Although 10 Wende Correctional Facility guards have been indicted on charges of beating inmates last spring, several other guards allegedly involved in the incidents escaped criminal charges, according to law enforcement sources.
At least two other guards were implicated in the beatings, but the seven inmates who were assaulted over a two-week period couldn't pick their photographs from state Department of Corrections files, according to sources who spoke on the guarantee of anonymity.
Because the inmates had been at Wende for only days before the beatings, which were sparked by an inmate lawsuit over alleged racial discrimination at another prison, photographic identification was a crucial aspect of the grand jury investigation.
Currently, there are no plans to seek indictments of other guards because of the inability of the inmates to identify other suspects, sources said.
All 10 indicted guards have been suspended without pay since Nov. 8, a day after they pleaded innocent to a 13-count indictment charging them with felony and misdemeanor assault, harassment and intimidating the victims, black and Hispanic inmates.
The inmates staged a May 18 insurrection in the prison infirmary after guards allegedly began beating inmate Robert Rivera after he returned from courtroom testimony in the discrimination suit over conditions at the Elmira Correctional Facility.
The guards are accused of beginning the beatings on May 15 and continuing them through May 27.
Law enforcement sources also said that the credibility of the inmates was enhanced greatly before the grand jury when all 10 of the guards under investigation refused -- on the advice of labor union attorneys in Albany -- to waive immunity for appearances before the grand jury.
None of the indicted guards testified because of the legal position they took. All seven inmate-victims testified and waived immunity.
When Dillon and his prosecutors made it clear during the summer that no guards or inmates who appeared before the grand jury would be granted immunity from prosecution, the lawyers for the guards' union had them sign documents specifically stating they wouldn't testify without immunity, sources said.
Prosecutors weren't under any legal obligation to give guards or inmates immunity because all of them were under suspicion at the start of the probe, sources said.
Charles Booth, spokesman for the guards union, Council 82 of the American Federation of State, County and Municipal Employees, and the union's Albany attorneys declined to comment on the immunity issue. Dillon also declined to comment.
Mark J. Mahoney, the Buffalo lawyer appointed by the courts to represent the seven inmates during the grand jury investigation, confirmed that his clients waived immunity and testified.
Mahoney said the inmates, armed with photographs of the injuries, "took the bull by the horns and went in and told their story."