Racism should never be harmless

I read the California Supreme Court's four new Racial Justice Act rulings while I was in the middle of a trial. So, I read them like a defense lawyer, not like a professor. My first reaction was simple: one ruling is good news; the rest should worry us.

The good news comes via People v. Bankston (2026 DJDAR 4276). For the first time the court threw out a death sentence because of the Racial Justice Act. During the penalty phase, the prosecutor told a "Bengal tiger" story to paint a Black defendant as a dangerous animal who only looked calm in his suit. The court said that kind of argument is not allowed, and that the Bengal tiger story should never be told in a California courtroom again. The court also said that everyday phrases like "eager beaver" or "free as a bird" are fine. That makes sense. The law is about racial bias, not about every figure of speech.

But the other rulings are where we need to pay attention. In the same week, the court kept two death sentences in place, in cases called People v. Demolle (2026 DJDAR 4347) and People v. Barrera (2026 DJDAR 4425). It changed a third case, People v. Chhuon & Pan (2026 DJDAR 4388), but for reasons that had nothing to do with the Act. The bigger deal is the new rule the court set for old cases. For any conviction that became final before Jan. 1, 2021, the court said a racially biased comment does not automatically get you a new trial. Now the prosecution can keep the conviction if it can show the bias was "harmless." In plain words, they get to argue that the racism did not change the outcome.

Here is my problem with that. The law the Legislature wrote says nothing about "harmless error." It says the court must throw out the conviction or sentence when there is a violation. The Legislature even wrote that racism, in any amount and at any stage, is a miscarriage of justice. The court added the harmless-error step on its own. So now we have two sets of rules. Newer cases get the strong protection the law promised. Older cases, which are often the most serious ones, including death penalty cases, have to clear a much higher bar.

There is another issue. The court says judges should look at the "context" of each comment to decide if it crossed the line. That sounds fair, but in practice it just means it depends on the facts and on the judge. There is not much clear guidance. That is hard on a defendant whose record is thin, and it is hard on a trial judge who has to rule on the spot.

So, what should we do as defense attorneys? A few things.

First, make a good record. The moment a prosecutor says something with a racial edge, object and say clearly on the record why it is a problem. If you can, bring in comparison evidence or an expert. The cleaner your record, the harder it is for a court to later call the bias "harmless."

Second, use the death-penalty rule. If you prove a violation under section 745(a), your client cannot get the death penalty, even if the court thinks the bias was harmless. That is a separate protection. Do not let it get buried inside the harmless-error fight.

Third, use the 2025 law, AB 1071. It spells out that racially biased language includes comparing someone to an animal, or pointing to their looks, culture or background. It says that if the state admits a violation, relief is presumed. And it says that taking the death penalty off the table is not enough by itself. AB 1071 shows the Legislature still wants this law applied strongly. It is a good reason to keep the new harmless-error rule limited to the old pre-2021 cases only. For current cases, the statute still says the court has no choice but to grant relief, and we should fight to keep it that way.

The biggest questions are still open. The court did not decide whether the Legislature even has the power to tell judges they must reverse a case. It also did not decide how an old death-penalty law from 1978 fits with all of this. Those fights are coming. Expect prosecutors to try to use the harmless-error rule in more and more cases, and expect us to push back and keep it where it belongs.

I have spent my career in the courtroom, not writing about it, so I will keep this simple. The whole point of the Racial Justice Act was to stop asking whether racism "mattered" in a case and simply say that racism has no place in our courts. Bankston got that right. The new harmless-error rule pulls the other way. Our job is the same as always, just more important now. Build such a clear record that no judge can ever call racism in a courtroom "harmless," because it never is.