The role of the death penalty as a toll of the racist system of criminal punishment has been long documented. In the case of Alameda County, California, the inside story of how prosecutors influenced jury selections to increase the likelihood of death penalty convictions demonstrates how the racism of capital punishment remains with us in the 21st century. For decades, prosecutors worked to limit jury participation from Black and Jewish individuals in order to produce juries that were more likely to support capital punishment. Michael Collins, Senior Director of Government Affairs at Color Of Change, joins Rattling the Bars for a revealing discussion on prosecutor misconduct, and what it tells us about the state of the criminal injustice system.

Studio / Post-Production: Cameron Granadino

Transcript

The following is a rushed transcript and may contain errors. A proofread version will be made available as soon as possible.

Mansa Musa:

Welcome to this edition of Rattling The Bars. I’m your host, Mansa Musa.

The death penalty in the United States of America. At one point in time, the Supreme Court had put it on hold because of the manner in which it was being given out. At that time, the way it was being given out is upon a person being found guilty of a capital offense, the judge made the ultimate determination whether they got the death penalty or not. Throughout the course of litigation and the evolution of the legislative process, the death penalty started taking on the shape of a jury determining whether or not a person gets the death penalty or not after they were sentenced.

What we have now, in this day and age; and when I first heard it, it startled me to even believe that this was taking place; but in California, they have, in certain parts, the death penalty being given out, but more importantly, the death penalty given out by the prosecutor and the courts through their systematic exclusion of people’s juries of their peers. The prosecutors, along with the courts, have systematically set up a template where they look at anybody that they think is going to be fair and impartial and have them removed from the jury. Subsequently, a lot of men and women are on death row in California.

Here to talk about the abuse of this system and the discovery of the process and exposing it is Michael Collins from Color of Change.

Welcome, Mike.

Michael Collins:

[inaudible 00:01:54] to be here. Thank you for having me.

Mansa Musa:

Hey, first, tell us a little bit about yourself, then a little bit about your organization before we unpack the issue.

Michael Collins:

I’m originally from Scotland, as you can probably tell.

Mansa Musa:

Mm-hmm.

Michael Collins:

In the US since 2010, so like 15 years or so. Was in Baltimore for 10, 12 years off and on, and then I’m now in Atlanta.

Color of Change, where I work, is one of the largest racial justice organizations in the country. I oversee a team that works on state and local policy issues. We do a lot of work on prosecutor accountability and criminal justice reform, which is how we became involved in this death penalty scandal.

Mansa Musa:

All right.

And right there, because when I was at the conference in Maryland, [inaudible 00:02:50] Maryland, one of the panelists was one of your colleagues, and the topic they was talking about was prosecutorial misconduct. And in her presentation she talked about, and you can correct me as I go along … And I think it’s Alameda County in California?

Michael Collins:

Yep. That’s where Oakland is. Yeah.

Mansa Musa:

Right. In Oakland, they had … Since 2001, the prosecutors always had set up a system where they systematically excluded minorities, poor people; anyone that they thought would be objective in evaluating the case, they had them excluded, therefore jury nullification, and stacking the jury that resulted in numerous people getting the death penalty.

Talk about this case and how it came about.

Michael Collins:

Yeah, it really was shocking when we first heard about it. You know, we had been doing work on prosecutor accountability in Oakland in Alameda County, and there was a prosecutor elected, a Black woman, called Pamela Price, who was elected on a platform of trying to reform the justice system and use prosecutorial discretion to kind of right the wrongs of racial injustice and do more progressive policies within the office. And she discovered, or one of her staff discovered, that over a period of three or four decades, prosecutors in the office had been systematically excluding Black and Jewish people from death penalty juries.

Now, in other words, how this happened was, when you go into a trial, there’s a process of jury selection, and prosecutors and defense lawyers can strike certain people from juries. Maybe people have seen some of this on TV.

Mansa Musa:

Mm-hmm.

Michael Collins:

You’re not allowed to … Constitutionally, you are not allowed to strike people for race reasons, for religious reasons. But there was a sense from these prosecutors, who were very tough on crime prosecutors, who wanted to … They saw the death penalty as a trophy almost to be achieved, and they wanted to win at all costs. And so they believed that Black people and Jewish people would be less sympathetic to the death penalty and more likely perhaps to find an individual not guilty; more squeamish, if you like, about finding someone guilty who would then get the death penalty.

Mansa Musa:

Right.

Michael Collins:

And so what Pamela Price, this district attorney, discovered was a series of notes and papers that documented the ways in which individual prosecutors were excluding people from juries in this way and really giving people an unfair trial.

