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 & 8) 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 5^th 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.