You might think that the district attorney in a county that spawned the Free Speech Movement and the Black Panthers would be no stranger to controversy. But Tom Orloff is indeed a stranger to it. Not only has Alameda County’s top prosecutor run unopposed for his title three consecutive times, the county hasn’t had a contested election for district attorney in three decades. Compare that with San Francisco, which explodes with rhetorical fistfights every four years as multiple candidates vie for the helm at the DA’s office. “It is interesting because it is sort of a political county,” Orloff muses of his so-far-so-good political fortune. “But I think people here appreciate a professional, objective district attorney’s office.”
Indeed, Orloff’s office has been renowned for its professionalism and ethics dating back to the days when Earl Warren, who later became a Supreme Court justice, served as Alameda County DA. But that reputation came under attack a couple of months ago when The New York Times reported that a late Alameda County judge and a former prosecutor may have conspired to keep Jews off a jury in an otherwise garden-variety death-penalty case. The ex-prosecutor making the allegations also said it was standard practice among his colleagues to exclude Jews and black women from capital juries because they would never vote for death. The charges cast a shadow over dozens of death convictions in Alameda County, and the resulting national media attention hinted at a district attorney’s office so eager to send killers to the row that prosecutors routinely broke the law by using ethnic stereotypes to rig juries in their favor.
For Orloff, who prides himself on running an apolitical and low-key operation — he rarely holds press conferences — the jury-rigging allegations stung. Over the years, he has won the respect of defense lawyers as a decent guy and a straight shooter. One recent morning at his downtown Oakland office, Orloff is polite if not chatty. This is no Terence Hallinan, San Francisco’s publicity-conscious ex-prosecutor; Orloff has no famous nickname like “Kayo.” He speaks in a steady, deep baritone that seems incongruous with his lanky frame. He’d obviously rather be doing his job than sitting down with a reporter for an hour to defend his office and explain how it picks juries. Asked if this is the worst scandal he has had to endure since being elected DA in 1994, he curtly replies, “Yes.”
Although Orloff doesn’t point it out, he is defending not so much his own reputation as the sanctity of the Office — most of the controversy involves convictions that occurred before his watch, in the ’80s and early ’90s. The accusations bubbled to the surface only recently as part of slow-moving appeals filed by death-row inmates. In response, Jack Meehan, who served as district attorney from 1981 through 1994, vehemently denies that it was “standard practice” for his prosecutors to kick Jews or black women off death juries. “Throughout the entire office, and for every type of case, we instructed [that] bias, prejudice, et cetera won’t be tolerated and it can’t be done in the DA’s office,” he insisted in a recent interview.
Nor is it current practice, Orloff says: “These decisions are made on a professional, ethical basis. You can’t tell a book by its cover.”
The district attorney’s critics, however, might very well say the same: That in spite of his office’s gloried reputation, once you scratch a little below the polished surface, its image isn’t so pristine. The recent scandal has done more than shine an unflattering light on dirty little office secrets. It has exposed an unrealistic jury-selection system that winks at prosecutors, forcing them to deny the obvious — that race and ethnicity play an important role in picking a jury — and then readily accepting even the most ludicrous of rationales for booting a prospective juror out of the box.
The Poison Dwarf
Back in the day, Jack Quatman was a rising star in the Alameda County district attorney’s office. His colleagues sometimes called him “Squatman,” a cheap shot at his diminutive stature. But what he lacked in size, he made up for with ego and bravado. He was a great storyteller and trial lawyer who, according to former colleagues, was prone to exaggeration. He was also ambitious.
In 1986, Quatman got the chance to move up in the office pecking order by trying a death-penalty case. It was a case, he later said, that no one else wanted. The defendant, Fred Freeman, had allegedly shot a customer in a Berkeley bar during a holdup. Because the killing took place during the course of a robbery, Freeman technically was eligible for execution. But the case had shortcomings — there were two accomplices, and dispute over who actually had pulled the trigger.
When picking the Freeman jury, Quatman aimed to seat jurors with DUI convictions. These people, he believed, would have spent time drinking in bars and might feel a “camaraderie” with the victim. His big break came following testimony by the prosecution’s star witness, when defense lawyer Spencer Strellis abandoned his mistaken-identity defense. In his closing argument, Strellis admitted Freeman had been the shooter — but that his client hadn’t intended to kill the guy. The credibility of the defense thus destroyed, the jury returned a guilty verdict.
