The fabric of a criminal trial is woven of stories…      

the defendant’s story and the prosecutor’s story. Of course, there is also the victim’s story. From these threads come the jury and the judge’s stories. Each subsequent appeal then spins another story. We cherish the illusion that law is based on solid facts, that one true narrative incontestably trumps the false. That’s what we see in old episodes of Perry Mason. But the reality of a trial is more often rife with ambiguity; the narratives may be widely at variance or sometimes seemingly close, with small but significant differences. In the end, one story will win out—a defendant will be convicted or set free—not necessarily on the basis of truth, rather by which story the judge and jury choose to affirm.

In June of 1985 corrections officer Sgt. Howell Burchfield, was murdered inside San Quentin’s C-block by members of a prison gang, the Black Guerrilla Family. In 1990 three inmates were convicted of this murder: one for ordering the killing, a second for the act itself, and the third, Jarvis Jay Masters, for participating in a conspiracy. The first two defendants received life sentences. Jarvis was given a death sentence for purportedly sharpening a weapon that was never found. His capital conviction rested on the doubtful testimony of two prison informants and the presence of gang notes. He never killed anyone.

Attorneys for Jarvis filed his automatic appeal in late 2001. Fifteen years later, in February of 2016, after further briefs and oral arguments, the California Supreme Court handed down a 75-page opinion—S016883—in the case of People v. Masters. In opening comments the court writes:

The trial court denied the automatic motion to modify the verdict… and sentenced Masters to death on the murder count and to life with the possibility of parole on the conspiracy count… We affirm the judgment in its entirety.

So the conviction stands, for now, and Jarvis Masters remains on Death Row.

Jarvis has been my friend for twenty years. We visit regularly, talk on the phone, reflect, laugh, and cry over things in life. When I read the Court’s unanimous opinion I felt like I had been punched in the gut. I cannot imagine how Jarvis felt. Two days later we met in one of the death row visiting cages, eating food from the vending machines, surrounded by other prisoners and their lawyers. The mood between us was somber but close, and we could only shake our heads at the court’s half-argued answers offered in response to the numerous cogent challenges of the appeal brief.

In the November 2015 oral arguments before the California Supreme Masters’ attorney Joe Baxter characterized Jarvis as “an innocent man crushed by the system…who had no opportunity at his 1989-90 trial to present a compelling defense that the state had the wrong man…” Baxter asserted that the trial record shows “a perfect storm of errors.” As I heard it, the defense asked:

1. Was testimony and evidence suppressed in the original trial that denied Jarvis “a meaningful opportunity to present a complete defense?” This disallowed testimony included key gang-leaders’ misidentification of Masters; gang-leaders’ lists of actual conspirators, which excluded Masters; and the lack of a lineup of suspected participants in the murder.
2. Were key gang members and informants promised reduced sentences, favors, and deals in return for incriminating testimony against Masters? And were these deals not made known to Masters’ lawyers at trail?
3. Looking at the 1989-90 trial were there multiple errors of judicial procedure prejudicial to the defense? These errors include suppression of information, destruction of evidence, hearsay testimony, and the denial of motions to sever the trials of Masters and a second defendant.

A capital case in California has two aspects: a guilt phase, rendering a verdict of guilt or innocence; and a penalty phase, determining the sentence.

For Jarvis and for many of his friends the most troubling part of the Supreme Court’s opinion is a pivotal section quoting extensively from the penalty phase of his original trial. The placement and detail brought out by the Court seems designed to paint Jarvis Masters as an unredeemed and unredeemable monster. It is hard to read it any other way. And the effect of these allegations draws ones attention away from the Court’s inadequate responses to strong challenges in the appeal brief.

The opinion, drawing from the penalty phase, dredges up alleged acts of violence from Jarvis’s life in foster care at the age of twelve, to uncorroborated incidents when he was a teenager confined by the California Youth Authority. The opinion, citing testimony in the penalty phase, says that “Masters was also implicated in two other robbery-related incidents that occurred during his robbery spree.” He was neither charged nor convicted for these crimes.

Most damning are allegations of a gang-related murder of another prisoner on the San Quentin yard. Again, Jarvis Masters was never charged with this crime, and the penalty phase record fails to mention that along with Jarvis, three other prisoners were sent to the Adjustment Center (San Quentin’s punishment/isolation section) for non-cooperation in this investigation. This murder was neither solved nor did it go to trial.

In a 1994 study of California’s Death Penalty, the Public Law Research Institute (PLRI) writes:

For purposes of the penalty phase, “aggravating factors,” or “aggravating circumstances” are defined as facts (sic) about the defendant’s record or the offense itself that weigh in favor of imposing a death sentence.

“Mitigating factors,” or “mitigating circumstances”, are any aspects of a defendant’s character, background, record, offense, or any other circumstances proffered by the defendant that, although not constituting excuse or justification for the crime, might serve as a basis for a sentence less than death.”

Amazingly—at least to me—“aggravating factors” in the penalty phase need not be based on confirmed evidence, adjudication, or legal conviction. How can these factors be reckoned as fact? They include hearsay testimony of prisoners who may or may not have been present; the word of a corrections officer or investigator who has no direct evidence. How can such a collection of ancient unsubstantiated allegations be the legal grounds for killing a prisoner in 21st Century California?

The California Supreme Court shaped its own story from the penalty phase of Jarvis Masters’ trial, painting him as violent and dangerous. This is not the man I know: a peacemaker, a practicing Buddhist, a writer, and a keen observer of human nature, including his own. Jarvis does not deny the violence in his own past. This is clearly expressed in his book That Bird Has My Wings where he writes:

Those who want to make sense of my life will see, through my writing, a human being who made mistakes. Maybe my writing will at least help them see me as someone who felt, loved, and cared, someone who wanted to know himself for who he was.

But Jarvis has never been convicted of shooting, stabbing, or killing another human being. That is the actual legal record. Again in a civilized nation of laws how can we execute a man based a story built of inference and character assassination? Really, in the spirit of civilization, how can we execute anyone?

Jarvis still has other opportunities for appeal. His state habeas corpus petition, which considers evidentiary issues outside the trial transcript—particularly the recantation of key witnesses and challenges to an incriminating prison note following the Burchfield murder—awaits oral arguments before the California Supreme Court. Appeals in the Federal court system might be years down the road. We had hopes he would be free now.

Last week was Jarvis’s 54th Birthday. He has been in San Quentin since the age of nineteen. Since 1990 he has been on Death Row. To my mind and to many others he is an innocent man, innocent of the murder of Sgt. Burchfield or anyone else. Retribution cannot bring back the life of Howell Burchfield. We grieve for his family, and this his murder is also our loss. But taking the life of an innocent man, Jarvis Masters, compounds the crime. The California courts—unable to admit its errors and prejudices—bear this burden. So do we. It is a story that needs a new ending.

—Alan Senauke, Berkeley California, March 2016