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Renewed Racism Charge Doesn’t Prompt S.C. Rehearing
Man Convicted of Murder, Sentenced to Death, Fails to Persuade Majority of Justices to Take Another Look, in Light of Newly Discovered Evidence, at Allegation of Racist Rejection by Prosecutor of Black Potential Jurors
By Kimber Cooley, associate editor
The California Supreme Court, in a 4-3 decision, has denied a petition for rehearing in a capital case in which it affirmed a judgment of conviction on June 17, unswayed by notes unearthed in separate federal proceedings that purportedly show that the deputy district attorney who prosecuted the petitioner used the letter “B” to identify the race of possible jurors in his selection materials in an unrelated case.
Seeking a rehearing is Giles Nadey Jr., who is White. He was sentenced to death for the 1996 killing of a pastor’s 24-year-old wife.
On automatic appeal, Nadey argued before the high court that the use of five peremptory strikes by then-Alameda County Deputy District Attorney James Anderson (now retired) to exclude Black potential jurors violated the U.S. Constitution.
Nadey’s challenge to his conviction—based on the 1986 U.S. Supreme Court case of Batson v. Kentucky and the 1978 California Supreme Court case of People v. Wheeler which prohibit the removal of potential jurors based on race—was unsuccessful as a majority of the court found that the strikes were supported by adequate racially-neutral justifications.
Justice Goodwin H. Liu, joined by Justice Kelli Evans, dissented from that decision.
Notes Found
Nadey sought a rehearing after the notes were found in discovery during proceedings on a habeas corpus petition by defendant Franklin Lynch, who was also prosecuted by Anderson and sentenced to death in 1992. In addition to marking certain jurors with the letter “B,” the handwritten materials also included the words “NOTE FOR WHEELER” in the top left corner.
In his petition for rehearing, Nadey asked the court to take judicial notice of the materials.
The discovery of the prosecutor’s notations comes on the heels of an order by District Court Judge Chhabria of the Northern District of California in resentencing proceedings in a case in which Ernest Dykes was convicted of the 1993 Oakland murder of a nine-year-old boy.
Chhabria’s June 2024 order requires the Alameda County District Attorney’s Office to review 35 capital cases, dating from the mid-1980s through 2007, for evidence of a pattern of excluding Black and Jewish jurors after evidence was presented that prosecutors had made notations such as “B” next to an individual’s name or identified the panelist as “Jewish.”
Alameda County District Attorney Pamela Price announced this summer that her office is undergoing the review process and has uncovered possible criminal conduct by prosecutors. Price said Dykes will be resentenced following the disclosures.
Anderson was the prosecutor in the Dykes case as well as in the capital case against Curtis Lee Ervin, who had his conviction vacated in August due to prosecutorial misconduct relating to the removal of nine out of 11 Black prospective jurors.
A rehearing in Nadey’s case was denied by an order on Friday. Late Monday, the June 17 opinions were reposted along with a statement by Chief Justice Patricia Guerrero in support of the order denying rehearing and a dissenting statement by Liu, who was joined by Evans.
Guerrero’s View
Guerrero remarked that “the petition merely repeats arguments based on Batson…and Wheeler…that have already been rejected by a majority of this court” and said:
“[T]he only potential evidence defendant offers to support these serious allegations [of racial bias] is contained in his request for judicial notice. It consists of a single document that, according to a supporting declaration, was produced in federal court litigation and reflects jury selection notes in a different capital case by the same prosecutor who handled defendant’s trial. Although this document will presumably receive thorough examination and consideration in the federal court, we deny defendant’s request for judicial notice here because the document does not fall within any category of judicially noticeable materials in Evidence Code section 452. Defendant observes that we may judicially notice court records…but….Defendant has not shown it was filed in any court. And, even if it had been, we may judicially notice only its existence in the court file, not the truth of its hearsay contents.”
She continued:
“[T]o the extent defendant would like to pursue his allegations based on extra-record evidence of discrimination in jury selection, this appeal is not the proper vehicle to do so….Instead, the proper forum is a petition for writ of habeas corpus, which allows for the presentation and development of extra-record evidence.”
The chief justice added:
“Our dissenting colleagues’ proposal—to essentially stay the present action in order to allow separate proceedings to develop and then invite updates on the status of those proceedings—….would encourage defendant to present extra-record evidence in support of his claim so that we might weigh its evidentiary value. And the Attorney General then would likely be compelled to respond with extra-record evidence of his own, which we would be asked to weigh as well. That is not how direct appellate review works.”
Guerrero noted that Justice Leondra Kruger, who did not write separately, “is of the opinion the petition for rehearing should be conditionally granted.”
Liu’s Dissent
Liu wrote:
“Ervin was prosecuted by Anderson in 1991, Lynch in 1992, and Dykes in 1995. The defendant here, Nadey, was prosecuted by Anderson in 1999, in a trial where Anderson struck five of six Black prospective jurors, all women, and no Black juror served on the guilt-phase jury….Under controlling precedent, the practices of the same prosecutorial office in other cases—indeed, the practices of the same prosecutor—are relevant in evaluating a claim of racial discrimination in jury selection.”
Noting that “[t]he Alameda County District Attorney’s investigation into the county’s death penalty cases is ongoing, and we do not know what more it will reveal,” the jurist reasoned:
“[T]here is every sign that the District Attorney is proceeding expeditiously in her investigation, and any judicial findings will be subject to judicial notice in this court. I do not see why we need to close out Nadey’s direct appeal right now and effectively kick the can down the long road to habeas. We should hit ‘pause’ on this matter and allow a serious and relevant investigation to run its course. If the investigation does not yield any information that changes the court’s mind about Nadey’s Batson claim, the court can then say so and reinstate its previous decision affirming the judgment. But if the investigation yields additional findings that are judicially noticeable and supportive of the Batson claim, then a rehearing of this direct appeal is the proper forum for reconsideration of Nadey’s claim.”
The case is People v. Nadey, S087560.
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