42 YEARS NOT ENOUGH! Ruchell Cinque Magee Denied Parole by Gordon Kaupp, Esq. and Kiilu Nyasha Fall 2005
Ruchell Cinque Magee was denied parole September 8, 2005 and remains incarcerated after serving 42 consecutive years, 49 years all told. Ruchell Magees history of incarceration is complex and contains well-recognized hallmarks endemic to the racist criminal (so-called) justice system, including three wrongful convictions. THE FIRST In 1956, Ruchell Magee, 16 years-old, dared to cross segregationist borders by befriending a white girl. When they were caught he faced severe retaliation for transgressing the boundaries of a strictly enforced culture of white supremacy and was unhesitatingly accused of attempted rape; this was as American as apple pie black men being rampantly, falsely accused of rape. This phenomenon is perhaps most infamously illustrated in the case of the Scottsboro nine. In the 1950s, such accusations typically mobilized lynching in the street or the courtroom and almost inevitably ended in death or incarceration for the innocently accused black men and boys. This fact challenges the legitimacy of the entire legal system as it maintained the hierarchy of white supremacy by carrying out the execution of black men who broke the rigid social order. Just one year before Ruchell Magee was caught with his white friend, in the neighboring state of Mississippi, Emmett Till, a young black teenager, had been brutally murdered for whistling at a white girl. And so, Ruchell Magee, facing the racist legal system of 1956 Louisiana, never had a chance. A comprehensive study of 328 cases of wrongful convictions, reported in the New York Times on August 19, 2004, concluded that there are potentially thousands of innocent people in prison in the United States. This evidence has not been universally ignored as it has by the California BPT. E.g., Illinois exonerated innocent death-row prisoners and imposed a moratorium on the death penalty. With statistical certainty some prisoners that appear before the Board are not guilty of the crimes for which they were convicted. The Board must (but fails to) take this into account when evaluating a prisoners record in the parole suitability hearing. If an inmate is innocent, then, under the BPTs own standards, the prisoner does not pose a threat to society (and in fact never did) and should thus be released. But, when this attorney raised the issue of Magees wrongful conviction to the commissioners there was not a glimmer of acknowledgment of the consequences wrongful convictions may have on their review of a prisoners crime and institutional behavior. THE SECOND TIME AROUND After serving 6 years and 8 months in Louisianas notorious Angola State Prison, Ruchell Magee moved to Los Angeles. It was not long after he arrived in L.A. that he got into a fight with a man, over a woman. An altercation that should have resulted in a one or two year sentence resulted in a life sentence. Magee, although perhaps guilty of assault and battery, was convicted for kidnap, and, for the second time, wrongfully convicted. In 1970, seven years into his life sentence, Magee had already filed numerous appeals and writs challenging his wrongful conviction. Some of the legal issues he challenged included being bound and gagged during trial, use of the victims perjured testimony and perhaps most damning, the use of the coerced statement of his cousin (the evidence the jury relied on to reach a conviction). Magee did receive a second trial based on improprieties in the first, but many of the same problems resurfaced, and the second time the court let the conviction stand. As Magee put it, they used fraud to hide fraud. In addition to the life sentence he was enduring, Magee was subjected to the brutality of prison guards, something San Quentin had become well known for by the late 1960s. Being black and vocal only served to compound the brutality against Magee. During his time at San Quentin, Magee filed numerous lawsuits challenging the conditions at the prison and the validity of many inmates incarceration. He had developed a solid reputation as a jailhouse lawyer and is responsible for the release of many inmates. Magee initiated the wrongful death lawsuit of Fred Billingsley, which after lawyers with standing took up the case resulted in a large settlement for the family. Despite his success on other cases he received no play from the courts for his own. THE THIRD: THE MARIN COURTHOUSE SLAVE REBELLION And so, after seven years of being tortured and ignored, Ruchell Cinque Magee found himself on a witness stand in a Marin County courthouse testifying about the abuse of prison guards when Jonathan Jackson stood up and cried Freeze! Were taking over. It took no time for Magee to realize that this was his only chance to get free. Three guerillas, Jonathan Jackson, James McClain, and William Christmas, planned to free the Soledad Brothers (George Jackson, Jonathans older brother, Fleeta Drumgo and John Clutchette) by getting to a radio station to broadcast to the world the torture and murders of Black prisoners in California gulags. Four such prisoners had been murdered by guards earlier that year. In fact, Fred Billingsley had just been beaten and tear gassed to death in his cell. The three others were shot by a prison guard at Soledad, and left to bleed to death on the yard. The 17-year-old Jackson was supposed to have more assistance from the outside, but since the others were no shows, he courageously followed through alone, raiding the Marin Courtroom armed to the teeth. McClain was on trial; Christmas and Magee there to testify on his behalf. Not part of the original plan, Magee spontaneously joined the freedom fighters who took the judge, prosecutor and three jurors hostage, thinking their hostages would insure their safety. But the San Quentin guards arrived on the scene with orders to shoot to kill. They opened fire on