Jurors then had to decide whether the defendant should be executed. To Quatman, this seemed like a long shot because, for one thing, Freeman had no history of violence. Fearing the jury might not have the stomach for the death penalty, Quatman trod on legally dubious ground and invoked the Bible, something courts have frowned upon for unburdening jurors from the personal responsibility they have for sending defendants to their deaths. As Quatman later explained in a written declaration: “I figured the most promising argument would be to convince the jurors that the death penalty was required by the higher authority of the Bible: any person who kills must forfeit his own life — period.” The ploy worked. After the death verdict came in, Freeman looked puzzled, so Quatman passed him a note: “The jury has just given you the death penalty.” Freeman, who was hard of hearing, scribbled and handed the note back: “Will you be at my execution?” Now Quatman was puzzled. He nodded.
Quatman went on to prosecute other high-profile murder and death-penalty cases, including one in which the defendant, Thomas Walker, had appeared on America’s Most Wanted. He developed a reputation over the years as a prosecutor willing to bend the rules. Other lawyers started calling him the Poison Dwarf for his nastiness. A judge overturned the murder conviction of Brendell Levi after it surfaced that Quatman, among other things, had dropped a murder charge against a jailhouse informant who claimed to have heard Levi confess to the crime. Quatman was eventually transferred to a less-glamorous assignment at the consumer fraud unit after he called a female subordinate a “lazy cunt.”
In 1998 the embattled prosecutor retired to Whitefish, Montana, where he and his attorney wife, Phyllis, opened their own criminal law practice and she began representing death-row inmates. In early 2003, Scott Kauffman, a lawyer from the California Appellate Project, a San Francisco-based nonprofit that works on death-penalty appeals, came to visit the couple and assist Phyllis on a case. Over dinner one night, the topic of lawyerly incompetence in capital trials came up. Quatman began ranting about the Freeman case, which he said had always gnawed at his conscience. Freeman didn’t meet the profile of a guy who belonged on death row, Quatman said. In the course of that conversation, Kauffman asked Quatman to do something that would stun the East Bay legal community: Help Freeman get a new trial.
The lawyer’s six-page declaration on behalf of the man he put on death row quickly set off a firestorm in legal circles, which the mainstream press overlooked for nearly two years. To be precise, one of its twelve paragraphs set off the firestorm. It described an alleged secret exchange between Quatman and the late Stanley Golde, the trial judge on the Freeman case, that implicated the Alameda County DA’s office in illegal jury-rigging.
Golde is, and was, a revered figure in the East Bay legal community. Before he died in 1998 of stomach cancer, he was commonly referred to as “the dean” of the Alameda County judiciary. He was also an enigmatic man who sometimes referred to himself as a “right-wing civil libertarian.” As a defense lawyer, he represented suspected Communists during the McCarthy era. But as a jurist, although he personally opposed the death penalty, Golde sent more people to the row than any other judge in the county, perhaps the state. His professional vanity attracted him to capital cases, the prime-time of the trial courts. Two prosecutors recalled that Golde once balked at hearing a burglary case sent to him by the presiding judge, saying, “You don’t send Babe Ruth up to bunt.” In 1992, Golde told an Express reporter that his desire to preside over death cases was due to “my own ego.”
One day during jury selection in the Freeman case, Golde summoned Quatman to his chambers, the former prosecutor wrote in his declaration. “Quatman, what are you doing?” Quatman recalled the judge asking. Golde supposedly couldn’t understand why the prosecutor hadn’t dismissed a juror with a Jewish surname. The judge, according to Quatman, chided him that no Jew would ever send someone to the gas chamber. Golde, a practicing Jew himself, allegedly recounted how when Adolf Eichmann — the so-called chief executioner of the Third Reich — was finally captured, there was a major controversy in Israel over whether he should be executed. Thereafter, Quatman wrote, he kicked any prospective juror with a Jewish-sounding surname. “Actually,” Quatman recounted in his declaration, “Judge Golde was only telling me what I already should have known to do. It was standard practice to exclude Jewish jurors in death cases; as it was to exclude African-American women from capital juries.”
