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Race has been a mostly silent character in criminal courtrooms. Historically, people accused of crimes haven’t been able to raise claims of racial bias in the justice system to defend themselves from a criminal accusation.

But in 2020, California passed the Racial Justice Act, a groundbreaking law that allows criminal defendants to argue that racism may have played a role in how the justice system handled their case and ask for the court to provide a remedy. It’s the first law of its kind in the nation.

KQED’s Annelise Finney explains how one case in Contra Costa County is testing the limits of the new law.

Links:

• California’s Groundbreaking Racial Justice Act Cuts Its Teeth in Contra Costa
• Judge Finds 8 Antioch Police Officers Tainted by Racial Bias, Reduces Criminal Charges

Episode Transcript

This is a computer-generated transcript. While our team has reviewed it, there may be errors.

Alan Montecillo: The following episode contains explicit language. I’m Alan Montecillo in for Ericka Cruz Guevarra. And welcome to the Bay local news to keep you rooted. Race is central to our conversations about criminal justice in America. But once you actually enter the criminal courtroom, race is a mostly silent character. That’s because people accused of crimes haven’t been able to raise claims of racial bias in the justice system to defend themselves. But that has changed thanks to a new, groundbreaking state law.

Simon O’Connell: This is groundbreaking and historic. The type of information that we’ve been able to present through our expert witnesses is not something that has been traditionally allowed to be brought into criminal courts.

Alan Montecillo: This law is called the Racial Justice Act, the first of its kind in the nation. And now we’re seeing it affect real people’s lives, including in one high profile case in Contra Costa County.

Annelise Finney: It feels like for the first time, the court system is talking in a real, open and honest way about its racist legacy.

Alan Montecillo: Today, I spoke with KQED’s annelise Finney about the Racial Justice Act and how it changed the course of one trial in Antioch.

Annelise Finney: The Racial Justice Act is a 2020 California law that essentially prohibits the government from seeking a conviction on the basis of race, ethnicity, or national origin. What it did that’s pretty groundbreaking is it created a way for people who are accused of crimes to challenge the charges against them in court. So in the process of their trial and as the case moves towards trial, they can ask the judge to throw out portions of the charges against them. If they can prove that racism was involved in either their arrest or their way, they were charged.

Alan Montecillo: How radical of a change is that from the way the criminal court system has normally functioned?

Annelise Finney: That’s a huge change. I mean, public defenders and people of color, black people in particular, have been calling out racism in the justice system for decades. In the US, court cases have often been this very high profile case in which racism in America is on display. Like, for example, if you think about the Central Park Five case, if you think about the OJ Simpson case. Race was a huge part of these cases, but it wasn’t really an actor that had the ability to speak. There was no way to raise racism in criminal court cases. So it didn’t really get raised and people were convicted and sent to prison, even when racism may have played a part in how they ended up on trial in the first place.

Alan Montecillo: How many people could this law affect?

Annelise Finney: This could affect tens of thousands of people. One estimate is that three quarters of people who are currently in California state prisons could have viable Racial Justice Act claims, and that’s about 90,000 people.

Alan Montecillo: So the Racial Justice Act passed in 2020. Why are we talking about this law now?

Annelise Finney: So when this law was approved, there was still a fair amount to be figured out. And a lot of that figuring out is going to happen later as the law is put into practice and the court responds to it in different ways. Over the last year, we’ve begun to see a lot of these test cases, and one in particular in Antioch, caught my attention and has made some big changes in understanding how this law is going to work in California.

Alan Montecillo: Well, let’s dive into this murder case in Contra Costa County. Where does this story begin?

Annelise Finney: On March 9th in 2021, the police allege that four men shot a car 40 times in a drive by shooting on a residential street in Antioch. One young man, Arnold Marcel Hawkins, who was 22 at the time, was killed and another man was seriously injured. Less than a month later, the police arrested four young men from all over Northern California, all of whom were black, and the police say that the shooting was the product of a feud between two East Bay gangs. The four young men who were arrested include Eric Windham, Terry on Pugh, Trent Allen, and Keyshawn McGee. Their arrest was the product of a coalition of a lot of East Bay law enforcement working together, and when they make this arrest, they say, essentially this is a big win for cutting down on gun violence and particularly gang fueled gun violence in the East Bay.

