California lets defendants challenge racism in court. Few have succeeded

When police pulled over Tommy Bonds III on a chilly January day in 2022, the San Diego State University student had an idea why.

“What’s goin’ on, bro? How you doin’?” San Diego Police Officer Ryan Cameron said as he approached the car, shining his flashlight in Bonds’ face.

Bonds told Cameron he recognized him. The officer had previously stopped him for having an issue with his license plate cover, and Bonds let him know what he thought the interaction was about.

“We saw you turn around because you saw two guys — two Black guys in the car — obviously,” Bonds said.

“Well, part of it,” Cameron said, “with the hoodies up and stuff.”

“I mean, it’s cold outside,” Bonds said.

Bonds said he had an unloaded gun in the back of his car. As Bonds removed his firearm safety certificate from his wallet, Cameron said, “Easy. Easy.”

He told Bonds to exit his vehicle, then handcuffed him as he searched through his pockets.

“I’m just confused on why,” Bonds said as Cameron ordered him to walk toward the police car. “I mean, if it was two white boys driving down with hoodies in their car, you would’ve never turned around like that.”

After searching the car and finding a Glock in the rear passenger seat pocket, Cameron arrested Bonds for carrying a concealed weapon — one that he owned legally. While it is a misdemeanor in California to put a gun in a seat pocket if you don’t have a concealed carry permit, it’s a crime that’s typically charged against Black people in the state. Research from the University of Wisconsin has shown that in California, compared to white people, Black people are 16 times more likely to be arrested for stand-alone “gun possession” charges.

Cameron’s body camera captured the entire arrest scene. When the San Diego Public Defender’s Office took Bonds’ case, it seemed to attorneys as though Cameron had agreed that he had stopped him and his friend, in part, because they were Black. An admission like this fit the criteria to get the gun charge dismissed through a new law aimed at cases tainted with bias: the California Racial Justice Act.

The California Legislature passed the law in 2020 to allow people to show that discrimination contributed to their criminal charges or sentencing, and get their conviction or sentence modified. Essentially, the law allows defendants and their representation to put bias on the stand.

But when Bonds’ attorneys took their challenge to court, they ran into what has proven to be one of the biggest obstacles in achieving racial justice under California’s groundbreaking law: judges.

Four years in, the law has few success stories

The job of hearing challenges to the Racial Justice Act in San Diego fell to Judge Howard Shore. During Bonds’ first hearing, Shore questioned whether the Legislature had given judges sufficient guidance. 

Shore was skeptical of one of Bonds’ expert witnesses, a sociology professor at Cal State-San Marcos, who had written a book on racial profiling. So, Shore posed a hypothetical on whether people of color could be racist.

“I’ve had gang cases where Hispanics and Blacks are fighting each other, and the Hispanics refer to, if you excuse my language, niggers,” Shore said, “and the Blacks use discriminatory language against Hispanics.”

Shore said he was also skeptical of the conclusions of experts and statistics showing that Black people are subjected to traffic stops more frequently than other races. He said he believed Officer Cameron’s testimony that he didn’t see Bonds’ race before conducting the stop, and therefore there was no bias. Shore denied Bonds’ motion for relief under the Racial Justice Act.

In the four years the law has been in existence, defendants in only about a dozen cases have succeeded in proving that bias affected their criminal case, The Garrison Project and CalMatters found.

The state does not keep data on Racial Justice Act cases. There’s no courthouse code for a motion made under the act, leaving no systematic way to track cases. Successes tend to spread by word of mouth, while the details of rejections are buried in court filings.

In the absence of comprehensive data, the Garrison Project spoke with more than 40 attorneys, legal experts, and advocates, across more than a dozen counties to understand its effectiveness.

The results so far are mixed. While the law has offered a way to document instances of extreme bias and overt racism, its overall impact on California’s criminal legal system — the largest in the U.S. — has been weaker than its designers hoped when they crafted the legislation.

“I think that the numbers show a gap in reality,” said Geneviéve Jones-Wright, executive director of Community Advocates for Just and Moral Governance, a San Diego nonprofit focused on social justice. “The numbers are dismal, and it’s not good, because it could have a chilling effect. A lot of people may feel that RJA motions are not worth it, so why go through with it.”

The Garrison Project reached out to six district attorney offices to understand their experience with the law. The district attorney offices in Los Angeles, San Francisco, and Alameda counties did not respond. The offices in Orange and San Diego counties declined to discuss the new law. 