And California has, for a number of years now, had a moratorium on the death penalty. They’ve essentially hit the pause button on the death penalty. But for a number of years it was really a state that carried out the death penalty [inaudible 00:06:28].

Mansa Musa:

Yeah, you’re right.

Michael Collins:

And also, one of the more startling things about this is Pamela Price, she came in, she discovered these notes. I think her reaction was, “This is crazy. How does this happen?” And it actually turns out that somebody sort of raised the alarm bell about this as far back as 2004; a prosecutor in the Oakland office who came out and he was like, “Listen, I was leading the trainings on this. I was somebody who was part of making these policies.” And the admission went before judges, it went before courts of appeals, and they threw it out, they didn’t believe this guy. And they kind of hounded this guy, the death penalty prosecutor, who essentially had a change of heart, and they hounded him out of town. And he now lives in Montana and practices law.

And I think he probably feels a sense of vindication about this, but it’s very troubling for us, the cover-up that’s gone on and the number of people that are implicated. So far, we know of at least 35 cases of individuals, but the DA is investigating this; it’s probably going to be more than 35 cases. Right?

Mansa Musa:

Right.

Michael Collins:

It probably extends beyond the death penalty to be honest. It probably extends to other, I would say, serious crime cases where, as I say, prosecutors wanted to win at all costs and used any tactic to get a guilty verdict, including essentially tampering with the jury.

And we are in a position now where I think what we want is some level of accountability. We want these individuals who have been sentenced to be exonerated. They were given an unfair trial. That’s abundantly clear. The judges and the prosecutors who were involved in this scandal, who stole lives and who essentially put people on a path to the death penalty, what is the accountability for them? And so that’s something that Color of Change is really pushing.

Mansa Musa:

All right, so talk about the … Because now you’re saying over three decades. First, how long has the moratorium been on?

Michael Collins:

Since the current governor took office. So I think it’s four or five years.

Mansa Musa:

Okay, so four or five years. So prior to that, they was executing people.

Michael Collins:

Yes.

Mansa Musa:

All right, so how many people, if y’all have this information, how many people have been executed in that period [inaudible 00:09:30] period?

Michael Collins:

We don’t have the numbers on that. I think what we are looking at just now is 35 cases where they’ve identified that are people who are now serving life sentences as a result of the moratorium. Because when the governor said, “We’re not doing the death penalty anymore” and hit the pause button on the death penalty … And again, I’ll stress that it is a pause button, right?

Mansa Musa:

Yeah, right, right.

Michael Collins:

A new governor, a new person could take office. It’s not like it’s been eliminated.

But when we kind of hit the pause button on the death penalty, there were a number of people who had their death penalty convictions converted into life sentences. And that was how part of this process was uncovered, because Pamela Price, this district attorney, her office was working on what kind of sentence that people … They were working with a judge to try and figure out some sort of solution to these cases where people were having their cases converted to another sentence, like perhaps a life sentence, life without parole, something like that. And in the process of working with a federal judge, that’s when they discovered these notes and files and [inaudible 00:10:49].

Mansa Musa:

Let me ask you this here.

Michael Collins:

Yeah.

Mansa Musa:

Okay, so I know in the state of Maryland where I served my time at, and I’m in the District of Columbia now, the sentencing mechanism, as I opened up, was a case came out, Furman Act versus United States. That’s the case that … Furman versus United States. That’s the case that they used to change the way the death penalty was being given out back in the seventies.

Because during that time, Andre Davis had just got arrested, so there was a campaign out in California to abolish the death penalty. But what wound up happening is they had a series of case litigation saying they violated the eighth amendment. So what ultimately happened was that the Supreme Court ruled that the way the death penalty was being given out, which was the judge was the sole person that gave it out, they changed it to now they allowed for after the person was found guilty, then the jury would determine whether or not they got the death penalty, that was based on the person that’s being looked at for the death penalty, or have the opportunity to allocute why it shouldn’t be given.

But how was the system set up in California? Is the person found guilty and then given the death penalty? Or is the person found guilty and then they have a sentencing phase? How is the system in California?

Michael Collins:

Yeah, I think a person’s found guilty and then there’s a sentencing phase. And there were a lot of articles about this and about the different lawyers in California.

