Presiding Superior Court Judge David Goldstein agreed with the principle but said the Racial Justice Act does not provide for officers to have their own defense.
He said that if the court rules that the officers acted out of racism, it would not be the ruling that made the officers racist, but the underlying evidence.
He denied her request, but agreed that officers’ attorneys could be present to advise their clients on whether or not to invoke the Fifth Amendment: the officers’ right to stay silent if answering a question might incriminate them.
That, of course, is if the officers testify at all.
Lawyers for Chief Ford — also subpoenaed to testify — successfully argued to excuse the chief from testimony because he joined the department after the text messages were sent. Last Wednesday, the chief announced that he will retire on Aug. 11.
Additionally, at least five of the nine subpoenaed officers are claiming they are injured and cannot make it to court, according to the East Bay Times. But defense attorney Carmela Caramagno disputed that, saying her investigator saw allegedly injured officers driving tractors, hosting pool parties and walking leisurely.
“Like, what kind of medical leave you guys are on? For accountability, you guys need to be here,” said Shrielle Cobbs, the mother of defendant Trent Allen.
Contra Costa Public Defender Ellen McDonnell agreed.
“We have a situation where officers exchanged animal memes of Black and brown people, where they explained that they were targeting Black people based on their race. And we have four young Black men on trial here,” she said on Friday. “It’s critical that there be a full hearing and that each officer be questioned regarding their role in these text messages and the way they handled policing in this case.”
Seeing the messages was devastating for the families of the young men. Mariah Thomas is the fiancée of Eric Windom, and the cousin of Trent Allen, two of the defendants.
“They wanted to kill my cousin Trent Allen. Eric Windom, that’s my partner, my lover. The stuff that they said about them … it’s horrible,” she said.
The hearing will continue on Aug. 25 and all nine officers are under subpoena to appear. If they do not appear when called, Judge Goldstein could explore other ways to compel them to testify.