the van, and when the shooting stopped, Judge Harold Haley, Jackson, Christmas, and McClain lay dead; Magee and the prosecutor suffered serious wounds, and one juror sustained a minor injury. Ruchell Magee and Angela Davis were indicted on counts of murder, kidnap and conspiracy. Angela Davis was jailed, tried and acquitted of weapons and conspiracy charges in the case, resulting from guns purchased in her name. As the sole survivor, the prosecution put all the blame on Magee. His first trial resulted in a unanimous verdict of not guilty as to the charge of kidnap for ransom but they hung on the charges of conspiracy, murder and simple kidnap. Despite being acquitted of kidnap for ransom at the second trial he again faced the kidnap for ransom charge thus violating his constitutional right against double jeopardy being tried for the same crime twice. Unsure of how to best challenge this, Magee decided that he would plea to the unconstitutional charge believing that he could later withdraw the plea or get it dismissed as invalid. After his plea, the judge refused to acknowledge the prior acquittal and the unconstitutionality of the charge, he also refused to allow Magee to withdraw his plea. So Magee is now serving his life sentence based on that plea, his third wrongful conviction. THE PAROLE BOARD HEARING Returning to present, 49 years after his first conviction, Ruchell Magee remains incarcerated after 42 years at the hands of the California BPT. Denied parole, Magee will remain in prison another two years before his next hearing. Before discussing the hearing, we must first raise another troubling aspect of Magees case; he should not be in front of the parole board at all. In 1976, the Uniform Determinate Sentencing Act was passed, directing the BPT to convert certain inmates indeterminate life sentences (including Magees) into a determinate sentence with a minimum and maximum amount of time to be served. Magee never received his determinate sentencing hearing. The Board does not have jurisdiction because he should have a definite release date, and only those prisoners with indeterminate sentences go before the Board. Magee began serving the sentence for this crime in 1975. His maximum time to serve under the Determinate Sentencing Law should have been set sometime around 1992 13 years ago. We must put aside the fact that Magee should have been released a long time ago and that the Board has no jurisdiction. The stark reality is that his captors hold the key; therefore he must navigate the system pursuing each and every opportunity for release. The Board conducts a suitability hearing (or parole board hearing) to determine whether his release would pose an unreasonable risk of danger to society. Since his first parole hearing in the 1980s he has been before the Board 12 times and denied 12 times. To determine whether an inmate poses an unreasonable risk of danger the Board is supposed to apply suitability and unsuitability factors to the prisoners record. For example, whether the prisoner exhibits a stable social history, signs of remorse, the motivation for crime, institutional behavior, age, previous record of violence, etc. According to the United States Supreme Court, when the Board denies an inmate a release date the decision must be based on some evidence bearing indicia of reliability. That means the Board can hang its denial on one of the factors so long as there is reliable evidence supporting it. In fact, most lifers (inmates serving indeterminate sentences) receive their release from the courts through the writ of habeas corpus because the Board so often fails to base its denial of release on some evidence. Most often the Board denies parole based on number one of the unsuitability factors, the commitment offense - that the crime was carried out in a manner that demonstrates an exceptionally callous disregard for human suffering, such as an execution-style murder. The problem with this is that the facts of the crime remain unchanging. Therefore, if the Board is allowed, it could always site an undoubtedly heinous crime as a reason to deny release to an inmate. By doing this the Board in effect illegally converts an inmates life sentence with the possibility of parole into a life sentence without the possibility of parole. The courts have recognized the grave potential such a practice could have in violating lifers constitutional rights. In a Ninth Circuit case, Biggs v. Terhune, the court stated that if the Board continues to deny parole based on the commitment offense it could violate an inmates right against deprivation of liberty without due process of law. In all 12 of Magees parole board denials the BPT commissioners have partially, if not entirely, based their decision on the underlying commitment offense. This raises red flags as to the legitimacy and legality of Magees continued incarceration. The Boards decision was further flawed because it made findings of fact without adequate evidentiary support and then used these findings to deny him parole. For example, they found that Magee attacked multiple victims, that he was involved in the preplanning, and that he was guilty of murder. In order to make these findings the Board had to rely on information in his file. What the Board relied on to make its findings was the indictment (or records based on the indictment) brought against him and Angela Davis. Although Magee was charged with conspiracy and murder he was never convicted of, nor did he plead to, either charge. Being charged with a crime does not equal guilt; one would expect the BPT commissioners to be familiar with the concept of innocent until proven guilty. The commissioners however relied on the indictment and the facts therein as proof that he killed Judge Haley. The commissioners also found that he was responsible for the deaths of Jackson, McClain and Christmas, the paralysis of former prosecutor Thomas and the