The Hot House: Life Inside Leavenworth Prison (18 page)

The secret cell where Thomas Silverstein was kept was sealed off from the rest of the Hot House by three steel doors. Once you passed through them, you entered a large room with a cage in it like those in which large zoo animals are kept. There was a cage within a cage: Silverstein was locked behind a double row of bars, with a five-foot gap between the rows. He looked wild. His shoulder-length hair and beard were unkempt I learned later that the bureau did not permit him to have a comb, brush, mirror, or razor. The guards opened the door to the outer cage and slipped a chair inside. I stepped in and the door was locked behind me. Silverstein sat on a hard metal stool directly across from me behind the second set of bars. I had been told before the interview not to wear a tie, unless it clipped onto my collar. “He might grab it through the bars and try to choke you,” was the explanation. I didn’t see how he could, because a heavy wire-mesh screen had been welded over the bars to prevent him from reaching through.

“Sometimes my words can’t keep up with my thoughts,” Silverstein said softly as we spoke. “I have trouble talking. I’m out of practice.” Most of the Hot House guards, I learned, refused to speak to him out of
respect for Merle Clutts, the guard he had killed in Marion. Most days, he had no one to speak to but himself.

Silverstein said he had been painting a picture in his cell at Atlanta when he heard banging on the metal door that separated him from the rest of the compound. A few minutes later, a gaggle of Cubans came bursting in and freed him. The first thing he did was hurry outside into the open air. Then he went directly to see the guards being held hostage. “If anyone deserved to take revenge,” he said bitterly, “it was me, and when I saw this one guard who had told me once that if he had his way, I’d be dead, my first reaction was to slap him around a little. But he started whimpering, begging me not to hurt him. He started telling me about his family, cry, cry, cry, and I said, ‘Hey, I got a family too, and you didn’t care about tearing up my mail when I was behind bars and denying me pictures of them, and now you are crying for mercy.’ It was sickening. I said, ‘Why don’t you be a man and take what you got coming?’ And then I just walked away.”

After the riots, the bureau said the Cubans had kept Silverstein under control, but that was nonsense. The hostages and Cubans both said later that he could have harmed the helpless guards if he wished. He didn’t; in fact, he brought fruit to one lieutenant. There were several reasons why. If he had attacked the hostages, the FBI and the bureau would have tried to rescue them, and the last thing that Silverstein wanted was to have the riots end. He was trying to figure out how to escape, he explained, and that required time. He also hoped the bureau would drop its “no human contact” status. “I wanted to show that I could be with guards and not kill.” That had been a mistake, he now said. “I should have taken my own set of hostages and negotiated my own peace.”

The fact that the Cubans had surrendered him to the bureau was difficult for Silverstein to believe. “These people know what it is like to be locked up. I begged
them to kill me. I said, ‘Don’t turn me over, just kill me right now. I’d rather be dead than to go back.’ But they wouldn’t do that.”

I asked him about his childhood in Long Beach, California, and as we talked, I noticed that he continually mentioned his mother. Vivacious and tough, Virginia Silverstein herself had served time in prison for robbery as a teenager. She divorced her first husband in 1952 while pregnant with Silverstein and immediately married Thomas Conway, who Silverstein said was his natural father. Four years later, she divorced Conway and married Sid Silverstein, who legally adopted her son. Thomas Silverstein remembered the marriage as rocky, fights as common, alcohol as a problem.

According to prison records, as well as his own recollections, Silverstein was timid, awkward, shy, and frequently bullied as a child in the tough working-class neighborhood where the family lived. Everyone assumed that he was Jewish, and that too made him an outcast.

One afternoon, a bully named Gary knocked Silverstein down as he was walking home from school. The next day, Virginia Silverstein was watching when Gary came past her house. She grabbed the bully by his shirt and marched him and her son into the backyard of her home.

“Hit him,” she ordered her son. “You hit this boy as hard as you can or I’ll take my belt to you.”

“I took one look at my mom and her black belt and I took one look at Gary, and there wasn’t any choice at all,” Silverstein recalled. “I smacked him in the face as hard as I could.”

