State high court to review Racial Justice Act in death penalty cases

The state Supreme Court is asking for supplemental briefing in three death penalty cases in which defense attorneys say prosecutors' use of racially discriminatory language during trial invalidates the sentences and convictions under the state's Racial Justice Act of 2020.

The law says that criminal convictions and sentences cannot be imposed if defendants prove that prosecutors, witnesses, jurors, judges or other officials "exhibited bias or animus towards the defendant because of the defendant's race, ethnicity, or national origin."

Defense attorneys, in challenging murder convictions and death penalty sentences, say that is what happened in their clients' cases. The question is whether the law passes muster under the state Constitution, binding courts to apply it even if the error might be considered harmless.

Justices, in questions posed this month, ask whether the Racial Justice Act's language passes muster under Article VI, which states that judges cannot grant new trials "unless ... the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice."

In all three cases, the state Supreme Court heard oral arguments in May and June but decided afterward to ask for supplemental briefs from the state attorney general's office and defense counsel, due in September, to determine whether the statute is constitutional and what courts should do.

Justices want to determine: if the convictions should be analyzed under the harmless error standard if a Racial Justice Act violation is established, whether the Legislature has the authority to declare that certain errors are a "miscarriage of justice" requiring courts to reverse a judgment, and if a death penalty sentence can be reversed if a Racial Justice Act has occurred.

David S. Ettinger, of counsel at Horvitz & Levy LLP and a close observer of the state Supreme Court, said in an interview that the justices are trying to determine, for the first time, whether the Legislature has gone too far with the Racial Justice Act (RJA).

"The question is whether this is exclusively a judicial function or whether the Legislature can automatically direct that something is a miscarriage of justice," he said. "Can the Legislature say whether a certain error is not harmless and bind the court to that determination?"

In all three cases, defense attorneys argue that prosecutors used dehumanizing and racialized language to characterize their clients, allegedly comparing them to animals. People v. Barrera, S103358 (S. Ct., filed Nov. 7, 2012); People v. Chhuon and Pan, S105403 (S. Ct., filed June 28, 2012); People v. Bankston, S044739 (S. Ct., filed July 22, 2011).

The convictions and death sentences all occurred long before the Racial Justice Act was passed, but the statute now allows defendants to file challenges later.

Senior Deputy State Public Defender Erik Levin argued that prosecutors described his Black client, Anthony G. Bankston, as a "'Bengal tiger . . . [an] enormous tiger . . . muscles all flexed out . . . claws out' and labeling him a 'thug,' a 'killing machine.'"

Defense attorneys also argued in their appeals that "racialized" language was used by prosecutors during the trial of a Latino man and a Cambodian immigrant.

"Here, both the prosecutor and defense counsel used dehumanizing animal metaphors: the prosecutor invoked the stereotype of a violent and aggressive 'predator' and defense counsel invoked the stereotype of a primitive 'child from the jungle,'" Supervising State Public Defender Alexander Post argued on behalf of Run Peter Chhuon.

"These metaphors, employed during the penalty phase, crystallized the dehumanizing themes that the prosecutor cultivated during the guilt phase," he added.

The state attorney general's office conceded that the death sentence should be vacated in Bankston's case, but not his conviction, because of the prosecutor's comparison of him to a Bengal tiger. In the other two cases, they said the convictions and death sentences should be upheld.

In the Chhuon case, Deputy Attorney General Louis W. Karlin wrote that the "alleged RJA violations were harmless beyond a reasonable doubt -- no reasonable juror would have understood the prosecutor's statements as denigrating Chhuon based on race, ethnicity, or national origin."

The state Supreme Court is taking up the issue 20 months after a divided 2nd District Court of Appeal panel, in a decision upholding the law, urged the justices to address the issue.

Justice Arthur Gilbert, an appointee of Gov. Jerry Brown, sided with the state, ruling that it "has exercised that authority here to declare that racially discriminatory language used during trial constitutes a miscarriage of justice within the meaning of article VI, section 13."

"Because the state Constitution does not limit the Legislature's power to define a miscarriage of justice, we must conclude it has properly exercised its authority to do so here," he added. People v. Simmons, 2023 DJDAR 10276 (2nd District Court of Appeal, filed Jan. 13, 2021).

But Justice Kenneth R. Yegan, an appointee of Gov. George Deukmejian, dissented and urged the state Supreme Court to take up the issue on its own motion. The court declined to do so in January 2024.

"The United States or California Supreme Court ordinarily decides whether an error is structural," he wrote. "Except for the RJA, I am aware of no instance in the history of California where the Legislature has purported to define what constitutes structural error."

Gilbert acknowledged Yegan's "cogent argument" that the Racial Justice Act is unconstitutional because "it is the province of the court to decide whether an error results in a miscarriage of justice."

"We are hopeful, indeed confident, that our Supreme Court will resolve this issue ... soon," he added.