Alan Montecillo: And what were these four men initially charged with?

Alan Montecillo: The top charges are murder and attempted murder, and both of those carry a series of enhancements. Enhancements are a type of additional charge that can be added on top of a criminal charge. And essentially what they do is just lengthen the possible sentence somebody might get if they’re convicted at trial. Enhancements on a murder charge can lead to the death penalty. But in Contra Costa County, the D.A. has said they’re not going to charge the death penalty. So the top sentence that could have resulted from that would have been life in prison without parole.

Alan Montecillo: So how does the Racial Justice Act, this new law in California, come in in this murder case?

Annelise Finney: One of the defense attorneys on this case is somebody who works for Contra Costa as alternate public defender, an attorney named Evan Kuluk.

Evan Kuluk: I’ve been a public defender for a little over 15 years.

Annelise Finney; And he said that he has seen tons of young men, both black and Latino, being charged with gang enhancements.

Evan Kuluk: Especially from Richmond and especially from Antioch, being charged with gang allegations.

Annelise Finney: So he decided he wanted to look into this and use this new California law. He asked the Contra Costa District attorney to provide data to him on their charging practices, specifically about gang enhancements.

Alan Montecillo: And what does this data show?

Alan Montecillo: Well, the records he got were from 2015 to 2022. He found that black men accused of gang related murders were 44% more likely to be charged with special circumstance gang enhancements than defendants of other races who were accused of similar gang related murders.

Alan Montecillo: So what does that mean then? What happens with this data and how does it change the case against these four men?

Annelise Finney: So using this data, Evan goes to the court and he requests a racial justice hearing. He calls in a UC Irvine statistician to talk about what this data means and explain how they came to these numbers. And ultimately the judge sits in decision for a while and decides to dismiss the gang enhancements. Interestingly, in this case, it doesn’t make that much of a difference in terms of their sentencing risk or what they could be sentenced to. But it is an important win, and it sets a precedent for the state around gang enhancements.

Alan Montecillo: So lawyers are successful at using data to get these gang enhancements dropped using the Racial Justice Act. But we also know that’s not the only time that this issue of racial bias comes up in in this murder case in Antioch. And I know it relates to a pretty egregious and I think, well known scandal at the Antioch Police Department. Tell us about that scandal and how it relates to this case.

Annelise Finney: In the spring of last year, an FBI probe into behavior by Antioch and Pittsburgh police officers came across hundreds of text messages sent between members of both departments.

Annelise Finney: Those texts, were racist, and use homophobic language to talk about people that they’re investigating.

News Anchor: Finding between 2019 and 2022, officers texted messages like, “We just ean down a monkey.”

News Anchor: Messages like this one, where an officer wrote, “I’ll bury that n in my fields. And yes, it was a hard R on purpose.”

Annelise Finney: And when these texts become public, there’s a massive uproar in both of those cities.

News Anchor: Tempers and emotions certainly boiled over during public comment. And what I saw inside really was a city reckoning with what residents have said are years of discriminatory treatment by police. But even Mayor Lamar Thorpe said, has persisted in Antioch for far too long.

Annelise Finney: And I know one reason why these texts became such a big deal, besides the fact that the language used in them is horrific and offensive, is that they’re often discussing criminal cases, including this one. Right?

Annelise Finney: That’s right. So two investigating officers in this case, Eric Rambert and Jonathan Adams, spoke explicitly about the defendants. This was while they were on assignment, surveilling the four suspects at the time at a barbecue place in Concord. And they have an exchange over a period of 22 minutes. And then they really specifically joked about violence towards the suspects. In one example, one officer writes about kicking Trent Allen, one of the young men, in the head, and kicking his head like a football. In another example, they take photos of two of the young men who are injured in their hospital beds in various states of undress and send that to other officers.

