California's Groundbreaking Racial Justice Act Cuts Its Teeth in Contra Costa

The effort to change the fundamental way race is considered in the California justice system received a jolt last week when a Contra Costa Superior Court judge ruled that racism within the Antioch Police Department tainted a murder investigation.

On Feb. 5, Judge David Goldstein, a former public defender, removed all gang enhancements that could have resulted in life without parole sentences for the four men charged with the murder. Defense attorneys used the California Racial Justice Act to argue that racism tainted the handling of the case, from the murder investigation to the charges given to the four defendants, all of whom are Black and in their early 20s.

It was the second time Goldstein ruled that anti-Black bias had shaped elements of the case.

Race has been a mostly silent character in criminal courtrooms because race couldn’t be raised explicitly in court proceedings to defend someone accused of a crime until the RJA. The law, enacted in 2020, is the first of its kind in the country. Over several months, a KQED reporter attended the RJA hearings in the case. KQED also spoke with defense attorneys, prosecutors and community members about how the law is changing the way race is recognized in courtrooms.

At the end of July, four young men in yellow jumpsuits were spread across the courtroom as the afternoon sun streamed through windows behind Goldstein’s bench. Keyshawn McGee and Trent Allen sat in the jury box. Eric Windom and Terryonn Pugh were tucked in around the far end of the attorney’s table.

Behind them, the gallery was packed. The hallway outside the courtroom was filled with an overflow of family members, reporters and curious attorneys taking advantage of breaks between court appearances to get a glimpse of the historic hearing.

The four men were charged with an alleged gang-related murder and attempted murder. The murder charge included five enhancements.

Here’s what happened: On March 9, 2021, police allege that the four men shot a car 40 times in a drive-by shooting on a residential street in Antioch. Arnold Marcel Hawkins, 22, was killed and another man was wounded. The shooting was allegedly part of a long-running feud between two East Bay gangs. The arrests of the men were heralded by East Bay law enforcement as a meaningful step toward reducing gun violence.

Updated last year, the RJA made two major changes to existing state law. First, it created a way for defense attorneys to raise racism in court to defend someone accused of a crime. Second, it broadened what kind of evidence the court can consider to include indications of implicit bias, usually an analysis of the outcomes of similar cases that reveal the preferential or discriminatory treatment of one demographic group or another.

In Contra Costa County, a growing number of RJA claims have recently gained traction. The ruling in the case against McGee, Allen, Pugh and Windom was the third time a Contra Costa judge has sided with the RJA, which allows judges to exclude witness testimony and drop charges, among other options.

“It will hopefully be a model for defendants across the state,” said Evan Kuluk, Windom’s attorney. “If the police who investigated their case were racially biased, used excessive force or spoke about them in racially discriminatory ways, there truly is a remedy available.”

The California Reparations Task Force submitted a 1,000-page report to the state Legislature last summer, which included provisions to strengthen the RJA.

“The heart of implicit bias is when racism becomes so endemic, so pervasive, so enduring, so intractable, that it’s normal course,” Donald Tamaki, an attorney and task force member, told KQED. “So how do you disrupt that?”

Last month, members of California’s legislative Black Caucus introduced a package of bills, including four proposed changes to the state’s justice system. The proposed legislation does not include cash payments, but Tamaki and fellow task member Lisa Holder said policies like the RJA are just as important to reducing racial disparities as cutting a check.

The district attorney

Last spring, Kuluk was focused on how Contra Contra County district attorneys choose to add gang enhancements to murder charges.

“I’ve handled a lot of cases with gang allegations in this county and saw what I believe to be a disproportionate number of Black young men, especially from Richmond and Antioch, being charged with gang allegations,” said Kuluk, a public defender for 15 years.

As a member of the county’s Alternate Defender Office, Kuluk was assigned to represent Windom, now 24, who was pursuing a music career at the time of his arrest.

Kuluk and Windom requested charging records from Contra Costa County District Attorney Diana Becton. With the help of a UC Irvine statistician, they found that from 2015–2022, Black men accused of gang-related murders were 44% more likely to be charged with enhancements than defendants of other races accused of similar gang-related murders.

“Because they carry mandatory LWOP, the filing of special circumstances is an assertion that an individual is irredeemable,” Kuluk told KQED, referring to a life without the possibility of parole sentence. “It is beyond unfair and unacceptable for the government to more frequently deem Black people unworthy to ever get the opportunity to prove their redemption to a parole board.”

Becton’s office disputed Kuluk’s findings, but in May, Windom and his co-defendants convinced the court that the district attorney had applied the enhancement in a biased way. The gang enhancement was dismissed. It was the first time in the United States, a country where Black residents are five times more likely to be incarcerated in state prison than white residents, that an argument of implicit bias in the justice system resulted in a charge being dropped from a criminal case.

Contra Costa Chief Assistant District Attorney Simon O’Connell said he doubted anyone in the office was knowingly targeting Black defendants for harsher punishment. But he said the RJA challenge gave the DA a reason to look more closely at their charging data.

“We don’t know what we don’t know,” he said. “It was important for us to start looking at historical data to see if, in fact, there were implicit biases and trends in our data, which would be surprising to us.”

The police

Windom and his three co-defendants had a second RJA hearing related to racist text messages uncovered by an FBI probe into alleged criminal activity by the Antioch and Pittsburg police departments.

Some of the messages were sent during the murder investigation. Here’s one exchange sent over the course of 22 minutes while officers were surveilling McGee, Allen, Pugh and Windom eating at a barbecue restaurant in Concord in March 2021:

Antioch police officer Eric Rombough: “Sooo many black peolpe (sic).”

Antioch police officer Jonathan Adams: “Bro. They all look the same.”

Rombough: “Tell me about it. I feel like I’m at the zoo.”