“I think this law has done a lot of positive things, but I don’t think it’s sufficient, because you have really systemic problems that do not lend themselves well to these individual conclusions,” said David Angel, Santa Clara assistant district attorney and head of the office’s RJA committee.

Gov. Gavin Newsom signed the Racial Justice Act into law in September 2020 following the police murder of George Floyd. The bill’s sponsor, Ash Kalra, a Democratic assemblymember who represents most of San Jose, said at the time the ensuing racial justice protests and calls for “true justice in our court systems and across our entire justice system” made the moment right.

Black people are disproportionately represented in the state’s criminal legal system. In 2021, Black people were 9.5 times more likely to be incarcerated than white people, the fourth highest racial disparity among states. Even though they account for only 5% of California’s population, Black people make up about 28% of the prison population and 21% of people in jails.

A year after Shore rejected Bonds’ motion, the California Commission on Judicial Performance issued a severe public censure against the judge for being absent without authorization on at least 155 court days. The commission found that his conduct “constituted a dereliction of duty, a persistent failure to perform his judicial duties, and a failure to follow the directives.”

Frustrated with Shore’s arguments and decisions, Deputy Public Defender Abram Genser filed a motion to have him removed from one of his cases, and outlined some of the more egregious examples of his behavior.

In a February 2022 case, to discredit the use of statistics as evidence of bias, Shore compared the arrests of Black people to the Mafia heyday of Prohibition-era organized crime: “For example, back East, the 1920s, when mafioso were killing each other, there was a disproportion of number of Italians being prosecuted. Does that mean they were being discriminated against? No. It’s just that there were a lot of Italians committing crimes.”

In December 2023 he told a pair defense attorneys that “our Mexicans” in San Diego are like people in Gaza who cross the border to perform agricultural labor for Israelis.

Colleen Chien, a law professor at UC Berkeley, has been publishing legal data across California related to RJA and studying legal disparities. “What we’re seeing is that there’s what we already know, there’s a lot of racial disparity in our system, and it’s really pervasive — almost every single county, on every single charge,” she said. “It’s hard to believe that that could just be the product of things that don’t have to do with racism.”

There have been at least 21 Racial Justice Act filings in San Diego County since the law went into effect. Some cases are still pending, but no judge has ruled in favor of a motion under the law, according to the San Diego District Attorney’s Office.

Bonds appealed his case and had to hope that the higher courts would have a different reading of the Racial Justice Act than Shore.

How a Racial Justice Act case works

There are a number of steps to a challenge under the Racial Justice Act. First, a defense attorney has to file a motion and make the case to a judge that there is bias or animus in a case. If the judge agrees that there is more reason than not to believe the case has been infected with bias, the case moves to evidentiary hearings, where the judge will determine if the facts actually do amount to bias.

If a case meets that threshold, then it moves to remedy, where the judge decides how the bias can be cured—either through a new trial, resentencing on a conviction, or pretty much any legal outcome under their discretion.

A review of court documents, appellate rulings, and interviews with defense attorneys indicate the true power of a Racial Justice Act proceeding: the ability to add evidence of bias to the court record through motions.

One motion filed in February revealed that during a juvenile detention hearing in Sacramento County in July 2023, Judge Renard Shepard, who is also Black, referred to a Black minor as a “gangbanger” and said, “He’s got it in his blood, in his culture. He can’t get it out of his system.” 

In October 2021, Orange County’s district attorney, Todd Spitzer, held a strategy meeting with his prosecutors to explore using the race of a Black man’s former girlfriends in a case of double murder, allegedly stemming from a white woman breaking up with him. Ebrahim Baytieh, then the senior assistant district attorney, wrote in a memo to the defense that he recoiled at the tactic of using a victim’s whiteness. “DA Spitzer stated that he disagreed and he knows many black people who get themselves out of their bad circumstances and bad situations by only dating ‘white women,’” Baytieh wrote.

It was the first time in the Racial Justice Act’s history that a judge determined a district attorney was biased.

Another recent motion filed in Orange County involved the case of a Hispanic man experiencing a mental health crisis. Police enforced a restraining order and seemingly attacked and arrested him because he couldn’t speak English. “He starts speaking Spanish,” the officer told his supervisor. “You know what? I don’t have time for this [so] I just grabbed him.”