Alan Montecillo: So how did people react when these texts became public, especially the loved ones of the four defendants?

Annelise Finney: When this information becomes public, the Antioch Police Department puts about half of the department on leave. And as I said before, people were furious, and in particular the family members of the four young men on trial.

News Anchor: I just don’t understand why these officers is not taking no accountability for what they did.

Annelise Finney: At one court hearing, Sheryll Cobbs, the mother of Trent Allen, was particularly upset that the officers were somehow evading the subpoenas that had been served to them to come to court to testify about the text messages that they sent. I.

Schirelle Cobbs: Don’t understand that. It’s hard. Hard for me to sleep at night. And I see officers. Afraid. Not knowing if these officers got high powered is nothing going on, isn’t it’s taking so long for something for these officers to get arrested for doing a crime that they did.

Alan Montecillo: So what do lawyers for these four young men do with this information, with these explicitly racist texts that are now in the public?

Annelise Finney: Yeah. So they turn around and fresh off their last racial justice hearing when they ask for a second racial justice hearing, this time saying that the police officers who investigated this case were tainted by racial bias. And the proof of that is these racist text messages. What the defense attorneys asked for in this second hearing is for the judge to throw out essentially any charge, any enhancement that might lead to a life without parole sentence. And that’s something that they think is important, because here they believe the entire police department is compromised by racial bias.

Evan Kuluk: The sheer number of officers on these texts showed that they were supporting each other, that they weren’t afraid, to use that language amongst a large…

Annelise Finney: And this is something that defense attorney Evan Kuluk spoke about at a press conference outside the courtroom one afternoon.

Evan Kuluk: The tropes, the language harkened back to a horrific, history of racism, slavery, lynchings.

Alan Montecillo: So what does the judge decide to do?

Annelise Finney: So ultimately, Judge David Goldstein hears the arguments from the defense. He hears from a series of experts who talk about racial bias. He says with this for a number of months, and ultimately decides to strike all enhancements that could lead to a life without parole sentence.

Alan Montecillo: That sounds like a lot.

Annelise Finney: It is a lot. I mean, it takes what would otherwise be a life sentence and returns it to something that means that these young men could one day get out of prison if they’re ultimately convicted at trial.

Alan Montecillo: Annelise. Why do you think this case in Contra Costa County is one of the first examples of the Racial Justice Act being successfully used? Like why here and why now? Do you think.

Alan Montecillo: This is something I talked to the district attorney’s office about?

Simon O’Connell: I think there are a number of sort of converging points that have come together to make this the most relevant legal issue in Contra Costa County.

Annelise Finney: And one person I spoke to, Simon O’Connell, who’s a chief assistant D.A., said that he thought it was sort of the perfect storm in a Contra Costa County. The DA was willing to provide data to the defense in that first Racial Justice Act claim.

Simon O’Connell: I think that stems from a desire, to be transparent.

Annelise Finney: Which is pretty different than what a lot of counties do, where DA’s have been incredibly resistant to requests for data by public defenders. And then on top of that, they had this massive scandal. This is one of the biggest police scandals to hit the Bay area since the riders case in Oakland in the early 2000. So those things together set up this case for a really impactful series of Racial Justice Act claims.

Simon O’Connell: There’s no greater crime than murder. And at the same time, we have expressed racial animus, and that’s why it’s getting so much attention as well. The state is watching.

Alan Montecillo: Coming up, how the Racial Justice Act could make bigger waves across California. Stay with us.

Alan Montecillo: What would it take then, for this law to have a bigger impact in California beyond this one case in Antioch?