Quatman’s former colleagues were instantly suspicious of his motives. To them, the idea that the Poison Dwarf had been suffering pangs of conscience over Freeman’s conviction seemed dubious. The former prosecutor, after all, had a bone to pick with the DA’s office in general and Orloff in particular. For one, Orloff had presided over Quatman’s exile to the consumer fraud unit. And when Quatman, then living in Moraga, ran for judge in Contra Costa County in 1996, Orloff wouldn’t endorse him. Quatman admitted in court that there was bad blood between them going back to the early ’70s, when both were young deputy DAs.
The timing of the revelation also raised eyebrows, given that Judge Golde could no longer offer his side of the story. Quatman later explained that he feared snitching on such a popular judge would damage his career. In any case, the state Supreme Court deemed the allegations serious enough to warrant a closer look and appointed Santa Clara Superior Court Judge Kevin Murphy to preside over an evidentiary hearing in late March to determine whether Quatman was telling the truth.
The stakes were enormous. If the allegations proved true, not only would Fred Freeman likely get a new trial, but dozens of other death-row inmates from Alameda County might insist they also were denied fair trials by either Golde, the DA’s office, or both. So there was a collective sigh of relief from the DA’s office when Murphy issued a ruling that vindicated the late judge and vilified the former prosecutor.
The hearings themselves could hardly have gone better for Orloff’s team. From the outset, Judge Murphy limited their scope to Quatman’s credibility as it pertained to the Freeman case. In other words, Freeman’s lawyers were barred from exploring any systemic patterns of juror profiling by the DA’s office. Then, in addition to ruling that Golde had never instructed Quatman to kick Jewish jurors, Murphy concluded that Quatman was a vindictive liar whose motive was to exact revenge on Orloff.
And yet in the process of defending itself, the DA’s office, too, was diminished. As the Oakland Tribune aptly put it, Alameda County prosecutors “may have handed critics ammunition for future attacks on its integrity.” To wit, in their testimony Quatman’s former colleagues described a rogue prosecutor whom none of them apparently had bothered to report to their superiors. Superior Court Judge Joseph Hurley, a former Alameda County prosecutor, recalled that Quatman once told him he would have “round filed” exculpatory evidence Hurley had turned over to the defense in a case. Colton Carmine, senior deputy district attorney, recounted a tale in which Quatman allegedly had instructed him how to deal with reluctant witnesses by threatening to frame them. Quatman reached into his desk, Carmine testified, and threw a packet of what looked like cocaine at his feet. “It’s that easy,” Quatman had allegedly bragged.
Carmine also testified to an even more startling fact: In 1992, he’d attended a statewide conference of district attorneys where Quatman gave a featured talk on jury selection in capital cases. Quatman’s handout for his presentation, which was attended by scores of prosecutors, listed general rules for picking jurors, and advised against including “fanatics” like psychiatrists, nurses, doctors, and “religious people.” Quatman apparently elaborated on the latter group. According to Carmine — who later went on to successfully prosecute at least three death cases — Quatman told his crowd: “Never, ever leave a Jewish person on a capital jury.”
To lawyer Larry Gibbs, who handles appeals for clients on death row, Carmine’s revelation about the conference strengthened his view that the DA’s office condoned and endorsed removing Jews from death juries. Although many Alameda County prosecutors attended Quatman’s talk, none complained about its content to then-District Attorney Jack Meehan, who says he would have disciplined Quatman over those remarks had he been told about them. Orloff, who was chief assistant DA at the time, testified that he hadn’t attended the conference, and that word about Quatman’s talk had never “filtered down” to him. Most astonishing, Gibbs notes, was that Quatman gave the scandalous advice at a training seminar, and not merely while shooting the shit with colleagues over a beer. “That was beyond our wildest expectations,” the lawyer says.
Working from his home in the Berkeley Hills, Gibbs has spent nearly two years trying to prove that the Alameda County DA’s office has systematically discriminated against Jews during jury selection. Besides representing celebrity death-row client Erik Menendez, he also represents Mark Lindsay Schmeck, sentenced to death in 1990 by an Alameda County jury for killing a man named Lorin Germaine and stealing his motor home. At trial, the prosecution claimed Schmeck had shot Germaine five times at close range with a .22-caliber gun. Defense lawyers countered that authorities had incorrectly assumed that Schmeck was the killer because they’d found the motor home in his possession. The defendant, meanwhile, claimed he was selling the vehicle for a third party who’d promised him a $200 commission.