Rombough: “They’re getting ice cream. Swarming to it like Hennessy. I bet its chicken.”

Adams: “Could be ribs.”

Rombough: “For sure watermelon and kool aid. I hate these idiots.”

Other messages suggest Black people don’t like pools and can’t be seen in the dark, employing tropes used to demean Black people. Still, other messages use the N-word and include photos of Pugh and Allen in hospital beds after being injured by officers during their arrests. In the messages, the officers joke about kicking Allen’s head like a football.

Shirelle Cobbs, Allen’s mother, shook with rage outside of the courtroom after the texts were read during a hearing. “If it was the other way around, my son would be under the courthouse or dead,” she said.

Becton has recommended at least 30 criminal cases for dismissal that involve police work by officers involved in the text messaging exchanges. But not in this case.

In the second RJA claim, the men asked Goldstein to dismiss all the enhancements and to downgrade a number of the top charges. They argued that the racist text messages made it impossible for the investigating officers to have done their jobs free of bias. They argued that not only were the officers who sent the messages compromised but so was the entire police department.

In August, Claire Jean Kim, a UC Irvine political science professor and expert in racial bias, testified for the defense. The text messages included department supervisors. She said only in a department with an entrenched culture of racism would no one report the violations of department policy. And that, she said, is exactly what happened in the Antioch Police Department.

“The law can and must repudiate the decisions made by such decision-makers, both for the sake of the defendant and for the community that rests its trust in the justice system,” she told the court.

Vienna Peterson Joiner was frequently in the gallery watching Windom, her son, closely. She told KQED she was trying to decipher how he was feeling and whether he’d eaten by the way he sat in his chair. Peterson Joiner and Windom are not allowed to speak at his court appearances.

“I want to run up there and hug him,” she said. “I want to tell [the court] what we know about Eric.”

She drove to Martinez from Los Angeles for court dates, sometimes stopping to pick up her son’s fiance, Mariah Thomas, and their 1-year-old daughter. When Windom was a toddler, his father was incarcerated.

“His own experience with his father and his current situation and lack of ability to be fully there for his child now is weighing on him,” Kuluk told KQED.

For Thomas, the disruption to building a family with Windom is painful.

“He’s being held by people who don’t like the color of his skin,” she said. “That’s really what it boils down to because if these people were white, they would’ve been home. They would’ve been with their family.”

Peterson Joiner said it was a relief when the judge dropped the gang enhancement.

“I was glad that the judge did see that and paid attention to what was actually really going on,” she said. “People think that just because slavery ended, racism was pulled out at the root. But it wasn’t.”

Data is the mechanism

Natasha Minsker, a criminal justice reform policy consultant, said Becton’s willingness to provide data on charging practices has made the county a hot spot for attorneys testing the limits of the RJA using statistical evidence of discriminatory treatment. She, like Kuluk, is a member of the Racial Justice Act Implementation Working Group, a collection of advocates, attorneys and policymakers moving to bring claims.

As of Jan. 1, people who are currently and formerly incarcerated are now able to challenge their convictions using the RJA. Minsker said more than three-quarters of the state’s prison population — about 90,000 people — could have viable claims. If implemented, she said, the law could help end mass incarceration in California.

But to get there, defense attorneys need more funding and more data.

“They were incredibly cooperative,” Kuluk said of Becton’s office. “That’s not what has been happening in many other counties in California where DA’s offices have been hostile to public records requests that they interpret as potentially leading to Racial Justice Act claims.”

Cities and counties aren’t currently required to collect data on the race of defendants or to make that data public. According to a statewide survey conducted by the reparations task force, 12 out of 57 responding county DA offices, including Sacramento, do not collect data on an accused person’s race, making RJA claims extremely challenging, if not impossible.

Solano County, home to the Vallejo Police Department, did not respond to the survey. In October, the state Department of Justice expanded oversight of the Vallejo police after the department failed to comply with the vast majority of court-mandated reforms.

“Without access to data, the promise of the [Racial Justice] Act has the potential to ring hollow to many,” the task force wrote in its report.

Among the 115 policy proposals suggested by the task force are a series meant to strengthen and expand the Racial Justice Act (PDF), including additional funding to help defense attorneys hire data analysts, penalties for district attorneys who fail to provide complete data and calls to fund the Justice Data Accountability and Transparency Act fully. The law, passed in 2022 and set to go into effect in 2027, will require district attorneys to report case data, including the race of the defendant and the victim, to the state DOJ.

“If you can bring irrefutable evidence of anti-Black bias within the criminal justice system to a court, then they will have no choice but to respond and to right the wrongs,” said Holder, who is also the president of the Equal Justice Society, an Oakland-based racial justice nonprofit.

Recently, Becton hired an analyst to guide the office’s data collection and preservation practices. In response to Windom’s claim, the office also established a committee review system for evaluating all special circumstances charges on articulable, race-neutral grounds before they are filed.

“This is the power of the Racial Justice Act,” Minsker said. “It makes all actors in the justice system responsible for pushing forward racial justice.”

Last month, the California DOJ published the state’s first-ever race-blind charging guidelines for prosecutors. A state law passed in 2022 will require county prosecutors to institute race-blind charging practices starting next year.

For some, the recent RJA successes in Contra Costa come with a sting. At each court date for Windom’s RJA hearing, Hawkins’ family members were there, including his mother, Brandi Griffin. For six months after he was shot outside of their Antioch home, she kept him on life support, hoping her son, who she described as free-spirited, would recover.

“Our family has been sacrificed based on what the Antioch Police Department has done,” said Griffin, who told KQED that the case has stripped her faith in the justice system.

In front of the courthouse in July, she shouted at a scrum of reporters, her voice strained with grief and rage.

“I don’t give a shit about no racist shit!” she said. “What about my son?”