By David M. Greenwald
Executive Editor
Riverside, CA – A year ago, a Riverside judge denied a petitioner’s motion for an evidentiary hearing, which alleged that the disproportionate use of the death penalty against Black defendants in Riverside County violated the Racial Justice Act.
Lawyers for Russell Austin and Michael Mosby argued that the death penalty in Riverside County is tainted with racial inequality—and offered statistical studies, along with other evidence, reaching that conclusion.
While the trial judge agreed that the petitioners had sufficient evidence on that county, the judge ruled, “Petitioner was required to present not only statistical evidence of racial disparity in the charging of the death penalty by the District Attorney but also evidence of nonminority defendants who were engaged in similar conduct and were similarly situated but charged with lesser offenses, to 
establish a prima facie case.”
But the appellate court noted, “There is nothing in the statute or the legislative history that provides guidance as to what evidence must be presented to determine similar conduct in order to establish a prima facie case.”
However, the appellate court ruled that the petitioner in this case presented sufficient “factual evidence of nonminority defendants who committed murder but were not charged with the death penalty in cases involving similar conduct and who were similarly situated.”
They continued, “We need not determine based on the evidence presented whether only statistical evidence of similar conduct and similarly situated defendants would be sufficient to support a prima facie case.”
As such, the court ruled that “the trial court should have ordered an evidentiary hearing at which the People could produce evidence of the relevant factors that were used to determine the charges against the nonminority defendants who were involved in similar conduct and who were similarly situated to petitioner, and provide any race-neutral reasons that it considered in deciding to charge petitioner with the death penalty in this case.”
Attorney Claudia Van Wyk of the ACLU Capital Punishment Project was very pleased with the ruling.
“We got an opinion from the court and we were very, very pleased that it was very strong about the minimum showing that you have to make to get an evidentiary hearing under the Racial Justice Act,” Van Wyk told the Vanguard.
She noted that the lower court “had rejected our bid for a hearing because the judge said, well, we couldn’t discount all kinds of legitimate factors that could have explained the big racial differences that we presented.”
The court of appeal, she said, said the lower court got it “upside down” and that “it should have assumed the truth of our presentation and that it should have looked at whether on its face, our presentation presented everything you need to present to get a hearing and to ultimately get relief. And whether there are defenses that the state could raise is a question for a hearing.”
The evidence presented at the February 2023 hearing was overwhelming.
As the court noted, the petitioners provided statistics regarding the charging of African American defendants in Riverside County from January 2016 to December 2021.
These were analyzed by Marisa Omori, Ph.D., a statistics professor
The court noted, “Petitioner argued this evidence, along with Omori’s analysis, showed that African-American defendants received the harshest punishment of any racial or ethnic group in Riverside County.”
As the court explained: “African-American defendants are charged with special circumstances in their murder cases at a rate of 64.86 per 100,000 of the adult population; Caucasians are charged at a rate of 5.00 per 100,000 of the adult population; and Hispanics are charged at a rate of 16.84 per 100,000 of the adult population. In addition, Riverside County filed a notice of intent to seek the death penalty against 22 defendants between 2016 through 2021. Per 100,000 of the adult population, 6.05 involved African-American offenders, 1.45 for Hispanic offenders, and .29 for Caucasian offenders.”
Van Wyk told the Vanguard, Blacks are only six percent of the population “and their representation skyrockets as you go from one stage to the other.”
Van Wyk said, “So as you go along, Black people represent an increasing share of the defendants at each charging stage.”
Overall, she said, “we feel that the evidence shows overwhelmingly that people of color, and in this case black people in particular, are just grossly overrepresented in every stage of the capital punishment system in Riverside County. And we are eager to get into court and prove that case and prove that there aren’t any race neutral reasons that can explain away such a big gigantic difference.”
Or, as she told the judge in 2023, “Black people are treated unequally at every step of the way from arrest all the way to death row when compared with white people. They ran the numbers four different ways, and whatever way you count, it tells the same story at every step. Black people are more likely to receive more punitive treatment than white people.”
A further study was submitted that was prepared by Political Scientist Frank Baumgartner.
He found that “since 1972, minority defendants comprised 66 percent of older defendants sentenced to death in Riverside County while Caucasian defendants comprised only 25 percent.”
Judge Schwartz in Riverside 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 trial court found that a prima facie case had not been established, however.
As the appellate court noted, “There was no doubt that the second prong—a historical pattern of racism—had been shown.”
However, Petitioner had failed to “offer any evidence to show that any systematic bias has manifested in they themselves being more harshly charged than similarly situated defendants of other races.”
The Appellate Court acknowledged that “it may be sufficient to look only at similar crimes, such as murder, to show how an African-American person may be charged more harshly than a nonminority defendant on these cases and that this could be shown by only statistical evidence.”
The question, they write, “then remains whether the trial court erred by finding that this evidence was insufficient to establish a prima facie case by requiring that Petitioner provide an explanation of other relevant factors in sentencing at the prima facie stage, such as whether the victim’s family supported seeking the death penalty, to explain the racial disparity in seeking the death penalty.”
The court ruled, “Here, it is clear to this court that the statistical evidence of racial disparity presented by way of the studies by Omori, Petersen, and Baumgartner was sufficient to show a prima facie case of racial disparity in the charging of the death penalty in Riverside County.”
They added, “While we cannot establish a bright-line rule of what constitutes sufficient evidence of ‘similar conduct’ in all cases, here, Petitioner in the Second Motion provided the facts of several cases that shared many of the same characteristics as this case, including other stabbings and multiple murders committed by nonminority defendants who were not charged with the death penalty.”
