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Peremptory Challenges in Murder Case Upheld Despite Allegations of Racial Motivations—S.C.
Corrigan Says Trial Court’s Acceptance of Racially Neutral Justifications Deserves Deference; Liu, Joined by Evans, Offers Dissenting Opinion
By a MetNews Staff Writer
The California Supreme Court yesterday upheld the murder conviction of a defendant arising out of the 1996 killing of a pastor’s wife, finding that the prosecutor’s use of peremptory challenges to exclude five black, female jurors did not violate the constitutional rights of the accused where racially neutral justifications were offered and comparative juror analysis showed they were treated similarly to others.
Both the victim and the defendant were white, and it appears from the record that no black jurors sat on the guilt phase of the trial.
Justice Carol A. Corrigan authored the opinion affirming the judgment of conviction by Alameda Superior Court Judge Alred Delucchi (now deceased). Chief Justice Patricia Guerrero and Justices Leondra R. Kruger, Joshua P. Groban, and Martin J. Jenkins joined in the opinion.
Justice Goodwin H. Liu wrote a dissenting opinion, in which Justice Kelli Evans concurred, saying:
“Based on these circumstances—including the facts that the prosecutor challenged five of six Black women jurors, that several of the prosecutor’s reasons for exercising those strikes were inconsistent with the record, and that he accepted several non-Black jurors who expressed reservations about imposing the death penalty—I find it more likely than not that at least the strike of [prospective juror] Harriett D. was racially motivated.”
Murder Case
The case came before the high court on an automatic appeal from a judgment of death imposed on Giles Albert Nadey Jr., who had been called to the Pleasanton home of Terena Fermenick on Jan. 18, 1996 in order to perform carpet cleaning services for his employer, Skyline Chem-Dry.
Terena Fermenick’s husband had recently been hired as a minister at the Church of Christ in Alameda and the couple had arranged for cleaning services of the residence in anticipation of moving in.
While at the home, Nadey sexually assaulted and murdered the 24-year-old Fermenick.
During jury selection, Nadey made a two separate motions under the 1986 U.S. Supreme Court case of Batson v. Kentucky and the 1978 California Supreme Court case of People v. Wheeler, objecting to the prosecutor’s exercise of the peremptory challenges, arguing that the strikes were racially motivated.
Facially Neutral
In justifying the strikes of prospective jurors Alice S., Victoria E., Harriett D., Lorraine D., and Doris C., Alameda County Assistant District Attorney Jim Anderson (now retired) explained that his sole concern in exercising the peremptory challenges was the panelists “relative strengths and weaknesses regarding the penalty of death.”
He also pointed out that he had retained a black woman—a police dispatcher—whom the defendant had later excused.
After finding the specific reasons given by the prosecutor were “genuine and facially neutral,” Delucchi denied the motions. There were 78 qualified prospective jurors in the case. Of these, only eight were identified on the record as black or African American. Anderson used his peremptory challenges to excuse five of the eight, the defense excused one, and two were not called to the jury box before the jury was empaneled.
Batson/Wheeler Motions
Corrigan noted that peremptory challenges are evaluated under a three-step framework under Batson/Wheeler jurisprudence—if the defendant first makes a prima facie case of discriminatory purpose, the burden shifts to the prosecution to offer a race-neutral justification for the strike, and the court must then decide whether the defense has proven that it was more likely than not that purposeful racial discrimination was the motive.
She said that “[b]ecause the trial court found a prima facie case of racial discrimination and the prosecutor stated reasons for the strikes at issue, our analysis focuses on the third Batson/Wheeler prong.”
Corrigan pointed out that “[a] trial court’s ruling on the ultimate question of discriminatory intent is ordinarily reviewed with restraint” because that court is best situated to evaluate the jurors and the credibility of the prosecutor.
Having found that the “starting point is one of deference,” the justice wrote:
“Consistent with the prosecutor’s representation that he was solely concerned with ‘what [panelists] would do in the penalty phase,’ he gave reasons for each of the challenged excusals that were based on the prospective jurors’ reluctance to impose the death penalty and their work in social services or similar professions he viewed as indicating ‘liberal’ tendencies. He cited these race-neutral factors for nearly all of the challenged panelists…and on these issues his reasons find clear support in the record.”
Comparative Juror Analysis
Corrigan turned to the challenged jurors and said:
“Comparative juror analysis, comparing questionnaire and voir dire responses of challenged jurors with those of similar jurors from a different racial group, must also be considered upon review of these claims….While not necessarily dispositive, this analysis may offer relevant circumstantial evidence bearing on the genuineness of the prosecutor’s race-neutral justifications….Compared jurors need not be identical to challenged jurors in all respects.”
The court found the comparisons of the excused jurors to empaneled ones offered by Nadey to be unpersuasive, finding important distinctions in factors such as their worldview and politics, likelihood of harboring sympathies to the defendant, and reluctance to impose the death penalty.
Corrigan declared:
“[W]e conclude substantial evidence supports the trial court’s rejection of the two Batson/Wheeler motions. It is also notable that, when the court heard defendant’s first motion, the prosecutor had passed on a panel that included Cheryl W, a Black woman. The prosecutor accepted the panel a total of four times before the defense ultimately excused Ms. W.”
Prosecutor Statements
Nadey also claims that Anderson committed prejudicial misconduct in closing argument by referring to the defendant in derogatory terms such as “this depraved cancer,” “tattoed barbarian,” “tattoed hyena,” and “vile, nasty predator.”
However, under the facts of the case, she explained:
“The prosecution is permitted to use language to support a penalty that reflects the highest degree of social opprobrium. The descriptions of defendant’s behavior as depraved, inhumane, perverted, or vile are fair comment on the trial evidence. When the use of such language is supported by evidence of heinous crimes, the prosecution is not required to describe the defendant in terms more apt for a church choir member or charitable aid worker.”
She continued:
“Phrases that liken a defendant to an animal or dreaded disease are closer to the line, however, and we do not endorse them. Advocates may argue their cases with vigor, but they are also expected to remain mindful of their obligations to uphold professional decorum.”
Finding insufficient prejudice based on these statements, and other claims of error raised by Nadey, Corrigan concluded that the cumulative effect of any error in the case did not warrant reversal.
Liu’s Dissent
Liu opened his dissent by saying:
“Giles Nadey was convicted of murder by an Alameda County jury that included no Black jurors. During jury selection, six Black prospective jurors, all women, were called to the jury box; the prosecutor struck five of them. The trial court denied Nadey’s motions…even though several of the prosecutor’s reasons for striking the Black jurors were inconsistent with the record and the court made no effort to resolve those inconsistencies.”
As to prospective juror Harriett D., he wrote:
“[T]he prosecutor’s sole basis for striking Harriett D. was her questionnaire response that the death penalty was ‘a last resort.’ Despite her repeated statements that she could impose the death penalty and that she ‘believe[d] in it,’ the prosecutor claimed she would ‘do anything or think anything of getting away from it.’ In addition, several non-Black prospective jurors expressed reluctance to impose the death penalty but were not struck by the prosecutor.”
He added:
“Today’s decision also condones the prosecutor’s use of derogatory language—including likening Nadey to a ‘hyena,’ a ‘cancer,’ and a ‘barbarian’—to convince the capital jury to sentence him to death. I do not agree that these opprobrious terms were ‘fair comment on the trial evidence.’”
The case is People v. Nadey, 2024 S.O.S. 1876.
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