San Francisco Chronicle (Sunday)
Newsom appointee noted in probe of bias
Ex-prosecutor flagged Black, Jewish, lesbian candidates for juries
A lawyer assigned to examine whether Alameda County prosecutors improperly removed potential jurors said Friday that one of Gov. Gavin Newsom’s recent judicial appointees led a prosecution team that flagged Black, Jewish and lesbian prospective jurors for possible dismissal in a capital case.
That doesn’t prove Assistant District Attorney Michael Nieto actually challenged jurors for discriminatory reasons, but it should raise concerns about his judicial appointment, said the attorney, Brian Pomerantz.
Nieto, an Alameda County prosecutor since 1997, was chosen by Newsom on June 18 to fill a vacancy on the Contra Costa County Superior Court. He has not been sworn in.
In 2009-10 he was the lead prosecutor in the case of Christopher Evans, who was convicted and sentenced to death for fatally shooting Tina Marie Rose, owner of an East Oakland hair salon, and Tommy Lee Brown, a customer who tried to protect her. Evans’ lawyers argued that he had been dazed and mentally unaware after Brown punched him and knocked him unconscious.
Alameda County District Attorney Pamela Price announced in April that she was putting her county’s 35 death sentences on hold for further review based on evidence that prosecutors in a number of cases had removed Jewish and Black prospective jurors, believing they were less likely than others to support the death penalty.
There is no direct evidence of such removals in Evans’ case, said Pomerantz, an attorney assigned to review the case and others by U.S. District Judge Vince Chhabria, who told Price to re-examine all pending cases. But Pomerantz said Nieto’s team had categorized the jurors by race, religion and sexual orientation.
Notes from the prosecution team, Pomerantz said, show that among 66 potential jurors in the case, 12, all of them Black, had asterisks next to their names. Eight made it onto the jury panel, six were challenged by prosecutors and two served on the jury.
Another prospective juror was marked as Jewish, and two as lesbians, Pomerantz said. He said one of the lesbians reached the panel of potential jurors and was dismissed by Nieto’s team.
In a public declaration describing his findings, Pomerantz said, “Based on my review of only a portion of the materials I received from the Office of the District Attorney, it is my opinion that for several prosecutors race or sexual orientation was a significant factor that affected their
jury selection processes. I am concerned from my review of Mr. Evans’ case that may have been true for Michael Nieto.”
“The most troublesome things I saw were the writing of ‘lesbian’ and ‘Jewish’ on the (note) cards,” Pomerantz told the Chronicle. “I don’t see how that’s relevant to anything in terms of picking a juror.
“If I were Evans’ attorneys, I’d be claiming there was a (constitutional) violation,” he said, though that would require proof that a juror was actually removed because of race, religion or sexual orientation. But more immediately, Pomerantz said, for a judicial appointment, the notes should raise “grave concerns … coming out of an office where there has been admission of widespread systemic problems with jury selection.”
Pomerantz is also an attorney for Ernest Dykes, convicted and sentenced to death in 1993 for murdering his landlady’s 9-yearold grandson. Price said in April there was evidence that Dykes’ prosecutors had removed all Jewish and Black people from the jury. Dykes’ federal appeal is now in Chhabria’s court.
The civil rights group Color of Change said Newsom should withdraw Nieto’s appointment.
“Since this unsettling scandal has been revealed, we have been calling for all current and former prosecutors and judges implicated in excluding Black, Jewish, or LGBTQ+ jurors from death penalty cases to be appropriately held accountable,” the group’s policy strategist, Queen Adesuyi, said in a statement.
Otherwise, she said, officials who engage in discriminatory
actions “are allowed to rise in power within the prosecutorial and judicial systems.”
Danella Debel, a spokesperson for Newsom, said by email that the governor’s office “will keep you posted if we have anything to share on this.”
Nieto, who is still based in the district attorney’s office, could not be reached for comment. Haaziq Madyun, a spokesperson for Price, declined to comment.
Price, a former civil rights lawyer, took office in 2023 after a campaign in which she promised not to seek the death penalty or other sentences she considered excessive. Tough-on-crime groups are seeking to remove her and have qualified a recall vote for the November ballot.