By David M. Greenwald
Executive Editor
Riverside, CA – Attorneys for two Black men in Riverside County, Michael Mosby and Russell Austin, are using the newly-passed 2020 law, the California Racial Justice Act, AB 2542, to ask for an evidentiary hearing to ultimately gain an order barring the use of the death penalty in the murder case.
“In the process of deciding who winds up on death row in Riverside County, Black people are treated unequally at every step of the way from arrest all the way to death row when compared with white people,” Claudia Van Wyk from the ACLU Capital Punishment Project, who along with the Public Defender’s Office and ACLU of Southern California are representing the two men in this case.
Van Wyk explained that “for our two clients, we are seeking a hearing and a chance to prove that, um, the death penalty has been unequally applied to them.”
They have gathered experts and done detailed analysis.
“They ran the numbers four different ways, and whatever way you count, it tells the same story at every step,” she explained. “Black people are more 
likely to receive more punitive treatment than white people.”
She noted, “We also are presenting that in the context of a long history of racial violence and discrimination in Riverside County.”
The California Racial Justice Act provides a remedy for criminal defendants at various stages in the process of prosecution and conviction and sentencing who believe that they have been subject to racial bias.
Under the new law, there is no requirement of “proof of overt racial animus” and not proof that “anyone is racist.” Nor does it “require evidence any actor had the intent to discriminate against a defendant of color.”
According to the law, “The defendant does not need to prove intentional discrimination.”
This is marked contrast to the seminal Supreme Court ruling in McCleskey v. Kemp in which the court accepted statistical evidence showing that Georgia defendants were more than four times as likely to be sentenced to death if the murder victim was white but refused to reverse the death sentence because it concluded that racial bias in sentencing is “inevitable” and because attorneys could not show evidence of direct and overt racism in the instant case.
The court ruled: “Apparent disparities in sentencing are an inevitable part of our criminal justice system.”
In California, the Racial Justice Act legislatively overturns that ruling—a standard that was almost impossible for those impacted by racially unequal capital prosecutions to obtain relief in court.
The Legislature explained, “In California, in 2020, we can no longer accept racial discrimination and racial disparities as inevitable in the criminal justice system and we must act to make clear that this discrimination and these disparities are illegal and will not be tolerated in California.”
“McCleskey famously held that if a defendant can’t prove that the prosecutor acted in a discriminatory way in their own case, then they don’t have a case under the Constitution,” Van Wyk told the Vanguard. “The Racial Justice Act quite clearly and explicitly says that the defendant does not have to prove that their prosecutor was individually biased, does not have to prove… we were personally prejudiced. We can rely on aggregate evidence which tells the story for us.”
Riverside population is 38 percent white and 6 percent Black.
Van Wyk explained that, in an equitable system, “you would expect the bars to be the same height all the way across.”
Instead what you see is that across the system, the percentage of white people go down as you move across and the percentage of Black (and also Latino) people goes up.
Van Wyk added, “We’ve backed that up with more complicated statistical evidence that controls for or takes into account other factors that could be part of the decision.”
In addition, Van Wyk noted, “We’ve given the judge stories about cases with white defendants that compares them to our clients.”
She said, “(the) hypothesis is not born out when you see the large number of white defendants who’ve never faced capital prosecution and the experts that we want to present have done their analysis specifically to take into account the factors that could influence that decision.”
Van WYk added, “The bottom line is no matter how you count every single expert, all of whom we’re counting in different ways, all wound up with the same story, Black people are more likely to receive more punitive treatment step by step between arrest and death row.”
In their motion, they argue, “As a group, White people charged with murder, charged with special circumstances, and subject to death notices are similarly situated to Black people who face each of those same charges. Mr. Austin’s evidence shows that at each stage, Black people are more likely to progress to the next stage than similarly situated White people.”
For example, Austin is alleged to have in 2008 killed his ex-girlfriend in her apartment, at the time she was about three months pregnant. Austin was 24 years old at the time of his alleged offense, he had no criminal history and no alleged acts of violence—charged or uncharged.
Austin denies involvement in the death of the girlfriend and the defense notes, “There is no murder weapon, no confession, and no witnesses to this incident other than a statement made” years later by a then three-year-old son of the victim. Austin was not arrested until February 2018.
The motion provides at least three examples of white defendants accused and convicted of multiple murders that results in life sentences rather than the death penalty.
“There is no meaningful difference between him and these similarly situated White defendants except race,” the motion argued.
The Riverside District Attorney’s Office is opposing the motion.
