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Justice in the Long Halls — Jarvis Masters' Hearings
4 January 2011
Today was the first day of open evidentiary hearings for Jarvis
Masters, in response to his habeas corpus petition to the California
State Supreme Court. The hearing took began at 10am at the Marin County
Courthouse at the Civic Center, and will continue daily for roughly the next
three weeks.
What a weird place, this Civic Center. I know one is
supposed to be awed by Frank Lloyd Wright’s last major architectural
achievement. But the place seems to go on and on, pink stucco sprawling
across many acres. On the inside it feels more like an event than a
building, a bit down at the mouth, with leaks in the roof and patched stucco
covered by paint.
Anyhow, this is where they are bringing Jarvis each early
morning, to the circular courtroom of Judge Lynn Duryee — Room L, Floor C, past
two sets of metal detectors. Jarvis will be there each day, in his orange
jumpsuit, shackled but for his left hand, free for writing.
Let me explain the process as best I understand it. A year
or two ago, the defense team petitioned the State Supreme Court for a writ of habeas
corpus, seeking a new trial on the basis of flawed evidence in the original
trial twenty years ago. After hearing from the state, the Supreme Court
surprisingly responded with seven questions pertaining to evidence in the
original trial. They appointed a judge, Lynn Duryee, to hold a hearing on
evidence. At the end of the hearing process, which includes various
witnesses from law enforcement and the prisons, she will make a recommendation
to the Supreme Court: either recommending either a new trial or affirming the
outcome of the original trial. The Supreme Court will then decide what to
do. Our deepest hope and belief, at this moment, is that this
hearing is a step towards Jarvis’s exoneration. As lead attorney Chris Andrian
put it today, there are two key questions. Was there false testimony in
the original trial? Is there new evidence exculpating Jarvis.
As I wrote earlier, this case stems from the 1985 murder of San
Quentin officer Howell Burchfield by member of the Black Guerilla Family (BGF),
a powerful gang inside San Quentin. Three inmates were convicted of this
murder in 1990: one for ordering the killing, a second doing the act
itself. And the third, Jarvis Masters, for sharpening the weapon, taking
part in a conspiracy. The first two received life sentences. Jarvis
was given a death sentence for sharpening a weapon that was never found, on the
basis of testimony from two other prison informants.
As I have said before, knowing Jarvis over the last fifteen
years, seeing his fundamental goodness and sanity, I truly believe that,
although he was affiliated with BGF in the 80s as a young man, vulnerable and
headstrong, he had no part in this reprehensible killing.
The point of this hearing is to convey enough of this truth, to
raise sufficient doubt about the original trial to warrant a new trial on a
firmer, more transparent basis. So, I am hoping to attend most days, and
will try to blog an outline of events each day. I think that a detailed
account is both inappropriate here and beyond my energy and capacity. But
I’ll try to give you some flavor of events.
***
There were about fifteen to twenty of J’s supporters present on
this first day — old friends who have been close to him for many years, and a
few others who responded out of compassionate concern. The courtroom
seats an audience of about 35, after the first row of seats is cordoned off,
ostensibly for security. Jarvis was already seated at the left of a long
table, almost the only African-American face in the room. He was there
with his lawyers: Chris Andrian, Joe Baxter, Rick Targow, with Scott Kauffman
of the California Appellate Project and investigator Chris Reynolds advising.
I think we had expected there would be some extended time spent
on housekeeping and scheduling before things got moving. But very
shortly, Andrian presented his opening statement. In essence his argument
was that the state withheld information and substantial documents from the original
defense team that would have thrown in question the testimony of key witness
informants within the BGF itself. That at least one key witness had a
sentence reduced after his testimony in Masters’ trial. That evidence of
complicity between prisoner informants and investigating agencies was hidden
until just months and days ago. That new evidence would be presented that
Jarvis did not participate or vote in the decision to murder a guard, and that
he did not prepare or sharpen the as yet undiscovered murder weapon.
State’s Attorney Alice Luster took strong issue with Andrian’s
arguments, though it seemed to me she unsuccessfully parried the issue of
hidden evidence and corrupted testimony by informants. And these are the
matters at hand as witnesses appear in the following days.
