Prosecutor bias alleged in two Alameda County death penalties headed for resentencings

After spending a combined 62 years on death row, two men will likely have their sentences reduced because of alleged prosecutorial misconduct at the Alameda County District Attorney’s office. 

During a July 16 news conference, District Attorney Pamela Price, who campaigned on a promise to not seek the death penalty, announced that Ernest Dykes and Keith Thomas will be resentenced. The move is the first tangible outcome of a judge-ordered review of death penalty cases in the county.

In April, Price announced that her office was directed by U.S. District Court Judge Vince Chhabria to conduct the comprehensive review after evidence emerged that prosecutors had excluded Black and Jewish jurors from the jury pool during Dykes’ 1995 trial. The ensuing investigation has reached as far back as 1978 and revealed potential efforts to cover up misconduct, Price said.

Substantial jury selection material was missing in 40 of the 56 death penalty cases the county has prosecuted since 1978, Price said during the news conference. “It indicates that once the practice was exposed of excluding Blacks and Jewish members of our community from juries, that there may well have been an effort to sanitize the files,” she added.

Dykes, who was sentenced to death for robbing a woman and murdering her 9-year-old grandson in Oakland in 1993, admitted to the robbery and shooting but denied it was intentional. During the appeals process, a deputy district attorney in Price’s office found handwritten prosecutor notes that flagged potential jurors for being Black or Jewish. Similar evidence was found in Thomas’ case files. 

Price confirmed that her office is looking into five former prosecutors, one current judge and one current employee in the DA’s office. Assistant District Attorney Michael Nieto, who was recently appointed by the governor to serve as a judge in Contra Costa County Superior Court, is the current employee who is under review. Price said her office found notes believed to have been written by Nieto.

In an emailed statement, Izzy Gardon, Gov. Gavin Newsom’s communications director, said, “The Governor’s Office has thoroughly reviewed this matter, consulted with outside legal experts, and we have subsequently communicated with the Contra Costa County Superior Court’s Presiding Judge on proceeding with the swearing-in.”

Gardon added that Nieto’s application was evaluated by the Judicial Selection Advisory Committee and the State Bar’s Commission on Judicial Nominees Evaluation, as part of the appointment process. 

The commission, which helps the governor vet appointees, declined to comment, stating its work is confidential. 

Nieto’s notes have not been released to the public. He did not respond to a request for comment for this story.

Release coming soon

According to legal experts, making note of demographic information during the jury selection process is common practice for prosecutors. The main purpose is to guard against discriminatory selection or bias when each side exercises its right to strike potential jurors. 

“When prosecutors or courts discriminate in jury selection, it is well settled in our laws that not only are you violating the right of the defendants, but you are violating the rights of victims to a fair trial, you are violating the rights of jurors and community members to participate in our jury system,” Price said.

With his resentencing, Dykes is set be released on probation next year. Thomas, who has served 31 years on death row for abducting a woman from an Oakland BART station and killing her in 1992, will be sentenced to 23 years to life, making him eligible for parole pending a hearing.

Ann-Kathryn Tria, co-counsel for Dykes, considers this a just resolution for her client, given the evidence of wrongdoing during his trial. She, along with her co-counsel, will be participating in conversations and settlement conferences on behalf of a number of clients who remain on death row. 

Price apologized to the victims’ families, and her office said it has been in contact with those impacted by the crimes. 

In a statement to CNN, the sister of 9-year-old victim Lance Clark said, “Our system really has done a disservice to our family.”

Hundreds on death row

According to the California Department of Corrections and Rehabilitations, 643 people are on death row, almost 34% of whom are Black. Only 5% of Californians identify as Black, according to the U.S. Census Bureau.

The last person to be executed in California was Clarence Ray Allen, in 2006, at what was then called San Quentin State Prison.

In 2019, Newsom signed an executive order placing a moratorium on capital punishment and closing the execution chamber at San Quentin. 

“There is a growing consensus among policy and lawmakers that the death penalty in California has been applied in a racially discriminatory manner and that death sentences should be set aside,” said Christina Spaulding, chief deputy at the State Public Defender’s Office.

Resentencing of death penalty cases is not common, said Chesa Boudin, former San Francisco district attorney. During his first year in office, Boudin reduced the sentence of San Francisco’s last remaining man on death row.

More recently, Santa Clara DA Jeff Rosen announced his intent to resentence all death penalty cases in that county because of racial disparities in sentencing.

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