Contra Costa judge rules prosecutors violated Racial Justice Act in murder trial, overturns convictions

MARTINEZ — In one of the first major such statewide rulings, a Contra Costa judge overturned the murder convictions of two East Contra Costa men, writing that the trial prosecutor and police testimony had violated a law aimed at eliminating racism in criminal courts.

Judge Clare Maier’s 71-page decision means Gary Bryant Jr. and Diallo Jackson will likely face retries in the 2014 murder of 23-year-old Kenneth Wayne Cooper of Pittsburg. But Maier’s order has wider implications. It was widely seen as an early test of the Racial Justice Act of 2020, which makes it illegal to obtain a conviction “on the basis of race, ethnicity or national origin”.

One of the tipping points cited by Maier was the use of the n-word by the prosecutor, defense attorneys and a police gang expert when quoting rap lyrics by the defendants, which according to the prosecutors, proved their ties to the gangs and helped discredit their claims that Cooper was killed in self-defense. Prosecutors argued the murder was murder in the commission of a robbery.

Maier made his decision after listening to hours of testimony from expert defense witnesses who distinguished then-Assistant District Attorney Chris Walpole’s use of slang terms from the testimony of a detective. of the Antioch police on the rap lyrics. Maier’s decision is finely tuned; she ruled that some terms and slang did not violate the law, while others did.

For example, Maier found that Walpole’s repeated use of the term “whip gun” during his closing arguments “was racially coded language and evoked racial stereotypes that African-American men were more likely to indulge to acts of violence”. She ruled that the term “drug rip” likely inflamed the jury’s implicit biases, but the terms “down” and “mean mug” did not.

Maier ruled that Det. of Antioch police. Rick Hoffman’s testimony about the defendants’ lyrics in rap songs was a valid way to prove their ties to the gangs, but that the use of rap lyrics and videos “although not done to deliberately invoke racial bias, likely triggered the jury’s implicit racial bias against African American men and was in violation of the “Racial Justice Act.”

While writing that she “in no way ascribes racist intent” to the lawyers or Hoffman who used the n-word when discussing rap lyrics, Maier wrote that the “use of the racial epithet by the lawyers and the gang expert more than likely resulted in priming the jury’s implicit racial bias against African Americans.

Prosecutors have not said whether they intend to appeal the decision, or whether they will try Jackson and Bryant again.

Maier’s decision comes just days after the Racial Justice Act was made retroactive by Gov. Gavin Newsom, who on Friday signed an extension of the original law written by South Bay Assemblyman Ash Kalra, D-San Jose.

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