I mean, I think there’s obviously a movement to end the death penalty, and it’s gathered a lot of momentum in the last five or 10 years. But I think if you go back to the eighties and the nineties especially, this era, whether you were in Maryland or whether you were in California, whether in Kentucky, just across the country, this very tough on crime era and harsh sentences, I think that the death penalty for prosecutors, or what we’ve been told and what we’ve read, the death penalty cases were almost like a prize for the prosecutors [inaudible 00:13:06] do the cases. It was the most complex cases, it had the most prestige attached to it, and they were really valued on their ability to win these cases. And so they would send their best prosecutors to do these cases. They would ask for the death penalty frequently.

And that’s why we have a situation where … At the very least, we know in a place like Oakland, which is not a huge place, we have 35 cases right now that they’re looking at; one of the cases has already been overturned, the conviction has been quashed of an individual. We expect that to happen in a lot of these cases as they examine the evidence, how much the death penalty was … The jury selection was a key factor in the conviction.

But yeah, I mean, it certainly was the case that the death penalty was used very frequently in California.

Mansa Musa:

Okay. So in terms of … And the reason why I asked that question, I’m trying, for the purpose of educating our audience, to see at what juncture was the exclusion taking place? Or was it across the board, because [inaudible 00:14:21]-

Michael Collins:

Yeah. So my understanding is the exclusion took place as they were selecting the jury. Right? You start off with a pool … Maybe some of your audience have been selected for jury duty, when you go in and you’re sitting in a room and there’s maybe a hundred people, and then eventually they whittle it down to 12 people and some alternates. And in that process, as a prosecutor and as a defense lawyer, you’re striking people from the jury and saying, “No, I don’t want this person.”

The reasons for doing that are supposed to be sort of ethical and constitutional, like, “What do you think of the … ” You’ll be asked, “What do you think of the police? What do you think of law enforcement? Do you trust the judicial process?” They’re trying to figure out, “Are you going to be able to properly serve on this jury? Are you tainted in some way?”

But the notes were really about a feeling that Black people were not sympathetic to the death penalty [inaudible 00:15:30] not convict; or Jewish people, because of their beliefs, because of their religion, were also not sympathetic to the death penalty. And so the prosecutors were trained and instructed to make sure, if they found out a person was … If they had a Jewish last name or something like that, or if a person was Black, ask some questions, figure it out, but essentially get them off the jury.

And there was even a case … I mentioned before, we’re talking a lot about prosecutors, judges were involved in this as well.

Mansa Musa:

Right, right.

Michael Collins:

There was a case where a judge pulled the prosecutor after jury selection into his chambers and said, “You have a Jewish person on the jury. What are you doing? Get that person off the jury.”

Mansa Musa:

Oh my Goodness.

Michael Collins:

And so the sort of depths of the scandal are beyond kind of prosecutors. It’s a real institutional crisis.

And that’s why we want the governor to get involved, Governor Newsom to get involved and provide resources to investigate this. We want the Attorney General to get involved and investigate this. Because this is a very clear and obvious scandal.

And it’s not enough to, in our opinion, re-sentence these individuals, exonerate them. Other people did some very, very shady things and very unethical things and illegal things and ruined people’s lives. And as far as they were concerned, these people were going to be killed. And so we want to make sure that there’s accountability for that. They treated this like it was a sport, like it was a competition, and people’s lives have been ruined as a result. And we want to make sure that people are held accountable for what they did.

Mansa Musa:

Talk about the … Okay, so talk about this prosecutor, the one that came in with this reform. Was this something she campaigned on and then carried it out?

Michael Collins:

No. So-

Mansa Musa:

What’s her background? What’s your information on her?

Michael Collins:

Yeah, it’s a good question.

So Color of Change has worked a lot on trying to reshape the way that prosecutors operate. I mean, historically, prosecutors, they are the most powerful player in the system. They will decide how much bail you get, how long you’re going to be on probation. Everybody likes to imagine trials like judge, jury and [inaudible 00:18:00]. Most cases are a guilty plea that are executed by the prosecutor themselves. So they have tremendous power. And very often, as we’ve seen with this scandal, prosecutors are just old school tough on crime; “I’m going to get the heaviest sentence and put this guy away for as long as possible.” That was their vision of justice.

And Color of Change, along with a number of other organizations, wanted to elect prosecutors that were more justice oriented, that were more reform minded, that were people who had a different view of the justice system and wanted to use some of that tremendous power within the prosecutor’s office to do good, to do justice, to reform them.

And so roundabouts of 2016, 2017, you saw a lot of prosecutors get elected that were more interested in things like police accountability; Marilyn Mosby in Baltimore, Kim Fox in Chicago. There was also Larry Krasner in Philadelphia.

Mansa Musa:

Philadelphia. Right.

