of no use whatever to him. A local attorney, a man named Schlom with no criminal law experience, refused to interview Ernesto’s witnesses, or to call them to testify. Schlom further refused to contest Harvey Hoeft’s claim that he had been seriously injured when Rodriguez attacked him.
Hoeft’s claims of injury had been grossly exaggerated and Ernesto had a doctor’s report to prove it.
Charges stemming from the first fight with the guards—the one which took place in Ernesto’s cell—were dropped by Judge Schultz. But he found probable cause for the charges brought in response to Rodriguez’ attack on Hoeft. Had Schlom presented the medical evidence in his possession, it’s quite possible that the judge would have dropped charges in both episodes.
The reasons behind the long delay in bringing charges against Rodriguez did not escape the prisoner. No charges had been filed until two months after the last fracas. Why? Because even then, two months later, Ernesto’s face was still discolored and his nose broken. Not only might a judge and jury wonder what was going on behind Waupun’s walls, they might also wonder who had inflicted the beating and who had taken it. With unmarked guards and a battered prisoner, a judge and jury might reach the right conclusions.
When Ernesto was tried it was by Dodge County Circuit Court Judge Henry G. Gergen, Jr. Ernesto was very ably represented by a Milwaukee lawyer named Robert Lerner, for whom Ernesto has great liking and respect even today. But, Lee Bailey or Marvin Belli couldn’t have brought about an acquittal for the defendant under the circumstances.
In what presumably was a cooperative effort between the prosecutor and the prison, Ernesto’s witnesses—the guards who knew who had started the fight, who had witnessed it—were unavailable for the trial.
They were “off duty” and their whereabouts unknown until the trial was over. With two credible witnesses, Robert Lerner was quite certain he could persuade any jury that Rodriguez had been provoked into his later attack on Hoeft. Judge Gergen, for his own reasons, refused to postpone the trial until the defense could produce its two key witnesses. The case had been drawn out long enough as it was, he thought.
Before the trial began, in return for a guilty plea, Ernesto had been offered the chance to serve thirty days in the County Jail after he served his armed robbery sentence. He turned down the kind offer because he preferred to take his chances with a jury, if it meant that during the trial the jury might become acquainted with the brutalities taking place behind Waupun’s walls. When he was finally sentenced it was for eighteen months to be served after his fifteen year robbery sentence. In the sentencing, the judge mentioned to Ernesto that the jury had taken some time to consider the provocation issue, and that he felt that was important in his sentencing.
Ernesto feels to this day, that he came so very close to winning the case. He also feels the jury had to weight the issue in favor of the prison; otherwise it could cause inmates to believe provocation could be an excuse to assault other guards. Again, the important issue for Ernesto was that the trial itself allowed him to expose the brutality to the local population of Waupun.
In mid-January of 1972 Ernesto celebrated the new year by organizing a talk-a-thon in the Segregation building to protest the ever oppressive silent system. Later that year, in September, Harvey Winans, an associate warden, would issue an order permitting prisoners in the Segregation Building to talk to the prisoner in the adjacent cell during two hours in the morning, two at noon, and two in the evening, but in January the only time prisoners could talk to one another was during the recreation period.
In the opinion of the Segregation Building guards there was no doubt about who instigated the talk-a-thon. As Sergeant Pick wrote in one of Ernesto’s routine bad conduct reports, “This inmate continues to be the leader in keeping this disturbance alive. Rodriguez continues to call out advice to the rest of the inmates involved. Most of these inmates look up to Rodriguez for advice and leadership. This inmate is also carrying on conversations with other inmates by talking into the toilet.”
(It was possible to communicate with prisoners in other cells by talking into a toilet drained of its water. Using a towel, the prisoners would transfer water from the toilet in their cells to the wash basin and then talk to others throughout the building. Because the waste water pipe was larger in diameter than was required for the volume of water flowing through it, the airspace carried the conversations.)