The afternoon was spent questioning two retired SFPD homicide
detectives concerning details in a murder that may have involved one of the key
witnesses against Jarvis. As the chronology unfolds, investigation of
this murder and the non-investigation of a prime suspect seem to coincide with
the state’s developing circumstantial case against Jarvis.
I will stop here for now. Others of you who were present
in court today may have additional comments and corrections. Tomorrow is
another day.
*******************
5 January 2011
Today’s session ran from 10 to 12, then broke until tomorrow
when further witnesses will be called. Jarvis looked alert and relaxed when we
came in. He is still shackled, except for his left, writing hand. Looks
like this will be the daily protocol throughout the hearing.
The first matter of business was a curious and often inaudible
verbal scrimmage between an attorney for the San Francisco Police Department
and the defense team, with Judge Duryee tossing in her own questions. At
root, there seem to be several sets of documents relating to a 1988 SF murder I
mentioned yesterday. The link between this murder and the conviction of
Jarvis Masters is that a central witness against Jarvis was himself an
uncharged suspect in this murder. (More about this later.) The
documents involved were never shared with Jarvis’s original trail defense. The
questions raised were about whether, even now, the defense has all the
documents in the file. As best I could tell, they didn’t know, nor did
the judge, the attorney for SFPD, or the State’s Attorney. The upshot is
that Judge Duryee instructed an immediate document review, which was conducted
in another room by a lawyer for defense and a State’s Attorney.
Following this business, Chris Andrian presented three
witnesses: the lead prosecutor in the original trial, and two former members of
the Oakland police intelligence squad. All the testimony pertained to one
key witness against Jarvis, a BGF member who had been a long-time paid
informant and, at one time, a leading suspect in that 1988 SF murder.
The first witness, the original prosecutor, affirmed that he
neither knew this witness had been a police informant. Nor did he have
any knowledge of this person’s possible involvement in the 88 SF murder. The
two other witnesses for the day testified to their knowledge and working
relationship with the informant and their awareness of his status as a suspect
in that 88 murder. With no further witnesses scheduled, the court adjourned
until tomorrow morning.
It is hard to write about this without sharing the fine details
that emerge in documents and testimony. But since this seems to me
inappropriate, I am sketching it as best I can. Several things come to
mind. First, that the Jarvis Masters team is building its case, step by
step, demonstrating how secrecy and manipulation can are the enemy of any kind
of justice. Second, it is amazing to follow the paper trail, the complex
sequence and relationship between documents — discovered and undiscovered — and
our actions in the world. A trial, or in this case a hearing, is about
dueling narratives. These narratives are based on words written and words
remembered.
And finally, as I observed yesterday, all the principles in
court, except for Jarvis (and one corrections officer there for security) are
white. Mostly white men. Some on one side, some on the other.
This includes all the police officers seen over the last two days. I draw no
firm conclusions from this, aside from noting where power and authority appear
to rest in the legal system and in this country as a whole.
***********
6 January 2011
Another short day at the Masters’ hearing in Marin. It was an
encouraging day of testimony, as Jarvis’s team continued to build a strong
case. I was happy to be accompanied in court by my daughter Silvie.
Two witnesses had been scheduled, but one cancelled due to a
death in his family. So today’s single witness was a current inmate, a
tall, gangly man, wearing the customary orange jumpsuit and shackles in court.
He has been in prison for more than 30 years, almost all of it in the Security
Housing Unity (SHU), a kind of solitary confinement prison within a prison for
inmates who are considered a security risk. His presence called for a beefed-up
squad of correctional officers, standing beside him on the witness stand, and
behind Jarvis, across the room.
This witness’s testimony stated that Jarvis, who had been a
member of the BGF at the time of Burchfield’s murder — a time of great turmoil
and violence within California’s prisons, between prisoners and guards and
among the various ethnic-based prison gangs — was in no way involved with the
murder conspiracy or any acts of material support for the murder. The witness
said that Masters had been stripped of any gang responsibilities for
insubordination and was under disciplinary watch by the gang. This circumstance
would have excluded him from all BGF actions, meetings, and plans.
