California Death Row Inmate, Held for 33 Years, Faces Release or Retrial Due to Prosecutorial Misconduct

A man who has been on California’s death row for 33 years must now be either freed or put on trial again after a federal judge agreed Thursday to the state attorney general’s request to do so. This is because of mistakes made by the prosecutors decades ago when choosing the jury.

Cal. Attorney General Rob Bonta asked the judge to make this decision, which gives the Alameda County prosecutor’s office 60 days to either retry 71-year-old Curtis Lee Ervin or let him go free. Ervin was found guilty of hiring someone to kill someone in 1986.

The latest development in the ongoing review of dozens of death sentence cases by current Alameda County District Attorney Pamela Price shows that Black and Jewish potential jurors were purposely left out of the process. CNN was told by Price that this was done from the 1980s until the early 2000s.

In an email sent to CNN on Friday, Price’s office said they didn’t know how to move forward with Ervin’s case. Bonta admitted that the Alameda attorneys in the Ervin case wrongfully didn’t let any Black people serve on the jury. Now, Alameda County has until September 30 to make a choice.

In 1991, a jury found Ervin guilty of murder in the death of Carlene McDonald, who was the ex-wife of Robert McDonald and was 43 years old. McDonald was also found guilty and died in jail. CNN has tried to get in touch with the victim’s family.

Pamela Sayasane, Ervin’s lawyer, said that her client is “overjoyed and in disbelief.” He has been locked up for 38 years. He’s thankful for everyone who helped him. My friend and I are both confused.

Sayasane said that the state attorney general’s offer “is rarely made.” I think it’s important, and it will affect other people on death row.

Sayasane told CNN that all six of the possible Black women jurors were not allowed to serve. Sayasane said that three Black men who were supposed to be jurors were excused, but one was already sitting and another was an alternate. The Equal Protection Clause of the 14th Amendment says that possible jurors cannot be turned away because of their gender, race, or ethnicity. This is known as a Batson offense.

Last year, Price started looking into whether the lawyer did something wrong when choosing the jury for the case of Ernest Dykes, who was found guilty of shooting a 9-year-old in 1993. At the end of last month, she said that Dykes and another death row inmate would be resentenced for breaking Batson. Some of the people who worked on the death sentence cases may have also done something wrong, she said.

Price told CNN that the current prosecution team found boxes with notes that showed previous deputy district attorneys had left out Black and Jewish juries on purpose.

According to lawyer Brian Pomerantz, the prosecutor’s notes next to the names of Black jurors showed that the prosecution was very interested in their race. Pomerantz is the lead lawyer for three of the cases being looked at and is involved in the settlement of dozens of other cases.

The judge said, “All of these people deserve either a new trial or a resolution of their current case that makes up for the unfairness of the unconstitutional trials that they had.”

According to defense lawyer Linda Kenney Baden, prosecuting a crime that happened almost 40 years ago again “would be almost impossible to retry.” Some of her famous clients are Phil Spector, Casey Anthony, and Aaron Hernandez.

“Witnesses have died, so you’d have to rely on transcripts,” she said. “Courts would find that hard to read.” Baden said that “new prosecutors don’t want to sully their reputation” by losing a case that is likely to cause a lot of trouble.

In April, the Alameda County DA’s office shared some of the notes that people working on the Dykes case case wrote while the jury was being chosen. The DA’s office says those notes showed bias against possible Black and Jewish juries.

CNN had already shown pictures of the notes and other papers Pomerantz gave them. A black man’s name was written with the word “must go” next to it. On the questionnaire of another judge, the word “Jewish” was highlighted. A note made by hand further down says, “I liked him more than any other Jew.” Not at all.” Dykes will get a new term on August 13, and he should be free early next year after spending decades in jail.

Price became the county district attorney last year and is now being considered for recall. She has said that she thinks racial profiling of juries may have been common and well known in the department before her. Researchers have also found racial bias in how juries are chosen in the Deep South, as well as in California, Washington, Connecticut, and New York.

Price has said that her office is in talks with the California Attorney General’s Office to reach a deal for death row inmates whose cases are being reviewed.