SAN FRANCISCO (AP) — A California death row inmate who was convicted of a 1986 killing by a jury with only one Black member can challenge his conviction and sentence, a federal appeals court ruled Friday.
Curtis Lee Ervin, who is Black, was tried by a mostly white panel after the prosecutor used peremptory challenges to dismiss nine of 11 Black prospective jurors, the Ninth U.S. Circuit Court of Appeals noted in reviving Ervin's discrimination challenge, according to the San Francisco Chronicle.
Ervin, 68, of Richmond, was convicted of kidnapping and fatally stabbing Carlene McDonald of El Sobrante after accepting $2,500 from her ex-husband, Robert McDonald of Pinole, to kill her.
Ervin and and McDonald were sentenced to death and another man, Orestes Robinson, was given a life sentence.
McDonald and Robinson both died in prison.
The California Supreme Court upheld Ervin's death sentence in 2000 and he appealed in federal court, where a judge in 2018 found there hadn't been any discrimination in jury selection.
However, the appeals court panel ruled 3-0 that the federal judge must reconsider the case using stricter standards for racial bias in jury selection that the U.S. Supreme Court declared in a 2019 ruling, the Chronicle reported.
The retired prosecutor in the case, James Anderson, told the Chronicle on Friday that race didn't play a role in his questioning of prospective jurors.
“I don’t care if they were Black, or white, or whatever ... if they weren’t able to give me a definite answer about how strongly they felt on the death penalty, they were gone,” he said.
Defense lawyers Pamala Sayasane and Robert Bryan said Ervin is innocent.
“A black man is in prison because of the misconduct and racial bias of the prosecutor,” Sayasane said.