San Francisco Chronicle
Challenge to death sentence revived over racial issues
A federal appeals court has revived a Richmond man’s challenge to his conviction and death sentence for a 1986 murder-for-hire, citing the prosecutor’s removals of nine of 11 Black prospective jurors.
Curtis Lee Ervin was convicted of accepting $2,500 from Robert McDonald of Pinole to kill his ex-wife, Carlene McDonald. A jury found that Ervin and another man, Orestes Robinson, kidnapped her from her home in El Sobrante in November 1986 and then took her to Tilden Park in Berkeley, where Robinson held her down while Ervin stabbed her to death.
Ervin and McDonald were sentenced to death and Robinson was sentenced to life in prison. McDonald and Robinson both died in prison. The state Supreme Court unanimously upheld Ervin’s death sentence in 2000, but he then appealed in federal court, challenging the composition of the jury that convicted him.
That jury had one Black member, while most or all of the others were white, the Ninth U.S. Circuit Court of Appeals said in Friday’s ruling. The court said the prosecutor had used his peremptory challenges — each side’s ability to remove a prospective juror without stating a reason — to dismiss nine of the 11 Blacks on the panel and six of about 30 prospective jurors who were not Black. Ervin, now 68, is Black.
U.S. District Judge Lucy Koh of San Jose rejected Ervin’s appeal in 2018, finding no discrimination in the juror challenges she examined. But the appeals court said Koh must reconsider the case under stricter standards for racial bias in jury selection that the U.S. Supreme Court declared in a 2019 ruling. The case could be assigned to another judge if President Biden’s nomination of Koh to the Ninth Circuit is confirmed by the U.S. Senate.
Under the state Supreme Court’s ruling, the appellate panel said, courts must compare the Black prospective jurors who were dismissed by the prosecutor with non-Black jurors who were not challenged, an analysis that Koh did not conduct in her 2018 ruling. The judge must also examine any racially based differences in questioning prospective jurors and investigating their backgrounds, and the prosecuting office’s past record on such issues, the court said.
In addition, the court said, the prosecutor, James Anderson, apparently misrepresented his reasons for removing one Black prospective juror. Anderson said he was concerned about the juror’s “deeply religious bent” and the man’s statement that he had undergone a religious conversion, but the juror never made any such statements and said he did not belong to any church, the court said.
The court also cited Anderson’s comments to a New York Times interviewer in 2005, after retiring from a 35-year career in the district attorney’s office. The former prosecutor recalled being told by a judge, early in his career, that “if you have a cop case, be careful of Blacks on the jury, because they don’t like cops.”
Judge John Owens wrote the 3-0 ruling reinstating Ervin’s case.
Defense lawyers Pamala Sayasane and Robert Bryan said Ervin is an innocent man who has spent 30 years on Death Row.
“A black man is in prison because of the misconduct and racial bias of the prosecutor,” Sayasane said in a statement.
The District Attorney’s Office was not immediately available for comment. But Anderson, contacted at his home, said Friday the only thing he cared about when questioning prospective jurors in capital cases was how strongly they favored the death penalty.
“It’s obvious that a lot of the African American community don’t like cops, probably with good reason,” Anderson said. “But I don’t care if they were Black, or white, or whatever . ... If they weren’t able to give me a definite answer about how strongly they felt on the death penalty, they were gone.”