In the body-camera video, less than 15 seconds passed between the confused man being confronted by the police entering the home, and him being pulled to the ground by his neck.

“You don’t know the importance of just going into the court and fighting it and having these conversations,” said Elizabeth Lashley-Haynes, a deputy public defender for Los Angeles County. “It’s incredibly meaningful to be able to articulate and say to a judge, ‘No, this officer doing that is biased.’”

Emi MacLean, a senior staff attorney at the ACLU of Northern California, published a review of Racial Justice Act cases earlier this year. The relatively few remedies, she said, show how difficult it is for defense attorneys to get the system to recognize officers’ prejudices.

“It is an uphill battle in many cases to be able to convince judges, not to mention prosecutors, who have been operating under a system that has severely limited the ability of individuals to bring challenges to racial biases,” she said. “We would certainly expect that there should be more based on extensively documented disparities in the criminal legal system.”

Life before the Racial Justice Act

Prior to the Racial Justice Act, Californians could only explicitly hold the system accountable for bias through a civil rights lawsuit filed through the civil courts. For some defendants, the new process offers the first-ever opportunity to confront racism and bias they’ve experienced in the criminal legal system—something Terry Bemore hadn’t previously been able to do as he sat on death row for two and a half decades while his case made its way up the appellate courts. 

In 1985, Bemore was arrested for a murder committed during a robbery in San Diego, one of a series of robberies at the time where a “tall Black male” was described as the perpetrator. Four years later, he was sentenced to death.

Court documents in Bemore’s death row appeal two and a half decades later revealed the ineffectiveness of his defense. His lead attorney, Logan McKechnie, allegedly billed the state for hundreds of thousands of dollars for improper trips and reimbursements, while also making comments about not wanting to go into Black neighborhoods with his investigator to pursue leads. In 2000, Elizabeth Barranco, the co-counsel in the case, wrote in a declaration that McKechnie struck jurors who he suspected were gay because he said he “just couldn’t trust queers,” and did little preparation.

McKechnie has gone on to have an esteemed legal career, arguing hundreds of jury trials, including 60 murder cases, winning over 100 awards for service and writing.

In its 2015 decision in Bemore’s case, the Ninth Circuit Court of Appeals found Bemore had “constitutionally deficient representation.” But the panel of three white judges, all born nearly two decades before the passage of the Civil Rights Act, didn’t think the outcome of Bemore’s verdict would have changed with better representation. They upheld Bemore’s conviction, but reversed the death sentence.

In March, Bemore’s lawyers filed a Racial Justice Act motion, arguing McKechnie’s bias led to ineffective counsel. Attorneys working on Bemore’s case from the University of San Francisco School of Law’s Racial Justice Clinic contacted McKechnie to get his side of the case.

“I told Mr. Bemore, ‘Don’t get up there and act like a fucking nigger,’” McKechnie wrote in a declaration for the Racial Justice Act motion. McKechnie recalled that Bemore “was hyper and using street slang” just before he took the stand, writing, “I had never seen Mr. Bemore act ghetto like that before and I was afraid of how the jury would perceive him.”

When McKechnie initially discussed the case with the USF attorneys who were working on the motion, he initially stated Bemore was “shucking and jiving” but then wanted the detail changed: “Don’t say shucking and jiving because that’s too racist.”

In a statement emailed to CalMatters, McKechnie wrote that he wanted the jury to see the man he knew, not what he was becoming behind bars. “It was probably inappropriate to tell him to not act like a nigger on the stand. However, at the time, it was a message I wanted to get to him.”

In some cases, defense attorneys have won for their clients—but regretted not being able to hold the agencies accountable after prosecutors conceded.

In Los Angeles County, Torrance police officers exchanged racist and anti-gay texts in 2021, and some were charged with spray-painting a swastika on a car. Lashley-Haynes filed a Racial Justice Act motion for discovery of more text exchanges, but prosecutors agreed to her resentencing request instead, ending the need for additional disclosure.

“I was actually kind of upset,” she said, but, “I have to be very careful that my desire for the betterment of RJA doesn’t get in the way of what’s best for the client.”