As mentioned earlier, Warden Cady claimed that solitary confinement was never imposed for periods of longer than nine days, and the American Corrections Association’s recommendation was that solitary not be meted out for more than fifteen days at a stretch. Blissfully unaware of their own warden’s claims and the recommendations of their peers, the goons that ran the Segregation Building sentenced Rodriguez to thirty-seven days in solitary. The word going around the building was that Rodriguez would never get out of the Segregation Building alive, Neffstead told that to Ernesto. One of the prisoners, a man named Daniel Shockley, even filed an affidavit in which he stated that he had overheard an officer name Brown say that “Rodriguez would never leave the Segregation Building alive.”
Brown may have hoped this would be the case because several times when he came on duty one of the prisoners whose last name started with Rodriguez would yell, “What’s the color of chicken shit?” The answer yelled joyfully in unison was, “Brown, Brown, Brown.”
The chicken shit/brown episode is worth mentioning because he be a sadistic bastard or a well meaning person, can spend day after day after day being called a motherfucker, a fuck head, or some other variety of the f-word. When one considers that the guard is guarding men who have been convicted of crimes he disapproves of, the f-word name calling serves only to reinforce the guard’s opinion of the criminal. A guard who means to be good becomes a bastard and when this happens, of course, the adversarial relationship between the guards and the guarded worsens.
When Governor Patrick Lucey created The Citizens’ Study Committee On Offender Rehabilitation in 1971 he did much to pull away the veil masking prison abuses in the state. The communication lines established by the committee, and his own interest in the problem helped reveal a few of the ghastly activities taking place in the Waupun facility.
The mood of the country supported prison improvement and reform. People were optimistic that behavior modification and rehabilitation were possible. Accordingly, Governor Lucey funneled Law Enforcement Assistance Administration (LEAA) money created by President Johnson’s Safe Streets Act of 1967 into the Wisconsin Correctional services which, in turn, formed an organization know as Legal Assistance to Inmates. The Lawyers attached to the legal assistance group and to the Governor’s Committee on Offender Rehabilitation were of enormous help to the prisoners who were fighting for better and fairer treatment. Among the lawyers Ernesto knew was an attractive young woman named Cheryl Rosen. Ernesto would tip her off to something that had happened in the prison since her last visit and she would then investigate the tip.
One of Rosen’s investigations involved a prisoner named Robert Manson who had been beaten badly by the guards, so badly that after the beating he had cut his own throat from ear to ear. He failed to cut an artery but he was bleeding profusely when the guards found him. His throat was sewn back together in the dark. Looking for a man who had a cut throat and a beaten face, Cheryl Rosen toured the hospital ward to no avail. But her persistence was rewarded when she found Manson hidden away in a room infrequently used. She ordered, not asked, that he be sent to a better hospital immediately. Another investigation of hers uncovered an inmate who had intentionally swallowed a spoon. Little by little, daylight was replacing the gaslight days of a prison built in 1851 and run with the tenderness and concern associated with the penal practices of those days.
In July of 1972 the general prison population at Waupun staged a smoke-in, a work stoppage to protest smoking restrictions. The leaders and the most vocal of the protesters were quickly rounded up and jammed into the Segregation Building’s sixty cells, recreating once again the same disagreeable situation existing after the 1969 riot. It was a hot, smelly, very unpleasant place to be and it brought out the best or the worst in Ernesto, depending upon one’s view point. He soon had the entire building yelling. Between July 16th and August 11th he received a total of sixty-five conduct reports, which may to this day be a prison record.
In September when Harvey Winans relaxed the silent system rules in the Segregation Building there was no benefit to Ernesto. Being able to talk to the prisoner, in the adjacent cell three times each day meant nothing to him because the guards always made sure he was in a corner cell and that no prisoner was ever in the one next to his. In doing so, of course, they effectively cancelled out whatever benefit may have been intended. They decided that although the hot tempered Mexican was an acknowledged leader, a respected person, he nonetheless posed a physical threat to other inmates. That being the case, he wasn’t allowed to take his recreation breaks when the others did. The guards also invented phony reasons not to give him recreation breaks; it was too cold, too hot, raining and so forth. Other times Ernesto would refuse to take the recreation break because he was infuriated by the indignity of the strip-search he would have to go through before he reentered his cell.
