Jury Rigged? 

Recent charges of ethnic bias in picking death penalty juries have not only scandalized Alameda County prosecutors: They've put the entire system on trial.

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.


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