He went on to say that the location of Masters’ cell, on the
fourth tier of C-Block in San Quentin further isolated him from the primary
activities, all of which took place on the second tier.
***
By the way, here is a further explanation of the habeas process,
just so people don’t expect that there will be an immediate “verdict” at the
end of these hearings. Following the hearing, Jarvis’s team writes a brief
arguing what was accomplished in the hearings. This itself may take a
month. Then the state has six weeks to respond. Only after this does the
judge offer her findings and recommendation to the State Supreme Court.
Their ruling can take as long as they wish. So we have ample opportunity to
practice patience.
*************
10 January 2011
The hearings continued today in the surreal surrounds of the
Marin Civic Center. Jarvis Masters’ team called three witnesses. The first was
co-counsel for defense at the original trial. His testimony was very brief,
and, to me, a little obscure. But I have been learning how seemingly small,
discrete facts weave into the larger fabric of a legal case over time.
Witness two was a retired private investigator with a long
history in law enforcement and the California corrections system. His bona
fides were carefully established by Chris Andrian. Then he was asked to testify
about the structure and working principles of California prison gangs.
Presumably, his testimony will fit into a complex narrative about Sgt.
Burchfield’s murder, gang leadership, and how Jarvis, as a gang member under
discipline at the time of the stabbing, would not have been included in any of
the planning or action.
The third witness of the day was another current inmate. A
compact man with a neat goatee, shackled and jump-suited, Witness 3 has been in
the California prison system for thirty years straight, serving a life
sentence. In 1985, he was housed on the second tier of San Quentin’s Carson
Section, the unit where Burchfield was fatally attacked. This was compelling
testimony, set off by the witness’s soft-spoken demeanor. At the heart of his
testimony were two statements. First, that Jarvis Masters had voted in
opposition to the killing of Sgt. Burchfield, corroborating Thursday’s
testimony that Jarvis had been stripped of gang responsibilities for this
opposition. Second, that the weapon used to make the spear used to kill
Burchfield—a piece from the underneath brace of a bed frame—was entirely
procured, shaped, sharpened, and assembled on the second tier, where it was
used for the attack. Witness 3 insisted that at no time did this weapon leave
the tier, nor did it make any sense for it to go back and forth among upper and
lower tiers. The passing of weapons was and is a very risky business for the
inmates. I would remind you that Jarvis was then housed on the fourth tier.
• The hearings are OFF tomorrow, Tuesday, resuming on Wednesday
at 10am, Room L, Floor C, Marin County Court.
• Wednesday will probably be a short day, with only one witness
on the list. But the witness roster is full for days that follow. See you in
court.
**********
12 January 2011
Another short day. Today’s witness was a current inmate,
40 years into a “life without parole” sentence for murder/robbery. For
many years, this inmate — very articulate — had been a regional prison gang
leader in California’s prisons, transferred around through numerous
high-security facilities in the corrections system.
His testimony confirmed that of other inmate witnesses on
previous days.
• As a leader at no time did he hear or have information that
Jarvis Masters had any involvement in the attack and murder of Sgt. Burchfield.
Given his position, this is information he would have had.
• The manufacturing of a weapon used in the attack and the
attack itself was entirely carried out by gang members on the 2nd tier of C
Section in San Quentin, while Jarvis was housed on the 4th tier, two levels
above the scene of the crime.
• As a matter of gang protocol, for security, a weapon would not
have been passed vertically from one tier to another. At no time, to this
witness’s knowledge did the weapon used in the attack ever leave the second
tier. He was emphatic that passing a weapon between tiers never happened.
• Gang members of any rank and position were obligated to copy
and pass kites (notes) to other members if directed to by leadership.
From tomorrow—Thursday—on, Jarvis’s legal team will be
presenting a steady stream of witnesses most days. Tomorrow, most likely,
we will hear from an investigator who worked for San Quentin in the mid-80s, and
another key inmate witness.
Meanwhile…
After today’s hearing broke about noon, I drove up to
Guerneville and Russian River Zendo to sit with Darlene Cohen’s body, among her
students and friends. I am very glad I went. The zendo is tucked into a
wooded hillside a little up and out of town. Darlene’s body was carefully
arrayed in the zendo, wearing her robes and rakusu, adorned with scattered
blossoms and leaves. As someone wrote earlier today, there was a sweet and
enigmatic half-smile on her lips—Mona Lisa style: Darlene’s last expression.