Annelise Finney: As I mentioned before, this new law is really just kind of getting up and running. We’re still figuring out how courts are going to respond to it, and public defenders are still learning how to bring these types of cases. One thing they need in order to be successful is a lot of financial support. Getting experts to consult with you, getting them to come to a hearing that can cost a lot of money that public defenders often don’t have. On top of that, a lot of people who are in prison who might be eligible to bring these types of claims, they need lawyers to begin with, and there aren’t enough public defenders available to provide that appellate defense. That’s something that California doesn’t guarantee to people who are in prison. The access to a free attorney. If you want to bring a challenge to a conviction that’s already been established. There’s also data, this type of statistical claim where you’re pointing out implicit bias. You have to have a lot of data for that. And a lot of places just don’t even collect data. Counties have never been required in California to collect data on the race of the people they charge or the people they convict. And that’s something that the state of California is trying to change.

Alan Montecillo: So if you’re someone who wants to reform the criminal justice system, reduce or even get rid of mass incarceration, you need a lot of things to go right essentially for this law. But are there ways this could go sideways? Like, what are the ways that the Racial Justice Act could be unsuccessful?

Annelise Finney: Well, I mean, if those two things aren’t provided, if data and funding are not provided, it’s going to be pretty hard for this to really get any traction and be the sort of engine for de cursory action that I think it’s proponents hope that it will be. Another thing that could go sideways here is that ultimately, we don’t have another system of accountability right now. We just have the justice system, our courts that we’re all familiar with, and that this law is trying to make better and make more just for the residents of this state. But when we are able to poke holes in it and say, you know, the police are proving to have been racist, the charging practices are proving to have been racist. Where does that leave us? How do we rebuild it and tear it down at the same time?

Alan Montecillo: Well, and where does it leave victims and their families? Right. That’s the one thing we haven’t talked about yet. You know, what impact could this have on people who are hoping for the justice system, such as it is to provide some kind of closure? And then it’s discovered that the whole process might have been tainted by racial bias. Where does it leave them?

Annelise Finney: Well, it leads them in a really hard spot. I spoke for a while with the mother of Arnold Marcell Hawkins, Brandi Griffin, and for her, watching these hearings was excruciating. She was just seeing what felt to her like justice slipping out of her hands.

Brandi Griffin: I don’t give a shit about the racist Texas. We all talk racist shit. The principal knew he was murdered.

Annelise Finney: She was very upset and spoke about this at a press conference one afternoon outside of the courthouse.

Brandi Griffin; He is dead, Marcell. They killed him. This is about the murder of my son. Say his name. I know Marcell Hawkins. His name. Come on.

Annelise Finney: One thing that is hardest with hearing what Brandi has to say is that her perception in that moment is that maybe this would have played out differently if her son wasn’t black, that maybe. Also, there’s this double edged sword where racism is perhaps being perpetrated against both the people who are accused in this crime and the people who are the victims of it.

Alan Montecillo: So what questions does Brandi Griffins predicament and this bigger case in Antioch bring up for you?

Annelise Finney: You know, this is something that Simon O’Connell, the chief assistant to the DEA, brought up, which is this balance that the justice system right now is trying to strike.

Simon O’Connell: So this is something that is a real reckoning for how we just view criminal justice and the meaning of justice and outcomes for all people.

Annelise Finney: How do we untangle this long history of racism in our justice system, a history that is in many ways shaped the way our justice system works, while also providing accountability, doing what the justice system set out to do for people like Brandi Griffin, who have lost loved ones. I think part of what’s challenging here is that in California, the people who are most likely to be the victims of crime are also people of color, particularly low income people. And we need to have something we can offer them that actually works.

Alan Montecillo: Well, Annelise. Thank you so much.

Annelise Finney: Thanks for having me.

Alan Montecillo: That was KQED reporter Annalise Finney. This conversation was cut down by Ellie Prickett Morgan and edited by me. Maria a skincare scored this episode and edited all the tape. Additional production support from Ericka Cruz Guevara. Music courtesy of Audio Network and First Car Music. The Bay is a production of KQED Public Radio in San Francisco. Jen Chan is our director of podcasts. Katie Springer is our podcast operations manager. Cesar Saldana is our podcast engagement producer. Marcus Stannard is our podcast engagement intern. And KQED chief content officer is Holly Kernan. I’m Alan Marsilio in for Ericka Cruz Guevara. Thanks for listening. Talk to you Monday.