California inmate on death row for 33 years must either be released or retried due to prosecutorial misconduct

Stephanie Becker, CNN

(CNN) — A convicted murderer who has been connected California’s decease statement for 33 years must either beryllium released aliases retried aft a national judge connected Thursday approved nan authorities lawyer general’s petition to do truthful because of prosecutorial misconduct successful assemblage action decades ago.

The judge’s ruling, astatine nan petition of California Attorney General Rob Bonta, gives nan Alameda County prosecutor’s agency 60 days to retry 71-year-old Curtis Lee Ervin aliases fto him spell free. Ervin was recovered blameworthy of a 1986 murder-for-hire.

It is nan latest improvement successful nan ongoing reappraisal of dozens of decease punishment cases that existent Alameda County District Attorney Pamela Price says shows prosecutors deliberately excluded Black and Jewish prospective jurors. Price told CNN it is simply a believe that started successful nan 1980s and ran done nan early 2000s.

On Friday Price’s agency told CNN successful an email location was nary accusation connected plans connected really to proceed pinch Ervin’s case. Bonta conceded nan Alameda prosecutors successful nan Ervin lawsuit illegally excluded Black jurors. Alameda County now must make a determination by September 30.

In 1991 jurors recovered Ervin blameworthy of execution successful nan decease of Carlene McDonald, nan 43-year-old ex-wife of Ervin’s co-defendant, Robert McDonald. McDonald was besides recovered blameworthy and died successful prison. CNN has attempted to scope retired to family members of nan victim.

Ervin’s lawyer, Pamala Sayasane, said her customer is “overjoyed and successful disbelief. He’s been incarcerated for 38 years. He’s grateful to everyone who helped him. I’m successful a daze, arsenic is my client.”

Sayasane said nan authorities lawyer general’s concession “is seldom made. It’s a large point and it’s going to person ramifications for others connected decease row.”

CNN has reached retired to Bonta’s agency for comment.

Sayasane told CNN each six imaginable Black women were excused from serving connected nan jury. Three antheral Black imaginable jurors were excused, though 1 Black antheral was seated and different was an alternate, Sayasane said. Excluding imaginable jurors based connected sex, title aliases ethnicity is simply a usurpation of nan 14th Amendment’s Equal Protection Clause. These are known arsenic Batson violations.

Last twelvemonth Price initiated an investigation into imaginable prosecutorial misconduct during assemblage action successful nan lawsuit of Ernest Dykes, who was recovered blameworthy successful 1993 of shooting a 9-year-old. Last month, she announced plans for nan resentencing of Dykes and 1 different decease statement inmate for Batson violations. She besides suggested immoderate of nan decease punishment prosecutors whitethorn person acted criminally.

In her question and reply pinch CNN, Price said a existent prosecution squad uncovered boxes pinch notes showing erstwhile lawman territory attorneys had intentionally excluded Black and Jewish jurors.

“The markings by nan charismatic adjacent to nan names of Black jurors were affirmative grounds of nan prosecution’s fixation pinch nan jurors’ race,” said Brian Pomerantz, an lawyer who is lead counsel for 3 of nan cases being reviewed and is progressive successful nan colony of dozens of nan different cases.

“All of these group merit to person either a caller proceedings aliases a solution of their existent lawsuit that rectifies nan injustice … of nan unconstitutional tests that they had,” Pomerantz said.

Prosecuting a crime again almost 4 decades aged “would beryllium almost intolerable to retry,” according to defense lawyer Linda Kenney Baden, whose high-profile clients person included Phil Spector, Casey Anthony and Aaron Hernandez.

“Witnesses person died truthful you’d person to trust connected transcripts,” which she said is “tough for a assemblage to beryllium through.” Baden said different trouble is “new prosecutors don’t want to sully their reputation” by losing a arguable case.

In April nan Alameda County DA’s agency shared immoderate of nan notes written during assemblage action by prosecutors successful nan Dykes case. Those notes showed a bias against imaginable Jewish and Black jurors, according to nan DA’s office.

CNN antecedently shared images of nan notes and others fixed to CNN by Pomerantz. “Must go” was written adjacent to nan sanction of a Black man; different juror had nan connection “Jewish” underlined connected their questionnaire. Farther down, a handwritten statement reads: “I liked him amended than immoderate different Jew. But nary way.” Dykes will beryllium resentenced connected August 13 and is expected to beryllium released early adjacent twelvemonth aft decades successful prison.

Price, who took agency arsenic nan region territory lawyer past twelvemonth and is presently facing a recall, has said she believes group profiling of jurors was perchance wide and well-known successful nan section nether her predecessors. Studies person besides recovered patterns of group bias successful assemblage action from California and Washington to Connecticut and New York, arsenic good arsenic nan Deep South.

Price has said her agency is engaged successful colony negotiations betwixt lawyers representing inmates connected decease statement whose cases are nether reappraisal and nan California Attorney General’s Office.