Two men who were freed last year from state prison over prosecutorial misconduct have now filed suit against Alameda County, claiming prosecutors there sought to rig juries to bolster the district attorney’s “tough on crime” image.
Ernest Dykes filed suit today in federal court accusing the Alameda County DA’s office of violating his right to a fair trial in 1995 when the prosecutor in his case, Colton Carmine, used a peremptory challenge to remove
the only Black person considered for a seat on his jury.
In his lawsuit, Dykes acknowledges that he shot and killed a nine-year-old Oakland boy, Lance Clark, while attempting to rob Clark’s grandmother. He says the death was unintentional and claims that Carmine disregarded his remorse and minimal criminal history in charging him with first-degree murder and seeking the death penalty. Dykes served 31 years, most of it on Death Row in San Quentin State Prison. He was freed last year after the DA’s office conceded misconduct and a judge vacated his conviction, resentencing Dykes on the lesser offense of voluntary manslaughter.
Notes Carmine took during jury selection surfaced two years ago, showing he’d flagged for removal all the Black and Jewish jurors, marking their cards in red for elimination. Carmine’s notes were explicit. He wrote about one prospective juror, “I liked him better than any other Jew But No Way” before having the man struck from the pool.
Dykes is seeking $32 million in compensation for pain and suffering, including what he claims was inadequate medical care behind bars, and an additional $250 million in punitive damages against the county.
Alameda County and a representative of the district attorney’s office did not immediately respond to a request for comment about his lawsuit.
Dykes’ suit is the second filed against the county this year over prosecutorial misconduct. On May 27, another East Bay man convicted of murder by the office, Curtis Lee Ervin, filed suit.
Brian Pomerantz, who represents both Dykes and Ervin in their civil suits, said the prosecutors’ discriminatory actions harmed more than just the men whose fair trial rights were violated. “Curtis Ervin and Ernest Dykes lost decades of their lives, but it’s not just them who are threatened by this kind of behavior. It’s all the people living in Alameda County; everyone is threatened by a DA’s office that thinks this kind of discrimination was OK.”
Ervin was sentenced to death in 1991 after a jury found him guilty of the murder-for-hire of Carlene McDonald, of Pinole, five years earlier. For 33 years, he lived on San Quentin’s Death Row.
But in July 2024, the state attorney general’s office conceded that the Alameda County prosecutor who put Ervin on trial, James Anderson, had discriminated against Black and Jewish people who had been called in for a chance to serve on Ervin’s jury. The violation of Ervin’s constitutional right to a fair trial led to his release from prison last year.
Ervin is now seeking $40 million in damages. Ervin’s attorneys claim that his right to a fair trial was violated and that he “suffered years of unlawful incarceration, depriving him of his freedom and adequate access to family and loved ones, confined daily to a small cell that weighed on his mental and physical health, and denied adequate healthcare and nutrition.”
Ervin is also seeking $250 million in punitive damages from the county, arguing that leaders in the DA’s office allowed unlawful policies and practices by their attorneys and were “indifferent to violations of fair trial rights.”
“Because of the unconstitutional conduct, Mr. Ervin was incarcerated for 25 years, 3 months, and 7 days longer than he should have been,” his attorneys, Pomerantz and Pamala Sayasane, wrote in the lawsuit.
Alameda County did not respond to a request for comment about Ervin’s lawsuit.
Both lawsuits accuse the leadership of the DA’s office from the 1980s through the 2000s of failing to adequately train and supervise the prosecutors who handled murder cases. Going further, they claim that discriminatory methods of jury selection were widely known about in the DA’s office and that leadership encouraged these practices.
“I don’t know of another jurisdiction where something like this went on for so long and then was admitted, and there was so much information supporting the wrongdoing,” Pomerantz told The Oaklandside.
Dozens of death penalty convictions won by Alameda County prosecutors in past decades became the subject of controversy two years ago when the notes taken by deputy district attorneys during jury selection in Dykes’ murder trial were discovered and turned over to defense attorneys and a federal judge. In the notes, the prosecutors repeatedly referred to Black and Jewish people in the jury pool in derogatory terms while strategizing about how to keep them off the jury.
U.S. District Court Judge Vince Chhabria wrote in an April 2024 ruling that the notes were “strong evidence that, in prior decades, prosecutors from the office were engaged in a pattern of serious misconduct, automatically excluding Jewish and African American jurors in death penalty cases.”
Chhabria ordered then-DA Pamela Price to conduct a review of 34 capital cases Alameda County prosecutors tried between the early 1980s and early 2010s.
As that review turned up more evidence of misconduct, Price sought to resentence many of the men to lesser offenses. Some were resentenced; five were freed, including Dykes, who was released from prison in April 2025, and Ervin, who was released last August.
After Price was recalled by voters in November 2024 and Ursula Jones Dickson was appointed DA early last year, Jones Dickson reversed course, filing motions in many of the resentencing cases to withdraw petitions, effectively opposing any changes to the dozens of murder convictions from prior decades. Jones Dickson has argued that Price’s decision to seek resentence in many of the death penalty cases was rushed, that victims’ families weren’t adequately contacted, and that some of the defendants hadn’t been rehabilitated. The move incensed defense attorneys, sparking accusations in court that Jones Dickson’s decisions were motivated by a desire to prevent more evidence of misconduct from coming to light.
Dyke’s and Ervin’s new lawsuits paint the clearest picture yet of how jury selection went during their trials.
Dykes, who is Black, faced a jury with no Black person on it. Only six of the 60 people called in by the court to potentially serve on his jury were Black. Only one of the six was called into the jury box and questioned by the defense and the prosecution, the final step before being chosen to serve on a jury. According to Dykes’ lawsuit, Carmine, the prosecutor, struck this one potential juror without cause. California law gives the defense and prosecution in criminal cases what are called peremptory challenges, which allow them to have prospective jurors removed from the pool of people who can sit on the jury without offering a reason. But it is illegal for them to remove someone over their race, ethnicity, religion or sex.
Carmine used a red pen to mark people for elimination, Dykes’ civil complaint says, and “every Black or Jewish potential juror received a red mark.”
Ervin’s jury pool of 110 included 17 Black people. Ervin’s attorneys claim in their lawsuit that the prosecutor, Anderson, used what he referred to as a “Rambo scale” when asking people how willing they would be to vote for the death penalty. Despite some of the Black prospective jurors ranking themselves high on the Rambo scale, in favor of the death penalty, Anderson used peremptory challenges — those without cause — to remove nine of the 11 prospective Black jurors, leaving just one Black person on the jury, and one as an alternate.
Attempts to reach Anderson and Carmine, who are both retired, for comment for this story were unsuccessful.
Pomerantz told The Oaklandside he doesn’t believe Jones Dickson is taking enough steps to ensure such misconduct is never repeated or that the county Board of Supervisors have taken the problem of misconduct in the DA’s office seriously enough.
“If the county Board of Supervisors didn’t recognize what this was,” Pomerantz said of the past discrimination by prosecutors, “well now with $500 million in lawsuits against them, they’ll certainly now recognize what this is.”
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This story was originally published by The Oaklandside and distributed through a partnership with The Associated Press.
