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Even if Alameda County prosecutors used to keep Jews off capital case juries as some have alleged, it made no difference for death row inmate Mark Schmeck. On Thursday, the California Supreme Court unanimously upheld Schmeck’s death sentence, waving away claims that prosecutors improperly excluded two Jews from the jury that convicted him of murdering a Fremont man in 1986. Writing for the court, Chief Justice Ronald George said that even though both potential jurors were affiliated with Judaism, “the circumstance that neither the prosecutor nor defense counsel ever inquired into the religious affiliation of the majority of the seated jurors and alternates, and that the prosecutor had no other reasonable means of ascertaining their religious affiliation, undercuts any suggestion of purposeful discrimination.” He also noted that both prospective jurors brought up their faith under questioning by defense counsel, not prosecutors. George’s decision didn’t get into the broader allegations � which have arisen in the last two years � of pervasive bias against Jewish jurors by Alameda County prosecutors. Those claims weren’t part of the official record of Schmeck’s direct appeal, but could play a role in his separate habeas corpus case. It’s hard to say how the high court will regard those claims down the road, but George’s decision to devote 14 pages of Thursday’s 89-page ruling to discuss � and dismiss � allegations of religious bias could be a prelude of things to come. Alameda County has been in an uproar since attorneys for death row inmate Fred Freeman submitted a declaration two years ago in which former Alameda prosecutor John “Jack” Quatman claimed that the district attorney’s office used to routinely exclude Jews from death cases. Quatman also claimed that now-deceased Superior Court Judge Stanley Golde advised him to keep Jews off because they allegedly wouldn’t sentence anyone to death. Following an evidentiary hearing on the allegations earlier this year, Santa Clara County Superior Court Judge Kevin Murphy cleared the DA’s office and declared Quatman a “dishonest and unethical” man. His findings are now awaiting action by the state Supreme Court. In Thursday’s case, Schmeck, accused of the shooting death of Lorin Germaine, argued that Alameda prosecutor Theodore Landswick improperly excluded two prospective jurors identified only as D.H. and M.B. because they were Jewish. The trial judge in the case � William McGuiness, now the administrative presiding judge of the First District Court of Appeal � had rejected the claim. But George held that Schmeck failed to demonstrate “purposeful discrimination.” The record, he said, supported the prosecutor’s contention that he challenged both jurors because each had expressed concerns about the death penalty. “In sum,” George wrote, “the record supports the prosecutor’s stated reasons.” Neither solo practitioner Cliff Gardner, who represented Schmeck, nor San Francisco-based Deputy Attorney General Violet Lee could be reached for comment. Gary Sowards, a staff attorney at San Francisco’s Habeas Corpus Resource Center who is handling the case in which Quatman accused Alameda prosecutors of bias, declined to comment because he hadn’t seen the ruling. The case is People v. Schmeck, 05 C.D.O.S. 7669.

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