A California prosecutor whose office is reviewing dozens of death penalty convictions over allegations of decades-old racial bias said Wednesday that she is weighing whether to retry another case in which officials discovered more bias in the jury selection process.
The 1991 murder conviction of Curtis Lee Ervin, 71, was overturned this month after the state attorney general’s office concluded that a prosecutor in the Alameda County District Attorney’s Office unfairly excluded Black jurors from his trial, the county’s top prosecutor, Pamela Price, told reporters.
The review found that a deputy district attorney in Price’s office used peremptory strikes — legal challenges that allow lawyers to remove potential jurors during jury selection — to block nine of 11 Black people and one Jewish person from participating in Ervin’s case, she said.
Such strikes cannot discriminate based on race, ethnicity and other protected categories, and the review found the deputy district attorney’s strikes were unconstitutional, Price said.
The prosecutor misrepresented comments from at least one Black juror, Price said, citing the review, and a side-by-side comparison of the answers of white jurors and Black jurors conducted by the attorney general’s office found the prosecutor appeared to have unfairly rejected the latter.
An appeals court that reviewed Ervin’s conviction found that the prosecutor struck 20% of non-Black jurors and 82% of Black jurors.
Ervin is Black. The woman he was convicted of killing, Carlene McDonald, was white, Price said.
Price, a former civil rights lawyer who was elected in 2022 on a platform of progressive reforms, said she supported the attorney general’s findings, calling Ervin’s prosecution “very problematic.” She said her office is still determining whether prosecutors will retry, dismiss or settle the case.
Price has 60 days from Aug. 1, when a federal judge granted Ervin’s petition to vacate his conviction based on biased jury selection, to make a decision.
Ervin is off death row and being held in a state prison for people with medical needs, according to inmate records.
The attorney general’s office did not respond to a request for comment Thursday night. A lawyer for Ervin, Pamala Sayasane, said she and her client were overjoyed at the judge’s decision last week. They had been hopeful that Price would bring “finality to my client’s 38-year nightmare,” she said.
“Instead, the DA said that her office needs more time to conduct its review,” Sayasane said in an email. “We hope that the DA will take a careful look at this case and see that retrying Curtis Ervin would be a great injustice. He has always maintained his innocence. His prosecution was tainted by misconduct.”
Ervin’s case was one of 35 death penalty convictions from the Alameda County District Attorney’s Office that are under review after a federal judge said that in previous decades, there was strong evidence that prosecutors had engaged in a pattern of “serious misconduct” by automatically excluding Black and Jewish jurors from death penalty cases.
That order came after a prosecutor in Price’s office working on a separate death penalty case — the 1995 conviction of Ernest Dykes — discovered handwritten notes from prosecutors that appear to show they intentionally excluded Jewish and Black female jurors.
The possible misconduct could date to 1977, Price told reporters last month when she announced the review, and it may involve multiple former prosecutors in her office.
In Dykes’ case, prosecutors reached a settlement with his defense and are seeking to have him released on parole next year, Price’s office said in a news release. Her office has sought to have two other death row inmates included in the review resentenced.
Price said Wednesday that the review into the other cases is ongoing.
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