By Crescenzo Vellucci
Vanguard Sacramento Bureau Chief
ALAMEDA, CA – The California Supreme Court Monday upheld a man’s death penalty sentence after rejecting arguments the prosecution improperly excluded Black women from a jury, or that the prosecution committed misconduct by using derogatory language about the defendant requires reversal.
The court upheld the death penalty conviction of Giles Albert Nadey in Alameda County, who was convicted of unlawful sodomy and first degree murder for the killing of Terena Fermenick in 1996.
A 5-2 majority agreed the district attorney’s reasons for using peremptory challenges to dismiss five Black women were “both inherently plausible and supported by the record,” although adding the trial court could have “done more.”
The automatic appeal dealt with the so-called “Batson” issue, which declared an attorney is violating the constitution if they racially discriminate in challenging jurors.
Justice Carol Corrigan gave the court’s opinion this week, stating that “we have repeatedly explained that trial courts are…not required to make specific or detailed comments for the record to justify every instance…in which they have accepted a prosecutor’s race-neutral reasons for a strike as genuine.”
But Justice Goodwin Liu filed a strong dissent, joined by Justice Kelli Evans, stating there was no “indication in the record the (trial court) made a “sincere and reasoned effort to evaluate the nondiscriminatory justifications offered.”
Liu reference a recently-announced decision by the Alameda County District Attorney’s Office to investigate all its death penalty cases when an investigation found “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.”
“Depending on what the District Attorney finds in her review of the county’s death penalty cases, this may not be the last we hear of Nadey’s Batson claim,” Liu noted, adding, “I continue to believe that our decisions, including today’s, do not demonstrate the vigilance necessary to eradicate the constitutional ‘evil’ of ‘exclusion of black citizens from service as jurors.’”
The justice charged the “decision is particularly jarring given what has come to light in federal court regarding capital jury selection in Alameda County around the time that Nadey was tried. This court should not lag behind the Legislature when it comes to ensuring the fairness of our justice system.”
The dissent also argued with the majority regarding the “derogatory” language the prosecution used during the penalty phase of the trial.
“Today’s decision also condones the prosecutor’s use of derogatory language — including likening Nadey to a ‘hyena,’ a ‘cancer’ and a ‘barbarian – to convince the capital jury to sentence him to death. I do not agree that these opprobrious terms were ‘fair comment on the trial evidence.’
“Those who appear in our courts, no matter what crimes they stand accused or convicted of, are not animals or savages or worse. They are persons before the law. Such blatant efforts to dehumanize and denigrate a criminal defendant in order to achieve a death sentence should be reproved,” said Liu.
The prosecutor also called the accused a “tattooed pervert,” and a “vile, nasty predator,” according to the filing.
But the majority defended the language, stating, “Although forceful epithets carry a risk of irrationally inflaming the jury or prejudicing it against the defendant, the epithets here do not rise to that level.”
The dissent took particular interest in the striking of the fifth and last Black jurist, “Harriet D.,” who as Liu noted, appeared to support the death penalty.
Harriett D. said, “I have no problem with having to make that decision,” about the DP and, wrote Liu, “Moments later, she reaffirmed this view when the court asked, ‘If (Nadey) gets found guilty . . . is this case serious enough that it lives up to your expectations as to the kind of case where the death penalty might be appropriate?’ Harriett D. responded unequivocally, ‘Yes.’”
Liu added, “Harriett D. further explained that she could impose the death penalty because ‘we’re part of the society, and that’s the way it’s set up.’ She also confirmed there was nothing about her ‘work experiences’ that ‘might influence’ her, (adding), ‘I believe in it (death penalty).’
“Nothing about these responses shows that Harriett D. would do anything or think anything of getting away from imposing the death penalty or that the prosecutor would have to ‘prove something beyond any possible shadow of a doubt.’ Instead, they demonstrate that Harriett D. would impartially evaluate whether to impose the death penalty in this case.”
