By David M. Greenwald
Executive Editor
Riverside, CA – On Friday, Riverside Superior Court Judge Bernard Schwartz rejected the defense and ACLU’s arguments that the Racial Justice Act and a history of disparate treatment of Riverside County seeking the death penalty for Black defendants, but not similarly situated white defendants, required an evidentiary hearing.
At the previous hearing, the defense, led by Claudia Van Wyk from the ACLU, showed convincing evidence that the death penalty was disproportionately charged against Black defendants even when white defendants had similarly situated crimes.
However, the district attorney’s office led by Deputy DA Matt Murray, countered that “the defendants here, as defined in Penal Code section 745(h)(6), were treated more leniently than defendants of other races.” They added that the defense analysis of PC 745 “would defy the intent of the statute.”
At issue were whether the DA could charge two separate defendants—Russell Austin and Michael Mosby—with the death penalty or whether the history of disparate treatment under the Racial Justice Act precluded the state from seeking the death penalty.
“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,” stated 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 a 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.”
Judge Schwartz didn’t disagree with that assessment.
However, he saw it as a twofold analysis under PC 745.
“One is statistical,” the judge explained. “The other is viewing persons who are in a similar situation, having committed similar conduct as to whether or not there’s a disparity in their treatment.”
He said, “Clearly, the first element, as I mentioned at our last hearing, I believe has been met.”
The defense drew the judge’s attention to a case that just was decided out of San Francisco County, where Judge Gordon granted an evidentiary hearing in the case against Fantasy Decuir and Lamonte Mims in which an evidentiary hearing was granted to dismiss the special circumstances allegations of felony murder during the course of a robbery.
However, while Judge Gordon granted that motion, Judge Sschwartz found that the facts in that case were “different and contrary to the cases before this court.”
He noted that San Francisco County does not seek death in any case, and has not for some time there.
He also noted that while Austin “apparently had no substantial or prior record in this case” (his attorney corrected the record to note that he had no criminal record at all prior to this case), but Mosby had “substantial prior record, his prior murder” (his attorney noted that this case actually preceded those cases in time).
Regardless, he said, “We have substantially different facts. We have a whole different scenario.”
He said, “So while it’s an interesting read and I think the well written opinion, I think it really is only applicable to the case before that judge in that court in that county.”
The judge said, he believes under PC 745 “the defense has the burden to establish prima facie showing, which is defined as reducing facts that if true establish there is a substantial likelihood that a violation of subdivision a of the act has occurred … for purposes of this section of substantial likelihood requires more than a near possibility, but less than a standard of, more likely than not.”
Despite differences of opinion with the defense, the judge found that there was no other way to read PC 745 than a “two step analysis” where “the second element, which is clearly written within the statute, requires the showing that individuals who engaged in similar conduct are being treated in a different fashion.”
The defense had argued that “no two cases are completely alike.” However, they said that the DA showed “none of the factual categories relevant to charging and sentencing offered by Mr. Austin reach a sufficient degree of similarity for this Court to grant a hearing or relief under the CRJA. The categorical dismissal of obvious factual likenesses between the comparison group cases and Mr. Austin’s obscures the necessary standard of analysis on this point.”
By the DA’s logic, the defense argued, “no case could reach a degree of similarity to a comparison group that would entitle a capital defendant to a hearing or relief under the CRJA. Under this interpretation, the CRJA would be rendered completely ineffective. The Legislature did not enact this comprehensive statute only to render relief unattainable.”
The judge however, while agreeing the standard is not identical, nevertheless found the defense showing insufficient.
He explained that “the definition of similarly situated, is factors that are relevant in charging and sentencing that are similar and do not require that all individuals in the comparison group be identical.”
But contrary to Claudia Van Wyk’s argument the judge said it could take into account things like strength of case, victim’s family’s wishes, criminal history and facts of the case.
He said “it would be impossible to do such comparison without taking those factors into account.”
With respect to the second element, he said “I think the defendants have failed to offer sufficient evidence that this is manifested in they, themselves, being more harshly charged in similarly situated defendants of other races.”
While acknowledging that the defendants dispute the two-prong analysis, he went into considerable detail tracking legislative intent in this area.
The judge concluded, “It appears sufficiently clear to me that the final language of the bill was intended to prevent the approach that was suggested by the defense, which is to simply permit relief based merely on population-wide charging disparities. Therefore, a statistical analysis by itself is not sufficient.”
In the case of Mosby, the judge noted that while “it is true that his convictions were not prior convictions, they were prior convictions to this particular case, and it is also true that Mr. Mosby does stand convicted of two prior murders and one attempt murder.”
In Austin’s case, he noted that while Austin has no prior record, “his facts of his case in this instance are significant,” noting that “the victim in the case was pregnant,” and was found “with her throat nearly torn out to the point of decapitation.”
Austin has denied 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.
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.
In short, the judge found that there is an “explanation given separate and apart from the pure issue of race which distinguished these cases.”
The motion provides at least three examples of white defendants accused and convicted of multiple murders that resulted 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 judge disagreed and found substantial differences between the current cases and the defense’s comparison cases.
The judge thus rejected the defense argument and set both cases for separate death penalty cases later in the year. The defense in the meantime indicated their inclination to appeal the ruling.