Schmeck was sent to the row by former deputy district attorney Ted Landswick, a well-known and controversial figure among death-penalty lawyers. Landswick, who put five men on death row from 1990 to 1993, had a true-believer fervor that rubbed critics of capital punishment the wrong way — a quality not uncommon to capital prosecutors. For example, after the Schmeck verdict, according to court records, Landswick ran up to a bus transporting the condemned man to San Quentin and gave a deputy something to give to Schmeck: a business card from a funeral home. His most infamous moment, however, came in 1994 during the trial of Johnny Lee Barnes, a former Berkeley High basketball star who’d been charged with murdering his elderly father and stepmother. During a break in the Barnes trial, court papers say, Landswick told a colleague about another co-worker’s mother getting mugged: “Did you hear, a couple of niggers jumped his 84-year-old mother and took her purse?” A public defender overheard Landswick, who is white, and asked, “What did you say?”
“I said two niggers beat his mother up and took her purse,” Landswick allegedly replied. When the public defender protested Landswick’s use of the N-word, he didn’t apologize: “Well, I don’t care. That’s what they are … niggers.” After news broke about the racial slur, Landswick was yanked off the case and transferred to the Fremont office. Orloff, then DA-elect, called his remarks “inexcusable.” Landswick finally retired two years ago.
Landswick’s slur during the Barnes trial gave death-penalty defense lawyers years of ammo. For instance, Berkeley solo practitioner Wes Van Winkle, who is handling the habeas corpus appeal for condemned inmate Robert Young, argued that prosecutor Landswick’s racial bias had led him to dismiss every prospective black female juror in that case. One black woman, a psychotherapist, had even served as an expert witness for the prosecution in a previous sexual-assault case.
Landswick clumsily explained to the trial judge that he had checked with other DAs in the office about the psychotherapist, and was told that she “has a difficult time perceiving the truth” and “exacerbates [sic] herself immensely,” meaning she exaggerated her credentials. “[T]he record does not indicate that Landswick ever conducted investigations of any white jurors to justify their removal from the jury,” Van Winkle countered in his brief. Nonetheless, the state Supreme Court upheld Young’s conviction this past January, ruling that Landswick had legitimate reasons for kicking the therapist and another black woman from the box. The court also noted that three black men sat on the jury.
Even before Quatman went public with his allegations, Cliff Gardner, another of Schmeck’s attorneys, had explored what he saw as the likelihood that Landswick had illegally booted Jews off the Schmeck jury. This was trickier than alleging racial discrimination, because unless jurors say they are Jewish, lawyers can’t know for sure. But during jury selection in the Schmeck case, two men had indeed identified themselves as Jewish. Landswick kicked both of them and told the court he was prepared to strike a third prospective juror, also Jewish, were she to be called into the jury box.
When the public defender moved for a mistrial, Landswick first claimed he didn’t know the two potential jurors in question were Jewish, which is hard to believe based on transcripts of their responses during voir dire, the question-and-answer phase of jury selection. The prosecutor went on to argue that it didn’t matter anyway because Schmeck himself wasn’t Jewish, a point Gardner argued was legally irrelevant. Landswick, however, correctly pointed out that both Jewish jurors had expressed reservations about imposing the death penalty — one had said the punishment should be reserved for only the most “heinous” crimes. Gardner, however, noted that two non-Jewish jurors not kicked by the prosecution had given similar answers.
After Jack Quatman filed his explosive declaration in the Freeman case in May 2003, Gardner and Gibbs set out to find a pattern of discrimination beyond their own client’s case. Gibbs got Alex Selvin, another former death-penalty prosecutor from Alameda County, to corroborate Quatman’s contention that it was “standard practice” to kick Jews and black women from capital juries. Selvin, who did not respond to interview requests for this article, prosecuted murder trials and capital cases for Alameda County during the ’80s before switching sides and becoming a defense lawyer.