John Burke had been the warden when Rodriguez arrived at Waupun in 1969. Burke, who held the position for thirty years, was replaced by Elmer Cady, an Illinois man, who served as warden until Raymond Gray replaced him in 1972. Because Cady experienced health problems during his time at Waupun he was transferred to the warden’s position at the Green Bay Reformatory.
In December of 1972 the new warden, Raymond Gray, called Rodriguez down to the basement of the Segregation Building where the disciplinary hearings were held. He knew Ernesto had good contacts withpeople close to the governor’s office and he was trying to get the Mexican out of the Segregation Building, a place in which embarrassing things sometimes happened. Now, Gary wanted to know, would Ernesto behave if he were put back in the general prison population.
Ernesto told the warden he’d would behave just long enough to get a long good shank and a gallon of gasoline. If he could not kill Neffstead or Hoett, he wanted the guard nearest him. He would set his “ass on fire, and then my ass is your to do whatever you want to do with it. I just want revenge for what you people have done to me. I am ready to die after taking one of you to the grave with me.”
Warden Gray decided not to return Rodriguez to the general prison population. Several days later Gray again met with Rodriguez in the basement. This time he wanted to know how Ernesto would feel about being transferred to the Central state Hospital. Ernesto’s two word response to that possibility was not only obscene, it was quite rude. Gray was getting nowhere.
The third time around the two men reached agreement. If a transfer from Waupun to the Green Bay Reformatory could be worked out, Ernesto would accept it happily, and Gray would rid himself of a troublemaker. Thus it was that on January 3rd, 1973, Rodriguez entered the Green Bay Reformatory, now being run by his old pal Elmer Cady.
“I always liked Cady,” Ernesto recalled. “He tried to do good things, although he was unable to do them. I think he was a very weak person when it came to dealing with the guards. You really have to be a tough warden. You have to know how to win the majority of guards to your side. You have to learn how to deal with the bad ass guards and do it in a way that the guards themselves will deal with the bad asses. You have to be able to maneuver people without them turning against you and to ease the bad ones out. A good warden has to set an example to the inmates and the guards. Cady was a good guy, but I don’t think he could do that. Wasn’t tough enough as a person, y’know.
When Cady was still at Waupun I called him the ‘Grand Dragon’. Called him that because the goddamn guards would brag to the prisoners about how they was riding around in white sheets, burning crosses, KKK, y’know. They were real racists, they were, and I don’t go for that shit. I wrote Cady and told him what the guards were saying, but he didn’t believe me so I figured he must be the Grand Dragon. I was kidding, of course, but he didn’t like it so he put me in the hole a couple of days for calling him that.
“The biggest problem at Waupun was the fucking union. They had more power than the Warden. The warden he’d try to do something and the union would say, ‘No, you don’t wanna do that. Pretty soon you’d have to do it for everybody.’ That sort of shit. They were real bad news for the inmates, unless the warden had big balls. Some of that fucking membership was on the wrong side of the bars.
“What Cady and other wardens should have done was to bust up the clique in the Segregation Building. Once complaints about abuse and beatings , by Hoeft, Neffstead, DeGraff and those bums started coming in they should have been assigned to tower duty or been given the round robin. Round robin was a different assignment every day. Forced them to think, so it was kind of a torture for the dumb assholes. I’m going to guess the union would have opposed moving Hoeft or the other sadists out of the Segregation Building. They had seniority, y’know. Whatever that meant.”
Ernesto arrived at the Green Bay Reformatory in the morning. He was assigned to a cell on the third tier of the old building. Smaller by two hundred prisoners, the reformatory had been built in 1898 and looked and smelled its age. The stench from the toilets in each cell filled the air.
Two long diagonal stairways led up to the third tier of the small, barred cells. After he was issued his clothes Rodriguez was sent to a shower in the area. One of the young inmates who was bathing noticed the newcomer and commented on his graying hair. “Hey Pops,” the kid yelled, “what are you doing here?”
“I was older than most of the men there,” Ernesto recalls, “and down to one hundred and eighty pounds. When that kid called me, ’Pops’ I thought I better get things straight right off the bat.
