On Feb. 2, 2013, at around 2:30 in the morning, Julian Acox asked his girlfriend Vickie to stop at a 7-Eleven near downtown Reno, Nevada, to pick up a cigar. They’d been out at a few bars for a friend’s birthday, and on their way home were planning to drop off Vickie’s friend, Jessica, who was in the back seat.
Vickie parked the car in front of the 7-Eleven, two spaces away from a silver SUV. Inside the SUV were three men and a woman, all members of a motorcycle club based out of Elko, Nevada. The four called themselves “Ruff Ryders,” though the Elko Ruff Ryders were not formally affiliated with the larger motorcycle organization of the same name. The group had also been out that night, and at the last strip club they visited, one of the Ruff Ryders noticed a young black man who seemed to be watching them. When they saw Julian leaving Vickie’s car later that night, he fit the bill: young black male. Early 20s. Baseball hat.
Merlin Herrald, the president of the unofficial Ruff Ryders chapter in Elko, got out of the SUV first. While Julian leaned into the passenger seat of Vickie’s car to get change, he heard Vickie and Jessica yell, “Watch out behind you!” Almost simultaneously, Julian felt Herrald push him from behind.
Responding not only to the push, but also to Vickie and Jessica’s warnings, Julian reached into the space next to the passenger seat, grabbing a CZ 9mm pistol that he had put there earlier in the night, tucking it into his waistband. When Julian turned around, he first saw Merlin Herrald. Herrald was 6-foot-7, 280 pounds (nearly a foot taller and 70 pounds heavier than Julian). He was dressed in a black leather vest embroidered with the Ruff Ryder’s insignia, and a red baseball hat. Herrald had Julian pinned against the car and was asking if Julian had a problem with him. He said something about “following his girl.” Herrald was in Julian’s face, his chest bumping against Julian over and over.
Pushing away, Julian managed to gain some space from Herrald. Then Julian pulled out his firearm. Herrald backed up a few steps, but didn’t back down. As Julian testified at his trial two years later, Herrald said, “We got guns too,” then told Acox to “fight like a man.”
But Julian had no intention of fighting Merlin Herrald; instead, he just wanted to leave. Julian went into the 7-Eleven, hoping that if he left the area the situation would diffuse. But when he returned from the store, Herrald was blocking his path back to Vickie’s car. At this point, another of the Ruff Ryders, Charles Lundquist, came out of the SUV and approached Julian from behind; his hand was behind his back, suggesting to Julian that Lundquist was reaching for a firearm tucked into his waistband at the small of his back.
“Get your hands up, brother,” you can hear Julian yell to Charles Lundquist on the 7-Eleven surveillance film. “Get your hands up!” he says again. By all accounts, Charles keeps his hand behind his back, but still Julian doesn’t fire. He pushes his way past Merlin Herrald, finally making it back to Vickie’s car.
“Get your bitch ass out of here,” one of the Ruff Ryders yells. The girls are hysterical by now, but Julian thinks that the danger is over. He’s in the car, away from the threat. The car backs up, then pulls forward out of the parking lot. Vickie stops the car at a stop sign just outside of the lot, still in view of the 7-Eleven.
A mock-up of the crime scene used at trial, created by Ryan Cullins at Zero8 Studios.
Jessica, in the back of the car, looks back to the 7-Eleven parking lot. The Ruff Ryders are still facing their car, and she sees Charles reaching behind his back.
“They’re going to shoot!” Jessica screams.
This is the critical moment. The moment that will end Merlin Herrald’s life, and will change Julian Acox’s life forever. She screams it again. “They’re going to shoot!” and this time she ducks her head in between her legs, hiding herself from the bullets she expects to begin hitting Vickie’s car.
The gun is still on Julian’s lap; he has time only to glance back at the parking lot, where he sees the two shadowy figures of Merlin Herrald and Charles Lundquist. He leans out of the already-open window and fires twice, just enough to allow Vickie time to get the car out of the line of fire.
“A one-in-a-million shot,” the lead detective would later say. Ninety feet away, out of a moving vehicle. Two shots, two hits. Both bullets strike Merlin Herrald, one in the abdomen, the second in the hip. The internal bleeding is catastrophic; by the time the first police officer shows up two minutes later, Herrald is unresponsive. He’s rushed to a hospital in downtown Reno, where he’s pronounced dead.
