Federal Judge Orders Alameda County District Attorney to Review 35 Capital Cases Following Disclosure of Prosecutorial Misconduct in Jury Selection

On April 22, 2024, Alameda County District Attorney Pamela Price announced that her office was ordered by a fed­er­al judge to review 35 death penal­ty con­vic­tions after the dis­clo­sure of evi­dence that sev­er­al pros­e­cu­tors inten­tion­al­ly exclud­ed Black and Jewish peo­ple from serv­ing on a cap­i­tal mur­der tri­al in 1995. In a press con­fer­ence, DA Price indi­cat­ed that her office dis­cov­ered the hand­writ­ten notes of for­mer pros­e­cu­tors that include dis­crim­i­na­to­ry jury selec­tion tac­tics, sug­gest­ing ​“seri­ous mis­con­duct” per­me­at­ed the office in the 1990s. ​“It’s not lim­it­ed to one or two pros­e­cu­tors, but a vari­ety of pros­e­cu­tors,” DA Price said. ​“The evi­dence that we have uncov­ered sug­gests plain­ly that peo­ple did not receive a fair tri­al in Alameda County and as a result, we have to review all the files.” U.S. District Court Judge Vince Chhabria ordered that the notes be made pub­lic fol­low­ing their dis­cov­ery in the case of Earnest Dykes, who was con­vict­ed and sen­tenced to death for the 1993 attempt­ed rob­bery of an elder­ly woman and the mur­der of her 9‑year-old grand­son. Judge Chhabria wrote that these notes, ​“espe­cial­ly when con­sid­ered in con­junc­tion with evi­dence pre­sent­ed in oth­er cas­es – con­sti­tute strong evi­dence that, in pri­or decades, pros­e­cu­tors from the office were engaged in a pat­tern of seri­ous mis­con­duct, auto­mat­i­cal­ly exclud­ing Jewish and African American jurors in death penalty cases.”

DA Price’s office released excerpts of the pros­e­cu­tors’ notes, includ­ing one involv­ing a Black female juror, where the unnamed pros­e­cu­tor wrote, ​“Says race is no issue, but I don’t believe her.” In a sep­a­rate note regard­ing anoth­er Black female juror, a pros­e­cu­tor described her as ​“short, fat, troll,” and that she ​“seemed put out by? my [ques­tions] about the [death penal­ty] – tried to avoid giv­ing direct answer [sic] a lot of ​‘I don’t knows’ – don’t believe she could vote [death penal­ty].” Additional notes released by the dis­trict attorney’s office indi­cate that pros­e­cu­tors placed empha­sis on jurors’ Jewish iden­ti­ties, specif­i­cal­ly under­lin­ing the word ​‘Jewish’ and not­ing anoth­er juror’s pro­fes­sion as a banker and ques­tion­ing his reli­gion. The prosecutor’s notes are fol­lowed by ​“nice guy – thought­ful but nev­er a strong [death penal­ty] leader – Jewish back­ground.” Brian Pomerantz, an attor­ney for Mr. Dykes, praised DA Price’s office for releas­ing these notes. ​“It is over­whelm­ing for Mr. Dykes to learn that this kind of mis­con­duct and prej­u­dice was hap­pen­ing in his case. After 31 years in prison, he’s learn­ing he didn’t get the fair tri­al he should have got­ten. He’s always thought this… but to hear the DA’s office say­ing it them­selves is profound.”

During the press con­fer­ence fol­low­ing Judge Chhabria’s order, DA Price said that her deci­sion to review all 35 cas­es not only stems from the judi­cial rul­ing, but also an eth­i­cal respon­si­bil­i­ty. ​“This is not about left or right or any kind of pol­i­tics,” said DA Price. ​“This is about ethics.” In a state­ment, Senior Director of Color Of Change Michael Collins said that this infor­ma­tion ​“is hor­ri­fy­ing. We have known for a long time that pros­e­cu­tors often engage in uneth­i­cal prac­tices, but this scan­dal, uncov­ered by DA Pamela Price, is unpar­al­leled.” He con­tin­ues that ​“for too long, pros­e­cu­tors have sought to win at all costs, even if it means engag­ing in con­sti­tu­tion­al vio­la­tions, civ­il rights vio­la­tions and anti­se­mit­ic and racial­ly dis­parate prac­tices that result in peo­ple sen­tenced to death.”

The Alameda County DA’s office start­ed their review process about a month before the fed­er­al order and have been in con­tact with vic­tims and sur­vivors in the affect­ed cas­es. ​“We rec­og­nize how ter­ri­ble this is, and it is some­thing we have to make right,” DA Price said. She added that ​“it’s out­ra­geous. When you have this kind of mis­con­duct, it impacts them first and fore­most because have been mis­led… We have to be mind­ful of the impact that this has on them and address their needs as well as bal­anc­ing the right of every defen­dant to a fair trial.”

DA Price’s review comes just a few weeks after a group of legal advo­cates, includ­ing the Office of the State Public Defender and Color Of Change, asked the California Supreme Court to ​“bar the pros­e­cu­tion, impo­si­tion and exe­cu­tion of death sen­tences” because of its dis­pro­por­tion­ate use on peo­ple of col­or. The court fil­ings indi­cate that Black defen­dants are approx­i­mate­ly nine times more like­ly to be sen­tenced to death in California than all oth­er races. Additionally, neigh­bor­ing Santa Clara County District Attorney Jeff Rosen recent­ly announced that he would seek to resen­tence 15 men sen­tenced to death in Santa Clara to life sen­tences with­out the pos­si­bil­i­ty of parole. DA Rosen cit­ed the ​“dimin­ish­ing like­li­hood” or any exe­cu­tions in California because of Governor Gavin Newsom’s 2019 mora­to­ri­um on the death penal­ty. ​“The state is dis­man­tling death row, and it is time we rec­og­nize this real­i­ty and dis­man­tle these sen­tences as well,” said DA Rosen in a resen­tenc­ing motion. Despite Gov. Newsom’s mora­to­ri­um, near­ly 700 pris­on­ers remain on death row. California’s last exe­cu­tion took place in 2006.