The next day, when Silverstein left school, Gary’s father was waiting. He escorted the boy to Gary’s backyard.

“Hit him, Gary!” the man ordered. “Punch him in the face like he hit you.”

But it seems that Gary, still recovering from yesterday’s battle, was in no mood to fight. “His old man
started yelling at him, and I broke loose and ran home and told my mom what had happened,” Silverstein said. “She jumped in the car and drove over there and started yelling at this guy to come out of his house, but he was afraid to come to the front door, so my mom pulled these bricks from the flower bed in their front lawn and she threw them through their front window. Then she went home and called the cops and told them she wanted the guy arrested for kidnapping!”

When she hung up the telephone, Virginia Silverstein lectured her son. If he ever came home again crying because he had been beaten up by a bully, she would be waiting to give him a second licking. “That’s how my mom was. She stood her mud. If someone came at you with a bat, you got your bat and you both went at it.”

After his confrontation with Gary, Silverstein got into several fights at school and he made what to him was an amazing discovery. “I got beat up pretty bad and I discovered it wasn’t the end of the world. The black eyes and bruises healed,” he recalled. “I got over that fear of getting hit by someone.” He realized something else at that moment too: some people never got over the fear of physical violence. “They would rather be a coward than fight.”

At age fourteen, Silverstein stole a car. He began cutting school, running away from home, using drugs. A year later, he got into a fistfight with a police officer. “I hated authority, just like I hated bullies. What gives anyone the right to tell another person what to do?” he asked. Silverstein was sentenced to a California reformatory where, he said, his attitudes about violence were reinforced. “Anyone not willing to fight was abused.” When he was released, he began experimenting with LSD, amphetamines, and heroin, and burglarized houses to get money for drugs.

In 1971, at age nineteen, Silverstein was sent to San Quentin for armed robbery. It was there, the bureau noted, that he first began associating with members of
the Aryan Brotherhood. Four years later, he was paroled, but he was arrested soon after along with his father, Thomas Conway, and his uncle for three armed robberies. Their take was less than $1,400. A probation officer later blamed the older men for getting Silverstein, then age twenty-three, involved in the crimes. She wrote:

Bureau records show that Silverstein was sent to the Hot House for the first time in March 1977 to serve a fifteen-year sentence for armed robbery. For a year, he didn’t get into any trouble, and then he moved into cell 410, with another inmate from California, Edward “Snail” Hevle, Jr. The bureau would later claim that Hevle was a hit man for the Aryan Brotherhood and was deeply involved in smuggling drugs into the Hot House.

Before long, Silverstein was running with other suspected white gang members, including Charles “Preacher” McEvoy, who was the alleged leader of the AB in Leavenworth. A prison counselor noted that:

On February 17, 1979, a convict named Danny Edward Atwell stumbled from his cell and collapsed on the tier. Blood gushed from the stab wounds in his chest. He died within minutes. The next day, Silverstein and his
prison buddies, Snail Hevle and Preacher McEvoy, were charged with murder.

Silverstein was brought to trial first, and the case against him is a classic example of the incredible difficulties that federal prosecutors face when they try to find out what really happened in a prison.

The government’s chief witness was James Schell, an armed robber, who testified that McEvoy had told him all about the murder and had, in fact, admitted that he and Silverstein had both stabbed Atwell.

Schell claimed that the two of them had killed Atwell because he had balked at bringing heroin into the prison for the Aryan Brotherhood. The dead man had been smuggling drugs for the gang with the help of his girlfriend, but he had thought she was delivering marijuana, not heroin. According to Schell, Atwell didn’t want his girlfriend mixed up with heroin, so he stopped cooperating. Schell also testified that Silverstein had volunteered to kill Atwell as a favor for the Aryan Brotherhood, which was worried that other mules would also quit smuggling drugs if Atwell wasn’t punished.

The prosecution’s second witness, Randolph Patrick Arnold, said he too knew all about the Atwell murder. He hadn’t actually seen anything, but Arnold claimed that Silverstein himself had bragged about the killing one night while both men were in the Hole.

