An Investigation Into How Prosecutors Picked Death-Penalty Juries
Reporters began calling Pomerantz and asking questions, including whether the sort of prosecutorial misconduct uncovered in the Dykes case, during the nineteen-nineties, had continued. Before long, he had an answer: he and Tria found evidence showing that Alameda County prosecutors had been documenting which potential jurors were Jewish or Black into the two-thousands. A list from 2008, for example, consisted of summaries of potential jurors and the phrase “Juror is African American” in bold type next to certain names—“clearly trying to make it stand out,” Pomerantz said.
In July, I met with Pomerantz at his home, in North Carolina. When I arrived, he was standing in his driveway, talking on the phone to Dykes. A few minutes later, Pomerantz handed me the phone. I asked Dykes what he remembered about his trial. “I had no understanding of what was going on,” he said. “But I can tell you what I do remember—just looking forward, not making eye contact with no one. Just staring at that flag that was over the judge, counting the stars.”
Dykes had been on death row for decades at San Quentin, the oldest prison in California, with the rest of the state’s condemned men. But Governor Newsom had recently ordered the death row dismantled, and the men were moved to other prisons. This spring, Dykes was transferred to a facility in Stockton. When his settlement negotiations started, he thought that his sentence might be changed to life without parole. But, when Pomerantz told him about the juror notes, he began to hope for a better settlement: a sentence that would allow him to go before the parole board and, perhaps one day, to get out of prison. “Maybe I can get twenty-five to life,” he recalled telling himself. In fact, it was starting to look as if his sentence might be reduced to just a little more time than he had already served. He sounded shocked by the possibility. “I try not to think ahead,” he said, “because to do so would be catastrophic in a sense, at least for me.”
Several men at Dykes’s prison had been following his case in the news, but, he said, he tried not to discuss his situation with anyone. “There was one individual who came up to me one day—he actually wanted to shake my hand,” he said. “I didn’t know how to process that, because I know what I did, and I am very remorseful for that.” He added, “I took the life of a little boy. . . . And for an individual to come up to me and congratulate me because I happened to slip on a banana peel, as far as my trial—I can’t be happy about that.”
Jack Quatman is now seventy-eight and retired, and he and Phyllis still live in Montana. This summer, I visited them at their home, a modern single-story house with floor-to-ceiling windows. We sat at a long wooden table, from where we could see a neighbor’s horses grazing nearby. A few months earlier, Phyllis said, she had received an e-mail from Scott Kauffman, the lawyer who had come to dinner in 2003. He had sent her an article about Price’s press conference announcing the discovery of the notes in Dykes’s case. Now, finally, there was evidence to confirm Quatman’s allegations about the office’s jury-selection practices. The news had stunned them, but neither evinced a sense of satisfaction. “Somebody said, ‘Don’t you want to take a victory lap?’ ” Quatman told me. “No, I don’t want to take any laps.”
It was apparent, though, that he still loved to talk about his days as a prosecutor. “I liked the pressure,” he said. “I liked the fact that the bell went off and you had to perform.” By his count, he had tried at least two hundred cases, including some twenty homicides and the three capital cases. I asked the Quatmans if they wanted to look at some of the juror notes from the Dykes case, and, for the next hour or so, they read them on my laptop. One card stated that a would-be juror was from Texas. (“You want to keep that guy—he’s from the express-lane death-penalty state,” Quatman said.) Another stated that an individual had previously served on a jury that had voted to acquit. (“Goodbye.”) When Quatman saw the two cards that identified prospective jurors as Jews—including the one that read “Must Kick, too Risky”—he said, “I don’t know what he was thinking. You don’t put the reasons down on the card that you take to court. You just grade him.”
Though it had been nearly twenty years since Quatman testified at Freeman’s hearing, Phyllis spoke about that day as if it had just happened. “He was sick to his stomach. And he just said, ‘I just don’t think I should do this. How can I turn against my old office?’ ” she recalled. “He’d been there twenty-five years. That was like a family.” After the hearing, “there was literally no one in the office who would talk to him,” she said. “There was a lot of regret on Jack’s part because of the backlash.” She told me, “I will take the blame for it, because I’m the one that pushed him and said, ‘You need to do this.’ ” But, she added, “I don’t regret it.”
Throughout the spring and summer, Judge Chhabria oversaw a series of settlement conferences, with prosecutors from the D.A.’s office and the attorney general’s office and with lawyers for the defendants, to try to negotiate resolutions in twelve capital cases from Alameda County. The discovery of the notes in Dykes’s case had given the defendants new leverage. Habeas attorneys who might previously have accepted a life-without-parole deal were now looking for something better. For the D.A.’s office, the stakes were clear: if a defendant was allowed to keep litigating his case, and there was strong evidence of constitutional violations at his trial, the conviction risked being overturned.
That’s what happened in the case of Curtis Lee Ervin, who had been prosecuted by James Anderson in 1991. (Ervin was the man convicted of murder after an insurance agent had hired him and another man to kill his ex-wife. Both of his co-defendants are dead. At the trial, Anderson had removed nine of the eleven Black potential jurors.) The attorney general’s office responds to habeas petitions filed in federal court, and for decades it had defended the work of Alameda’s capital prosecutors. But this summer the A.G.’s office conducted a full “comparative juror analysis” in Ervin’s case—examining the answers given by all the prospective jurors to determine whether race had been a factor in removing any of them. At the end of July, the A.G.’s office submitted to Chhabria a Notice of Concession of Error stating that “Batson was violated in this case. Ervin is entitled to a new trial.”