Joseph Hayes was sentenced 41 years to life in prison for driving the getaway car in a 1995 street robbery that resulted in another person’s death. Hispanic and a member of the Choctaw Nation, he grew up in a San Jose neighborhood nicknamed “The Crime Zone.” He spent 25 years in maximum security prison until he connected with defense attorney Brian McComas. The law had been revised since Hayes had been inside to remove the murder culpability for someone indirectly associated with a killing, and he seemed eligible for having his life sentence removed.

But the Santa Clara County district attorney had other plans. The prosecutor on Hayes’ case agreed to remove the life sentence—but suggested replacing it with a sentence totaling 69 years in prison, substantially higher than white defendants charged with the same crime. In January 2022, McComas filed a Racial Justice Act motion using data to show that the new sentence was much higher than what a similarly situated white man would receive.

McComas said the judge had called the attorneys into his chambers to tell them that he was going to resentence Hayes so he would be released, but he wouldn’t be ruling on the Racial Justice Act motion.

“Rather than address the motion and do the right thing and make the RJA law so that it is precedential, he said, ‘I want this case to go away,’” McComas said.

“I’ve had two other cases where very similar things have happened,” he said, “and that’s fine for individuals, but in terms of the purposes of the law, which are to root out systemic racism, that’s not really achieving that goal.”

Hayes has been out of prison for two and a half years and has reestablished his life with his wife and children. He’s now the regional manager of a local custodial company with an ownership stake, but it still bothers him that he passed on a Racial Justice Act motion.

“I still feel guilty for having done that, because my people have been run over constantly by the government and the powers that be,” he said. “I had an opportunity to do my small part, but at the same time, that might’ve really meant me having to go back to prison for another five years, 10 years.”

A decision on Judge Shore

One of the most celebrated victories from the Racial Justice Act comes from Contra Costa County, where motions showed evidence of statistical bias in capital cases and also coincided with an FBI probe into racism and criminal conduct at the Antioch and Pittsburg police departments.

According to a Racial Justice Act motion filed in April 2023 for four defendants, the officers surveilling them exchanged multiple racist texts on March 25, 2021.

“I hate these idiots,” Antioch Police Officer Eric Rombough texted.

“The cops or the niggers?” Detective Jonathan Adams responded.

“All of them,” Rombough replied.

In November 2021, Rombough texted an officer, “Fuck your people. I hate this city.” He added, “I’m only stopping them cuz they black. Fuck them. Kill each other.”

The defendants, Terryon Pugh, Eric Windom, Keyshawn McGee, and Trent Allen, were originally indicted on charges including murder and attempted murder. A judge ruled that police racism tainted the investigation under the Racial Justice Act and that gang enhancements needed to be dropped. In May, all four defendants struck a deal with prosecutors that reduced their charges to manslaughter and removed gang enhancements on their cases. Instead of facing decades in prison, they received sentences between 13 and  20 years.

In February, the 4th District Court of Appeals overturned Judge Shore’s ruling in Bonds’ case.

“Whatever may be uncertain about the Racial Justice Act, there are a few things that are abundantly clear,” the justices wrote in their decision. “Perhaps most obvious is that the Racial Justice Act was enacted to address much more than purposeful discrimination based on race. Indeed, the primary motivation for the legislation was the failure of the judicial system to afford meaningful relief to victims of unintentional but implicit bias.”

The higher court found that Shore misunderstood the statute and did not “address the abundant evidence” that at least unintended racial bias influenced Bonds’ traffic stop; the court overturned Shore’s ruling, sending the motion back to the San Diego trial court for a correct application of the law in February.

A little over a month later, Orange County Judge Cheri Pham disqualified Shore from Racial Justice Act cases. “From his comments, a person aware of the facts could reasonably believe

that Judge Shore believes certain racial or ethnic groups commit more crimes than others,” Pham wrote in her ruling.

“I deny that any of my statements or rulings were based on bias, prejudice, or animosity,” Shore wrote in a court statement addressing the motion to have him disqualified. “The statements I made during these various court hearings were merely my efforts to gain a greater understanding of the facts and the law and were in the furtherance of the discharge of my judicial duty to accurately apply the law to the facts as presented.”

Shore’s department that handled pretrial screening was shut down.

But the San Diego Public Defender’s Office doesn’t have the resources to appeal all of his denials. And aside from ruling on Racial Justice Act motions, Shore has presided over hundreds of criminal jury trials.

This story was produced in partnership with the Garrison Project, an independent, nonpartisan organization addressing the crisis of mass incarceration and policing.