**********
13 January 2011
Morning and afternoon all the visitors’ seats were filled.
There were about thirty Jarvis Masters supporters at today’s hearing, and
a large group of corrections officers. It felt like the hearings had
gathered momentum, as the Jarvis Masters legal team has step-by-step created a
strong narrative to counter the questionable evidence that led to Jarvis’s
original conviction.
The first witness of the day was an aging investigator, retired
in 2001 after more than thirty years in the department of corrections. In
his years in CDC he had worked his way up the ranks from an entry-level
correctional officer to a full investigator looking into the activities of
prison gangs. In the late 1980s he was mainly working with informants or
“snitches,” as gang criminal activities unfolded in the streets of the East
Bay.
His testimony was marked by lapses of memory on details
pertaining to one of his active informants, a gang member — in and out of
prison — who brought forward information about the Burchfield attack and Jarvis
Masters only in 1989, four years after murder, when this informant was himself
a prime suspect in an unrelated murder case. (See my blog from Day 2.) The
witness claimed not to recall events he had spoken of not so long ago in legal
depositions he had given, even when shown those statements and other supporting
documents. Centrally, he could not recall if he had told the district attorney
at the time that his informant, testifying against Jarvis, was himself
implicated in another murder case.
After lunch Witness 2 was brought into court, while the various
lawyers debated procedural issues, and we waited in the halls for 45 minutes.
When we were allowed in, the witness, a former gang member and current
inmate form another state, was in the witness box. A slender man, looking
younger than his years, wearing wire-rimmed glasses and a stoney expression.
He did not look happy to be there.
Witness 2 had been a gang leader in San Quentin at the time of
Sgt. Burchfield’s murder. His testimony at the trials of all three defendants
in the case — including Jarvis Masters — had been central to the prosecution’s
case. The attorneys on both sides had no clear sense of what he would say, but
in the end it was a moot point. Even though he had testified in the
original trial and had been deposed since, he stood on the Constitution’s 5th
Amendment, refusing to testify and incriminate himself. In this case, the
incrimination would not be for involvement in Sgt. Burchfield’s murder — for
which he had already been given immunity — but for risk of perjured testimony.
So, his appearance, which was expected to run for the rest of the
afternoon and into tomorrow, was over in twenty minutes.
At first glance this might have seemed disappointing, but in
fact it was an important moment, undercutting the validity of his testimony at
the original trial twenty years ago.
***
I should note again that this is a hearing, not a trial.
In a trial, the rule is that a defendant is innocent until proven guilty
“beyond a reasonable doubt.” In an appeals hearing like this one, Jarvis
Masters has already been convicted. The burden of proof is on his legal
team, to reveal flaws, misconduct, and undisclosed evidence that undermine the
evidentiary basis of the original trial. If successful, which I believe
they will be, the result would be a new trial. Or, perhaps, the state’s
decision not even to mount a new trail since the evidence is shown to have no
substance. But this whole process will take time. Even in the best
of circumstances — and Jarvis’s case seems to be going very well — there are a
number of further stages and months, possibly years, before exoneration and
freedom.
**********
18 January 2011
The courtroom was packed again this morning. The day began
with some drama. Court was in session as we took our seats, and there was
palpable tension. When the hearing broke last Thursday, the witness (call him
Witness Z) was a former gang leader, whose testimony had been central to the
state’s 1990 case against Jarvis Masters. Having pleaded the 5th Amendment on Thursday, he was ruled “unavailable” by Judge
Duryee. Over the weekend, for reasons that are unclear, Witness Z decided
that he wished to testify after all. There was back and forth between the
judge and the Masters legal team over whether to allow him to testify,
particularly after a number of documents had been entered as evidence at the
end of Thursday, documents that he had access to over the weekend and
conceivably might have wished to rebut. Actually no one knew what he
would do. So, after a huddle, the Masters team decided not to contest the
judge’s Thursday ruling of “unavailability,” and did not call him. End of
drama.