“I asked the guard who was escorting me to hold up a minute, that I wanted to talk to the kid who’d yelled at me. I walked over to the guy and told him I could outdo him in anything, fighting, fucking, or playing chess. He could take his choice. He got all apologetic real quick and I told him not to call me out of my name and I wouldn’t call him out of his.
A few days after Ernesto arrived at Green Bay he was assigned to work in the sign shop run by a man named Holmes. Besides painting signs, the men in that shop refinished furniture, cut glass, and did a wide variety of other odd jobs. Ernesto and Holmes hit it off from the start and it wasn’t long before Ernesto was doing the department’s clerical work and teaching sign painting in addition to doing his own art work. Holmes, a handicapped man, became almost a father to the hot tempered Mexican.
“Any of these goddamn guards give you problems,” Holmes told Rodriguez, “don’t say a word—nothing—you just tell me and I’ll take care of them.”
Once during Ernesto’s stay at Green Bay there was talk about closing down the reformatory because its educational facilities and other accommodations were behind the times. Or so thought the Governor’s Committee on Offender Rehabilitation. Warden Cady thought otherwise and found b Black prisoner who agreed with him. The black man appeared on television and praised the Green Bay facilities to the skies. The prisoners who saw the program guffawed at the black man’s claims, and Ernesto wrote an article for the Milwaukee Courier, a newspaper which had a large black readership. In his article, an indignant one, Ernesto called the black man who had done Cady’s bidding a “house nigger”, a man who didn’t know what he was talking about. He was a broken house nigger.
Soon copies of the Milwaukee Courier were circulating widely among the inmates, and it was shortly after that that the “house nigger” was strutting around the prison offering ten cartons of cigarettes to any inmate who would point to the man who had written the article.
“Nobody would point me out to him,” Ernesto laughed, “but they told me he’d offered them cigarettes. So I went up to him and said, ‘Hey my man, I’m going to point out this guy to you. I hear you are offering ten cartons.’
“’I don’t really have ten cartons, but I wanna see that son-of-a-bitch,’ the guy said.
“Well how many do you have, man?”
“’Maybe I can get six.’
“You bring the six and I’ll point the guy out to you so you can whip his ass.
“The next morning I asked him whether he’d found the six cartons and he said, no, he hadn’t, but he wished he did have them. ‘Well, nigger, you don’t need the six cartons,’ I told him, ‘because I’m the guy who wrote the goddamn article.’
“‘Aw man,’ the guy whined, ‘you know why I was doing that. The warden. They promised to get me out of here sooner, if I did it. ’”
“Don’t ever threaten me again while I’m here,” I warned him. “Stay out of my face.
“‘I wanna be your friend, man I—’
“I don’t want your kind of friendship. Get lost, you black punk,” I told him and walked away.
But despite his disagreement with Cady over the quality of life at the reformatory, Ernesto got along very well at Green Bay. In the ten months he was there he received only three minor conduct reports, one of which was dismissed. By comparison with the miserable life he had led at Waupun, he was well off. Away from the Waupun’s sadists he caused no trouble to anyone.
Ernesto appeared before the Parole Board shortly after his arrival at Green Bay. The Board took the position that he had no record upon which they could judge him because almost all of his time in the Wisconsin prison system had been spent in Segregation. And he had a huge stack of conduct reports. Consequently, Rodriguez was given a ten month “pass over”, during which time the parole officials could observe his actions among the general population at Green Bay.
After ten months at Green Bay, Ernesto was transferred to the prison facility at Fox Lake, Wisconsin. Holmes tried to persuade his talented helper to stay at Green Bay but Cady may have thought that Rodriguez, being a somewhat hardened criminal, was a bad influence on the other inmates at the reformatory. Most of them were younger than Rodriguez and looked up to him.
So it was that on October 10th, 1973, Ernesto transferred to Fox Lake. It was a considerable improvement for him in terms of his own living conditions. Each prisoner had his own room and a key to his own door. Each building housed forty-eight men and was divided into four sections holding twelve men apiece. The building itself was secure and one guard was stationed where the four interior sections joined. Men could use toilet and shower facilities whenever they wished, visit with others within their own section. Above all, there were none of the niggling, endless, and irritating rules that made Waupun the worst prison in Ernesto’s experience. By comparison with Waupun, the prisons in Texas and Nebraska, and Michigan had been country clubs.
