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.
Please note: There will be no hearings tomorrow, Friday 14 January, or Monday 17 January (Martin Luther King Day).
Hearings will resume on Tuesday the 18th.
— Alan Senauke
p.s. If you are around Berkeley tomorrow evening, please come to my book release event at Berkeley Zen Center, 1929 Russell Street, at 7:30pm. I will read from The Bodhisattva’s Embrace: Dispatches From Engaged Buddhism’s Front Lines. Copies will be available for purchase and for signing. You can order a copy, too, from this link at Amazon.com.