According to Gibbs, Selvin told him during a conversation last April that prosecutors tended not to want either Jews or black women seated on death juries. Gibbs says Selvin qualified his remarks by noting that neither Orloff nor his predecessors would ever have tolerated a formal policy excluding those groups. Nevertheless, Selvin allegedly told Gibbs, such exclusions were, with few exceptions, standard practice among capital prosecutors.
After their conversation, Gibbs wrote Selvin — who now works in New Mexico — asking him to sign a declaration under the penalty of perjury confirming what he’d said earlier. Selvin refused. Orloff is one of Selvin’s close friends, Gibbs explains. So Gibbs filed his own sworn declaration in the Schmeck case recounting Selvin’s disclosures.
But Gibbs went beyond merely using a secondhand account from a former county prosecutor. He teamed up with Fred Freeman’s lawyers at the Habeas Corpus Resource Center, a state-supported nonprofit that handles death row appeals. They embarked on an ambitious examination of jury selection covering ten years of death-penalty convictions in Alameda County — from July 1984 to June 1994. It was a monumental task that required poring over thousands of pages of voir dire transcripts.
The results, the appellate lawyers claim, were unambiguous: Jews had been excluded from nearly all of the two dozen or so capital juries seated during that period. In each of the twelve instances where a prospective juror publicly identified as Jewish, Gibbs says, prosecutors dismissed the person with a “peremptory challenge,” a dismissal the DA seldom has to justify. Prosecutors also kicked seventeen of nineteen additional jurors who didn’t explicitly identify themselves as Jews, but who had Jewish surnames. Gibbs hired a statistical expert to review the numbers, which indicated that 93.1 percent of the Jews were spared from jury duty, while only half the non-Jews were kicked. The statistician concluded that the odds of those Jews having been randomly dismissed were one in 1.6 million.
The Wheeler Motion
As the saying goes, there are lies, damn lies, and then there are statistics. Tom Orloff suspects that the Gibbs survey falls in the statistics-that-lie category. He can’t say so with total certainty, because Gibbs won’t share the names of the Jewish jurors in question. Orloff protests that he can’t respond to the allegations without first being able to review court transcripts and jury questionnaires to see if there were legitimate, unprejudiced reasons for removing those Jewish jurors.
Gibbs counters that Orloff should be able to figure it out, since the defense lawyer did provide the names of the death cases in which the Jewish jurors were sent home. He is hesitant to provide all the details because he thinks Orloff will just take the jurors’ materials and pick them apart, looking for any justification a prosecutor could have had for dismissing a Jewish juror: “He’ll look at Jennifer Rosenblum and say, ‘She’s a social worker, and we don’t want a social worker.'” What the DA won’t do, Gibbs fears, is look to see how the prosecutors dealt with non-Jewish jurors who gave similar answers. Ultimately, Gibbs says, he wants the state attorney general to conduct an independent investigation: “Orloff’s office is institutionally incapable of investigating itself, just as was the Nixon White House or Tom DeLay.”
Orloff has good reason for wanting to see the details. The courts, in fact, have given attorneys an extraordinary degree of wiggle room to justify their peremptory challenges — to the point where simply claiming a lawyer got a bad vibe or had a gut feeling about prospective jurors may be suitable grounds for a juror’s dismissal.
A little background: Lawyers use two types of challenges to dismiss jurors: “for cause” and “peremptory.” In a death-penalty case, jurors are dismissed for cause if they are steadfastly opposed to the death penalty. Once a “death-qualified” jury pool has been assembled, lawyers on both sides get a fixed number of peremptory challenges, dismissals for which they don’t have to explain their reasons.
The landmark 1978 case People v. Wheeler created an important exception that was bolstered by a similar US Supreme Court ruling in 1986. In the case, the California Supreme Court said that any lawyer who exercises peremptory challenges solely based on jurors’ race, ethnicity, or religion has crossed the line into illegality. As a result, a lawyer can now make a “Wheeler motion” and accuse his opponent of using his peremptories to discriminate. If the judge agrees that the dismissals appear suspicious, the accused lawyer, typically the prosecutor, must state his reasons.
