Russell Lynwood Austin murdered his pregnant ex-girlfriend in her apartment with her two-year-old present. Austin slit her throat so violently that he nearly decapitated her. Austin then fled, leaving her bloody body, and her dying fetus, with the naked two-year-old child. The D.A. charged Austin with double-homicide and sought the death penalty.
But Austin is a racial minority and thus entitled to the protections of the Racial Justice Act. He challenged the death sentence, citing crimonology statistics on race disparities in charging and sentencing. The trial court denied the motion, ruling that statistical analysis alone did not meet the threshold showing. The majority in Austin v. Superior Court (D2d2 Jan. 25, 2024 No. E080939) basically agreed, but remanded for an evidentiary hearing.
Under the Racial Justice Act, a defendant challenging the charges or sentencing against him must satisfy the following two-prong test: (1) that the defendant personally was being charged more harshly than similarly situated defendants of other races or ethnicities; and (2) statistical evidence shows a historic pattern of racial inequality in the jurisdiction’s capital charging practice.
The problem was that, on prong one, the Legislature had provided no guidance how to show the defendant “personally” was charged more harshly than “similarly situated” nonminorities.
The defendant, along with several law professors including Erwin Chemerinsky, argued that a defendant should be able to establish both prongs using merely statistical evidence. But the majority disagreed. After all, statistics merely show the charges, the sentence sought, and the race of the defendant—not the facts indicating the ruthlessness of the act in relation to other cases.
While declining to create a bright-line rule, the court concluded that showing similar conduct likely “requires some sort of review of the underlying facts of the other cases.” Mere statistical evidence was not enough here—but in another case, it might be.
The court issued a writ of mandate directing the trial court to hold an evidentiary hearing “to consider all of the relevant factors in charging and allow the District Attorney to present race-neutral reasons for the disparity in seeking the death penalty.”
Justice Menetrez concurred to say that he would hold that statistical evidence is enough to establish the ‘similar conduct’ threshold.
While the Austin majority puts more burden on the defendant than merely to recycle the same race-and-crime stats in every case, defendants still have enormous rights under the Racial Justice Act. To get the evidence to make his motion under the Act, the defendant can get the law-enforcement agency to cough up any information that is “relevant to a potential violation” of the Act. Young v. Superior Court of Solano County (2022) 79 Cal.App.5th 138. As Brenda Star Adams reported in the Daily Journal, “public defenders share anecdotally that raising violations of the Act is resulting in better plea offers from prosecutors.”
So if the Riverside County District Attorney has any information about times it did not seek the death penalty when a nonminority nearly decapitated his pregnant ex-girlfriend in front of her two-year-old, California affords Austin an absolute right to discover it.
"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."
— Sir Thomas More in Robert Bolt's A Man for All Seasons
Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.
"A judge is a law student who grades his own papers."
— H.L. Mencken
“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”
— James Madison, Federalist 62
"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."
— Roscoe Pound, An Introduction to the Philosophy of Law
"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."
— Posz v. Burchell (1962) 209 Cal.App.2d 324, 334
"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."
— Hon. Sir Owen Dixon, Chief Justice of Australia
"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."
— Plato (427-347 B.C.)
"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."
—T.H. White, The Once and Future King
"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."
— Rubin v. Green (1993) 4 Cal.4th 1187