A California prosecutor said Wednesday that she is thinking about whether to retry another case where more bias was found in the jury selection process. The office is looking into dozens of death penalty sentences because of claims of racial bias that go back decades.
This month, Curtis Lee Ervin’s 71st murder conviction was overturned because the state attorney general’s office found that a prosecutor in the Alameda County District Attorney’s Office unfairly kept Black jurors from his trial, According to Pamela Price, the top prosecutor for the county.
Nine of the eleven Black people and one Jewish person who were supposed to be on the jury were stopped from taking part in Ervin’s case by a deputy prosecutor in that office, according to the review. “Peremptory strikes” are legal challenges that let lawyers get rid of possible jurors during the selection process.
The deputy district attorney’s strikes were found to be unconstitutional by the review, Price said. This means they were unfair because they were based on race, culture, or other protected categories.
According to the review, the prosecutor lied about what at least one Black juror said. The attorney general’s office also did a side-by-side comparison of the answers of white jurors and black jurors and found that the prosecutor seemed to have unfairly rejected the black jury’s answer.
When the appeals court looked at Ervin’s conviction, it found that the prosecutor had struck 20% of the white jurors and 82% of the black juries.
Ervin is black. Price said that the woman he was found guilty of killing, Carlene McDonald, was white.
Price, who was elected in 2022 on a platform of progressive changes and used to work as a civil rights lawyer, said she agreed with the attorney general’s findings and said Ervin’s prosecution was “very problematic.” She said that her office is still deciding whether the case will be retried, thrown out, or settled.
Price has 60 days to choose after August 1, when a federal judge agreed to Ervin’s request to overturn his sentence because the jury was unfairly chosen.
Records show that Ervin is no longer on death row and is being held in a state jail for people with medical needs.
A spokesperson for the attorney general’s office wouldn’t say anything about Price’s news, but they did point to a filing from July 30 from a lawyer in that office that said there was a problem with how the jury was chosen in Ervin’s case.
Pamela Sayasane, Ervin’s lawyer, said that she and her client were thrilled with the judge’s ruling last week. People had hoped Price would put an end to “my client’s 38-year nightmare,” as she put it.
Sayasane wrote in an email, “Instead, the DA said that her office needs more time to do its review.” “We hope that the DA will see that Curtis Ervin should not be tried again because it would be unfair.” He has always said that he is innocent. There was wrongdoing in his trial.”
A federal judge said that there was strong evidence that prosecutors had engaged in a pattern of “serious misconduct” over the past few decades by automatically excluding Black and Jewish jurors from death penalty cases. 35 death penalty convictions from the Alameda County District Attorney’s Office are now being reviewed.
A prosecutor in Price’s office working on a different death sentence case—the conviction of Ernest Dykes in 1995—found handwritten notes from other prosecutors that seem to show they purposely left out Jewish and Black female jurors. This led to the order.
Price told reporters last month that the possible wrongdoing could go back to 1977, and it could involve more than one past prosecutor in her office.
In Dykes’ case, prosecutors and his defense team agreed, and Price’s office said in a news statement that they want to set him free on parole next year. Her office has tried to get two other people on death row resentenced as part of the review.
Price said on Wednesday that the other cases are still being looked into.
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