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</font><font face="Arial, Helvetica" size=3><b>42 YEARS NOT ENOUGH!
Ruchell Cinque Magee Denied Parole <br>
</b>by Gordon Kaupp, Esq. and Kiilu Nyasha <br>
Fall 2005 <br><br>
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. <br>
<br>
THE FIRST <br><br>
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. <br>
<br>
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. <br><br>
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. <br>
<br>
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. <br><br>
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. <br>
<br>
THE SECOND TIME AROUND <br><br>
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. <br>
<br>
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). <br><br>
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.” <br><br>
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.
<br>
<br>
THE THIRD: THE MARIN COURTHOUSE SLAVE REBELLION <br><br>
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.” <br><br>
It took no time for Magee to realize that this was his only chance to get
free. <br>
<br>
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.
<br><br>
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.
<br><br>
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. <br>
<br>
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. <br><br>
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. <br><br>
THE PAROLE BOARD HEARING <br><br>
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. <br><br>
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. <br><br>
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.
<br><br>
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. <br><br>
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. <br><br>
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.” <br>
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 <i>without</i> the possibility of parole. The courts have
recognized the grave potential such a practice could have in violating
lifers’ constitutional rights. <br><br>
In a Ninth Circuit case, <i>Biggs v. Terhune</i>, 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. <br><br>
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. <br><br>
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. <br><br>
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. <br><br>
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. <br><br>
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. <br>
<br>
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.” <br><br>
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. <br><br>
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: <br>
“[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.”
<br><br>
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. <br>
<br>
THE BPT COMMISSIONERS’ FINDINGS <br><br>
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. <br><br>
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 <i>crime</i>, or an accurate review of
his juvenile record and family history. <br><br>
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) <br><br>
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. <br><br>
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.
<br><br>
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. <br><br>
Magee has a new address at CSP-Corcoran: <br>
Please write to him as follows: CSP-Corcoran, Ruchell Magee,
A92051. 3A2 207, Box 3471 CSP. Corcoran, Ca. 93212. <br>
<br>
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