California prosecutor removes 5 of 6 Black women from jury pool

The question became clearer as one by one, a California prosecutor eliminated five out of six Black women from the jury pool for a capital punishment case. Advocates for racial justice wondered whether these Black women were eliminated from the jury solely based on their race or for good cause as articulated by the attorney in Alameda County.

In February 2000, the jury found Giles Albert Nadey guilty of murdering and sodomizing 24-year-old Terena Fermenick and sent him to death row.

The attorney in Nadey’s case argued that he had a reason for the dismissal of each of the Black women who were eliminated from the jury. He believed one appeared too reluctant to impose a death sentence. He described another Black woman as having a liberal bend.

The defense struck the last potential Black woman juror. After which, the jury proceeded with no Black members even though Black people made up close to 15% of Alameda County’s population at the time.

The connection between Black people and capital punishment has existed for hundreds of years. Racial disparities in the context of capital punishment have been obvious since colonial times. Black people have endured disparate treatment. Black people have been alleged as the perpetrators and victims of capital crimes. Because of their racial history, Black Americans have had skeptical attitudes toward the death penalty, and some studies suggest that prosecutors have attempted to seat juries that would support the death penalty. The aim of the prosecutors often results in the exclusion of Black jurors.

Alameda County District Attorney (District Attorney) Pamela Price (Price), as well as advocates for racial justice, have already targeted the Alameda County’s District Attorney’s practice in prior decades in which they automatically excluded Jewish and Black jurors because of the historical bias that members of said groups would not favor the death penalty.

Price’s office presented the issue to U.S. District Judge Vince Chhabria (Judge Chhabria). Price’s office provided him with notes that he believed were strong evidence.

Twenty-four years later, the Alameda District Attorney’s office is in the hot seat for allegedly striking Black and Jewish people from juries around the time of Nadey’s sentencing. The automatic exclusion of Jewish and Black jurors is prosecutorial misconduct because the prosecutor has operated from a position of bias with the intent to compose a jury that would favor capital punishment.

Judge Chhabria believed that notes were discovered and provided to him by Price’s office.

In Alameda County, an appeal over the 1993 death penalty conviction of Ernest Edward Dykes is the matter that uncovered evidence of racial bias in jury selection. Price’s office provided Judge Chhabria with notes that the judge believed were 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. The Dykes case became the catalyst for Judge Chhabria’s April order that mandated the District Attorney’s office to review all their death penalty cases to look for signs of racial bias.

In his appeal, Nadey attributed racial bias as a cause for his sentence being tainted.

In Nadey’s case, the California Supreme Court determined that the prosecutor had valid reasons to dismiss the Black jurors. The court therefore upheld Nadey’s sentence. “We conclude in each instance the prosecutor’s reasons were inherently plausible and supported,” the court ruled, citing evidence from jury questionnaires and the prosecutor’s questioning of the stricken jurors.

The Court’s 5-2 decision demonstrates the intricacies of recent moves in court and in the Legislature to address racial bias in the criminal justice process. In 2019, Governor Gavin Newsom declared a moratorium on executions. The executive order read that “death sentences are unevenly and unfairly applied to people of color, people with mental disabilities, and people who cannot afford costly legal representation.”

The burden is mostly on the defendant to prove racial bias in criminal proceedings, however, in 2005, the United Supreme Court made clear the threshold, ruling that prosecutors must provide reasonable, race-neutral explanations when challenged in court.

California has enacted greater protections for those contesting their sentences, including a 2022 law that allows those convicted before 2021 to petition the court if there is evidence of racial bias in their case.

Judge Chhabria’s mandate is the catalyst for the dissenting legal opinions.

In Nadey’s case, two justices, in dissent, believed that Judge Chhabria’s mandate should have been given more consideration. The court believed that more credence should have been given to Nadey’s argument that Black women were improperly removed from the jury pool.

Justice Goodwin Liu wrote, “Today’s decision is particularly jarring given what has come to light in federal court regarding capital jury selection in Alameda County around the time that Nadey was tried.”

Advocates for racial justice and ending the death penalty, meanwhile, continue to call for further accountability in the courts and for the public to accept the new information that has been discovered concerning racial discrimination.

Robert Bacon (Bacon), an attorney working with anti-death penalty advocates, believes that it is business as usual. Bacon described the judge’s decision as he stood on the steps of the René C. Davidson Courthouse in Oakland, both in the sense of the seeming indifference to the problem of racial discrimination in jury selection and in their essentially refusing to consider the information concerning racial bias has continued to develop.

It is very clear that there is a long journey ahead for advocates who seek to root out racial bias from the criminal justice process. Those who choose to fight the fight believe that it is a challenge that will ultimately be worth the relentless hardships that are along the way.