In one of the most startling discoveries in the California criminal justice system, prosecutors' notes from decades ago show a concerted effort to exclude Black and Jewish jury members from serving in capital cases.
Notes like, "Banker, Jew?" and "I liked him better than any other Jew but no way," were discovered in jury selection notes.
The notes come from the case of Ernest Dykes, who was sentenced to death in 1995.
Brian Pomerantz is a defense attorney representing Dykes and two more clients on death row in Alameda County, where these cases were tried.
"This is one of the biggest discoveries of systemic racism that we've ever seen. Certainly with death row, it is the biggest we've seen," Pomerantz said.
A federal judge has ordered all California capital cases in which a defendant from Alameda County is still on death row to be reviewed. Pomerantz is fighting for his clients to be removed.
Pomerantz says some prosecutors believe Jewish defendants are anti-capital punishment, while Black Americans are sympathetic to criminal defendants.
The current Alameda County district attorney, who represents Oakland and much of the Bay Area, is reviewing all its death penalty cases, going back decades, in which a defendant was convicted and is still on death row.
In a statement, DA Pamela Price said, "The Sixth Amendment of the U.S. Constitution guarantees the right to a trial by an impartial jury ... Any practice by prosecutors to eliminate potential jurors because of their race betrays that core pillar of the criminal justice system."
Price says her office is reviewing 35 cases that go back more than 40 years. But Pomerantz believes that's an undercount.
"First of all, it's bigger than 35 cases. ... it's not practical to retry them all. It would probably bankrupt Oakland to retry them. It would be an expensive process, tie up the courts, it would take years to do. It would be a disaster," Pomerantz said.
Generally, trial attorneys can strike jurors during jury selection without explaining their reasoning — what's known as a peremptory challenge — but even those strikes cannot be based on race or religion.
"[There is] another county out of California where I believe they were striking Hispanic jurors. I have a case in Utah where I believe they were striking non-Mormon jurors. This is happening everywhere," Pomerantz added.
According to the Death Penalty Information Center, at least 68 capital cases have been reversed due to jury selection discrimination across the country.