Chhabria vacated Ervin’s conviction on August 1st, and a few days later District Attorney Price held a press conference in which she apologized to the victim’s relatives, saying that “because of prosecutorial misconduct, because of the failure of the supervisors of Mr. Anderson and so many failures over the years,” the family was having to endure the trauma of “having this whole situation once again brought up.” Price had sixty days to decide whether to retry Ervin or to release him. He is now seventy-one, relies on a walker, and has been incarcerated for thirty-eight years. She chose to prosecute him again, and he remained incarcerated, awaiting a new trial. Last month, however, her office changed course and offered him a deal that, if he pleaded guilty or no contest to a lesser charge, would allow him to get out of prison next year. He accepted.
The settlement conferences, in federal court, were confidential—participants were not permitted to discuss what happened there—but the resentencing proceedings have taken place in the courtroom of Judge Thomas E. Stevens, of the Alameda County Superior Court, at the same courthouse where Anderson and Quatman tried their capital cases. The proceedings have been extremely emotional at times, with family members standing up in Stevens’s courtroom to voice confusion, shock, distress, and anger that the person who killed their loved one might have his sentence changed. In the case of a man named Maurice Boyette, who shot and killed two people in 1992, at the age of nineteen, a relative of one of the victims told Stevens that it seemed as if the families, not the prosecutors, were being punished for prosecutors’ misdeeds.
James Anderson is now eighty-one and lives in a nearby county, where he drives an Alfa Romeo with a license plate that reads “190PC”—a reference to the California penal code for first-degree murder. When I called him to ask about Ervin’s case, he said, “How could I have done something wrong” when the jury sentenced two of the co-defendants—“a white guy and a Black guy”—to death but “spared another Black guy,” giving him a life sentence, “because he really wasn’t the one on the initial contract?” Anderson added, “Tell me that’s not a fair jury.” He insisted that he had just one consideration when picking jurors in a capital case: “Do you have the guts to do this—look the guy in the eye and say, ‘I sentence you to death’?” He said, “It’s got nothing to do with race, creed, or color.”
In July, another man Anderson sent to death row, Keith Thomas—about whom Anderson had said, “An early execution is only too fitting”—was also resentenced, to twenty-three years to life. “I think they’re going after me because I’ve got the most capital verdicts in the state,” Anderson said. “I’m pretty proud of what I did, and I’m very upset with the way Miss Price is trying to undo hard work, which I think was fairly done.” He added, “I think she’s doing it just because of race.” When I asked him what he meant, he said, “Because the people that she’s trying to undo the cases—the defendants’ races are Black.” He went on, “I don’t see her trying to undo cases of the white defendants I’ve convicted.” (“All of the cases under review are not only Black defendants,” Price said, in response. “Mr. Anderson is not well informed.”)
In recent months, some of the defendants’ attorneys worried that if Price were recalled her successor would be less committed to resentencing their clients. As the election drew closer, the pace of proceedings picked up, with four taking place in the last ten days of October. So far, of the thirty-four defendants from Alameda County who were in prison with death sentences this spring, fourteen have been resentenced.
Ernest Dykes learned his fate at his resentencing, which took place on August 13th. Kristie Clark Trias, the older sister of the boy Dykes killed, had planned to attend but changed her mind. In a letter to Judge Stevens, she wrote, “My absence from these proceedings does not mean that we no longer care about the outcome. It is a way for me to protect myself from the overwhelming pain.”
Pomerantz and Tria were both present in Stevens’s courtroom, as was Solway. Dykes followed the proceedings on Zoom from Stockton. In the courtroom, he appeared on a large screen, wearing a blue inmate’s uniform and glasses. Recapping the history of Dykes’s case, Solway said that her discovery of the notes had been “a bit of a random event” and that “what popped out was immediately recognizable evidence of constitutional violations at trial.” She pointed to the fact that Dykes had been just twenty at the time of his crime and that he had suffered “childhood trauma.” In her view, “what would have been fair” was a sentence of twenty-five to life. “And Mr. Dykes has now served over thirty years,” she said. As a condition of his resentencing, a psychologist had met with him earlier to determine whether he was a threat to public safety. Solway said the psychologist found that “there is precious little reason to believe that the defendant will return to a life of crime.”
When it was Pomerantz’s turn to speak, he agreed that Solway’s discovery “came through random circumstances,” but, he said, “it was not a random event, in that their office did what previous administrations would not do”—dig into the allegations of Batson violations to determine their extent. He added, “The documents that came out in Mr. Dykes’s case have been there the whole time. They have been sitting there the whole time, and no one else wanted to see what was there.” Pomerantz made it clear that he thought there might be further ramifications for the prosecutors involved in this case and others, and he mentioned that the State Bar of California, which disciplines attorneys, had contacted him and Tria. (He had sent the State Bar documents from capital cases handled by seven Alameda County prosecutors.)
The proceeding lasted nearly an hour. At times, Pomerantz and Tria looked up at the screen on the side of the courtroom and saw that their client was getting emotional, taking his glasses off to wipe his eyes. Near the end, Judge Stevens said that he would grant the D.A.’s request for a new prison sentence—thirty-one years and nine months—as long as Dykes agreed to waive his right to appeal. “Does your client agree to that?” Stevens asked.
“Yes, Your Honor,” Tria said.
On the screen, Dykes gave a thumbs-up. He will be released from prison in the spring. ♦
An earlier version of this article misstated how Judge Chhabria received the notes on prospective jurors for Ernest Dykes’s trial.
