MARTINEZ — In what legal experts are calling the first ruling of its kind in the state, a county judge reversed murder convictions for two East Contra Costa men, writing that the trial prosecutor and police testimony violated a landmark law aimed at eliminating racial bias in criminal court.
The 71-page order by Judge Clare Maier means Gary Bryant Jr. and Diallo Jackson likely will be re-tried in the 2014 killing of 23-year-old Pittsburg resident Kenneth Wayne Cooper.
But Maier’s order has far broader implications. It was widely considered an early acid test of the Racial Justice Act of 2020, a law authored by a Bay Area legislator that makes it illegal to obtain a conviction “on the basis of race, ethnicity, or national origin” and allows legal challenges to charges, convictions and sentences influenced by systemic bias.
Maier’s ruling comes just days after the Racial Justice Act — which went into effect last year — was given retroactive reach by Gov. Gavin Newsom, who on Friday signed an expansion of the original law authored by Assemblyman Ash Kalra, D-San Jose.
One of the tipping points for Maier, according to her written decision, was the use of the n-word by the prosecutor, defense attorneys and a police gang expert when quoting rap lyrics by the defendants. Prosecutors argued that the lyrics showed the defendants’ gang ties and helped to discredit Bryant’s claims the killing was an act of self defense.
Cooper was killed as he sat in a car on a July 2014 afternoon at an apartment complex on Delta Fair Boulevard in Antioch. Prosecutors called it a robbery that escalated into a shootout. The defense offered differing rebuttals: Jackson’s lawyer argued that he wasn’t at the shooting, while Bryant’s attorney insisted the shooting was in self-defense, noting that Bryant was also shot and wounded.
During hearings that spanned a year, Maier listened to hours of testimony from expert witnesses for the defense, including Andrea Dennis, co-author of the book “Rap on Trial: Race, Lyrics, and Guilt in America.” The experts picked apart then-Deputy District Attorney Chris Walpole’s use of slang terms, as well as a police detective’s testimony about rap lyrics. The prosecution did not call its own experts but questioned how the defense experts could know whether jurors relied on the rap lyrics during their deliberations.
Maier’s ruling is finely tuned: She found certain terms and slang violated the law, while others did not.
For instance, Maier ruled Walpole’s repeated reciting of “pistol whip” — language the prosecutor used during closing arguments as he described the crime — “was racially coded language and evoked racial stereotypes of African American men as more likely to engage in acts of violence.” She also ruled that the prosecutor’s use of “drug rip” likely inflamed implicit bias within the jury, but that the terms “down low” and “mean mug” did not.
Maier stated in her ruling that Antioch police Detective Rick Hoffman’s testimony about the defendants’ lyrics in rap songs was a valid means of proving their gang ties. But she also wrote that the use of rap lyrics and videos, “though not done to purposefully invoke racial bias, more likely than not triggered the jury’s implicit racial bias against African American men and was in violation of” the Racial Justice Act.
Maier said, however, that she “in no way ascribes racist intent” to the attorneys or Hoffman, who also used the n-word when discussing rap lyrics.
Prosecutors have not indicated whether they intend to appeal Maier’s ruling — which was filed Monday — or if they will re-try Jackson and Bryant.
Contra Costa Public Defender Ellen McDonnell said the ruling was “an exciting win and the first of its kind in the state” and credited Deputy Public Defender Evan Kuluk’s “vigorous advocacy” and his litigation using the law authored by Kalra, a former deputy public defender himself.
“This case realizes the promise of the California Racial Justice Act which was designed to prohibit racial bias in policing, prosecution, and sentencing,” McDonnell said in a statement.
McDonnell added that the kind of arguments used to convict Bryant and Jackson stand to decrease going forward. She referenced a new law signed by Newsom that limits the introduction of rap lyrics as criminal evidence, which she said will “preclude racial bias in criminal prosecutions and to prevent, as much as possible, this type of unjust verdict.”
The American Civil Liberties Union of Northern California also lauded the decision, calling it a “major victory” for free speech.
“It’s high time that prosecutors stopped weaponizing a form of artistic expression to send Black men away for long prison terms,” reads a statement from the ACLU chapter.
The issue of racial bias during Bryant and Jackson’s trial was previously raised in the First District Court of Appeal, where attorneys argued that Walpole’s dismissal of every single Black person from the jury pool was illegal. In 2019, the defendant’s 2017 convictions were upheld, though Presiding Judge Jim Humes issued a blistering concurrent opinion saying the ruling exposed “serious shortcomings” and called for the state “to consider meaningful measures to reduce actual and perceived bias in jury selection.”
In an interview prior to Maier’s ruling, Kalra said he expected the nascent Racial Justice Act to gradually develop traction in state courts as appeals citing the new law make their way through the system. Now that it will apply retroactively, the legislator anticipates that challenges to convictions and sentences will pick up in frequency.
“We have to get to the implicit bias. We should all play a role in rooting it out, and this gives us the opportunity to do that,” he said. “As the years go on, we’ll get more and more guidance from appellate courts in giving it more definition and form.”
Raj Jayadev, co-founder of of the civil-rights group Silicon Valley De-Bug that co-sponsored Kalra’s bill, said he has seen that influence first-hand while monitoring South Bay courts.
“Systemic racism was the water the courts swam in. For it to be actually acknowledged, that it’s a contextual reality that plays out from arrest to a jury and judge, it has changed the texture of these discussions,” Jayadev said. “Now it has a recognized space. It actually occupies time and has to be confronted.”
This content was originally published here.