SAN JOSE — When an appellate court overturned the 2020 rape conviction of former San Francisco 49ers star Dana Stubblefield late last year, its ruling made local history by being Santa Clara County’s first major case reversal invoking the Racial Justice Act.
The landmark legislation, which allows courts to revisit charges and convictions that were provably affected by racial bias, was authored by San Jose-based Assemblymember Ash Kalra. But four years after it went into effect, judges in the home court of the law have largely denied petitions citing the RJA.
South Bay public defenders, who have filed dozens of such petitions, have looked with envy at their colleagues in Contra Costa County, which in 2022 became the first county in the state with a major ruling citing the RJA when it overturned a murder conviction — calling the prosecution’s citation of defendants’ rap lyrics to be prejudicial — and when it vacated sentencing enhancements in two other cases on the premise that those penalties were disproportionately sought against Black defendants.
There have been no such reversals at the trial court level in the South Bay, with judges generally not inclined to treat police lapses in candor and professionalism — or research showing racial bias in arrests and prosecutions — as grounds for invalidating criminal charges and convictions.
Karina Alvarez, a veteran Santa Clara County deputy public defender who has helmed or co-authored the majority of RJA petitions in the county, said she believes the lack of high-profile breakthroughs in her jurisdiction is proof of the entrenchment the law is trying to break.
“It speaks to the subtleties and the insidious nature of bias, and we’re trying to get those subtleties across to the judges,” Alvarez said in an interview last fall. “These are subtleties that people of color experience, and are hard for someone not of color to understand.”
That argument might be best reflected in the first RJA finding in Santa Clara County. Last May, a judge found a San Jose police officer’s use of a slur and a reference to ethnic stereotypes, during the arrest of a Romani man charged with kidnapping and domestic violence, constituted an RJA violation. However the defendant received no relief from the court, and his case proceeded.
Alvarez said the court’s technical finding regarding the slur involved an instance of explicit bias that is not even the point of the law. Through numerous petitions, she has been aiming to get judges to lend weight to experiences where police passively degrade people they contact, through actions like calling Black men “bro” during arrests and failing to account for the fear that a person living in a heavily policed neighborhood might experience.
“That informality is disparately used, that is the point we were trying to make. That informal treatment from officers to people of color,” she said. “We’re so desensitized to it.”
Kalra, the author of the law and a former public defender himself, agrees with Alvarez’s point but is also taking a long view of what the legislation is meant to do.
“There is an inherent instinct to focus on immediate results. I’m looking at how this will have an impact 20, 30 years down the line,” Kalra said. “We want to create behavior change in criminal justice, especially for the next generation of prosecutors, judges and law enforcement. Now we’re openly talking about implicit racial bias.”
Part of the divergence on the issue stems from disagreement on what measuring stick should be used to gauge progress. There are the Contra Costa cases and that of Stubblefield, who was released from prison this month after the Sixth District Court of Appeal vacated his conviction and 15-years-to-life sentence. The appellate panel found that a prosecutor violated the RJA when he told jurors that police did not search Stubblefield’s residence for a gun — which his accuser claimed was used during an alleged rape — to avoid the controversy of raiding the home of a famous Black man.
But those kinds of reversals have been the exception. And to prosecutors like David Angel, a Santa Clara County assistant district attorney who oversees conviction integrity for his office, that will likely remain the case if the letter of the four-year-old law is followed.
“What the RJA asks is if the conduct in question has so compromised the integrity of a case because of someone’s race or ethnicity, then also if the conduct was imperfect but did not taint the prosecution, that’s an important distinction,” Angel said, “because there are real victims who have been harmed, and their justice should not be set aside because there was imperfect conduct.”
“But if the conduct was to such a degree that it was motivated by race, the law offers a remedy,” he added.
David Ball, a law professor at Santa Clara University, said that any assessment of the Racial Justice Act’s traction in courts statewide has to consider how it upends longstanding case law, notably the McCleskey and Armstrong rulings by the U.S. Supreme Court in 1987 and 1996, respectively.
The McCleskey decision found that statistical racial disparities in convictions were not enough to show discrimination and that racial discrimination needed to be proven. The Armstrong decision put the responsibility on defendants to show selective prosecution by demonstrating people of other races were not similarly prosecuted, which Alvarez described as the burden of “proving a negative.”
“The Legislature said that we’re not doing that anymore. You cannot shortchange how much this is a huge, 180-degree cultural change,” Ball said. “There’s a belief that if I say this ruling was racist or that officer did a racist thing, then I’m admitting that I’m working for a racist system. There’s a real reluctance on the part of judges to go through that door.”
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Alvarez says she has already seen the effects of her work in the form of criminal cases that are dropped ahead of a pending RJA motion hearing. Angel acknowledges that to a point, though he casts it in a different light by chalking it up to successful collaboration between prosecutors and defense attorneys.
“It’s fair to say there has been a tangible impact on a few cases, but I see that as a sign that we’re doing a fairly good job at assessing these cases before they get to the hearing, and taking this seriously,” he said. “If you look at what the RJA has achieved proactively in shifting conversations, policies, direction, and values of the criminal justice system, I think it’s been quite impressive.”
Alvarez, who has spent hundreds of hours in courtrooms over the past few years invoking the law, keeps her focus on the successes, including affecting the very court culture that Ball references. One major breakthrough, she says, has been that addressing the impact of race on cases is increasingly a part of the everyday fabric of court.
“It’s extremely validating to bring it up in court, to bring in experts and make people listen, and have judges send the message that this behavior is no longer tolerated and will be addressed in court. It makes me hopeful that we’re even getting to talk about this in the courtroom,” she said. “We did expect this to be difficult. But it definitely has had an impactful effect.”