RJA Violation Found Against a Prosecutor’s Expert Witness

Editor's Note: Xavier España detail a recent RJA violation found against a District Attorney Office expert witness who tried to associate the Latinx community with domestic violence to prove the defendant was guilty.

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Recently, a man and his public defender filed an Racial Justice Act claim on a prosecution hired expert witness. It was the first of its kind in Santa Clara County where the RJA claim is based on an expert called to testify by the prosecutor.

The RJA claim occurred during trial when a prosecution expert witness exhibited bias in her testimony in front of a jury. The motion argued the expert, Dr. Wilde, expressed bias during her testimony that could have tainted (primed) the jury to deliver the defendant an unfair trial. Dr. Wilde was offered up as an expert in “intimate partner violence” by the prosecution despite having had her psychology license revoked by the California Board of Psychology prior to trial. During her testimony, the prosecution asked “What about accusations of infidelity? Does that ever come up [in circumstances of intimate partner violence]?” Seeing the person facing trial was Latino, she claimed because the defendant is from the Latino community, it’s more than likely true because domestic violence is pervasive amongst Latinx community. She said that those type of antisocial behaviors were “constant” in the “Latinx community.” Dr. Wilde’s statements were dripping with bias and/or animus - especially since no one had asked her about the Latino community, she just targeted the community on her own.

DA Expert Targets Latino Community

The public defender immediately objected to the racial testimony, but the judge overruled it without asking the DA to challenge the objection. This allowed the witness to continue with her answer and in the jury's mind affirmed what she said was accurate or encouraged prejudice in the court. Dr. Wilde went on to say, “I see this [accusations of infidelity] a lot in LatinX community. I have a lot of experience with Spanish-speaking people coming to the United States seeking asylum because of domestic violence where the man will enforce the isolation by accusing her of having a man hidden in the house, threatening her, coming home angry, and looking all over the house.” The DA, by this point clearly seeing the issue with her statements and how harmful they are, tried to save the case,  “I’m -- I’m going to stop you right there. And I’m going to kind of move to a different area”. 

Counsel for both parties approached the judge to engage in an off-the-record discussion. After that sidebar discussion, and based on the prosecution’s motion to strike, the Court issued an admonishment to the jury:

“Members of the jury, the Court is going to strike the last statement or set of statements by this witness regarding the LatinX community. You’re to disregard them and treat them as though you’ve never heard them. Also do not use them as any part of your deliberations in this case.” But the reality is the experts racist responses were already shared and heard by the jury. 

The prosecution also admonished Dr. Wilde, explaining: “My questioning, just so we’re crystal clear, is about intimate relationships generally. I don’t want you to focus whatsoever on any particular communities.” 

Another claim of bias was highlighted by the defense by the fact that the judge allowed the expert witness in question to continue to testify in the same trial after multiple racist comments were said by not dismissing this witness before she caused more harm. The Racial Justice Act motion(pc745) was filed after trial was over. 

Saying to Ignore Racist Testimony Doesn’t Work

The Racial Justice Act motion went through its prima facie stage (the first stage) and won which led to scheduling an evidentiary hearing. The defense hired an expert that studies implicit bias that are specific or related to the case. The defense RJA expert has published a variety of studies on the research and surveys he has conducted regarding bias. This expert witness wrote a declaration after reviewing documents of the case that was shared with him by the public defender. During the actual evidentiary hearing the witness was cross examined and questioned on his opinion whether or not he saw exhibitions of bias in the statements made by the prosecutions expert during trial. In his answers when being questioned by both sides of the court, the RJA expert witness explained that studies have shown that instruction to just forget or ignore testimony or evidence does not work. That in fact sometimes it has an opposite result where it adds emphasis to the evidence that was admonished for some subconscious reason. 

After deliberation, the judge found a violation of the RJA Penal code 745 because the prosecutions expert witness did show bias on race and ethnic background as written in the law. He reiterated the law which specifies in california a conviction can not stand if a judge, attorney, officer, juror or expert witness demonstrates bias towards the defendants race, ethnicity or national origin.

When there is an RJA violation found in a criminal proceeding, the judge has to decide which remedy the court can utilize to eliminate the bias from the case that is specific to the violation itself which is also in the language of RJA pc745. There is a list of remedies available but vary depending on where in the court process the case is for example before judgement or after. 

For this case the trial stage was already completed and the jury had been dismissed but sentencing has still not been decided. This means it is still before the entry of judgment phase and the available remedies are mistrial, discharge the jury and bring a new set of jurors, or the dismissal of following: enhancements, special circumstances, special allegations, and reducing one or more charges. The judge stated that the first two available remedies of re-trial or release of the jury panel are not eligible because it was already past that stage. The judge said they cannot outright dismiss the case because that is not listed, although section (4) says it does not limit any of the remedies under US and California constitution. The judge ended up reducing charges. While the reduction did lower the sentence associated with those charges, the judge left the charge with the heaviest sentence, a “Life” exposure, untouched.

The Next Fight When RJA Violations Are Found Will Be in Meaningful Remedies

The significance of the Racial Justice Act being used in the court are endless for many reasons. It’s comparable to when a new piece of technology becomes available, when at first the applications are not yet understood and its full potential is not yet realized. In the court world in California, the RJA completely changes the way cases can be understood, almost like a virus protection, scanning the case from the beginning to end for bias when an RJA claim is filed. 

For the Racial Justice Act to become a law was a battle in itself. And for an RJA motion to even get to an evidentiary hearing, and for a violation to be found, has been an ever harder effort. And what is learned from this case, where a prosecutor's expert witness was identified as exhibiting bias, another challenge will be securing meaningful remedies from those battles.