By Albert Samaha
By Steve Weinstein
By Devon Maloney
By Tessa Stuart
By Alison Flowers
By Albert Samaha
By Jesse Jarnow
By Eric Tsetsi
Life had not been easy on Suzanne Konopka for some time when she pulled up to her family's condo on McDivitt Avenue in Staten Island on the night of Tuesday, January 9, 2001. Waiting on the answering machine inside was news that things were about to get harder than she could have imagined.
Suzanne's husband, Robert Konopka, a 45-year-old licensed pharmacist, had been out of work and on disability since a 1992 car accident. While he stayed home to care for their two daughters, Suzanne worked two jobs, and the family relied on credit cards to cover expenses. But as time went by, finances weren't the only problems facing the Konopka household. The amount of time Konopka spent around the house meant the kids had a built-in math tutor and piano instructor, but it also created opportunities for conflict. There was an estate case in New Jersey, involving Konopka's late aunt, that preoccupied him. There was his tendency to snoop around the neighborhood, asking workmen what they were doing, and yelling at skateboarders to stop bumping cars on their way down the hilla confrontation that ended with a Molotov cocktail on the Konopka doorstep.
And then there was the battle with neighbor Debbie Ngai.
Ngai had a doga little one by all descriptionsthat she or her husband walked around the neighborhood. The pooch apparently had a habit of relieving itself on the Konopka lawn. Konopka first confronted the husband (whose name no one interviewed for this story could recall). Later he clashed with Debbie, and Debbie called the police. After several arrests and court appearances, a grand jury in February 2000 indicted Konopka for criminal contempt.
In August 2000, Konopka was arrested after missing a court date and his bail was revoked. That meant he would be imprisoned at Rikers Island, where the city holds people awaiting trial, serving short sentences, or due to be transferred to a state facility to serve longer prison terms. Suzanne wanted to keep him out of Rikers ("He wouldn't survive there," she thought), so their lawyer asked the court for a psychological screening, and the judge sent Konopka to the Mid-Hudson Forensic Psychiatric Center in New Hampton. In November 2000, Konopka returned to Rikers after Mid-Hudson found him "fit to proceed" to trial. Over the next two months, prisoner 4422833H had a series of court appearances. Suzanne never visited her husband in jail because she kept expecting his release any day. He was due in court on January 28, in just three weeks.
But Konopka was going to miss that court date, too. When Suzanne opened the door and checked the answering machine that night of January 9, she heard the voice of a Rikers chaplain. He was coming out to see her. She waited until after midnight for him to deliver the news. "I wanted to know if something happened, if my husband was beat up or violated," she said later.
What the chaplain told her when he got there was worse: Konopka was dead.
Neither the chaplain nor the staff at Elmhurst Hospital Centerwhere Suzanne went the next day to identify the bodytold her how he'd died. "But when they showed me his picture," she recalls, "there were four wide lines on the side of his face and I told them it looked like somebody's shoe."
Indeed, it was somebody's shoe Derrick Smart's. He was a 19-year-old awaiting trial for bludgeoning to death his grandmother, Mattie Conyer, in her bathtub. Smart was one of 11 siblings sharing either his father or mother, but he never knew his dad, and at age 12, when his mom dropped dead, he found her body in their apartment. A special education student, Smart quit school in the seventh grade and never held a job. He regularly heard voices, sometimes cut himself, and spoke about seeing bloody birds flying over his head. Diagnosed as a paranoid schizophrenic, Smart wasn't taking his twice-daily doses of the anti-psychotic Risperdal while at Rikers, and Smart's own lawyer had asked for him to be segregated from the general jail population. Instead, he was put in cell 30/31 on Quad Lower 1 of the Anna M. Kross Center. Konopka was his cellmate, and then his victim.
Alleging that Rikers was negligent in placing her husband in that cell and not preventing his murder, Suzanne Konopka is suing the city for $150 million in a case that could go to trial in coming months. If Smart had killed Konopka on the street, she'd have no case. But Smart killed Konopka on city property, in a cell that prison staff ordered the two men to share as they awaited trial for their alleged criminal acts. At the heart of the widow's suit are two fundamental questions: Who is responsible for Konopka's death? And whobesides Suzanne Konopka and her two children, now living without a fatherwill pay the price?