The rest of the day was spent examining three licensed private
investigators, working for the Masters team, who had interviewed and obtained
signed declarations from Witness Z. The first of these declarations dated
from 2001. Two of the investigators, who had worked on the Masters case early
on, laying groundwork for the 1990 trial, traveled to an out-of-state prison to
interview Witness Z, who signed a statement recanting his testimony at the
original trial, clearing Jarvis of any involvement in the planning or attack
against Sgt. Burchfield. One investigator testified that Witness Z, who had no
advance notice of the purposes of their visit seemed relieved, more than ten
years later, to speak and set down the burden of his false incrimination of
Jarvis.
In the second declaration, taken by the team’s current lead
investigator in May of 2010, Witness Z confirmed his 2001 statement in all
details. He also confirmed Witness Z’s full and willing
cooperation. All three investigators, who met with Witness Z in different
prisons, found him to be relaxed, friendly, and forthcoming with details about
gang activities within the San Quentin in 1985.
The hearings are winding down this week. Most likely the
last witnesses will be called Thursday and Friday. But tune in here
Thursday for the latest word in scheduling.
**********
20 January 2011
Today’s hearing was uneventful, which is not necessarily
bad. There were not a lot of us in attendance — about 14 or 15. And
a smaller crew of corrections officers guarding Jarvis. A lot of the
questions and answers were difficult to hear. It seems to me the air
conditioning system is getting louder.
Witness 1 was a law enforcement officer, now retired. Much
of his career was spent as an investigator for the Marin district attorney’s
office, where he interviewed witnesses, and did other tasks supporting the
prosecution. He began working with the d.a. on the Burchfield case
in 1985, shortly after the murder. In time he became the chief investigator,
after his previous superior had been removed from the case.
It was a tedious and frustrating morning as this witness was
examined by Chris Andrian, shown court documents he had signed while originally
preparing the case, and the more recent deposition he had given to the Masters’
team. Most of the questions had to do with his office’s relationship with the
key informants who testified against Jarvis. Questions also probed at
what this witness and the prosecution knew about a previous witness’s status
(see day 2 of this blog) as the prime suspect in a 1988 San Francisco murder,
gang-related, but unconnected to the Burchfield attack. Today’s witness
simply could not recall any of the pertinent details, even when reading from
documents that he had either written himself or given in deposition, and even
after acknowledging that he had reviewed his own extensive files on the
Burchfield investigation before this testimony.
His memory was much improved on cross-examination by Ms. Luster
from the A.G.’s office cross-examined. Nevertheless, the Masters’ team appeared
satisfied by the morning’s session. There is a large body of
documentation and other testimony undermining the informant this investigator
worked with.
After lunch we were supposed to hear from a witness who had
presented unsubstantiated testimony against Jarvis in the 1990 penalty phase of
the Burchfield trial. I was amazed to learn that in a penalty phase, which
could determine a death sentence, hearsay testimony could be offered about purported
crimes that had never been reported, much less adjudicated. This
particular witness has since recanted his penalty phase testimony, recanted his
recantation, recanted the recantation of his recantation, and so on.
In chambers the judge, Masters’ team, and the Attorney General’s
team agreed to submit the witness’s voluminous self-contradictory documents in
lieu of his physical presence. I suspect we are all better off for this.
Meanwhile, the hearings are winding down. Tomorrow may be
the last day of witnesses. As I’ve written earlier, there will be no
“verdict” at the end of the hearings. I’ll try tomorrow to give you an
overview of what happens next.
***********
21 January 2011
Jarvis Masters’ evidentiary hearings reached a kind of
conclusion around noon, after nine days of testimony. The first planned
witness, a former prisoner and ex-gang member implicated in the Burchfield
attack, was not called. In the housekeeping that followed — the entering
of various documents into evidence — Judge Duryee ruled that she would allow an
expert witness for the Masters team to appear in mid-February, when he is back
in the country. This witness is a linguistic expert, who will confirm the
Masters team’s argument that two incriminating “kites” or notes in Jarvis’s
handwriting were, by thorough analysis, not in his words. Testimony was
presented earlier that Jarvis wrote these kites following the murder under
pressure from gang leaders in San Quentin out of fear for his life and for that
of his family.