Orloff says he can’t recall a trial judge in a capital case ever finding that a prosecutor was indeed discriminating during jury selection. Senior Deputy District Attorney Angela Backers, head of Orloff’s capital litigation team, figures she has been “Wheelered” in about half her capital cases. “I think some of them [defense attorneys] think that for the appellate record they have to make a Wheeler motion even when they don’t believe [the prosecution is discriminating],” she says. “And that’s a real unfortunate situation, because you’re basically calling the prosecutor a racist. If you don’t believe the prosecutor is doing it for race-based reasons, but you do it just to make yourself look good on appeal, that’s a terrible situation you put everybody in.”
At the same time, the state Supreme Court also recognized in Wheeler the subjectivity of jury selection, which is why lawyers are allowed peremptory challenges in the first place. Forcing lawyers to state their reasons, the court noted, could prove embarrassing since the prosecutor may not want to admit he kicked someone “because his clothes or hair length suggest an unconventional lifestyle,” or because a prospective juror “smiled at the defendant.” The justices, in other words, wanted to leave room for hunches, and the courts have subsequently given prosecutors a long leash.
Perhaps a bit too long. Bill Tingle, an Alameda County deputy district attorney, used his peremptory challenges to kick three black women in a 1993 attempted-murder case against a black man. When the defense lawyer objected, Tingle, who is also black, insisted race had nothing to do with his choices. According to a story in legal newspaper The Recorder, Tingle gave some novel justifications: One woman, he said, was “grossly overweight” and wore “a little tiny skirt that doesn’t fit her”; another juror had braided hair, which he called “somewhat radical”; and the third juror was another big woman who wore “very large gold-plated buttons,” which Tingle said made him suspicious of her desire to attract attention. The First District Court of Appeals court upheld the man’s conviction and Tingle’s explanations. After the ruling, Tingle explained to The Recorder that he’d once been burned by a fat black woman in a previous case. “I’ve never liked young, obese black women, and I think they sense that,” he told the paper.
Tom Orloff and Angela Backers say it’s obvious the prosecutor in the Schmeck trial — the one case for which the DA’s office does have the names of the kicked jurors — had legitimate reasons to dismiss two jurors who identified themselves as Jews.
The trial transcripts back up their point. First there was Mr. Berman, a former Cal history major. Early on in the questioning, the judge asked if Berman had ever been charged with a crime.
“No, not officially,” Berman replied.
“I’m sorry?” the judge said.
“Well, I was warned about computer hacking a couple of months ago, but that’s not the same as charged,” he explained.
Backers reads aloud from the transcript in a can you believe this guy tone of voice. “‘Not officially?’ What the heck does that mean?” she says, before turning to Berman’s computer-hacking admission. “So he doesn’t follow the rules … he’s a computer hacker, he breaks the law.” Clearly, she says, no prosecutor is going to want an out-of-work hacker on a death-penalty jury.
Then-Deputy DA Landswick, however, didn’t cite the juror’s hacking background when the judge asked him to justify dismissing the Jewish jurors. For him, apparently, the clincher was Berman’s ambivalence about the death penalty. When asked for which crimes he believed death was the appropriate punishment, Berman said, “I would say heinous crimes. What immediately comes to mind is a Charles Manson or if Richard Ramirez is found guilty, I would say something like that. In regards to lesser, I don’t know.” Schmeck’s alleged crimes — killing a guy and stealing his motor home — hardly rose to the level of the Manson Family or the Night Stalker.
The other juror, Mr. Holtzman, was an even worse prospect for the prosecution, Backers says. Holtzman, an Oakland resident, also expressed ambivalence about the death penalty. Equally troublesome for Landswick, apparently, was his idea of what “mitigating” evidence might be: “I was thinking that some people might consider [it an] aggravating factor if somebody was involved in committing a crime and was cornered by police and maybe killed a police officer,” Holtzman said. “I might consider that a mitigating factor where others might consider the death of a police officer an aggravating factor.”
“You might consider shooting a police officer to be a mitigating factor?” Landswick asked.
“I might consider the stress that individual was under to be a mitigating factor,” Holtzman clarified.
At this point, a reasonable observer might conclude that the guy has an issue with authority — something a prosecutor doesn’t want in a juror. Holtzman further confirmed his alternative credentials when the public defender asked about his religion: “I often characterize my following of a rock ‘n’ roll band, the Grateful Dead, as religious in nature.”