The questions raised by Konopka's death are important to more than one widow's lawsuit. Violence in city jails has decreased in the past decade, but Department of Correction lockups remain dangerous. The January 9, 2001, murder in cell 30/31 illustrates the perils that jails could pose to the thousands of people whodespite a dramatically lower city crime ratestill pass through Rikers each year. More importantly, Konopka's death reflects the risks that come with putting two men in one cella practice that New York City has stopped, but that the state of New York under the Pataki administration has continued to promote. Since 1995, the state has built hundreds of such cells for state inmates to share.
As the Konopka case inches its way through the discovery phase, one point has proven especially sticky: The city has been unable so far to name the person who ultimately decided to make Konopka and Smart cellmates. Asked to respond to the specific claims of Suzanne Konopka and her lawyer John O'Leary, the city declined. Thomas Merrill, deputy chief of the tort division in the law department, said in a statement: "Although unfortunate, the death of Mr. Konopka was not due to any negligence or wrongdoing on the part of the City. We are confident that when the evidence is heard in court, the jury will find in our favor. Because this matter is still being litigated, we are unable to comment on it any further." In legal filings to date, the city is offering only a general defense against Suzanne Konopka's claims, contending that "The risks of injuries and damages alleged to have been sustained were assumed in whole or in part by the plaintiff or caused in whole or in part by the plaintiff" or "arose out of plaintiff's culpable conduct."
Konopka was no saint. Friends of the family defend him as a devoted father and friend but concede that to strangers, Konopka was less likable: belligerent, argumentative, and opinionated. "He was an annoying guy. He made fun of my tie," offered a clerk at Richmond County Criminal Court who remembered Konopka five years after his death, but wouldn't volunteer his own name. Konopka spoke his mind at condo association meetings. Friends of his late aunt claim that he snapped pictures at her wake and tried to break into her house. Debbie Ngai, the neighbor who called the cops on Konopka multiple times, alleged to the police that he approached her to utter pleasantries like "Bitch, you are going to pay for what you are doing to me."
Whether Konopka actually said that will never be resolved. His guilt or innocence of Ngai's criminal charges was never decided by a court because the case ended with his death. Since Suzanne Konopka's lawsuit hasn't reached trial yet, we still don't know who put Konopka and Smart in that cell. We don't know whether Konopka might have been saved by a faster medical response when his beaten body was found. We don't know what prompted Smart to attack him. We don't even know whether the victim was awake: Corrections department reports speculate that Konopka was asleep when Smart began to kill him.
But we do know that Konopka wasn't suspected of being a psychotic murderer, while his cellmate was accused of slaying a relative. We know the city put them in the same cell, and we know the results of that pairing. The medical examiner's autopsy report finds that blunt trauma to the head and neck was the cause of Konopka's death, but also lists abrasions, lacerations, hemorrhaging, multiple skull fractures, brain contusions, and blood in the lungs among the injuries that Konopka suffered on his last night.
At least until that auto accident in 1992, Robert Konopka's life seemed to be the very picture of typical white, male, middle-class existence. He grew up on Long Island, played high school football, and went to St. John's. He and Suzanne met at a Redmen basketball game in 1979 and were married in October 1982. Until his accident, Konopka worked at a drugstore in New Jersey, but he and his family lived across the Gowanus in Staten Island, in a condo within a development known as "Four Brothers." McDivitt Avenue is a street of uniformly crisp and cheery units, all the same shade of beige with blue trim and identical brown and black bricks on the ground floor. The grass along the walkways is closely clipped and lush looking, and there are lots of flowers and American flags. Every house has a small yard with a neat fence around it except for number 102 on the corner, where the lawn sweeps around toward the back of the house. That was where the Konopkas lived. Compared to his neighbors' lots, it was a lot of territory to defend.
The Konopka lawsuit contends that the dispute with Ngai was over her "allowing her dog to urinate/defecate on the front lawn of the decedent's property despite requests to cease." Court records say the first dustup between Ngai and Konopka occurred in October 1998, when she obtained an order of protection against him. Ngai claims in criminal complaints that over the next year Konopka threatened her, chased her, even damaged her car. Konopka was arrested several times and charged with offenses like harassment and criminal contempt for violating orders of protection. At least once, the charges against him were reduced, and one docket was dismissed altogether, but Konopka was convicted of one misdemeanor, and later paid a $250 fine when he pleaded guilty to a second charge. After yet another arrest in July 1999, a grand jury indicted Konopka for first- and second-degree criminal contemptthe former a Class E felony.
