Alameda DA accuses now judge of 'cover-up' over juror misconduct

Alameda District Attorney Pamela Price claimed that an ongoing probe into allegations of past juror discrimination by county prosecutors had uncovered evidence that former prosecutor and current Alameda County Superior Court Judge Morris Jacobson helped "cover-up" questions about juror misconduct during a 2004 meeting.

During a news conference on Wednesday Price revealed handwritten notes from an unidentified former employee of the DA's office allegedly taken during a 2004 meeting ahead of an evidentiary hearing in the habeas corpus case of Fred Freeman, who was seeking to overturn his 1987 death sentence.

Freeman's original appeal in 1994 was denied and his habeas corpus petition was unanimously denied by the California Supreme Court in 2006.

According to Price, the note revealed that Jacobson and the DA team "went to great lengths to distract the courts from the substantive legal allegations by besmirching" the character of former capital trial prosecutor Jack Quatman, who alleged in a 2003 declaration that Quatman himself and other capital case prosecutors, "routinely struck Black women and Jewish jurors in death penalty cases."

In a phone interview Friday, Jacobson said, "there's no truth to the allegations and there was no cover-up." He called Price's statement "a desperate effort to avoid a recall election."

Jacobson was appointed in December 2005 by Gov. Arnold Schwarzenegger.

Price claims that Jacobson, who joined the Alameda DA's office in 1989, was instructed to work on the Freeman matter by former DA's Tom Orloff, who retired in 2009, and Nancy O'Malley, who was a deputy district attorney from 1984 until she took over as the county's head prosecutor in 2010.

In an email Friday, O'Malley denied any involvement in the matter as well as any wrongdoing by her administration in relation to claims of juror misconduct

"The [Freeman] case in question was tried before Judge Jacobson or I were even in the Office," O'Malley wrote. "What I can say is that there was absolutely no effort to cover up or tolerate any discriminatory practice of selecting juries, review and charging cases or any other process of the District Attorney Office."

She also defended the integrity of past Alameda DA administrations in her email.

"In my experience since joining the office in 1984, the members of the Alameda County District Attorney's Office under the previous District Attorneys have always been committed to the fair, impartial and ethical rule of law," she wrote.

Contact information for Orloff, who retired in 2009, could not be located.

The Alameda County Superior Court media relations office did not respond to requests for comment Friday.

In her news release Price said the note provides "missing" clues regarding who appeared to be involved during previous administrations in covering up prosecutorial misconduct at the Alameda County District Attorney's Office.

"The note from this meeting in 2004 gives insight into why prosecutors' notes containing evidence of discrimination against potential Jewish and Black jurors may not have been subjected to a comprehensive review and were not disclosed to the Court in most of the cases until my office was ordered by Honorable Judge Vince Chhabria to review death penalty cases."

Price's announcement came one day before after O'Malley came out in support of Price's Nov. 5 recall election.

In its unanimous ruling, the state Supreme Court rejected Freeman's claims that Quatman and original trial judge, former Alameda Superior Court Judge Stanley P. Golde, colluded to exclude Jewish people from the jury and found that Quatman's "character for honesty and integrity was poor."

Jacobson addressed the Supreme Court's finding during Friday's interview and explained the context of the meeting that gave rise to the note in question. He said the meeting was part of his impeachment of Quatman as a witness in Freeman's habeas corpus petition of his conviction.

"This was done in open litigation . . . It appears that what is being complained about was my investigation for impeachment purposes of a particular witness," Jacobson said. "A lot of impeachment evidence was put on during this habeas hearing. The trial court ruled in our favor. Then the other side took an appeal of that ruling and the California Supreme Court issued its opinion. It's all right there. There was no cover-up. There's nothing hidden."

The Supreme Court addressed Quatman's credibility as a witness and cited the impeachment evidence referenced by Jacobson in its 2004 opinion. In re: Freeman, S122590 (Cal. S. Ct, filed Feb. 10, 2004).

The Court wrote that "Quatman's character for honesty and integrity was poor. Colton Carmine, an Alameda County Deputy District Attorney who had known Quatman since 1976 and had worked with him for 20 years, testified that Quatman exaggerated a lot and was not ethical."

They also wrote that "Quatman had a motive to undermine a capital conviction secured by the Alameda County District Attorney's Office because of his animosity toward the office in general and [then] District Attorney Tom Orloff in particular."

The investigation into the juror selection practices of past Alameda County prosecutors in more than 30 capital murder cases, underpinning Price's statement, was ordered by U.S. District Judge Vince Chhabria in April after current deputy district attorneys discovered "handwritten notes by prosecutors which appear to show that they intentionally excluded Jewish and Black female jurors from the jury pool."

The discovery was made as part of the court's review of a 1995 death sentence handed down by a federal jury in Oakland against Ernest Dykes. Dykes was convicted for the 1993 murder of a 9-year-old and attempted murder of the child's grandmother during an attempted armed robbery.

While Price did not reveal which attorneys uncovered the latest note relating to Jacobson, one of the attorneys investigating the matter, Brian M. Pomerantz, of Law Offices of Brian M. Pomerantz in Woodland Hills, made a public announcement on July 5 that accused Contra Costa County Superior Court Judge Michael Nieto of leading an Alameda County prosecution team that marked Black, lesbian and Jewish prospective jurors for potential removal from the jury pool in a 2010 death penalty trial.

Nieto has yet to issue a statement responding to Pomerantz's findings.