Michael Collins:

And they came in and they did things like exonerations. They would investigate previous cases where the office itself had convicted somebody and they would find wrongdoing, and then they would overturn that verdict and the person would go free. They did things like non-prosecution of low level offenses or diversion, stuff like that.

Anyway, Pamela Price came in as the Oakland DA, a historically Black jurisdiction. She herself had a civil rights background, was not a prosecutor, and took office to really try to reshape the office after decades of having a tough on crime prosecutor, mostly white led office that [inaudible 00:20:07] locking up Black people and throwing away the key. And she came in with a lot more of a nuanced approach.

And I think … She didn’t campaign necessarily on this scandal, but I think it’s true to say that a lot of other prosecutors, the traditional tough on crime prosecutors, would’ve discovered these files and been like, “Just put that back. Forget it.”

Mansa Musa:

Right, right.

Michael Collins:

Because you’re opening a hornet’s nest here, because if you think about … There’s victims involved, there’s family members, there’s cases; some of these cases are sort of 20, 30 years old. It’s not easy what the office is going to have to go through to reinvestigate these things.

Mansa Musa:

Mm-hmm.

Michael Collins:

But I think this crop of prosecutors that has a different vision of justice and what justice is, and they do want to hold people accountable for wrongdoing, whether it is somebody who commits a homicide or a prosecutor who commits misconduct or a police killing, they apply that kind of one standard of justice.

And so she was very open and sort of found these files and then approached a federal judge and said to the judge, “Look, here’s all this evidence that there was this of systemic racism, anti-Semitism that resulted in people getting the death penalty.” And the federal judge was the one who said, “Okay, you need to review all these cases. You need to move forward with a full [inaudible 00:21:42].” So that’s what’s happening right now.

So that’s kind of Pamela Price’s story. Incidentally, she’s actually being recalled in California.

Mansa Musa:

Oh yeah, yeah. Larry Krasner. He was like … In Philadelphia, it was the same thing we have with them.

Michael Collins:

Yeah, it’s the same thing. There was a big backlash [inaudible 00:21:54]-

Mansa Musa:

Kim Fields. Yeah, yeah. Same thing we have with them.

Michael Collins:

… Prosecutors in this sort of … You know.

Mansa Musa:

Yeah, yeah.

Michael Collins:

And it’s hard because if she is recalled in November, I don’t really know what’s going to happen to these cases.

Mansa Musa:

Oh, I know. You know what’s going to happen. They’re going to go to the defendants and they’re going to sweep it up under the rug.

Michael Collins:

Yeah. Well, that-

Mansa Musa:

But talk about the community, because that’s what that lead me right into this because of what you say about her and the prospect that she might be recalled. Talk about your organization’s work in educating and mobilizing the community, because ultimately, if the community is engaged in the process because it’s their family members that’s being … Oakland is the birth for the Black Panther party. Oakland has a rich history of civil disobedience, police brutality. The list goes on and on. If the community … Where are y’all at in terms of organizing or mobilizing or having some kind of coalition around this-

Michael Collins:

Yeah, we have a coalition on prosecutor accountability where we try and … You know, we are not sort of … Prosecutors are part of a very broken system, right? We don’t want to be cheerleaders for these prosecutors. We talk more about accountability, so prosecutor accountability.

Mansa Musa:

Right.

Michael Collins:

So we have a coalition that we’re members of with Ella Baker Center and ACLU and a number of other local groups, where we meet regularly with the DA, but we try and push her to embrace more progressive policies. We try and push her to move more quickly on some death penalty cases. But at the same time, if she’s doing the right thing like she’s doing on these death penalty cases, we’re certainly going to defend her and go out there and support what she’s doing.

Mansa Musa:

Right, right, right, right. Because … Yeah. Right.

Michael Collins:

So we do community events. I’m actually in New Orleans just now where we’re holding an event with around about a hundred folks from across the country from different groups to talk about, how do you … Including people from Oakland, to talk about, how can you push your prosecutor and what should you do about it?

But as you know, it’s a very tough time for criminal justice reform, right?

Mansa Musa:

[inaudible 00:24:02] That’s right. That’s right.

Michael Collins:

[inaudible 00:24:02] public backlash, where coming out of the killing of George Floyd, there was actually a lot of mobilization of people on the streets calling for reform. And very quickly that’s disappeared and we’ve been attacked relentlessly. Anybody who engages in reform, police accountability, the establishment wants rid of them, the conservatives.

And to be honest, especially in a place like California, what we see is a lot of centrist Democrats running scared-

Mansa Musa:

Oh yeah, yeah, yeah, yeah. Yeah.