We had thought that testimony was over, but there were three
witnesses to follow. First was Joe Baxter, lead appellate attorney for
Jarvis since 1993. Joe testified to having read all 22,887 pages of the
1989-90 trial and penalty phase record. He was asked question about
records and files he believe are missing, based on his encyclopedic knowledge
of the case, and of the investigations that preceded it. This was where
the Masters team/petitioners and the Attorney General team/respondents squared
off, arguing about the relevance and validity of missing documents in the
matter of the perceived effect and truthfulness of a key snitch witness.
The second witness was Chris Reynolds, lead investigator for
Jarvis. Chris was questioned about Witness Z, and his deal with the DA’s
investigator in the original Burchfield trials, a deal that the DA would not
agree to. But neither did the DA’s office deny at the time that a deal
had been offered to Witness Z.
The third witness, and the only witness called by the respondent/AG
team was Deputy Attorney General Alice Luster, who has been leading the AG team
with the assistance of Glen Pruden, another Deputy A.G. Pruden did the
questioning of Luster. I can’t quite understand why the AGs decided to
put Luster on the stand. Her testimony was primarily about a telephone
interview with Witness Z, in June of 2010 and follow-up calls by a woman
purporting to be Witness Z’s wife, which said he was only willing to testify
against Masters and others if given a deal that would get him out of
prison. On cross-examination by Chris Andrian, she also revealed that
Witness Z, after taking the 5th on Thursday was still willing on
Friday morning to trade his testimony for a deal. To their credit, the AGs did
not accept this offer.
The inclusion of this June phone interview with Witness Z was
also challenged by Masters’ advisory attorney Scott Kaufman as a “Crawford
violation” a 2004 U.S. Supreme Court ruling that “cross-examination is required
to admit prior testimonial statements of witnesses that have since become
unavailable.” Judge Duryee will rule on the applicability of this
standard in a session to come.
After another session of documentary housekeeping, the judge
declared that she would hear oral arguments in summation next Thursday, 27
January at 10am. This was a surprise, though not unwelcome. She
asked for these final arguments to be framed in response to the seven questions
raised by the California Supreme Court when it took the unusual step of calling
for this hearing. She also suggested that Jarvis’s team create a chart of what
the witnesses said at different times since much of their testimony appeared to
be at odds with itself.
I was going to do my own summation on the blog today, but it
will be much easier to see next week after the attorneys present. I have
also been thinking about how this whole process has felt — what is encouraging
in the very real possibility of freedom for Jarvis, and what is sordid and
distressing about the borderline territory of thugs and cops. And then
there is the whole criminal justice system. Still thinking. So, back to
the Marin Civic Center, Courtroom K, next Thursday morning. Stay tuned.
**********
Closing Arguments — 27 January 2011
Last Thursday’s oral arguments brought Jarvis Master’s
evidentiary hearings almost to an end. (Almost, because there is still
one more expert witness for the petitioners/defense scheduled for 15
February.) Judge Duryee had asked both sides — Masters’ team/petitioners
and the Attorney General’s team/respondents — to structure their statements
according to the particular questions raised by the California State Supreme
Court when they called for this hearing.
Here is a condensed version of the Supreme Court’s questions.
• Was false evidence presented at the 1989 trial of Jarvis
Masters for the attack on Sgt. Burchfield?
• Is there new evidence indicating that Jarvis was not involved
in the attack?
• Were promises or threats made to Informant 1 (see Witness Z on
the blog for Days 7 & 9) influencing his testimony against Jarvis in the
1989 trial?
• Were promises or threats made to Informant 2 (see testimony
for Days 2 & influencing his
testimony against Jarvis in the 1989 trial?
• Did the District Attorney’s office knowingly present false
testimony in the 1989 trial?
After initial housekeeping by both sides, and further
documentary evidence, the Petitioner’s attorney, Chris Andrian began his
summary statement and argument. The first thing he did was to
affirm that the 1989 prosecution team did not knowingly present false evidence
at trial. (This goes back to testimony by the lead prosecutor on day 2 of
the hearings.)
