A DA kept Black women off a jury. California’s Supreme Court says that wasn’t racial bias

In Nadey’s case, however, the California Supreme Court this week found that the prosecutor had valid reasons to dismiss the Black jurors. It upheld his sentence despite Nadey’s appeal contending his case was tainted by racial bias. 

“We conclude in each instance the prosecutor’s reasons were inherently plausible and
supported,” the court ruled, citing evidence from jury questionnaires and the prosecutor’s questioning of the stricken jurors.

Their 5-2 decision highlights the complexities of recent moves in court and in the Legislature to address racial bias in capital cases. Gov. Gavin Newsom in 2019 declared a moratorium on executions, writing in his executive order that “death sentences are unevenly and unfairly applied to people of color, people with mental disabilities, and people who cannot afford costly legal representation.”

In Alameda County, an appeal over the 1993 death penalty conviction of Ernest Edward Dykes recently uncovered evidence suggesting prosecutors for years excluded potential Black and Jewish jurors based on their identity. That was the root of U.S. District Judge Vince Chhabria’s April order directing Alameda County District Attorney Pamela Price to review the office’s past capital convictions. 

Black Americans have historically had skeptical attitudes toward the death penalty, and some studies suggest that prosecutors have skewed juries to favor those who support capital punishment, often resulting in the exclusion of Black jurors.

There is less data available for Jewish Americans’ views on capital punishment, but a 2014 poll by the Public Religion Research Institute noted that Jewish Americans were less supportive of capital punishment than white Protestants and white Catholics, while more favorable to it than Black Protestants and Hispanics.

California allows prisoners to appeal on racial bias

The burden is largely on the defendant to prove racial bias in criminal hearings, but in 2005, the U.S. Supreme Court clarified that threshold, ruling that prosecutors have to provide reasonable, race-neutral explanations when challenged in court. California has since enacted greater protections for those contesting their sentences, including a 2022 law that allows those convicted before 2021 to petition the court if there is evidence of racial bias in their case.

As Price weighs potential re-trials or re-sentencing of over 30 affected cases, the court’s move in Nadey’s case highlights the high bar facing attorneys across the state who are seeking to fight capital sentences on the grounds of racial bias in courts.

The decision, written by Justice Carol Corrigan, opens by recounting the gory scene that Fermenick’s husband discovered when he found her body. Their infant was strapped in a car with a heavily soiled diaper, suggesting the baby had been there for some time. He picked up the child and began searching for his wife. He saw her body through a window with a wound to her neck. Investigators determined she’d been sexually assaulted.

The prosecutors used loaded language during the trial, calling Nadey a “tattooed pervert” and a “tattooed predator.” The Supreme Court ruling acknowledged the prosecutor made some errors in the trial, but it found they did not merit a reversal of the jury’s decision. Today, Nadey is 58 and serving time at a state prison in Vacaville.

Dissent points to death penalty reviews

In a dissent, two justices wrote that the court should have paid more attention to Nadey’s argument that Black women were improperly removed from the jury pool. They pointed to the federal order mandating reviews of Alameda County’s death penalty cases.

“Today’s decision is particularly jarring given what has come to light in federal court regarding capital jury selection in Alameda County around the time that Nadey was tried,” the dissent by Justice Goodwin Liu reads.

Advocates for racial justice and ending the death penalty, meanwhile, continue to call for further accountability in the courts. On Tuesday, a coalition of Black and Jewish leaders in Alameda County called attention to the mandated review of capital punishment cases in the county, urging Price to move quickly and unveiling new evidence suggesting prosecutors previously also discriminated against potential LGBTQ+ jurors. Few in attendance were deterred by the state court’s recent ruling.

“It’s unfortunately business as usual,” Robert Bacon, an attorney working with anti-death penalty advocates, told CalMatters, describing the justice’s decision as he stood on the steps of the René C. Davidson Courthouse in Oakland. “Both in the sense of their indifference to the problem of…racial discrimination in jury selection and also in their essentially putting on blinders and refusing to consider this information that’s come to light.”