When Konopka violated his bail by missing court dates and was going to be remanded before trial, Konopka's lawyer got him sent to Mid-Hudson for his evaluationand to avoid any length of time at Rikers. (The city says Konopka had been at Rikers on multiple occasions after his arrests, but they were short stays.) Mid-Hudson found Konopka "fit to proceed," but also diagnosed him with schizophrenia. That diagnosis is the reason why, when he was transferred to Rikers in November, he was sent not into the general population, but instead to the Kross Center's mental observation ward.
It was at the Kross Center that he would first meet Derrick Smart.
Smart had been arrested on November 17, 2000, the day after his grandmother was found dead in the apartment that several family members shared at 1170 East 229th Street in the Bronx. As cops were poring over the evidencethey found Smart's bloody clothes in the laundry chuteSmart wandered upon the scene, appearing dazed. "He kept looking up and talking about birds," recalled New York City police detective Jose Crespo at the trial. "Blood birds, how they just fly over and sprinkle blood." Smart was first jailed in module 11 of the Kross Center, but then on Christmas Day he got into a fight with another inmate. Smart claimed that the fight started after three inmates spat into his food, and guards ultimately decided that Smart hadn't started the fracas. Because he was not guilty of an infraction, Smart apparently was eligible to be placed in a two-man cell.
The two-man cells were rare in city jails, seen only on the mental health ward. Many Rikers residents live in larger dormitories. Othersand most of those inmates on the mental wardare in solitary cells. The idea behind the two-man cell program was that it had "therapeutic" value, because the isolation of prison can be especially tough on someone with mental illness. A cellmate might also stop his cellmate from killing himself, or at least alert a guard. In city jails, the two-man cell program had operated for some time without incident, officials said. But it all depended on making sure the right people were permitted to participate. Mental health staff decided who was eligible for the two-man cells, while the Department of Correction determined who slept where. The person who filled out Derrick Smart's housing form listed him as a "low" security riskand appears to have indicated that Smart faced a top charge of reckless endangerment, not murder. This helped make Smart eligible to get a roommate.
Things in cell 30/31 apparently worked out for a couple weeks, as Konopka went back and forth to court for more hearings and Smart met with his prison psychiatrist, Dr. Isaac Bampoe. Konopka would call home late at night to talk to his wife when his kids were asleep. "He said he stayed to himself," Suzanne recalls. Of his cellmate, Konopka's widow recalls: "Robert said the guy was quieta young kid."
On December 26, Bampoe had noted that Smart was hearing voices and showed "poor impulse control." But by his appointment on January 9, Smart seemed to have improved. Bampoe later testified that Smart that day "showed no evidence of acute psychosis," and added: "He was not delusional. He was not hallucinating. His speech was clear and coherent. He was very pleasant." But he wasn't taking the 2 milligrams of Risperdal twice a day as directed. Bampoe sent Smart back to his cell. It was about 6:15 p.m.
The details of what happened next remain murky. Smart is the only living witness to what occurred inside cell 30/31, and he didn't reply to requests for an interview. As for what went on outside the cell, there are multiple discrepancies.
Correction Officer Anthony Curreri was the guard posted to the section of Quad Lower 1 that contained cell 30/31. In a police interview nine days after the murder, Curreri said that he, along with a deputy warden and two inmates who worked as suicide prevention aides, checked Konopka's cell at around 7:10 p.m. and saw Smart standing there and Konopka lying on his own cot. Minutes later, Curreri told the cops, he heard Smart call for help. Curreri said he ran over to the cell, found Konopka lying there, and called for assistance.
But a Department of Investigation report filed a week after Curreri's police interview indicated that a different officer, Randall Meinsen, found Konopka. Curreri changed his recollection in a subsequent interview with the police. But the discrepancy was not explained. At least one witness one of the suicide prevention aides, who asked not to be named because he fears retaliation from the Department of Correction if incarcerated againsays Curreri wasn't at his post. "He had to go eat and he said, 'Stay on your toes,' " the aide says. "He came back when all this was going on." Even if he had been on the scene, it's not clear that Curreri could have heard the attack: The suicide prevention aide says no one he spoke to heard the beating taking place, not even the inmates in the adjacent cells.
Meinsen told police that as he was walking down the line of cells, Smart called him over to 30/31 and showed Meinsen his bloody hands. "Where are you bleeding?" Meinsen asked. "Not me, him," Smart answered. Meinsen waved for Curreri to come down. "This guy's all fucked up," Meinsen told Curreri. They opened the cell.
