Allegations of Prosecutorial Bias Spark Review of Death Penalty Convictions in Alameda County

Alameda County District Attorney Pamela Price announced Monday that a federal judge has directed her office to review all death penalty convictions for signs of prosecutorial misconduct.

The directive from Judge Vince Chhabria of the U.S. District Court of Northern California comes after evidence indicating Alameda County prosecutors may have excluded Black and Jewish jurors was found in the case of Ernest Dykes, who sits on death row.

The discovery of notes highlighting the race and ethnicity of potential jurors in Dykes’ case has led to the latest allegation that prosecutors systematically prevented Black and Jewish residents from serving on death penalty juries in the 1980s and 1990s. The rejection was based on the belief that Black and Jewish jurors were more likely to oppose the death penalty.

“These notes — especially when considered in conjunction with evidence presented in other cases — constitutes strong evidence that, in prior decades, prosecutors from the [Alameda County District Attorney’s office] were engaged in a pattern of serious misconduct, automatically excluding Jewish and African American jurors in death penalty cases,” Judge Chhabria, who will oversee Alameda County’s review, wrote in a Monday court order.

The misconduct allegations in the county were the subject of a state Supreme Court hearing in 2005. State and federal law bars prosecutors from removing jurors based on race or ethnicity.

“Judge Chhabria is very much aware the District Court has reversed a number of convictions based on similar evidence,” Price said. “For too long, prosecutors have not been held to a high standard and have not had accountability.”

Dykes was convicted in 1995 for the murder of 9-year-old Lance Clark and the attempted murder of his grandmother, Bernice Clark, during a robbery at an East Oakland apartment complex. An appeal of his sentence is currently before Judge Chhabria.

According to data from the California Department of Corrections and Rehabilitation, there are currently 37 people on death row who were convicted in Alameda County, including Dykes. Price’s office told KQED it is reviewing 35 cases. The review could lead to resentencing or retrials.

Price said one of her deputies found handwritten notes about potential jurors while reviewing Dykes’ case file at the request of Judge Chhabria. Price’s office shared some of these notes with KQED.

In one example concerning a Black female juror, an unnamed prosecutor wrote, “Says race is no issue, but I don’t believe her.” Another note described a different Black female juror as “short, fat, troll,” and that she “seemed put out my Q’s about the D/P — tried to avoid giving direct answer [sic] a lot of ‘I don’t knows’ — don’t believe she could vote D/P.” The unnamed prosecutor, apparently, used “Q’s” as an abbreviation for questions and “D/P” for the death penalty.

Other notes appear to document whether the author believed prospective jurors were Jewish, writing at the top of a juror questionnaire, “Jew? Yes.” In notes about another juror, “Banker. Jew?” is followed by “Nice guy — thoughtful but never a strong DP leader — Jewish background.”

Colton Carmine, a former deputy district attorney, was the lead prosecutor in Dykes’ trial. Carmine was assisted in jury selection by former Deputy District Attorney Morris Jacobson, now an Alameda County Superior Court judge. According to Price, it is not clear if the handwriting in the case file belongs to Carmine, Jacobson or someone else.

No Black or Jewish jurors heard Dykes’ case.

Carmine could not be reached for comment. Jacobson did not immediately respond to KQED’s request for comment.

“The notes appear to indicate a disdain for Black women,” Price said. “The fact that they were singled out in the way in which they are in the notes, and ways that other jurors were not, is very telling.”

Defense attorneys for Dykes, who is at the California Health Care Facility, a state prison for incarcerated patients with protracted medical needs, hope the review creates an opportunity to unearth and address a decadeslong problem.

“This has been there for 20 years, and it keeps coming up in cases,” said Brian Pomerantz, who represents Dykes as well as two other people on death row after being convicted in Alameda County.

A review of 26 juries conducted by defense attorney Lawrence Gibbs, in conjunction with attorneys for Habeas Corpus Resource Center, found that in death penalty cases between 1984 and 1994, Alameda prosecutors removed every single juror who identified themselves as Jewish and nearly 90% of jurors with apparent Jewish surnames as long as they still had peremptory strikes available to them.

Evidence of systematic removal of Black female and Jewish jurors has led to at least three people convicted in Alameda County being resentenced and is at issue in at least three pending Alameda death penalty appeals, including Dykes’. The allegation was the focus of a 2005 state Supreme Court hearing in which Carmine testified that prosecutors were trained to exclude Jewish jurors. The Supreme Court rejected misconduct claims.

“This should not be the legacy of this office,” Price told KQED. “The prosecutors who participated in this practice — if we determine that they did, in fact, have this practice — undermined the conviction integrity of every one of these cases, and now the victims, the witnesses, and the defendants have to bear the brunt of it.”

The review began a month ago. Price said her office has begun outreach to the survivors and victims of crimes that resulted in death penalty sentences. Her office also created a hotline for people with questions about the review.

“It’s outrageous. When you have this kind of misconduct, it impacts them first and foremost because they have been misled,” Price said. “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.”

In 2019, Gov. Gavin Newsom declared a moratorium on death sentences. Earlier this month, Santa Clara District Attorney Jeff Rosen announced he would resentence all 15 people with death row convictions in the county.

In statewide referendums in 2012 and 2016, approximately 60% of Alameda County residents voted in favor of ending the state’s death penalty. The propositions failed.

Earlier this month, a group of legal advocates led by the Office of the State Public Defender asked the state Supreme Court to “bar the prosecution, imposition and execution of death sentences” because the death penalty is disproportionately applied to people of color in California. According to their court filings, Black defendants are roughly nine times more likely to be sentenced to death than defendants of all other races, in part because of the exclusion of people of color from juries, they argued.

A 2021 report by the Committee on the Revision of the Penal Code found that between 2010-2020 Alameda juries sent three people to death row. All three are Black.

Price said her office plans to review each case separately. The review may be expanded to include other types of convictions.

“We will follow the string or the trail wherever it leads,” Price told KQED. “We will not cover this up.”

The Alameda County District Attorney created a hotline for victims and survivors impacted by death penalty cases. The office can be reached by phone at 510-208-9555 or by email at shawn.mitchell@acgov.org.