Focus on Race: Alameda County Resentencings Illustrate Long History of Excluding Jurors of Color from the Jury Box

When Ernest Dykes was brought to tri­al on death penal­ty charges in Alameda County, California in the mid-1990s, it was rea­son­ably expect­ed that pros­e­cu­tors and defense attor­neys alike would work hard to shape the jury to their ben­e­fit. What Mr. Dykes (who is Black) didn’t know until recent­ly, how­ev­er, was just how far the pros­e­cu­tion would go to curate their ideal jury. 

In April 2024, Alameda County, California pros­e­cu­tors dis­cov­ered index cards in Mr. Dykes’ case that revealed pros­e­cu­tors’ ille­gal efforts to sys­tem­at­i­cal­ly exclude poten­tial jurors based on their race and reli­gion. One Black female prospec­tive juror who was exclud­ed was described as a ​“Short, Fat, Troll.” Notes about anoth­er Black woman stat­ed, ​“Says race is no issue, but I don’t believe her.” Jewish peo­ple were sim­i­lar­ly exclud­ed from the jury box. On one note­card for a white male, the pros­e­cu­tor not­ed that he ​“like[d] him bet­ter than any oth­er Jew, but no way.” Dykes’ Motion for Resentencing fur­ther alleges that the pros­e­cu­tor in the case cre­at­ed a list sole­ly of Black jurors – evi­dent­ly to iden­ti­fy one that the pros­e­cu­tion would keep in order to defeat any poten­tial Batson challenge. 

Court doc­u­ments and oth­er evi­dence now con­firm that from the 1980s through at least the late 2000s, Alameda County pros­e­cu­tors doc­u­ment­ed jurors by race and reli­gion, as a means of deter­min­ing who they would exclude from jury ser­vice on cap­i­tal cas­es. Their actions were in direct con­flict with the law and the Supreme Court’s deci­sion in Batson v. Kentucky. The dis­cov­ery prompt­ed a new review of 34 cap­i­tal con­vic­tions in Alameda County, and the resen­tenc­ing of 18 peo­ple to terms less than death. Fifteen of the 34 cas­es iden­ti­fied for review involved defen­dants of col­or (16 cas­es are still pend­ing.) In almost three-quar­ters of the cas­es eli­gi­ble for resen­tenc­ing (25 of 34), the defen­dants were peo­ple of color. 

Prior to the April 2024 dis­cov­ery, there were alle­ga­tions that the Alameda County District Attorney’s Office was dis­crim­i­nat­ing against poten­tial jurors. Finding the index cards in Mr. Dykes’ case, com­bined with sub­se­quent dis­cov­er­ies in oth­er cas­es, final­ly demon­strat­ed what defense attor­neys had long sus­pect­ed. The evi­dence also sug­gest­ed a cul­ture of mis­con­duct that wasn’t lim­it­ed to the pros­e­cu­tor in Mr. Dykes’ case. One for­mer Alameda pros­e­cu­tor is said to have advised a cou­ple hun­dred pros­e­cu­tors at a train­ing to ​“Never, ever leave a Jewish per­son on a capital jury.” 

Mr. Dykes spent over 30 years on death row before being resen­tenced last year due to this pros­e­cu­to­r­i­al mis­con­duct. His per­son­al cir­cum­stances resem­ble in many respects those of oth­ers who have also been sen­tenced to death. Mr. Dykes grew up in a dys­func­tion­al home envi­ron­ment char­ac­ter­ized by abuse, neglect, and pover­ty. He was also only 20 years old at the time of the crime, which sci­en­tists now say is not old enough for the brain to be fully developed. 

In many of the Alameda County resen­tenc­ing cas­es, pros­e­cu­tors rou­tine­ly struck racial­ly diverse jurors. Prosecutors in Matthew Souza’s case pur­pose­ful­ly struck all poten­tial jurors with Native American con­nec­tions, even if they were oth­er­wise favor­able for the prosecution’s case. (Mr. Souza is Native American.) Prosecutors sys­tem­at­i­cal­ly exclud­ed sev­er­al Black jurors in the case of Franklin Lynch, a Black man con­vict­ed of killing three white women. Mr. Lynch was also described by pros­e­cu­tors as a ​“human rep­tile.” Comparing Black peo­ple to ani­mals is a his­tor­i­cal through line in cap­i­tal cas­es and is a tac­tic that can be par­tic­u­lar­ly effec­tive in cas­es with all- or near­ly all-white juries where there aren’t peo­ple of col­or to chal­lenge these notions. 

Before poten­tial jurors even make it to jury selec­tion, they must first be includ­ed on jury rolls. In California specif­i­cal­ly, researchers note that peo­ple of col­or con­tin­ue to be dis­pro­por­tion­ate­ly exclud­ed from jury box­es because of the way in which juror lists are com­posed. Currently, reg­is­tered vot­ers and those with licens­es from the Department of Motor Vehicles are the only peo­ple includ­ed on jury rolls. Studies have demon­strat­ed that these lists are not suf­fi­cient to ensure defen­dants have a ​“fair cross-sec­tion” of jurors, with one study find­ing that 41.3% of jury eli­gi­ble peo­ple are not on reg­is­tered voter lists.