[Ppnews] Ruchell Cinque Magee Denied Parole

[Political Prisoner News]

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.

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The Freedom Archives
522 Valencia Street
San Francisco, CA 94110
(415) 863-9977
www.freedomarchives.org 
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