Julian, Vickie and Jessica take off; Julian lays low in Reno for a few days, but by the time he returns to Sacramento to consult with his family about the shooting, there is already a warrant out for his arrest for murder. Two weeks later, Julian takes a bus from Sacramento to Reno, then from downtown Reno to the Washoe County Sheriff’s Department, where he turns himself in. The lead homicide detective at trial, two years later, would testify that Julian was the first murder suspect in his 25-year career to self-surrender.
***
When my law partner Theresa Ristenpart and I received Julian’s case a year-and-a half later, we puzzled over why the case still didn’t have a disposition (and more important, why Julian was still in jail). It seemed like a clear-cut, self-defense case; circumstances that—in a state like Nevada that prides itself on “Open Carry” and “stand-your-ground” laws—would ordinarily be dismissed outright or pled down to a probationable offense such as manslaughter. I’d been a practicing defense attorney for six years, Theresa for 10. We’d both worked murder cases before, but the cases that made it to trial were most often those without any plausible defense: a man who shot his girlfriend in the back of the head during an argument, another who bludgeoned an ex-roommate with a ball-peen hammer. “Defensible” homicides—killings with plausible defense theories such as self-defense—are almost always plea-bargained, simply because the stakes are too high for either side to roll the dice with an unpredictable jury trial.
Instead, Julian had spent a year and a half in jail, and was still facing first degree murder charges. We were the fourth set of attorneys assigned to Julian’s case, due to conflicts of interest requiring reassignment of the case. Under his last attorney, Julian had actually entered a guilty plea to second degree murder with a deadly weapon enhancement on the eve of trial, but had immediately withdrawn his plea, telling the judge that his defense attorney had coerced him into pleading guilty rather than preparing for trial. When I approached the deputy district attorney trying the case, he showed little interest in discussing the facts of the case. All plea negotiations beyond a second degree murder were off the table, he told me.
As we began to litigate Julian’s case, I was all too aware of the racial context of killing in self-defense as it played out nationwide. The summer before, George Zimmerman had been acquitted in the death of Trayvon Martin, an unarmed black teen in Florida. Soon after we received Julian’s case, Michael Brown was killed by Darren Wilson, a white police officer in Ferguson, Missouri. As we filed motions in preparation for Julian’s murder trial, I watched my television screen light up with protests as the district attorney in Ferguson announced that Wilson would not even face trial for Brown’s death. The Zimmerman acquittal and the Ferguson grand jury’s failure to indict Darren Wilson seemed to confirm what we already suspected: that the law would protect white shooters who killed young African-American men in self-defense.
The national attention suddenly focused on race-based disparities in the criminal justice system made Julian’s case all the more important to me. I saw the charges against Julian in a greater context, one in which black lives were not afforded the same value as white lives, regardless of what side of the gun they were on. Race and self-defense had, suddenly, become a political issue.
But more important, I believed in the case because my client believed in the case. Julian, from the outset, knew that what he did was not criminal, was not even immoral—that’s why he’d returned to Reno and turned himself in. It was this sort of case that drew me to indigent defense in the first place: the opportunity to defend the innocent, to speak on behalf of those most vulnerable to systematic injustices.
However, on a practical level, the implications of the events occurring nationwide were also deeply unsettling for me and for the rest of the defense team. The lesson that I gleaned from Ferguson and from Florida was that the practice of instinctively viewing young black men as dangerous was not an aberration of some backward police department in the Midwest, but was in fact the norm. Julian’s case would be tried in Nevada, a state not known for progressive race relations. What evidence was there to suggest that a Nevada jury would value the life of a young black man any differently than the grand juries in Missouri and Florida?
Julian Acox’s case presented a new question, though: Would the laws that protected George Zimmerman and Darren Wilson equally protect a young African-American male who used a firearm to protect himself and the two (white) women with him?
What I found over the next eight months leading up to Julian’s murder trial is, perhaps not surprisingly, that self-defense may be investigated and tried very differently when the shooter is a young black male. From our vantage point as Julian’s defense attorneys, race seemed to affect every level of the criminal justice process—from the initial investigation, to the grand jury proceedings, to the attorney-client relationship, to the evidence the prosecutor sought to introduce at trial. As this article seeks to illustrate, race appeared to influence the proceedings in ways both subtle and overt, in a manner that was shocking to me, even after working for more than six years as a criminal defense attorney.
***
A retired deputy DA once told me that while he was working as a prosecutor in Reno in the 1980s, a sign in the Washoe County District Attorney’s Office read, “Sin ain’t sin when good people do it, and it’s never a sin to shoot a son-of-a-bitch.” It’s a line I’ve thought a lot about since Julian Acox’s case was given to a jury of 12 people for deliberation on the afternoon of March 24. There’s so much packed into that line; on the one hand, it’s a concise statement of the right to self-defense. While the act of killing may seem inherently evil, what’s most important in determining the legality of the killing is the character of the killer at the time of the killing. If it’s done for good reason, by “good people,” it’s justified.
