Curtis Lee Ervin was sentenced to death in 1991 for the murder-for-hire of Carlene McDonald in 1986. Late last month, Federal Judge Vince Chhabria, at the request of California Attorney General Rob Bonta, who “conceded that a Batson violation occurred” in Ervin’s case, ruled that Ervin should either be released or retried within 60 days. Ervin, now 71, has been on death row for 33 years.
His case is one of 35 death penalty cases going back 30 years that are currently being reviewed in the Alameda County District Attorney’s office after evidence was discovered that prosecutors had systematically excluded Jewish and Black individuals from the jury pool, in violation of the Supreme Court decision in Batson v. Kentucky (1986) that the use of peremptory challenges to remove a potential juror from the jury pool based on race violates the Equal Protection Clause of the Fourteenth Amendment.
Ervin’s is the third case so far in which motions have been filed requesting resentencing of death penalty cases because of prosecutorial misconduct. Alameda County District Attorney Pamela Price announced last month that she had filed motions requesting the resentencing of two other individuals sentenced to death during that time:
- Ernest Dykes, whose case was the catalyst for the initial investigation when it was discovered during his appeal of his 1995 conviction for the killing of nine-year-old Lance Clark in 1993 that prosecutors excluded Jewish and Black jurors from his jury, will potentially be resentenced and released on parole in June 2025. Now 51, he has been on death row for 29 years. A decision on his resentencing is expected this month.
- And Keith Thomas, who was convicted in 1997 of the kidnapping, rape, and murder of 25-year-old Francia Young in 1992 when he was 19. In a press conference, Price explained that she requested resentencing in Thomas’s case because of the jury exclusion misconduct and because of the “racist imagery and stereotyping” the prosecutor used when referring to Thomas,” KQED reported. Thomas, who is now 51, has been on death row for 27 years.
The investigation into whether there was prosecutorial misconduct in Alameda County death penalty cases will continue. According to CBS News, Price indicated that seven prosecutors in the DA’s office are under investigation for “suspicion of misconduct,” including Assistant District Attorney Michael Nieto, who Gov. Gavin Newsom recently nominated to serve on the Contra Costa County Superior Court. Price added that the other six were no longer at the DA’s office, but one is a current judge. She said there are many more cases to review, but it will be challenging as “more than 70% of them” have been “sanitized,” with racist, homophobic, and misogynistic notations removed.