Michael Collins:

… Using the same talking points as Donald Trump on crime. And that’s just very unfortunate.

So it is an uphill struggle because there’s so much misinformation out there about crime and about prosecutors and about progressive policies. But we’re trying, we’re trying to educate people. And when you see something like this happen, we try and tell people, “Look, other prosecutors would look the other way.”

And that certainly is what happened. As I mentioned before, this scandal goes back decades [inaudible 00:25:11].

Mansa Musa:

Yeah, that’s crazy.

Michael Collins:

And this woman is in office and she has had [inaudible 00:25:13].

Mansa Musa:

But the thing about the thing that … To highlight your point about reform and how we had the upper hand in terms of George Floyd, but George Jackson said that, and he was the best [inaudible 00:25:30] person, he would describe it as reform; all the call for police accountability and divest, all those, the fascists and capitalists, they took them conversations and they twist it, and they twist it to the form like Cop City where we saying like, “Well, we’re doing this to create the reform that you’re talking about, so we want better educating, better training. But you’re trained to be paramilitary.”

And the same thing with what’s going on right now in terms of any type of social justice movement around prosecuting misconduct and what they call progressive prosecutors. I interned with a organization that that’s what they did. They got prosecutors, they educated them, got them involved and become progressive prosecutors. But all the progressive prosecutors are just doing what they was mandated to do, to find the truth for justice, search for the truth and justice, all them are being recalled, targeted, and organizations like yourself.

Talk about where y’all at now in terms of y’all next strategy around this issue.

Michael Collins:

So we are having conversations with the Attorney General’s office because the Attorney General plays this role where they themselves can identify that misconduct has happened, the unconstitutional jury instructions, and they can make a ruling. And they have more resources and more [inaudible 00:27:04] than the local DA.

So we met two weeks ago, I think, with the Attorney General’s office to try and push them to get more involved. We’re pushing the governor to dedicate more resources and get more involved in this, you know, somebody who himself opposes the death penalty. And we’re trying to keep the drum beat going in terms of [inaudible 00:27:31] attention. Good organizations like you guys; really appreciate you reaching out to us on this because it is so important that more people know about this.

I’m always surprised that it isn’t a bigger story. When I found out about this, I was like, “Oh, this is going to be front page.”

Mansa Musa:

Right, right, right. It should be. Yeah. Yeah.

Michael Collins:

But I guess there’s so much going on just now, I don’t know, you never can tell what’s going to [inaudible 00:27:55].

Mansa Musa:

But in terms of, how can our viewers and listeners get in touch with you and how do they … Tell them how, if they want to support y’all efforts, what they can do to [inaudible 00:28:07].

Michael Collins:

Yeah, so Color of Change has a website called Winning Justice, which is our prosecutor accountability work. And if you go on there, you’ll see a number of actions that people can take around this death penalty scandal, even with their own local prosecutors, trying to get involved, set up coalitions, actions that can be taken where you can push your own prosecutor, whether they’re progressive or not, to do more justice and engaging [inaudible 00:28:34].

Mansa Musa:

Right.

Michael Collins:

So yeah, it’s Winning Justice is our website. And if you search for it, you’ll find it and you’ll see a ton of actions and just our positions on a bunch of different issues and what we try and do with prosecutors to get them to engage more in reform.

Mansa Musa:

Well, thank you, Mike.

There you have it. The real news rattling the bar. It might be strange, it really might be a stretch of your imagination to believe that elected officials would actually say that if you are Black and you are Jewish, that you don’t have a right to serve on the jury because you might be sympathetic to the defendant, be it the death penalty, be it the defendant’s economic and social conditions.

But because they think that you might be sympathetic to that, that is saying like, “Well, you might just be objective to see that it’s a set of circumstances that contributed to the outcome of the charge. But no, as opposed to do that and search for the truth, what I do as a prosecutor, I put a playbook together and say, ‘These people, under all circumstances, cannot serve on the jury’, and do it for over three decades, not knowing how many people has been executed as a result of this malicious behavior.”

Yet ain’t nobody being charged, ain’t nobody being indicted, ain’t nobody being fired. They’re being awarded a medal of honor for this dishonorable act.

We ask that you look into this matter and make a determination. Do you want your tax dollars to support this type of behavior? We ask that you look into this matter and check out what the Color of Change has to offer in terms of their advocacy and see if it’s something that you might want to get involved with.

Thanks, Mike. Thank you for coming on.

Michael Collins:

I appreciate it. Thank you for your time.

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