WHO JUDGES THE JUDGE?

Drop by the H. Carl Moultrie building on Indiana Avenue NW on any given day
and watch as Superior Court judges mete out justice to people in orange
prison jumpsuits who have failed to do right by their fellow citizens. But
how about when the criminal justice system renders an injustice itself --
one so egregious that it results in a tragic death and an irrevocable
shattering of lives of family and friends? What happens when the upright
does wrong?

Make no mistake about it, Superior Court Judge Judith Retchin knew what she
had on her hands when she sentenced 27-year-old quadriplegic Jonathan
Magbie on Sept. 20 to 10 days in jail for simple possession of marijuana.
Why she decided to incarcerate Magbie, totally dependent, unable to breathe
reliably on his own -- and a first-time offender -- remains an unanswered
question that court officials would just as soon see go away. It won't. It
can't. The power of government took Jonathan Magbie off the streets. The
power of government put him behind bars. And Magbie was in the government's
custody when he died.

Magbie's disability was no mystery to Retchin.

Three months before he was sentenced, Magbie was called by Retchin to a
status hearing at which he was expected to plead guilty. Retchin said she
wanted truthful answers. To make certain Magbie could be prosecuted for any
false statement, she told him she was going to ask the court clerk to place
him under oath. "Do you understand, Mr. Magbie?" Retchin asked. "Yes,"
Magbie said.

"Mr. Magbie," asked Retchin, "are you able to raise your right hand to take
an oath?"

"No," he said. Retchin then told Magbie, "Listen to what the court clerk is
saying. I understand because of your physical limitations you won't be able
to raise your right hand, but you still will be under oath if you agree
after she gives you the oath." Magbie, five feet tall, his growth stunted
since the accident that left him paralyzed at age 4, seated in the
motorized wheelchair that he operated with his chin, swore to tell the
truth, the whole truth and nothing but the truth.

After that there was no way Magbie's condition could have slipped Retchin's
mind. Three times, Charles Stimson, the assistant U.S. attorney prosecuting
the Magbie case, saw fit to give the judge a reminder.

"Before I go forward," Stimson told Retchin in open court, "I would like
the record to be clear that Mr. Magbie is in a wheelchair. As I understand
it from numerous discussions with [Magbie's lawyer], he's a quadriplegic.
And that should be very clear on the record at this point before I go
forward and the court makes further inquiry."

Retchin merely thanked Stimson and moved on to accept Magbie's guilty plea.

Stimson kept trying to get it through Retchin's head that Magbie was no
threat. During a confidential bench conference, Stimson cited Magbie's
condition as a reason why the government did not want to take the case to
trial or to send him to jail. Stimson told Retchin that "the jury appeal to
a person in a wheelchair . . . is very high because he can't do anything
for himself." Moments later, Stimson explained: "We felt that if we took
this to trial, the jury would acquit Magbie because he can't really do much."

But nothing could stop Retchin from treating Magbie as a danger to society.

Well, you might ask, didn't the police find Magbie and his co-defendant,
Bernard Beckett, seated in a Hummer, a $50,000 to $70,000 vehicle, in a
Southeast D.C. neighborhood? And didn't the police search Magbie and find
$1,502 at the time of his arrest? Wasn't a gun in the car?

True, but that's not the whole truth. What the police may have suspected
was a case of drug dealers in a luxury vehicle purchased through ill-gotten
gains was anything but.

Beckett was Magbie's cousin and driver as well as a resident in Magbie's
home. The Hummer was in the name of Magbie's brother. The gun was placed on
Magbie by Beckett, at Magbie's request when the cops pulled them over.
Magbie's lawyer, Boniface Cobbina, told Retchin that the gun was in the car
for protection because Magbie and his family lived in a community with a
high number of vehicle thefts.

The $1,502 on Magbie? It was unrelated to criminal activity. Magbie
happened to be loaded. He was receiving about $30,000 a month in income as
a settlement in compensation for his injuries, according to his attorney
Cobbina. The money was invested very wisely by Magbie's mother, who,
Cobbina told Retchin, gave him "at least $10,000 in cash, so that he can
spend it as he wants to."

Even the prosecution acknowledged that Magbie was a young man of means.
Stimson informed Retchin at the bench conference, "Mr. Magbie is trying to
live sort of the fast life or as fast as he can while being confined to a
wheelchair, and he has various nicknames out in the street which aren't
relevant to this, but our opinion is that he likes to share his money to
feel important but that he's not involved in selling drugs on the street,
he's not involved in drug running." Yes, he hung out with some questionable
characters and liked having them around, Stimson said, "because it made him
feel important."

And, as reported two columns ago, three months before Retchin jailed
Magbie, Stimson advised her that Magbie had medical needs that the jail
couldn't accommodate.

So why was the judge determined to put him behind bars, which, as some have
contended, amounted to a death sentence?

Being a Superior Court judge means never having to admit you are wrong --
that is unless you are answering to the D.C. judicial tenure and
disabilities commission, which reviews the conduct of judges. That's not
likely to happen with Judge Retchin, however. Magbie's not wired to anybody
important in Washington.

And, sure, he died while in custody of the D.C. Department of Corrections.
But the jailers aren't worried either. Their boss, Mayor Anthony Williams,
is too busy with other things such as bringing the monied and baseball back
to town. Besides, what's all this fuss about another black man dying? It
happens all the time.

Update: Yesterday Gregg Pane, director of the D.C. Health Department, said
his department's report on Magbie's death was being sent to Greater
Southeast Community Hospital, where he died, for comment. Greater
Southeast, according to a letter from City Administrator Robert C. Bobb to
D.C. Council member Kathy Patterson, has been presented with a "Statement
of Deficiencies and Plan of Correction." The District is also, Bobb said,
"reviewing the city's contracted relationship with Greater Southeast
Community Hospital."

The city administrator's office advised that a letter concerning the
circumstances of Magbie's death was being sent to his mother, Mary Scott,
but that the contents could not be disclosed.