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March 1994: The Fuson Case -- A Set-up?

Mr. McKayís was not the only case at Kent in which a prisoner had been kept in segregation for what seemed an unreasonably lengthy period prior to the disposition of his charge. Mr. Fuson was charged with contraband in the form of "a metal rod approximately six or seven inches long sharpened to a point at one end." The offence report stated that the item had been found in a small cardboard box beside his toilet on the floor of his cell.

Mr. Fuson, after indicating he was going to plead not guilty, told Mr. Walters he hoped to raise a reasonable doubt regarding his possession, on the basis that his cell was open and any other prisoner could have put the homemade knife in his cell. Officer Mead gave evidence that he and two of his colleagues did random cell searches on Mr. Fusonís range. One of his partners had found a five-inch piece of solid-core wire about 3/16" in diameter, sharpened to a point, in Mr. Fusonís cell. The rod was retrieved about two feet inside the cell door. Officer Mead then produced the contraband and showed it to Mr. Walters. Mr. Walters asked whether Mr. Fuson had been present during the search, and Officer Mead said he was in the area but not in the cell. Mr. Walters also inquired whether Mr. Fuson had been asked about the rod, and Officer Mead stated he had not.

Mr. Fuson gave evidence that his job, as the unit maintenance man, required that his cell be open most of the time; only when he went out of the unit did he close it. He denied any knowledge of the rod and said the only way it could have been in his cell, which he did not dispute, was that someone else had put it there. Mr. Walters asked why someone would put the rod in his cell. Mr. Fuson responded that he tried to be helpful to new prisoners who came onto the range and lent them tobacco and other items until they got their first canteen. He felt that some prisoner who owed him, and could not pay him back, figured out that if a weapon was found in his cell he would be taken to segregation and would lose his cell in the unit; therefore, the other prisoner would not have to pay back his debt. He also stated he was not the kind of person who carried a weapon. In the six and a half years he had been in prison, he had never been charged with any violence, nor had he ever been charged with having a weapon. He prided himself on always being able to settle disputes without violence or threats of violence. Mr. Walters asked Mr. Fuson what had happened to him since he was charged. He replied that he had been in the hole since February 24 -- some twenty-one days.

Mr. Walters found Mr. Fuson not guilty, stating, "The explanation that you have given me is not one that I can say I disbelieve. Your explanation is one that could reasonably be true. The fact that you have been segregated for the last twenty-one days supports your explanation that one of the reasons why someone may have placed this weapon in your cell was to get you out of the unit."

After Mr. Fuson left the room, the advisor, Mr. Demers, stated that the search had been based on information that Mr. Fuson was going to stab his case management officer, Randy Voth, because he was going to be recommended for detention until warrant expiry. However, Mr. Demers said he had discussed this issue with Mr. Voth, who felt Mr. Fuson had been set up by some other prisoner. If Mr. Voth, as the staff member most familiar with Mr. Fuson, believed that Mr. Fuson did not have knowledge of the knife in his cell, this raised two questions in my mind: why was the charge laid and proceeded with, and why was Mr. Fuson kept in segregation for three weeks before the hearing?

The Fuson and McKay cases reflected the institutional reality at Kent in 1994-95, and indeed up until the Segregation Task Force Review in August 1996, that prisoners often spent as long, or longer, in segregation pending their disciplinary hearings than they would serve if found guilty. Part of the reason for this was that even where prisoners were cleared for release by the Segregation Review Board, they remained in segregation until bed space was available in the population. The other part of the reason had nothing to do with the dynamics of overcrowding. It reflected the continuation of prison customary law -- the CCRA notwithstanding -- that prisoners charged with assault or possession of weapons were kept in administrative segregation pending their disciplinary hearings, the equivalent of being detained without bail. Therefore prisoners suffered "administrative" consequences of conviction that overshadowed their acquittal in the "disciplinary" process.

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