New allegation of biased jury selection raised amid review of dozens of California death penalty cases

A California prosecutor whose office is reviewing dozens of death penalty convictions over allegations of decades-old racial bias said Wednesday she is weighing whether to retry another case in which authorities discovered more bias in the selection process. of the jury.

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 top said. County Attorney Pamela Price told reporters. .

The review found that a deputy district attorney in Price’s office used peremptory strikes — legal challenges that allow attorneys to remove potential jurors during jury selection — to prevent nine of 11 blacks and one Jew from participating in Ervin’s case, she said.

Such strikes cannot discriminate based on race, ethnicity and other protected categories, and the review concluded that the assistant district attorney’s strikes were unconstitutional, Price said.

The prosecutor misrepresented the comments of at least one black juror, Price said, citing the review, and a side-by-side comparison of the responses of white jurors and black jurors conducted by the attorney general’s office found that the prosecutor appeared to have unfairly rejected the last.

One 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 murdering, 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 conclusions, calling Ervin’s prosecution “very problematic.” the case.

Price has 60 days from Aug. 1, when a federal judge granted Ervin’s petition to overturn his conviction based on biased jury selection, to make a decision.

Ervin is off death row and being held at 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. Ervin’s lawyer, Pamala Sayasane, said she and her client were very happy with the judge’s decision last week. They were hopeful that Price would bring “finality to my client’s 38-year nightmare,” she said.

“Instead, the DA said her office needs more time to conduct its review,” Sayasane said in an email. “We hope the prosecutor will look carefully 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 by 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 engaged in a pattern of ” gross 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 jurors.

The possible misconduct could date back to 1977, Price told reporters last month when he announced the review, and could involve several former prosecutors in his office.

In Dykes’ case, prosecutors reached an agreement with his defense and seek to release him on parole next year, Price’s office said in a news release. His office sought to have two other death row inmates included in the review resentenced.

Price said Wednesday that review of the other cases is ongoing.