So now you have a Deadhead who thinks shooting a cop would be a point in favor of a defendant. If the prosecutor held out any hope for Holtzman, it was dashed when he left the courtroom. Landswick complained to the judge that as the juror made his way out, Schmeck turned to Holtzman and said, “Thank you for coming here.”
Of course Landswick booted this guy! Backers exclaims. “When the juror leaves the courtroom, the defendant actually turns and speaks to this juror because he knows he’s got this guy in his pocket,” she says.
Orloff appears poised to escape what, for him, would be the worst possible outcome of the Quatman scandal: a stack of overturned death-penalty convictions. The DA isn’t out of the woods yet, however. Mark Schmeck’s appeal alleging a pattern of discrimination against Jewish jurors is still pending. And the Anti-Defamation League is urging the state attorney general to conduct an independent inquiry of the allegations being raised by Schmeck’s attorneys.
Former DA Jack Meehan predicts there will be lots of death-row inmates raising similar claims in the near future. “You have to realize that no stone is left unturned on a capital case. … I’m sure now that Quatman has said this, we’re probably going to see that raised in most cases on any appeal.” Meehan predicts that legal copycats might pop up in other jurisdictions looking for “patterns” of discrimination in jury selection. Ultimately, he believes the state Supreme Court will uphold the county’s death convictions. But he adds that once those cases get into the more unpredictable federal courts, “anything can happen.”
Alameda County juries have sent more than fifty people to death row since capital punishment was reinstated in 1978; currently, it ranks fourth of the 58 California counties in death row population. So did the DA’s office get some of those convictions by illegally dismissing defense-friendly jurors based on ethnic stereotypes? The evidence to date suggests that while individual prosecutors brought their personal prejudices to the jury selection process, there were no smoking-gun memos from the top; both Orloff and Meehan adamantly deny they would ever tolerate such a policy.
Unwritten practices, however, are another matter. It seems more than likely that experienced individual trial lawyers in any jurisdiction, not just Alameda County, may resort to stereotypes when picking a jury from a cast of characters they don’t know. Even though a judge called would-be whistleblower Jack Quatman a liar, no one disputes that Quatman advised other prosecutors at a well-attended conference to kick Jews off capital juries and suffered no consequences, or even a rebuttal, for saying so.
What’s more, it clearly doesn’t take much for a prosecutor to come up with a reason for kicking a juror that doesn’t involve race or religion. Al Wagner, a defense attorney who handles death-penalty cases in Alameda County, says it’s an “unclever prosecutor” who can’t think of an excuse to satisfy the judge after a Wheeler motion is made. And, as other capital attorneys pointed out for this story, if a prosecutor thinks a Jewish juror won’t vote death, the DA can usually bring out that sentiment during questioning. In the Freeman case, the prosecutor had concerns about two apparently Jewish jurors because they’d expressed reservations about imposing the death penalty. One female juror, a UC Berkeley academic, also felt that the death penalty was disproportionately applied against minorities. Even before Quatman’s alleged chat with Judge Golde, the prosecutor gave that prospective juror a rating of zero on his scale of zero (“must kick”) to ten (“must keep”). “I wouldn’t have kept [her] whether she was Jewish or not,” Quatman testified in March.
Yet one of the curious spectacles of the Quatman hearings was seeing defense lawyers step forward to say that of course race, demographics, and stereotypes play a crucial role in jury selection. This, in fact, was one of the arguments used to fend off Quatman’s allegations regarding the late Judge Golde — Quatman, the judge’s defenders say, hardly needed Golde to tell him the obvious.
Prior to testifying on Golde’s behalf, Oakland defense attorney Dan Horowitz, who has handled about a dozen capital cases, told the Express: “On a death jury, Jew means life.” Horowitz, who is also Jewish, elaborated that religion, ethnicity, and race are “markers that tell you an awful lot about their experience living in society, how they might perceive prejudice, how they might perceive injustice. It’s a reality of the world. … How could you not pay attention to it?”
