During jury selection for a 1995 murder case, an Alameda County prosecutor appears to have jotted down their impression of one prospective juror’s sexuality, calling them a “possible fagot [sic].”
In another murder trial from 2010, a prosecutor wrote that a prospective juror who worked for Shell Oil was a “dyke.”
The notes containing what appear to be the homophobic thoughts of the prosecutors were recently discovered during an ongoing review of dozens of murder trials in Alameda County that led to convictions and death penalties.
District Attorney Pamela Price launched the review in April after a federal judge issued a ruling in a different 31-year-old case, finding that the notes of prosecutors were evidence that they may have been “engaged in a pattern of serious misconduct, automatically excluding Jewish and African American jurors in death penalty cases.”
The review was expected to include numerous cases with links to Berkeley, including a grisly murder involving a former Berkeley waterfront commissioner convicted of murdering and dismembering a colleague, records and reports reviewed by Berkeleyside showed.
A coalition of Black, Jewish, and LGBTQ community members gathered today on the steps of the René C. Davidson Courthouse in Oakland—the location where much of the alleged discrimination occurred over several decades—to call on legal authorities to take action.
Brent Turner, executive director of the San Francisco Black and Jewish Unity Coalition said that over the years some leaders of the Alameda County DA’s office “turned a blind eye” to deeply rooted injustices, including biased selections of juries that cheated defendants out of a fair trial.
“We support the re-sentencing of every individual on death row who was tried in Alameda County,” said Turner. He and others commended Price for allowing deputy DAs to scour old case files and turn up evidence of prosecutorial misconduct.
Morgan Zamora, the prison advocacy coordinator for the Ella Baker Center for Human Rights, called the evidence of bias in jury selection a “legacy of prosecutorial misconduct.” Zamora said the state Attorney General, California State Bar, and Commission on Judicial Performance should all closely examine the evidence of racism and homophobia and take action to hold people accountable.
Last month, over a dozen groups wrote to the heads of the state bar and the Commission on Judicial Performance, groups that oversee and can discipline attorneys and judges, respectively, asking them to “step in and work collaboratively with Alameda County District Attorney Pamela Price’s administration to thoroughly investigate and discipline all implicated prosecutors and judges directly involved with these constitutional violations[.]”
Many of the murder convictions under review are cases that were tried in the 1990s and early 2000s. Some of the deputy district attorneys who led these cases have since become judges or taken jobs in other counties as prosecutors.
Yoel Haile, the criminal justice program director for the ACLU of Northern California, said the evidence coming to light in several cases right now of bias in jury selection has created an opportunity for change. In the past, he said, deputy DAs who were called on to defend a case after a convicted person filed an appeal, all too often were afraid to criticize the work of their fellow prosecutors, even when there was evidence of misconduct. New leadership in the DA’s office has changed this, encouraging more thorough reviews and a willingness to hand over evidence that could lead to a conviction being overturned.
Ernest Dykes was the defendant in the case that set off the current review of Alameda County death penalty convictions. Dykes was convicted in 1995 of murdering a 9-year-old child during an attempted $75 robbery. He was sentenced to death by an Alameda County jury and held at San Quentin State Prison.
Dykes appealed his case for years and won a stay of execution in 2011. Recently, after Dykes attorneys argued that Black people had been unfairly excluded from the jury, a deputy district attorney uncovered handwritten notes from the prosecutors in Dykes’ case showing that they attempted to identify Jews and Black people during jury selection. They called one prospective juror a “short, fat, troll.”
Prosecutors may have believed that Black people, Jews, and members of other groups were less willing to consider sentencing someone to death in murder cases, therefore they sought to exclude them from juries using a set number of dismissals they are allowed.
In Batson v. Kentucky, the U.S. Supreme Court ruled in 1986 that prosecutors violate the Equal Protection clause of the Constitution when they use their discretionary power to remove a person from a jury because of their race. Since then, courts have extended this to ethnicity, religion, sexuality, and other protected statuses.
The groups at Tuesday’s press conference in Oakland declined to identify the cases where the anti-gay slurs were found. They said the reviews are still underway and they can’t share any more information at this time.