On the other hand, it’s a troubling line; the prosecutor is told to determine for himself who is a “good person,” and who is a “son-of-a-bitch.” In a place like Washoe County, Nevada, is it realistic to think that race (and age, and gender) won’t come into play when a prosecutor determines who is “good people”? Race is clearly at issue in Washoe County, where the 2013 census estimated that the population is 2.6 percent African-American. Is a 22-year-old black male with cornrows, baggy clothes, a stiff-bill baseball hat and a 9 mm as likely to be considered a “good person” as a 50-year-old white male in cowboy boots?
***
In a law review article published in the wake of the Trayvon Martin shooting, Cynthia Lee explains what most of us already know, that “Blacks in general, and young Black men in particular, are the subjects of the ‘Black-as-Criminal stereotype.’” This stereotype, according to Lee, “links Blacks with violence, dangerousness, and criminality.” As a defense attorney, I saw the effects of this stereotype time and time again: dash cam video of a highway patrolman pulling over a young African-American couple because the woman was dancing behind the wheel, a police officer admitting on the stand that a black man in a parked SUV constituted probable cause.
But it’s difficult to address race bias in a culture that often considers itself “post-racial.” The idea behind Lee’s “Black-as-criminal” concept is not that people are racist in the classic, mid-20th century sense of the word, but rather that social and experiential factors create subtle biases in all people. A fellow defense attorney put it this way: “The problem with the race issue is that we are conditioned to deny it. The average white person wants to believe that race is no longer an issue and that their decisions are not influenced by their subconscious bias. Northern Nevadans think Missouri has race problems, Kentucky has race problems, the South has race problems, but not us.”
Growing up in Northern Nevada, I knew this to be true. Reno is fairly diverse, in many ways: the county population is nearly 25 percent Hispanic/Latino, but is still predominantly white. My father had immigrated from Spain and I myself grew up in a bilingual household. Latino and Asian students were the norm in my high school and college classes. The African-American population in Reno, however, is nearly nonexistent (though you’d never guess it if you came along on a visit to the Washoe County Jail). There were probably fewer than a dozen African-American students in my high school, which had an enrollment of well over a thousand. Growing up in Reno, I knew that most prospective jurors simply would have had little interaction with African-Americans. If Nevadans didn’t think they had a bias against African-Americans, that’s probably because they didn’t see many African-Americans.
These demographics worried us as we began to prepare for Julian’s trial. As you might imagine, the threat of the specific type of racial bias that associates African-Americans with dangerousness and criminality is particularly harmful in the context of self-defense. As Cynthia Lee points out, “[t]he Black-as-criminal stereotype may cause people to perceive ambiguously hostile acts (acts that can be perceived as either violent or nonviolent) as violent when a Black person engages in these acts, but non-violent when a non-Black person engages in the same acts.” In self-defense cases, the significance of this bias cannot be overstressed: In Julian Acox’s case, his entire theory of defense was that the act of shooting and killing Merlin Herrald was both lawful and reasonable. The black-as-criminal stereotype that Lee identifies suggests that a homicide detective or prosecutor—or a juror—is more likely to see the “ambiguously hostile act” of shooting in self-defense (or of even possessing a firearm) as violent, simply because Mr. Acox is a young African-American male.
***
Self-defense is unique in criminal law; the defendant generally isn’t disputing the “what” of what happened, but instead is disputing the “why.” In Julian’s case, for example, we weren’t disputing that Julian had shot and killed Merlin Herrald.
Instead, we were arguing that it was reasonable for Julian to have shot Herrald, based on the circumstances. Proving that a defendant like Julian was acting in self-defense means relying on the police to thoroughly investigate a homicide not just as a suspected murder, but also as a potential killing in self-defense. However, in Julian’s case we saw virtually no investigation into the theory that he acted in self-defense when he shot Merlin Herrald. As we began to sift through the evidence, it appeared that from the outset the lead detective had conducted his investigation based on an underlying premise that Julian Acox was a “thug,” rather than a generally law-abiding individual acting in self-defense. It’s a word that is never explicitly mentioned, but that seems to exist on the periphery of the entire investigation. That Julian had never been convicted of a crime (outside of failing to pay for a speeding ticket), and was active in his daughter’s life, seemed irrelevant to the detective, as did the fact that Merlin Herrald was the leader of a motorcycle “club” with a criminal record, who was both drunk and high when he accosted Julian in the 7-Eleven parking lot.