The only witness who wasn’t an inmate was a guard nicknamed “Super Cop,” who testified that Atwell had identified Silverstein as the killer while being carried on a stretcher to the prison hospital where he died.

David J. Phillips, the federal public defender representing Silverstein, challenged the witnesses one at a time.

Schell’s testimony was inadmissible because it was hearsay, Phillips argued, but even if the judge allowed it (which he did), the jury shouldn’t believe it. Under grilling from Attorney Phillips, Schell admitted that he originally offered to finger Silverstein as the murderer in
return for a transfer to the jail in Fort Scott, Kansas. He claimed he was afraid to stay in Leavenworth, but the real reason he wanted to get to Fort Scott was because he had friends there willing to help him escape. The FBI transferred Schell, who in fact did escape. While loose, Schell told his girlfriend that Silverstein was innocent and that he had concocted the entire story as part of his escape plan. But when Schell was captured by the FBI, he once again offered his testimony as a bargaining chip. In return for the government’s dropping the escape charges against him, Schell would claim that Silverstein was the killer. Prosecutors agreed.

By the time that Silverstein’s attorney had extracted this information from Schell, jurors realized that he was capable of testifying to anything as long as it was to his advantage.

The prosecution’s next witness, Randy Arnold, also had cut a sweet deal with prosecutors. In exchange for his testimony, the government had agreed to move him to a prison camp, drop a murder charge pending against him, and put in a good word for him with officials in Arkansas, where he was supposed to serve a twenty-five-year sentence for kidnapping once he was released by the bureau. Arnold also admitted that most inmates suspected him of being an informant, one of the last inmates whom Silverstein would trust.

At that point in the trial, Phillips felt confident. The only witness left was Super Cop, who had testified that Atwell identified Silverstein as the killer while being carried into the prison hospital. Phillips was able to shred his testimony too. Several other guards who had helped carry Atwell testified that Atwell had not said a word, and the prison doctor stated that Atwell was suffering from shock and couldn’t speak.

“We had put on an extremely effective defense,” Phillips recalled. “We had shown the two convicts were liars and shown that the guard’s testimony was inconsistent with what everyone else saw.”

But then Silverstein insisted on testifying. “He thought he could convince the jury of his innocence,” said Phillips. It was a disaster. As soon as it was the prosecutor’s turn to ask questions, he brought up the Aryan Brotherhood. Phillips jumped to his feet and objected, but the judge overruled him, and for the next several minutes Silverstein naively defended the prison gang. The prosecutor then called a long string of rebuttal witnesses who gave jurors a much grimmer picture of the AB, linking it with killings, prostitution, drug smuggling, and extortion. In effect, the prosecution had changed the focus of the trial from Silverstein to the Aryan Brotherhood.

The jury found Silverstein guilty and on March 3, 1980, he was sentenced to life in prison and transferred to the penitentiary at Marion.

“I was innocent,” Silverstein later recalled. “I was being framed by these rats who had just flushed my life down the toilet. I knew I was going to Marion with a life sentence, and I had a real attitude problem because I was pissed. I figured I didn’t have much to lose.”

Five months later, Edward Hevle and Charles McEvoy both pleaded guilty to reduced charges. Once they were no longer under any legal jeopardy, they signed affidavits that cleared Silverstein of the Atwell killing. The murderer, they claimed, was none other than the prosecution’s main witness, James Schell. Federal prosecutors were furious, and accused the two men of
lying
in revenge for Schell’s testimony against their friend. But Schell himself signed a detailed confession that cleared Silverstein.

Phillips appealed Silverstein’s conviction and, after studying the case, a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit said it was appalled by the quagmire of conflicting testimony and recanted statements. “We do not view this as a case in which the evidence overwhelmingly points to the guilt of the defendant,” the judges wrote. Schell’s testimony was hearsay
and should never have been admitted as evidence. Super Cop’s testimony also should have been disregarded because it was “difficult to believe” and “ambiguous at best.” The judges ordered federal prosecutors to either dismiss the murder charge against Silverstein or conduct a new trial.