In the final analysis, all of the recent hubbub may be something of a red herring. Outright prosecutorial discrimination is just about impossible to prove — even when a prosecutor like Quatman admits he has discriminated. Drowned out by the noise, furthermore, is a bias problem with death-penalty juries that is not only legal, but actually required by law: People who oppose the death penalty, likely folks with a politically liberal bent, are barred from sitting on capital juries. That leaves behind only those who either support the death penalty or at least can consider it, and their profile is markedly more conservative. This is who decides guilt or innocence, life or death in our society. And that fact, more than anything else, is the most troublesome bias any capital defendant has the misfortune to face.
The New Guard
Alameda County’s top death-penalty prosecutor is tough, flamboyant, and interested in your TV-viewing habits.
Angela Backers is the new face of death in the Alameda County district attorney’s office. She probably wouldn’t put it so starkly, but she is the capital litigation coordinator, meaning she oversees all death penalty cases — the first woman and, at 47, the youngest person ever to head the county’s capital team. She recently succeeded legendary legal executioner Jim Anderson, who retired last year. Over a two-decade period, he put ten people on death row, reputedly more than any other prosecutor in the state. Anderson proudly hung mugshots of the condemned men on his office wall — and playfully referred to them as “my boys.”
Backers is something of a character herself. For a weekday interview at the DA’s downtown Oakland headquarters, she wore a frilly skirt with lots of jewelry, including toe rings and an anklet. Criminal-defense lawyer Lorna Brown, who faced Backers in a capital case five years ago, recalls that Backers cried during her opening statement — and her closing statement. “Jurors love her,” notes one East Bay legal consultant. Backers says she doesn’t recall ever crying, but admits that her “voice has broken or my eyes may have gotten watery. When you meet these families and live with their devastating loss and horror, you cannot help but be touched very deeply.”
Yet in spite of her reputation for getting emotional during trials, once Backers gets talking about how she picks juries, she sounds like the archetypal tough-as-nails prosecutor. “My husband is a psychologist,” she says. “I would never put him on a capital jury.” She elaborates that her husband — a onetime juvenile hall counselor — suffers from what prosecutors call “therapeutic bias”: “His focus in life is on rehabilitation.” And there’s no need to rehabilitate some evil SOB who, by his actions, begs for a date with the electric chair.
Backers has been prosecuting capital cases since 1997 and so far has put four people on death row. One recent case involved James Daveggio and Michelle Michaud, a sadistic meth-fueled couple who preyed on young girls and collected serial-killer trading cards.
Although the recent allegations of illegal juror profiling pertain to capital cases from before her time, Backers has made it a point to defend the office’s record. “These allegations about our office are incredibly unfair because it’s a broad brush that they’re painting with,” she complains. The charges, she adds, are “patently false.”
Sure, there are things Backers says she looks for in a juror — but they’re all legal, of course. Backers says she wants “solid citizens,” people who are grounded in the community and have steady jobs. She is suspicious of therapist-types — or people who blame society first. “If you believe in personal accountability, personal responsibility, that’s a good prosecution juror,” she explains. “If, on the other hand, you have a view of the world that society created this monster and they’re not responsible for the decisions they make, they’re not going to vote death.”
Finding people who will vote death isn’t a matter of finding out whether a juror is a registered Republican. Some people, she says, might say they support the death penalty in their questionnaire, but can’t personally “pull the trigger.” Backers also likes to probe jurors face to face to get a gut-check on how they might behave, and to see whether she has any rapport with them. “I still need a personal interaction with them,” she says, “to see how they respond to my questions, whether or not they fidget, or if they’re reluctant when I get to that final question: ‘Can you sign a verdict form that says you’re going to put somebody to death?’ I need to see their eyes. I need to see how they react to me. I need to see how long it takes them to answer that question.”
Backers often teaches and lectures other prosecutors on how to conduct jury selection in death cases. Among the things she counsels is to ask whether a juror candidate watches the popular TV crime show CSI. “If people watch CSI, they have very false expectations about real evidence,” she warns. “You know, you get DNA results in three minutes on CSI without any talk about the cost.” In a stark counterpoint to Jack Quatman, the former Alameda County prosecutor who advised his peers never to leave Jews on death-penalty juries, Backers circulates a handout at her lectures headed “Improper excuse of jurors,” which warns against kicking jurors on racial, religious, or ethnic grounds as illegal. — Will Harper