injury to the juror. In fact, they had it wrong because Magee was not involved in the planning of the incident, nor did he do any shooting because he was himself shot. The only link ever made to the claim that he shot the judge was from former prosecutor Gary Thomas who testified that he watched as Magee pulled the trigger to the shotgun strapped around the judges neck. The prosecutor further testified that he had played the part of super hero wrestling a gun from Jonathan Jackson and then shooting and killing Jackson, Christmas, McClain and then wounding Ruchell Magee. His testimony however, was wholly discredited by the testimony of a San Quentin guard who spoke at trial in painful detail of how he methodically shot and killed Jonathan Jackson, William Christmas and another unidentified person in the van. Moreover, if there had been any credible evidence that Magee killed the judge, the prosecution would have refused a plea to kidnap for ransom and spared no expense at trying to secure a conviction for the murder of a judge and the death penalty for Magee. Prosecutors would have jumped at the opportunity to send as strong a message as possible to the Black Liberation movement that any violence against the state would be met with merciless retribution, including state execution. That the prosecutor dismissed the murder charge against Magee indicates the weakness of the allegations against him. The Commissioners findings clearly demonstrate that Magee is still being blamed for the entire crime, when, in fact, it was the brutality of official police policy that mandated the fatal shootings. There has never been a single shred of evidence demonstrating that Magee shot and killed the judge no finger prints, no gunpowder residue on his hands, and no credible eyewitness testimony. Nor is there any evidence that he planned the kidnap. The Commissioners also refused to place sufficient weight on the fact that Magee has been without a single serious prison rule violation since 1992. They also failed to sufficiently credit perhaps the most predictive factor regarding violent recidivism age. Magee, now 66 years-old, poses a very low probability for violent recidivism. In his own words, so much has been taken from me, my whole life, why would I throw that away? I only have a little left. The Commissioners also failed to understand Magees motivation for participating in the escape attempt, which was to secure his release after being wrongfully convicted for a crime he did not commit for the second time in his life. Lastly, the BPT relied on the prisons own psychologist who wrote an incredibly biased report of Magee without, admittedly, ever having had the opportunity to interview him. The report states: [I]inmate Magee...was convicted of participating in one of the most outrageous and violent criminal acts in the history of California when he kidnapped a sitting judge, district attorney, and three jurors. He and his conspirators created an atmosphere of terror in this country and changed the security procedures of probably every court in the United States. He left our country with a greater feeling of threat and vulnerability when he was directly involved with the murder of Judge Haley, the paralysis of District attorney Thomas, and the injury of another juror to say nothing of the death of his coconspirators. We challenged any reliance by the commissioners on the report at the hearing because the prison psychologist is evaluating the impact of the incident on the nations psyche rather than evaluating Magees individualized participation. A legitimate question by the psychologist might be: Was the response reasonable given the racist history regarding rape allegations against black men in the rural south when dating white women in 1956, a second wrongful conviction, and the brutality he faced at San Quentin? The assessment is more subjective political analysis than objective scientific evaluation. THE BPT COMMISSIONERS FINDINGS Magees denial of parole was based on a record lacking adequate evidentiary support and full of visceral bias against Magee without regard to his individualized participation in the action or his history of incarceration. The Board commissioners also wholly ignored factors in favor of his release such as his age, a 13 year behavioral history without serious infractions, realistic plans for release including a place to live and a job offer, the motivation for his crime, or an accurate review of his juvenile record and family history. Magee is not the only political prisoner still behind bars after 30-50 years. Hugo Pinell is still in solitary confinement after enduring 41 years in prison, most of it in the hole, though he has no murder conviction. (See www.hugopinell.org) It makes no sense whatsoever to continue keeping elder prisoners locked down in these hell holes. Magee is now 66, has no serious assaults on his record and no murder convictions. Others doing long, hard time include Herman Bell, Jalil Muntaqim (Bottom), Marilyn Buck, Sundiata Acoli, Eddie Conway, Chip Fitzgerald, Leonard Peltier, Seth Hayes, Herman Wallace and Albert Woodfox, the MOVE 9, et al. They are the best of our kind, our heroes and sheroes. We must abolish this unjust prison system, abolish the death penalty, and free all political prisoners and POWs. We must strive to create a whole new society with a new system of justice that involves rehabilitation, therapy and medical care, including mental health care, as well as full employment and the decriminalization of drugs to preclude the need for massive incarceration. Magee has a new address at CSP-Corcoran: Please write to him as follows: CSP-Corcoran, Ruchell Magee, A92051. 3A2 207, Box 3471 CSP. Corcoran, Ca. 93212. </blockquote></x-html> ------------------------ Yahoo! Groups Sponsor --------------------~--> Get fast access to your favorite Yahoo! Groups. 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