Jason "Quddus" Archie's attorney asked the courts to review Archie's case Friday, saying his client should be freed because he did nothing to justify the six month sentence he received.
Attorney Herman Franck, who filed a petition for a judicial review of Archie's March 23 parole revocation hearing in California State Superior Court in Marin County, said there was no crime and Archie is being held illegally.
According to Franck, the parole board violated Archie's constitutional right to due process by proceeding with the revocation hearing without two key witnesses present. He also charged that the University Police Department and Parole Agent James Quen "knowingly and willfully" misled the parole board by presenting false testimony at the hearing.
"I expect something from them (state Superior Court) by next week," Franck said after filing the petition. "Right now it's out of my hands. The judge has to look at (the case)."
The judge can either dismiss the petition or schedule a hearing in which the state attorney general and officials from the Board of Prison Terms and San Quentin would have to justify why Archie should remain in prison, Franck explained.
During that hearing Franck will argue for Archie's release.
It could take a month for the hearing to be scheduled, he said. But he added he will ask the court to allow Archie to return on his own recognizance. Franck's position: "Take 100 years to decide on the case, just let the guy out in the meantime."
Archie, 26, a black studies major and Associated Students legislator, was arrested at SF State Feb. 21 by Quen five days after he had a verbal confrontation with an English lecturer. Archie was on parole for the stabbing death of a Sacramento man in 1987.
At Archie's parole revocation hearing, he was charged with disturbing the peace, threatening another, and assault and battery (a charge stemming from an altercation with a youth in July 1994) and sentenced to six months in prison.
Franck said the case comes down to whether or not there was just cause to return Archie to prison. Neither incident constituted a crime, he said, and generally, parolees have to do something criminal, or at least willfully break a condition of parole, to be returned to prison. Franck contends Archie did neither.
In the petition, Franck argued that because Archie made no verbal or physical threats toward Lecturer Virginia Elliott, he did not violate any California law regarding crimes of threat, and therefore there was no cause to revoke his parole on that charge.
The charge of disturbing the peace, Franck said, is not valid either because, according to the law, one would have to "maliciously and willfully disturb another person."
"Where do you draw the line between a legitimate argument and disturbing the peace?" Franck asked. "You can't say 'If you raise your voice to me, you're going to jail.'
"Here you have the victim saying the line was not crossed. You have the UPD chief saying the line was not crossed.
"This is our theory," Franck concluded. "We don't think the line was crossed."
On the third charge of assault and battery, the petition said, "(Archie) was simply thwarting an attack" and was "trying to maneuver around an obnoxious, out of control 14-year-old youth."
The petition points out that Quen's supervisor holds a similar opinion.
In a report used as evidence at the March 23 revocation hearing, parole agent N. Mitchell wrote, "It appears that the charges of assault and battery could almost be labeled self-defense."
Franck also contends Archie's constitutional right to due process was violated on several fronts.
According to a summary of the revocation hearing, Archie objected to proceeding without witnesses Elliott and Edgar Cruz (who was present during the July altercation).
According to the parole board, both witnesses were subpoenaed, but did not respond by the time of the hearing.
Franck said because the hearing was not postponed until the witnesses could be present, Archie was denied his right to question them.
Elliott told Franck in an interview that Archie had remained on the other side of her desk during the confrontation, he said. While Elliott's informational statement, used as evidence in the March 23 hearing, stated that he was only inches away from her face, that would have been impossible from where he was standing, Franck concluded.
"Evidence like this could have been brought forward if Elliott had been present," Franck said.
After interviewing Cruz about the summer altercation between Archie and a youth program participant, Franck learned that both Archie and Cruz had caught the 14-year-old boy with a knife a few weeks before the incident.
Cruz told him he had written letters to the parole board and Quen explaining the circumstances of the confrontation. The letters are not mentioned in the revocation summary and Quen said he was not able to locate Cruz.
"That just blows me away," Franck said. "All this stuff could have come out (in the hearing)."
The petition said, "Had Mr. Cruz been present to testify, the outcome of the hearing surely would have been different."
Lastly, the petition charged that "both Detective (Ron) Lam and Parole Officer Quen falsely represented to the parole board that Virginia Elliott was a 'fearful witness' and was not willing to come and testify."
"There is absolutely no evidence that Elliott was fearful," the petition said. "This statement was unauthorized and prejudicial. Regretfully, in these proceedings, fraud occurred, and the result, surprisingly, is a wholesale abandonment of justice."
"It's fairly rare for people to win challenges to parole revocations," said Heather Mackay, a staff attorney with the Prison Law Office, which specializes in prisoner law.
"Most prisoner petitions don't get anywhere," she said. "But this case sounds pretty unusual -- it's certainly not typical of a lot of parole revocations."
She said that this case, which seems to involve an aspect of free speech, is more interesting to judges and they may be more willing to look at the case and even overturn a decision by the California Department of Corrections.
Steve Gargaro, an associate attorney assisting Franck, said their firm was contacted a few weeks ago by Amanda Ables, a senior human relations major at SF State.
Ables said that after reading the Golden Gater's coverage of the revocation hearing she felt the situation didn't seem right, even though she had never met Archie.
"It touched my emotions, and it angered me," she said. "I thought some injustice might be happening."
Ables said she tried to get some answers from the university administration, but got no response. She "took another approach" and began contacting lawyers until she found one willing to look into the case.
"I wish we had found out about it sooner," Gargaro said. "He'd most likely be out by now."
Franck and Gargaro have met with Archie twice. On Thursday, Archie signed the petition which could be his ticket out.
"He's hopeful," Gargaro said. But he added that Archie is a bit confused and anxious because he may be moved to another prison soon.
"He wants the matter cleared up as soon as possible," Gargaro said.
Ables, the student who took it upon herself to contact a lawyer for Archie, said she would like to see a support group for parolees at SF State.
While she made it clear that she doesn't know Archie or his personality, she said that parolees like Archie are making a great effort to get back into mainstream life.
"We should be embracing people like this, instead of pushing them away," she said.