SAN FRANCISCO — The freedom of Johnny Spain, whose murder convictions in a 1971 San Quentin prison blood bath were reversed by a federal judge, will be left up to the state parole board, Spain's lawyer said Friday.
If the Board of Prison Terms finds at a hearing Dec. 5 that Spain is entitled to parole from a previous conviction for a murder he committed in 1966 at age 17, Spain's lawyer said, he will ask U.S. District Judge Thelton Henderson to release Spain on bail while the San Quentin case is appealed.
In what has become known as the San Quentin Six case, Spain was the only one of six prisoners convicted of murdering two guards in an August, 1971, uprising that took the lives of three prisoners, including militant leader George Jackson, as well as three guards.
Prison officials said Jackson was trying to escape and contended that Spain, who was seen running out of the maximum-security unit with Jackson, helped plan the breakout and was responsible for the deaths.
Henderson, who ruled on Sept. 22 that Spain was shackled unnecessarily throughout the lengthy trial, violating his right to a fair trial, scheduled a hearing Dec. 8 on the request for release.
"If they (parole board members) find him suitable (for parole), I expect that he's going to go to his first Christmas party in 20 years," Riordan told reporters after the brief court hearing. Spain is being held at the state prison in Vacaville, where he works as an electrician.
Deputy Atty. Gen. Ronald Niver said the state, which is appealing Henderson's ruling, will not oppose a request to free Spain if the parole board finds him suitable for release. But he refused to say whether he would take the same position if the board found only that Spain should be paroled from the 1966 conviction, the case Riordan plans to argue before the board.
No Decision Yet
Los Angeles Deputy Dist. Atty. David Ross, who represents the prosecution in the 1966 case, told reporters that his office has not yet decided what position to take before the parole board.
He said Spain "wasn't Rebecca of Sunnybrook Farm the first several years he was in prison" but has had "an exemplary record in prison for the last seven or eight years, maybe longer."
Riordan said Spain's past requests for parole have had the "greatest showing of support from prison personnel" on record, and surely would have been granted but for the San Quentin conviction that has now been overturned.
In his Sept. 22 ruling, Henderson said the 25 pounds of shackles Spain had to wear during five years of proceedings in Marin County Superior Court prevented him from cooperating with his lawyer, affected the jury's perception of him and influenced his decision not to testify. Henderson said Judge Henry Broderick had failed to examine lesser alternatives that might have been adequate for courtroom security.
Given New Trial
The ruling entitles Spain to a new trial, at which Spain would give his account of the events for the first time, Riordan said. But the state plans to ask the 9th U.S. Circuit Court of Appeals to reverse Henderson's ruling.
At the time of the San Quentin killings, Spain was serving a life sentence for a 1966 Los Angeles murder-robbery.
Riordan said the average term for such a crime by anyone over the last 40 years has been no more than 12 or 13 years, even when the defendant was much older than Spain and the killing was premeditated. He said the killing for which Spain was convicted was not premeditated.
"No one has ever been held for 20 years on the kind of offense he was convicted of," Riordan said.
He said he asked the parole board for a hearing on the 1966 case alone, and got a reply saying that a hearing had been scheduled Dec. 5, without specifying the subject.
Even if the board finds Spain unsuitable for parole, Riordan said, if it is clear the decision is based on the San Quentin conviction, he will ask Henderson to free Spain on bail.