Ernesto began to feel optimistic about his chances for release. When he next appeared before the Parole Board, sometime after the expiration of the ten month pass over period, he could show them a remarkably clean record, one with only two minor conduct reports. He could also prove that the good time taken away from him had been done in a flagrant violation of his legal rights. He had friends in Madison who would like to see him released, who believed he had been brutally and unfairly treated by certain employees of the Waupun facility. All in all, he was hopeful and hope made his days pass faster.
To keep himself busy until his release he organized a group of Latinos name the “Red Berets”. Ernesto, whose nicknamed had been “Che” since his Waupun days, formed the militant unit as a protective association for Hispanics.
There were twenty-eight men spread throughout the Fox Lake facility which belonged to the group and they served as a warning to any black group, or any other individual, who had a mind in beating up a Latino. The Red Berets, who wore berets knitted by an inmate, preferred members skilled in the martial arts. No person considered “chickenshit”, who would run from a confrontation with guards or inmates was invited to join.
(It was common practice to assign nicknames to everyone. Those nicknames became a code of sorts and made it possible for inmates to discuss matters which made no sense to an eavesdropping guard. “Che”, a nickname given to Ernesto by three members of the Black Panthers in Waupun, fit him well and it is by this nickname many of his former colleagues know him today.)
A man with much restless energy and enough imagination to supply an entire Federales platoon, Ernesto now embarked upon a prison newspaper career. Strictly a samizdat, or underground, publication, the first issue of Nuevas De Los Latinos was published in February of 1974. The paper was printed in Appleton, Wisconsin, with the assistance of several young women in the area who were migrant Mexican farm workers and who were already publishing a newsletter of their own named Adelante Raza. With the help of a prison visitor named Francisco Rodriguez, no relative, Ernesto smuggled the copy and mailing list out of Fox Lake into the hands of the young migrant workers. The prisoners paid fifty dollars of their own money to have the five hundred copies of the twenty-four page paper printed. The migrants provided the money for the postage from their own pockets.
(Francisco Rodriguez, a man Ernesto likes and admires, was at the time Program Coordinator for Hispanics at the University of Wisconsin in Madison. He next served as Governor Anthony Earl’s contact with the Hispanic Community. When Francisco visited the Fox Lake prison it was easy for him to smuggle out the copy for the newspaper among his own papers.)
Whereas how the paper came to be published may have mystified the prison officials, there was no question about its editor and contributors’ identities. There, prominently displayed on the masthead was “Editor: Ernesto (Che) R. Rodriguez”, the newspaper contained news items, prison laments, poetry, news of changes in the law, and other subjects of interest to convicts. Needless to say, there was no advertising.
Nuevas De Los Latinos was well received and widely passed around. One of the almost immediate benefits from its circulation was a much increased flow of visitors to the prison. There’s no hard evidence to prove it, but it’s not impossible that Fox Lake’s warden might have been glad at the time to have the Great Communicator in his midst returned to polite society. Not only that, Ernesto had well connected friends.
In summer or thereabouts of 1974 Ernesto appeared again before the Parole Board. What, they wanted to know, would he do if he were granted a parole. He told them that it was his intention to return to Lansing, Michigan and move in with his girl friend, Diane Highfill. He made no mention of the clergy and the Parole Board made no mention of releasing him. If he lived in sin with Diane, they pointed out, he’d be breaking the law.
After Ernesto had been given time to rethink his plans he again appeared before the Parole Board and was asked the same question. This time he said he was going back to Lansing and live with his mother, an altogether more respectable way for the Parole Board to get Ernesto out of Wisconsin. He would be released on October 28th, he was told.
About that time Jesusa, Ernesto’s mother, contracted cancer and when the prison and parole officials were apprised of this development, Ernesto “Che” Rodriguez was released two months early, on August 28th, 1974.