California prosecutors used homophobic slurs to refer to prospective jurors in death penalty cases, newly disclosed court records reveal, adding to a widening misconduct scandal.
Prosecutors from the Alameda county district attorney’s office, whose jurisdiction includes Oakland, used anti-gay labels during jury selection in two capital trials, according to copies of handwritten notes shared with the Guardian.
In a note from a 2010 case, a prosecutor remarked that a potential juror who worked for Shell oil was a “dyke”. In notes from a 1995 case, a prosecutor wrote that a prospective juror was a cashier and a “possible fagot [sic]”. Neither were selected for the juries.
The files are coming to light two months after US judge Vince Chhabria said evidence suggested Alameda prosecutors have systematically excluded Black and Jewish jurors over the years and ordered the DA’s office to review all implicated death penalty cases. While some records of discrimination are decades old, the scandal could have a significant impact on defendants who remain incarcerated with death sentences and continue to appeal their cases.
The Alameda county district attorney, Pamela Price, said in April her office had identified 35 cases to review. She also publicly disclosed some of the records that signaled the DA’s office had focused on excluding Jewish people and Black women in particular – groups that prosecutors may have seen as more likely to oppose the death penalty. In the case of Ernest Dykes, sentenced to death in 1995, files showed that prosecutors marked down when candidates were Jewish, repeatedly scrawling “Jew?” in their notes.
In one record, a prosecutor called a Black woman a “short, fat, troll”. In another, a prosecutor wrote that a Black woman “says race no issue but I don’t believe her”. Chhabria said the notes, in conjunction with evidence presented in other cases “constitute strong evidence that, in prior decades, prosecutors from the office were engaged in a pattern of serious misconduct, automatically excluding Jewish and African American jurors in death penalty cases”.
Since the judge ordered the review of a wide swath of cases, defense attorneys have continued to receive new files from jury selection in their clients’ trials, leading to the discovery of the homophobic notes. Lawyers who obtained the new records have not disclosed which cases they were tied to, as negotiations in those appeals are ongoing. It’s also unclear which prosecutors wrote the notes and whether they still work in the DA’s office.
Price’s office did not respond to requests for comment.
A coalition of advocates is highlighting the new records on Tuesday in a rally calling on Price to resentence all people sentenced to death in Alameda county.
“What’s shocking is we have these concrete notes that capture animosity and hatred towards specific members of the community,” said Natasha Minsker, coordinator of the California Anti-Death Penalty Coalition. “The fact that prosecutors thought it was appropriate to make these notations reflects a culture and understanding in that office that this kind of racism and bigotry is acceptable in a professional setting. That’s what’s really disturbing.”
Minsker praised Price for disclosing records, but urged her “to address the injustice in each of these cases and resolve them with sentences that don’t involve the threat of execution”. She also noted the majority of Alameda county voters have repeatedly supported ending the death penalty in California.
Concerns about jury exclusion were first exposed in Alameda county in the 2000s, but Yoel Haile, director of the American Civil Liberties Union of Northern California’s criminal justice program, said he was unaware of anyone in the office facing discipline or accountability for jury discrimination: “That’s what makes me think the top leadership of this DA’s office going back decades has to have known about and condoned these types of unethical practices.” In addition to resentencing, he said there should be a review of all cases of the prosecutors who are implicated.
There is a long history of exclusion of Black Americans in US juries, and despite decades-old supreme court precedent meant to prevent discrimination, significant problems persist.
While efforts to abolish the death penalty in California have failed, the state governor, Gavin Newsom, has issued a moratorium on executions, and individual prosecutors have undone death sentences. The district attorney of nearby Santa Clara county, who has positioned himself as more of a moderate than Price, a champion of criminal justice reforms, recently announced he was resentencing men on death row in his jurisdiction to life without parole.