While watching a recorded interview with Vickie, Julian’s (white) girlfriend and the mother of his child, I was appalled to hear a detective tell Vickie “this is the best thing to ever happen” to her, because Julian would be out of her life after he had been convicted. The detective then went so far as to suggest that it was a foregone conclusion that Julian would later engage in criminal activity (even though he had no criminal record), speculating that “if this thing [the shooting] didn’t happen, there was going to be something down the road [….] It’s inevitable.” The detective seemed to be giving a voice to the “Black-as-Criminal” bias.” (In response to an email asking for comment from the Reno Police Department detective, I received a brief reply from his commanding officer denying any racial basis for this comment and referring any further questions to the department’s attorney.)
And we kept finding similar evidence to suggest the bias was at work. In his police report, the lead detective omitted mention of important facts that would tend to support a claim of self-defense: that the “victim” and his friend had acted in a way consistent with people who had a firearm, despite the fact that no firearms were recovered from any of the Ruff Ryders after police arrived on scene. (They refused to respond, for example, to Julian Acox’s directions to “show me your hands.”) The detective likewise failed to run background checks on the Ruff Ryders, which would have shown that three of the four bikers had criminal convictions incentivizing them to get rid of any firearms before the police arrived—as we argued at trial, it took more than 40 seconds after the shooting for the bikers to call 911, and more than two minutes for the police to arrive, ample time to dispose of a firearm.
***
Two weeks before trial, Theresa and I had our private investigator, April Higuera, serve a subpoena on the lead detective. When she did, the detective agreed to speak with April about the case, not realizing that April had an audio recorder in her pocket.
When April asks him about Julian’s case on the recording, the detective is frighteningly candid: “At this point now in my career I’m so jaded, I say first degree and give him the death penalty,” he says. “I can make every case now a death penalty case.”
Listening to this recording for the first time, I understood exactly how much control law enforcement had over the outcome of a case, and how an investigation can so easily be steered away from a valid claim of self-defense. The casualness of the comment is chilling. The detective chuckles as he says this. He seems proud of this fact: that he can have a man executed, simply because he feels like it.
As we continued listening to April’s interview with the detective, we couldn’t believe what we were hearing. In his account of the events, the detective failed to include the single most important fact supporting Julian’s assertion that he was acting in self-defense: that Julian had fired in response to Jessica screaming, “They’re going to shoot,” and ducking her head to protect herself. Instead, the detective described the shooting only as a “chicken-shit drive-by.” Similarly, in recounting Julian’s actions on the 7-Eleven surveillance video, the detective described Julian in the store “with his gun waving like he’s Wyatt Earp,” and “talking about how he’s a gangster,” though nothing in the video or from eyewitness statements suggests that Julian acted in a manner consistent with this description.
Later, the detective would say that he never even visited the scene of the shooting. In his words, he “didn’t do too much on this [case] because I didn’t have to.” (That the lead detective himself failed to investigate a self-defense theory is ironic; the same detective was cleared of all wrongdoing for the shooting and killing of a suspect in 1999 because it was determined that the detective had acted in self-defense.)
The detective’s failure to consider that Julian killed Merlin Herrald in self-defense seems to be a case study in the “Black-as-criminal” stereotype at work: Julian’s “ambiguously hostile act” (brandishing a firearm in lawful self-defense) is reinterpreted and distorted in the detective’s account into an act that can only be considered as hostile and violent. As we prepared for trial, Theresa and I worried that the detective was right: that he could make any case seem like a death penalty case.
***
After his arrest, the Washoe County District Attorney’s Office sought to indict Julian Acox on an Open Murder charge through a grand jury proceeding. A grand jury proceeding is the first threshold to determine if probable cause exists to proceed with prosecution. Grand jury proceedings are unique, however, in that they are conducted in secrecy, and the only party to present evidence is the prosecutor (as opposed to the other probable cause vehicle available in most states—the preliminary hearing—which is held in public, officiated by a justice of the peace, and in which defense attorneys are allowed to be present and to cross-examine the prosecution’s witnesses). Because no judge or defense attorney is present during a grand jury proceeding in Nevada, the prosecutor is obligated to present to the grand jury evidence that “will explain away the evidence.” (Though, counterintuitively, Nevada courts have interpreted this requirement to mean that theories of defense need not be presented by prosecutors at grand jury proceedings.)
