Thursday, March 17, 2005

Case Stirs Fight on Jews, Juries and Execution


OAKLAND, Calif., March 15 - The convictions of dozens of death-row inmates in California are coming under legal scrutiny because of accusations that Jews and black women were excluded from juries in capital trials in Alameda County as "standard practice."

A former Alameda prosecutor, John R. Quatman, made the contentions in a sworn declaration in the habeas corpus case of Fred H. Freeman. Mr. Freeman is a condemned inmate who is seeking to overturn his conviction in 1987 in a killing and robbery at a bar in Berkeley.

Mr. Quatman, who worked for 26 years as a deputy district attorney and prosecuted the case, said the trial judge, Stanley Golde, advised him during jury selection that "no Jew would vote to send a defendant to the gas chamber."

"Judge Golde was only telling me what I already should have known to do," Mr. Quatman's statement said. "It was standard practice to exclude Jewish jurors in death cases."

Mr. Quatman said the practice extended to African-American women, who have also been widely considered sympathetic to defendants, though in Mr. Freeman's case that has not been an issue.

Alameda County officials strongly disputed the claims, with the man who was district attorney in 1987 calling the accusations dishonest.

The United States Supreme Court has ruled that it is illegal to reject jurors on the basis of race, and the California Supreme Court in 1978 extended that prohibition to religion. While habeas corpus petitions typically challenge trial procedures, it is highly unusual for the prosecutor in a case to support the petition. A hearing on Mr. Quatman's accusation, which State Supreme Court ordered in July, is scheduled for Tuesday in Superior Court in San Jose.

If Mr. Freeman's lawyers succeed, he would get a new trial. But the repercussions are possibly much broader. Forty-four people from Alameda County are on death row, and Judge Golde, who died in 1998 after 25 years on the bench, presided over more death penalty cases in the county than any other judge. At least eight inmates now on death row had trials conducted by Judge Golde.

"It is highly likely that this is going to be a recurring problem for Alameda County cases, and it could show up elsewhere," said Nathan Barankin, a spokesman for the state attorney general's office, is representing the county. "Legal arguments are not a fad for capital defendants. They are used until the law is settled."

Stefanie Faucher, program director for Death Penalty Focus, a group in San Francisco against capital punishment, said the accusations cast a shadow over death-penalty convictions statewide. California, with 640 inmates awaiting execution, has the largest death row in the nation.

"It is naïve to assume these practices only occurred in Alameda County, especially when district attorneys from across the state frequently get together to share theories," Ms. Faucher said. "We don't really know how many people were wrongfully convicted, not just because they are innocent, but because they didn't receive a fair trial."

Defense lawyers and groups opposing death penalty are combing county death-row files for evidence of possible bias involving black women and Jewish jurors. Already, Mr. Quatman's declaration is being used in the appeal of another condemned Alameda inmate, Mark Schmeck.

At Mr. Schmeck's trial in 1989, prosecutors used peremptory challenges to remove the two prospective Jewish jurors, court papers show. His lawyers protested, but the judge, who was not Mr. Golde, sided with the prosecution, which said there were reasons other than religion for excluding the two.

As part of the appeal, Mr. Schmeck's lawyers and the Habeas Corpus Resource Center, a group that represents Mr. Freeman, reviewed jury selection in 25 capital trials in Alameda from 1984 to 1994. The review found that 12 people who identified themselves as Jews were called to the jury box and that the prosecution rejected all 12.

The review found, 17 people who had surnames perceived as Jewish were called, with the prosecution excluding 15 . Over all, the review found non-Jews excluded at a rate of 49.97 percent, and Jews and people with Jewish surnames were excluded at a rate of 93.10 percent.

In papers in Mr. Schmeck's case, his lawyers state that another ex-Alameda prosecutor, Alex Selvin, confirmed that "it was the standard practice for attorneys on the capital team to exclude Jews from capital juries." Mr. Selvin did not make a sworn declaration.

"Judge Golde was unique in the sense that he would say what was on his mind in the chambers," a lawyer for Mr. Schmeck, Lawrence A. Gibbs, said. "But he was just simply giving voice to a practice that was occurring in all of the courts."

The accusations stunned the legal community in Alameda County, where Judge Golde was dean of Superior Court jurists and where the prosecutor's office has considered itself a model operation since the time of Earl Warren, district attorney for three terms in the 1920's and 30's.

In papers filed with the Supreme Court, John J. Meehan, who was district attorney at the time of Mr. Freeman's trial, said there was no practice of excluding jurors on ethnic or religious grounds.

"Our lawyers were trained to the contrary, that it was misconduct and unlawful for them to remove prospective jurors solely because they were members of a legally cognizable group," said Mr. Meehan, who retired in 1995.

James H. Anderson, a 35-year veteran of the office who retired last year as assistant district attorney for death penalty cases, said in a telephone interview that Mr. Quatman's accusations were laughable and that many prospective jurors, including Jews and blacks, were excluded because of backgrounds, professions and political beliefs.

"That is not a racist thing, but just common sense," Mr. Anderson said. "It is an axiom. It is not because of prejudice. Their politics are not going to be on your side."

Mr. Anderson suggested that Mr. Quatman might be seeking revenge against the district attorney's office, which he said Mr. Quatman had left after having been removed from the trial staff after "a major falling out" over a disciplinary case that involved an insult to a co-worker.

Mr. Quatman, who left the office in 1998 and is now a lawyer in Montana, declined to comment. In his declaration, he said Judge Golde had asked him in chambers why he had not removed a prospective Jewish juror.

"He said I could not have a Jew on the jury and asked me if I was aware that when Adolf Eichmann was apprehended after World War II there was a major controversy in Israel over whether he should be executed," Mr. Quatman said in his declaration. "Judge Golde said no Jew would vote to send a defendant to the gas chamber. I thanked Judge Golde for his advice and thereafter excused any prospective juror who was Jewish."

One of Judge Golde's two sons, Matthew, is a deputy district attorney in Alameda. The other, Ivan, is a lawyer in Oakland. Both said they were suspicious of Mr. Quatman's timing, because their father was not able to defend himself. The Goldes said their father was opposed to the death penalty, in part because of Jewish religious teachings. He was a member of Temple Sinai in Oakland.

"It is something he had to philosophically struggle with and come to grips with," Matthew Golde said. "I remember having conversations with him about it. He felt it was his duty as a judge."

Mr. Anderson said the judge's chambers were a popular gathering place because he was a mentor to many lawyers. Mr. Anderson said he frequently heard Judge Golde give advice to prosecutors and defense lawyers about picking juries, but never during a trial and never about a particular juror.

"When I was a young D.A., he would tell me, 'If you have a cop case, be careful of blacks on the jury, because they don't like cops,' " Mr. Anderson said. "I heard him tell defense lawyers: 'Be careful of Asians. They are very law-and-order oriented.' "

Daniel Horowitz, a defense lawyer here who has handled more than a dozen death penalty cases in 20 years, said he had spoken with Mr. Quatman about his conversation with Judge Golde. Mr. Horowitz said Mr. Quatman related a much more casual exchange than the one reflected in the declaration.

"Everyone knows that Stanley would not do what Jack put in the declaration," Mr. Horowitz said.

Cliff Gardner, a lawyer for Mr. Schmeck, said the statistics from the 10-year review of the capital trials spoke for themselves. A declaration in Mr. Schmeck's appeal by a mathematician, Philip Farmer, states that the probability in those cases of the prosecution randomly striking 27 of 29 Jews is less than 1 in 1.6 million.


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