Andrian then clarified that in a habeas hearing of this
sort, the petitioner (Jarvis) carries the burden of showing by preponderance
exculpatory matters of new evidence and false evidence. From the outset
he argued that there is significant case law that actions by investigators,
police and prison agencies should and could have been available to the district
attorney preparing the Burchfield trial. This case law states that the district
attorney’s office is responsible for deals, promises, and threats made to
witnesses by investigators even if the d.a. did not know about such deals.
In terms of false evidence, Chris Andrian argued that both
Informant 1 and Informant 2 lied in trial to support a conviction against
Jarvis Masters, in exchange for protection, favors, and lesser sentences.
These favors were played off against threats of returning these informants to
jail or prison, where their lives would be in danger.
New evidence was offered by gang leaders that 1. Masters was
under gang discipline for insubordination at the time of the Burchfield attack,
and 2. that his physical location on tier 4 of C-block in San Quentin made it
both impossible and a violation of gang protocol for him to have handled a
weapon that was procured and used for attack on tier 2. The testimony of
these gang leader was particularly compelling in that this was the first time
in all these years that each acknowledged their gang affiliation and leadership
in open court.
Turning to Informant 1, Chris Andrian cited testimony by one
investigator describing him as “a highly-motivated police agent.”
Evidence was presented — and confirmed by the Attorney General’s
representatives — that every time Informant 1 testified or offered to testify
against Jarvis he asked for a significant quid-pro-quo. This happened as
recently as these hearings. After pleading the 5th Amendment on day 6, the next day he offered the A.G. to testify
against Jarvis in exchange for release from prison in another
state. On the other hand investigators working for Jarvis
interviewed Informant 1 three times, twice in 2001, and again in 2010. At
each of these interviews he spoke freely, making no requests for favors of any
kind, signing documents that spelled out in detail his own role as the
“planner” of the attack and the source of incriminating notes central to
Jarvis’s conviction. He spoke directly and sorrowfully to Jarvis Masters’
innocence.
Informant 2, though a gang member in and out of prison, was not
in San Quentin at the time of the attack. His knowledge of details and
personalities came significantly after the crime, when he shared a cell with a
gang defendant in another prison. Chris Andrian argued, as he has throughout
the hearings, that Informant 2 only came forward with information on the
Burchfield case in 1989, when he was himself the central suspect in a
still-unsolved 1988 murder in San Francisco. Informant 2 was a regular
snitch for a key investigator in the Burchfield case and other gang-related
crimes inside and outside of San Quentin. This investigator referred to
Informant 2 as “a professional liar” and “a bullshitter.” Nonetheless he
offered the informant a free pass from prison and entry in the Federal Witness
Protection Program after his testimony against Jarvis.
***
In her closing statement Alice Luster, speaking for the Attorney
General’s office, argued that the courts are appropriately wary about late
testimony, particularly where it recants previous testimony. She
questioned whether the testimony of gang witnesses, including those coming
forward about gang affiliation for the first time, might be motivated by saving
one of their own – i.e. Jarvis – from execution. She added that these
witnesses had nothing to lose by recantation, and maybe even something to gain.
Turning to Informant 2 she disputed that he was the prime
suspect in that 1988 murder. She also argued that the investigator “running”
this informant was not a part of the Burchfield prosecution team, and therefore
had no requirement to disclose any deals with the d.a.’s office. In fact,
since Informant 2 was on parole and technically a ward of the state, this key
investigator had the responsibility to protect him from reprisals. Hence
his successful efforts to get Informant 2 into the Federal Witness Protection
Program.
***
Chris Andrian offered only brief rebuttal to A.G. Luster’s
statement, touching mostly on technical points. But countering Luster’s
point that this exculpatory testimony was coming nineteen years after the
Burchfield trial, Andrian said that this was certainly not Jarvis Masters’
fault. The unfairness of this delay is clear, but that these hearings are
the first point in that long legal process when evidence could actually be
presented. Andrian argued forcefully that the San Quentin investigator
“running” these snitch informants was clearly part of the prosecution’s team.
***
It was a long day, ending close to four pm. Judge Lynn Duryee
offered some words at the end. She said it was an honor to preside over a
matter of such gravity, one that was conducted with care and seriousness on
both sides. She thanked the officers who provided security on a daily
basis. And she acknowledged the polite and respectful observers — 15 to 25 of
us each day — as we bore witness to these proceedings.