It’s impossible to mention the term “grand jury” without calling to mind the grand jury proceedings following the shooting death of Michael Brown by police officer Darren Wilson. In the Wilson case, many people felt that the Ferguson district attorney Robert P. McCulloch used the grand jury proceedings as an opportunity to avoid a public trial, by intentionally flooding the proceedings with evidence that Wilson was acting in lawful self-defense when he shot and killed Michael Brown. The proceedings took place over three months; nearly 60 witnesses testified and nearly 5,000 pages of transcripts were produced from the hearings before the Ferguson grand jury declined to indict Wilson.
In contrast, at Julian Acox’s grand jury proceedings only five witnesses testified (which included three police officers). The proceedings lasted less than one day. Compared to the 5,000 pages of transcripts in the Ferguson grand jury proceedings, the transcripts from the entire proceeding are 140 pages in length. At the conclusion of the proceedings, the grand jury returned a “true bill” on the indictment, meaning that the prosecutor would be allowed to proceed to trial on first degree murder charges.
The prosecuting attorneys presented little information to “explain away the charges,” at Julian’s grand jury proceeding, despite their duty to do so. To their credit, the prosecutors did elicit testimony from Jessica stating that she saw one of the Ruff Ryders with his hand behind his back, and that she screamed, “They’re going to shoot!” and ducked her head before Julian fired his weapon. However, the prosecutor failed to present evidence of the true context of the confrontation between Julian and Merlin Herrald: that Herrald belonged to a motorcycle group called the Ruff Ryders, that Herrald was with a group of Ruff Ryders at the time he confronted Julian Acox in the 7-Eleven parking lot, that Herrald was wearing a black leather vest embroidered with the motorcycle club’s logo at the time he accosted Julian Acox, that Herrald was nearly a foot taller and 80 pounds heavier than Julian Acox during the initial confrontation, that Julian had ordered Herrald and his associates to “put your hands up” to show that they were unarmed, but that they failed to comply, or that toxicology reports showed Herrald was drunk and under the influence of methamphetamine at the time of the confrontation. (The prosecutors denied being in possession of the toxicology reports, though the reports are time-stamped as having been received by law enforcement well in advance of the grand jury proceedings.)
Instead, during the grand jury proceedings the prosecutor drew attention to racial cues such as the way Mr. Acox held his firearm (using a side-grip instead of a “traditional grip"). Seemingly irrelevant details like these implicitly reinforced the “black-as-criminal” stereotype: not only did a young black man have a gun, but he brandished it like a criminal. And while the intent of the prosecutors—or the role of any subconscious bias—is impossible to prove, the effect of the evidence presented to and withheld from the grand jury seems clear. The inference, quite simply, was that Julian Acox was a “thug” and that Merlin Herrald was nothing more than a “victim.”
Julian Acox, in jail, demonstrating how he fired the gun
However, as explained earlier, though Nevada law imposes a duty on prosecutors to present evidence to “explain away the crime,” the scope and application of this duty is somewhat ambiguous. In denying our Petition for Writ of Habeas Corpus/Motion to Dismiss Charges on this basis, the trial court ruled that the prosecutors’ failure to present exculpatory information did not justify dismissal of charges, and the case was set for trial.
***
Race should have absolutely nothing to do with mounting a legal defense to serious charges. Except, of course, that it does. Race makes for an uncomfortable subject between attorneys and their clients, particularly when—as in Julian’s case—the client is black and the attorneys are non-black.
My law partner, Theresa, had been handling the case for a couple months before I came on board to help with the trial. Theresa is a zealous defense attorney with a reputation as a tough courtroom lawyer. She’s also not afraid of trial—an uncommon trait among defense attorneys, but one that makes her popular with clients looking for their day in court. She’d already spent a lot of time with Julian, and the rapport between them was obvious when I met Julian for the first time at the Washoe County Jail. But despite this rapport, I could sense Julian sizing me up as Theresa introduced us; I was just another lawyer, another white face in a criminal justice system that had kept him in jail for two years for protecting himself and the mother of his child.
Julian had a right to be suspicious of new lawyers. His previous attorney had set the case for trial twice, but on the eve of each trial date, Julian felt that the attorney was unprepared and had not adequately investigated the case. As I mentioned above, investigation is crucial in self-defense cases; without establishing the true context, a self-defense killing tends to look a lot like a cold-blooded murder. The first time, the trial was postponed. The second time, just before the trial date, Julian’s attorney spoke to him at the jail. (By this time, Julian had been in custody for almost a year). According to Julian, his attorney told him that if he didn’t accept the prosecutor’s offer to plead guilty to second degree murder with a deadly weapon enhancement, there was a good chance he would be convicted on the first degree charge at trial. Nevada is a good-old-boy state, his attorney explained. A jury just isn’t going to buy a self-defense claim from a 22-year-old black man.
