Justice in the Long Halls — 12: The Last (?) Hearing

This post was written by Susan Moon. I was out of town for the hearing, but Susan writes with her customary clarity.  Thanks.  Now we wait for Judge Duryee’s findings.

— Alan S.


On Friday, April 8, I went to court for the final session of the evidentiary hearing, to finish the testimony of forensic linguist Dr. Robert Leonard. He was present on the telephone.  The court stenographer moved her chair over next to the conference phone, to hear more clearly.

There was discussion about whether, in cases where the language departs from standard English, similarities or differences between the Q and K docs were more significant.  (Q = questionable documents.  K = documents known to be written by Jarvis — hence K or known documents). States Attorney Alice Lustre argued that similarities were more significant, showing that they were by the same author. But Leonard said that differences were more significant. He said that there are bound to be similarities, because the language is that of a small linguistically distinct subgroup, subculture, a prison gang in San Quentin, and there is a natural tendency to adopt a shared idiosyncratic writing conventions and shared idioms in such situations.

Masters’ team presented several new documents in evidence. Most important was exhibit 73. Attorney Joe Baxter and his office had been hard at work during the last week, reading thousands of pages of documents, and exhibit 73 is a compilation of 90 pages of letters written by BGF members in SQ contemporaneous with Q and K documents already presented.

Ms. Lustre had argued that there were significant similarities between the Q and K documents, similarities like ‘ed that depart from standard English, and that this indicates that the documents were written by the same person. Exhibit 73 demonstrated that some of the linguistic artifacts shared by the Q and K documents were also found in gang documents written by other people, and were common to the gang’s linguistic usage. Dr. Leonard supported this hypothesis.

Ms. Lustre raised extensive questions about specific details of language, arguing that Leonard’s findings were subjective, not scientific, that it was just his opinion, that for example in the case of sentence length, there weren’t any periods anyway, so he could just decide where he thought the sentences ended in order to say that Jarvis’s sentences were longer than the ones in the Q docs. He said he determined sentence length grammatically.

Attorney Chris Andrian repeatedly pointed out that Ms. Lustre is not a linguist, not an expert, and that her findings can’t hold up to a professional linguist, whereas Dr. Leonard is a scientist, using a scientific method. Dr. Shy, a linguist from whom Baxter got opinions in 98, earlier came to the same conclusions as Leonard. Shy was not called to the stand because he has retired, but it was pointed out that two expert forensic linguists independently reached the same conclusion.

Judge Duryee was clearly impatient with Ms. Lustre’s argument that Leonard was just giving his opinion.. The judge said several times, “That’s what expert witnesses do. They give their opinion, their expert opinion.”

The most disturbing moment in the day came when Judge Duryee asked Andrian, “Even if Jarvis was copying somebody else’s words because he was told to do so by the gang, why does that exonerate him? He would still be making a contribution to the conspiracy to kill Burchfield.”

To our dismay, she seemed not to have understood that the kite or note in question had been written after Burchfield’s murder. Also, her question ignores the argument that it was written under threat of violence or death. Andrian set her straight immediately, and she realized her mistake about the chronology.

Later, in the hall, Joe Baxter said that in a sense the judge’s misunderstanding is beside the point, because Jarvis was never charged with being a copyist, but with being an accessory. This is not on the list of questions from the state supreme court. And that’s what Judge Duryee’s job is, to pass on her findings in response to the supreme court’s very particular questions.

There were brief closing arguments about Dr. Leonard’s testimony, and court adjourned about 11:30. Goodbyes, hugs and thanks to the lawyers. Now, there is nothing to do but wait.

— Susan Moon


About asenauke

Zen Buddhist priest, activist, writer, father, musician
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