Konopka was on the floor, choking and gasping for air, and his head was swollen to what seemed like twice its normal size. When Curreri pressed his personal safety alarm to summon help, another corrections officer arrived and began CPR. But a more thorough medical response wasn't immediate. Jail log entries have the call for medical assistance going out 15 minutes after officers discovered Konopka in obviously serious distress, and an ambulance wasn't called until 31 minutes after Konopka was found. While the officers waited for doctors and an ambulance, Konopka's nose and mouth repeatedly filled with blood as prison staff tried to save him. Eventually, Konopka was transported to Elmhurst and died.
As Smart stood outside the cell-turned-crime-scene, the suicide prevention aide asked him why he did it. Smart's reply: "He got on my nerves, man."
Suzanne Konopka's lawsuitfiled in State Supreme Court in the Bronx in 2002asserts that city agencies "were negligent, reckless, and careless in failing to protect" her husband. She also claims that corrections officers attempted "a cover-up of the facts, circumstances, and events" to protect Curreri, who was new on the job, from getting fired. One Department of Correction investigation found that "there was no written policy regarding the housing of mental observation inmates in multi-occupant cells." It adds: "Mental health staff makes a clinical decision on what inmates should be domiciled together providing the inmate does not exhibit aggressive or paranoid behavior." But it's clear that Smart crossed that threshold. Hence the conclusion of one internal document: "It is apparent at this time that the procedures outlined in [departmental policy] were not followed by the facility." The report mentions disciplinary charges against an officer who handled the intake of new inmates, but there's no indication of the punishment. Two months after the murder, correction officials told their oversight body, the Board of Correction, that the two-man cells were being discontinued.
The city's policy shift happened too late to help Robert Konopka, and despite evidence of the risks involved, the state system hasn't changed at all. When George Pataki became governor in 1995, only a small portion of the state's maximum-security cells were two-man cells. But Pataki wanted to build more prisons and save money, so he adopted a model of two-man cells, which other states also used. Prison advocates protested. "When a jail or a prison double-cells, they increase the risk that one or both of the inmates will be injured in an assault or a fight," Robert Gangi, executive director of the Correctional Association, a nonprofit organization that inspects prisons, says. "It's a hazardous condition of confinement."
Although they house only a fraction of the 63,000 inmates now under state control, there are double-occupancy cells throughout the state prison system. The state says it has a detailed screening process to determine who gets in those cells, weeding out likely aggressors or victims. Nine medium-security prisons have "S-Blocks" of 100 two-man cells each. These are used to house inmates who cause disciplinary problems, so their occupants are locked in the cells 23 hours a day. The same lock-in rules apply to virtually all the cells at the maximum- security Upstate Correctional Facility in Franklin County, which has 590 two-man units. The regulations are looser at maximum-security Five Points Correctional Facility in Seneca County, but most of the 750 cells there are double-occupancy as well. And at 15 other mostly maximum-security prisons in the stateplaces like Attica, Downstate, and Sing Singthere are a total of 891 double-occupancy cells.
A group of state inmates filed a federal lawsuit over the double-occupancy practice 11 years ago. In a ruling this June, District Judge Gerard Lynch wrote: "As a matter of logic, it certainly must be true that inmates placed in a double cell are subjected to a higher risk of assault than inmates placed in a single cell." But Lynch dismissed the inmates' suit, determining that those risksand the general discomfort of sharing a small cell with another personweren't substantial enough to violate the Eighth Amendment. Civil liberties lawyers agree that double-occupancy cells aren't unconstitutional on their face, as long as the state is careful in screening who gets into them. On two occasions, however, prisoners in New York State double-occupancy cells have murdered their cellmates.
Come January, Eliot Spitzer is likely to take control of state prisons. Calls to his campaign spokesman, asking for details about Spitzer's corrections policy in general and feelings about two-man cells in particular, were not returned.
Debbie Ngai and her dog have moved away from McDivitt Avenue; she could not be located for this article. Derrick Smart is now serving a life term in Attica for his grandmother's murder and the manslaughter of Konopka.
Suzanne Konopka, who still lives with her daughters in the house she shared with her husband, isn't sure how much her daugh- ters know about the manner of their father's demise. His absence is felt in different ways. "Felicia wants to be a doctor. His knowledge would have helped her," she says. "Teresa, the other kids have their dads at the games. He's not there." The kids have to call their uncle for help with homework. Suzanne has lost weight without her husband's cooking. Konopka's dad died soon after his son, perhaps burdened by the grief of such an unlikely end. And the condition of the garden at 102 McDivitt betrays Robert's absence. "I kind of do what I can," Suzanne says. "I got a letter from the condo association saying there's weeds."