My thoughts here have been taking shape since the dark day that findings from  Jarvis’s evidentiary hearing were announced.  He and I have discussed the court process and outcome extensively,  and he encouraged me to write this.

—  A.S.,  20 October 2011

Jarvis Masters’ evidentiary hearings in the Marin County Superior Court ended on April 8 of this year.  The hearings, called by the California Supreme Court, were intended to address the court’s questions about Jarvis’s 1989 trial for participation in the murder of San Quentin guard Sgt. Howell Burchfield. Judge Lynn Duryee presided over ten days of hearings in early 2011, which took testimony from the head prosecutor in the’89 trial; prison gang members still in custody years later (including the inmate convicted of masterminding the Burchfield attack); police officers and investigators from Oakland, San Francisco, Marin and San Quentin; licensed private investigators working for Jarvis’s legal team; and attorneys on both sides of the bench who had prepared the hearings.

Judge Duryee’s findings were submitted to the California Supreme Court and attorneys on both sides of the case three days later on April 11.  At the time I wrote the following measured words in response.

 While the news is more disappointing than I had hoped for, I think there are some encouraging aspects of Judge Duryee’s findings, and the lawyers will pursue these openings wholeheartedly. Jarvis has endured many years of unjust conviction and incarceration, so it is hard to counsel patience.  But this is our practice, in confidence that his legal team will not give up the goal of finding freedom.

Six months later I confess that I was (and still am) more upset by Judge Duryee’s findings than my measured words then let on. I went to every day of these hearings, saw and listened to each witness — cops, investigators, lawyers, and Black Guerrilla Family prisoners. The Masters legal team — Chris Andrian and his investigator Chris Reynolds, long-time advocates Joe Baxter and Rick Targow, along with Scott Kauffman from the California Appellate Project — constructed a strong narrative, responding to the Supreme Court’s questions about how a case was selectively and deceptively constructed against Jarvis in 1989.

The state supreme court essentially asked the following questions:

• Was false evidence offered at the 1989 trial of Jarvis Masters for the Burchfield attack?

• Was there new evidence indicating that Jarvis was not involved in the attack?

• Were promises or threats made to particular prosecution witnesses influencing their testimony against Jarvis in the original trial?

• Did the District Attorney’s office knowingly present false testimony in the trial?

• Was there doubtful and prejudicial evidence presented in the penalty-phase of the trial?

Admittedly I am not a lawyer.  I am a friend and supporter of Jarvis Masters.  But I found his team’s narrative a compelling response to the Supreme Court’s questions.  I feel that Judge Duryee’s findings miss the point of the court’s questions.  And Jarvis sits in prison.  It seems to me that:

1. Key BGF informants recanted their testimony on the stand and in sworn depositions.
2. Regarding the testimony of pivotal informant Bobby Evans: a. He was not present in San Quentin’s Adjustment Center where the murder took place; and b. He was very possibly compelled by prison and state investigators who had interest in Mr. Evans for other crimes including a murder.  He was essentially a professional informant, trading testimony against Jarvis for his own protection.
3. There were contemporary gang investigations in the Oakland and San Francisco police departments and in San Quentin’s investigation unit that hinged on informants who were used against Jarvis. Records of these investigations are now incomplete or have disappeared.
4. Compelling testimony from forensic linguist Robert Leonard argued that the language of prison notes or “kites” admittedly copied by Jarvis were not congruent with spelling and language he used in numerous other notes and letters at the time.  Judge Duryee admitted in her findings that his testimony was convincing.

Yet Judge Duryee found no basis at all for any of the Supreme Court’s questions, and she did so very quickly. How were her findings submitted just three days after the final testimony?