I would also like to thank all those involved: Judge Duryee;
Jarvis’s legal team — Chris Andrian, Joe Baxter, Rick Targow, Chris Reynolds,
and Scott Kauffman; all the loyal friends who came to court. Appreciation
as well, to Alice Luster and Glen Pruden from the Attorney General’s office, to
the corrections officers present for security, and to all the witnesses —
particularly those who chose to remember critical events — for their honesty,
and for the real risks some took to testify.
***
Although summaries were offered last Thursday, Judge Duryee has
scheduled one more session of testimony, tentatively on Tuesday 15
February. At that time, Jarvis’s team will present a linguistic expert who
has determined that two notes or “kites,” evidence critical for the 1989
conviction, were not composed by Jarvis. Although these kites were
handwritten by Jarvis, other witnesses in these hearings have testified either
directly or in depositions that they he was compelled to write them, under
threat from gang leaders. This expert witness will argue that, on
analysis, the language and syntax involved reflect someone else’s composition,
not that of Jarvis Masters.
Following that last session, the next step, as I understand it,
will be a finding by Judge Duryee recommending either a new trial or upholding
the original conviction. We are hoping that this finding will not be long
delayed, but there is no predicting the timeline of such matters. Her
finding will be submitted to the State Supreme Court, which is charged with
deciding, on the basis of responses to their questions regarding evidence,
whether there will or will not be a new trial. A new trial means that the
Jarvis’s original Burchfield conviction is overturned, and that all parties
would have to start over.
What the Attorney General will do in this case is anyone’s
guess. The murder of Sgt. Burchfield was a terrible crime. It is
also a matter that fully engaged the corrections department and law enforcement
in California. In that sense it had and still has political
ramifications. So retrial is a possibility. But it is also true
that a ruling for the petitioner — Jarvis — mandating a new trial points to the
fact that there is new evidence available exonerating Jarvis and that false
testimony was presented at the 1989 trial. Essentially, if the Judge and
the California Supreme Court call for a retrial, they are telegraphing that the
original evidence was seriously and compellingly undermined.
All of this is yet to come. The waiting is
difficult. Most difficult for Jarvis, who has returned to his cell on
death row each night of these hearings. This is where he will continue to
live for now. But having sat in Judge Duryee’s court each day of these
hearings, listening as carefully as I could — which was sometimes hard to do
over the whirr of air conditioning — I have faith that Jarvis will not be long
on death row. Soon he may very well be free after so many years.
***
I hope these reports have been useful to you. It has been
challenging and satisfying to write them, puzzling out how to synthesize each
day’s testimony. Like any kind of writing I have had to discern what to
include and what to leave out. Not, that is, for the sake of the writing,
but out of respect for Jarvis, all the witnesses (irrespective of my feelings
about them), attorneys, and officers. There will be follow-up reports as
the case inevitably continues. If you have further questions or thoughts, feel
free to add your comment below.
On the first day of hearings, as I drove over the fog-shrouded
Richmond Bridge, I didn’t have blogging in mind. Nor was I planning to
attend all the sessions. Reflexively I started taking notes, and
everything unfolded from that. But the atmosphere of this
courtroom-in-the-round, the stark reality of my friend Jarvis sitting there
shackled in his orange jumpsuit, the urgency of his lawyers’ opening arguments
— all this convinced me right away that this was where I needed to be each day.
Despite the company of good friends and my vision of Jarvis being free, it was
neither convenient nor fun to attend the hearings. By the end of each day I
felt emotionally drained, and even a bit soiled. I came home and took a shower.
The twilight world of prison gangs, informants, police, and the so-called
criminal justice system is a world of violent self-interests. At times it
is really hard to see who is on which side. At times I suspect even the actors
are not sure. But in Buddhist terms, I understand the necessity of
simply showing up. Jarvis certainly had no choice about this, neither did
the judge, lawyers on both sides, and a small group of family and
friends. I placed myself among them, and I am very glad to have done so.
Just showing up, again and again. This is a good way to live.
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