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 Magee’s 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 prisoner’s record 
in the parole suitability hearing.  If an inmate is innocent, then, under 
the BPT’s 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 Magee’s wrongful conviction to the 
commissioners there was not a glimmer of acknowledgment of the consequences 
wrongful convictions may have on their review of a prisoner’s “crime” and 
institutional behavior.

THE SECOND TIME AROUND

After serving 6 years and 8 months in Louisiana’s 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 “victim’s” 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!  We’re 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, Jonathan’s 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 Magee’s 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 
Magee’s) 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 1980’s 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 
prisoner’s 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 inmate’s 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 inmate’s right against deprivation of liberty without due 
process of law.

In all 12 of Magee’s 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  Magee’s continued incarceration.

The Board’s 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 judge’s 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 Magee’s 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 prison’s 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 nation’s psyche rather than evaluating Magee’s 
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

Magee’s 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> 



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