In her concluding comments Judge Duryee wrote:

The basis of Petitioner’s habeas corpus proceeding consists primarily of recantations from unreliable witnesses who testified in the 1990 trial.  The witnesses are all men with prison records who belonged to the same prison gang as petitioner.  The jury had an extensive opportunity to hear and evaluate the witnesses’ testimony at a time when the events were far fresher in the minds of the witnesses…Although the petitioner did present new evidence casting further doubt on the reliability of Bobby Evans, that evidence would likely have made no difference in the outcome of the underlying case…

I could go on extensively about my problems with Duryee’s findings. To be brief…

• How is it that the BGF informants, many of whom were known prison snitches, were more reliable in 1989 and 1990, when their own culpability and personal safety were much more at issue than in these 2011 hearings?  Among these were gang members who now admitted on the witness stand their direct involvement in the Burchfield murder and BGF leadership.

• Why is new evidence of Bobby Evans’ unreliability discounted offhand by Judge Duryee? I believe she was asked if there was new evidence, not to rule on how a jury might see it.  That would seem to be an issue in a new trial.

• Duryee’s conclusions about linguist Robert Leonard’s testimony are particularly confusing.  In a case where there was no physical or eyewitness evidence and no murder weapon, these kites were central pieces of evidence against Jarvis. She concedes that Jarvis probably copied the self-incriminating kites, possibly in protection of his own or his family’s lives, and yet she writes:

…Dr. Leonard’s testimony does not exonerate petitioner. It may suggest that Masters was not a leader or planner of the conspiracy, but Masters was not tried as the leader or planner of the conspiracy; he was tried as the knife-sharpener and messenger. The fact that Master wrote a BGF kites (sic) about the murder — whether in his own words or those of a higher-ranking member — tends to implicate him in the conspiracy.

So a man spends twenty-two years on death row, where he sits today, on the basis of a tendency?

• Surprisingly — because it hardly came up in the ten days of hearings, and no witnesses were presented — Judge Duryee spends almost half of her 27-page finding discussing the penalty-phase testimony and subsequent recantations and vacillations of informant Johnny Hoze.  His testimony in 1990 concerned Jarvis Masters’s supposed involvement in the San Quentin murder of inmate David Jackson — a case for which there was never any trial or physical evidence. Hoze was pivotal in Masters’ capital sentence, despite the fact that he admitted previously lying to a Marin County court in yet another case, circumstances that Judge Duryee was aware of.  Really, how can a man be sentenced to death on the basis of accusations of crimes that were never adjudicated?  And how can that sentence be allowed to stand?

One further painful observation.  I cannot avoid thinking about race and American criminal justice.  In the Marin courtroom each day there was always one black man present — Jarvis Masters.  With the exception of one or two security officers, almost everyone else in that room was white: the judge, all the lawyers, all the investigators, and for that matter most of the spectators.  Of course, some of these people were Jarvis’s allies, friends and dedicated legal practitioners doing all they can for him.

All of the BGF and prisoner witnesses were black.  And all of them were ruled to be “unreliable,” their present testimony discounted where this testimony might even today put their lives at risk.  All of the testifying police officers, investigators, attorneys, and experts were white, and Judge Duryee respectfully treated them as credible.

In the realm of truth I don’t necessarily find myself able to reach conclusions.  Again I am not a lawyer or a principal in this case.  But in human terms, if I just look at the ratio of one black man and so many whites, I naturally think about systems of power.  California’s prison system and death row houses men and women of color way out of proportion to their numbers in the general population.  Reading back through the history of the Burchfield murder, a terrible event, it is clear that the realities of prison life in the 1980s and even now are stamped with and perpetuate a legacy of racism and injustice.

The recent Georgia execution of Troy Davis — a case similarly without physical evidence and replete with recantations of key witnesses — shouts out that the fates of Jarvis Masters, Troy Davis, and many others on the nation’s death rows — are more matters of race and power than of carefully applied justice.  When will this end?  When will Jarvis Masters be free?  When will he come home?

A Comment from Jarvis Masters

Finally, here is a voice that begins to express my frustrations with the outcome of the evidentiary hearings. These words speak volumes to how unsettled I am with Judge Duryee’s conclusions…and the testimony should have spoken to my innocence.  Alan begins to explain this.   In time I will say much more about the status of my case.