The issue of race bias presents a moral quandary for a conscientious defense attorney. On the one hand, it is my job to advocate for a client to the greatest lengths the law allows. In a case like Julian’s, this means filing hundreds of pages of motions, carrying out expensive and time-consuming investigation, spending endless hours preparing for trial. And this is true regardless of the case’s chances at success; the first mantra of the defense attorney is that “the client always decides.” As both attorney and client are regularly reminded in court, the decision to plead guilty to an offense or to go to trial is “the defendant’s alone.”
On the other hand, there is a duty to adequately apprise my client of his chance of success at trial. This assessment includes explaining not only the law in the abstract (for example, the laws governing self-defense), but also the realities of the law as I anticipate they will be applied in a specific case, in a specific courtroom, with a specific jury, and with a specific defendant. This, of course, requires that I discuss how a “black-as-criminal” bias might affect the outcome of a case, regardless of whether the law is in my client’s favor.
When I had this conversation with Julian at the Washoe County Jail, it was one of the first times we’d met without Theresa there. We were both friendly with each other, but it was obvious that neither of us trusted each other yet. The only thing I knew about Julian was that he’d killed a man in what appeared to be self-defense. But still—he’d killed a man.
We met in a storage room in his housing unit, where cleaning supplies and extra plastic chairs were stacked against the walls. Through the Plexiglass window, I watched Julian check in at the guard station, then make his way to our little conference room. He’d lost weight in the 18 months he’d been at the jail, and he seemed lost in his baggy orange jumpsuit, gaunter in the face than in the mug shot I’d seen in his file.
“You Gabe?” he said, entering the room. I’d met dozens of clients in this room and rooms like it in the Washoe County Jail; it’s often a feeling-out period, especially with clients who had been through the system before. In these meetings I’m always looking for context cues—a tattoo to suggest gang affiliation, a red jumpsuit to indicate the inmate was in administrative segregation for behavior issues. And the client is sizing you up, too—trying to figure out if you’re fresh out of law school, or if you’re the type of attorney that’s just there to force a plea bargain on them. But as I stood to greet Julian, I didn’t find any of these cues.
“How’re you doing?” he asked, shaking my hand.
It’s a question I don’t get asked much as an attorney, but one that put me at ease. He was soft-spoken, and had a cool calm about him. Despite the circumstances of our meeting, he was smiling.
I started the conversation by talking about the law. Yes, you have a good self-defense claim. Yes, I believe you. Yes, we have evidence that tends to support the claim that you were protecting yourself and protecting your loved ones. And these were all true, but in my mind I knew I was laying the groundwork for what I’d really come to speak to him about.
Eventually, we begin to talk about race. I bring it up in a matter-of-fact way, as if it’s just another reality we need to consider. Another rule of evidence.
We’ll be lucky to have one minority on our jury, I tell him. The prosecutor is going to make you sound like a thug. I’m worried about what happens when the jury sees a video of a young black man with baggy clothes, cornrows, and a baseball hat with a gun in his hand.
What I’m telling him, essentially, is that the law as we know it—the law of self-defense and stand-your-ground—doesn’t really apply to him. Smart and reasonable clients like Julian—the ones willing to listen—they already understand these realities. And here’s the heartbreaking part. That this is what we’re telling them: what would be considered legal for a non-black person to do will likely be considered illegal by a jury because you are a young black man. Through nothing that you’ve done, you fit the unfortunate demographic. You have less of a right to defend yourself. You have less of a right to defend your loved ones. As the law is applied, your life is worth less than other people’s.
By the time Theresa and I received Julian’s case, however, this conversation was more of a formality. Julian had been warned about the perceived dangers of race bias in a self-defense case, to the point that he felt coerced into pleading guilty to a crime he didn’t commit. He seemed eager to get the conversation behind us; he knew the risks of trial, but he also believed in the justness of his actions. We had the conversation, and then we put it behind us. We were going to trial and we were going to run a self-defense claim, “black-as-criminal” bias be damned.
***
There’s plenty of legal rhetoric about prosecutors being “ministers of justice” charged with ensuring a fair and just proceeding, not just securing a conviction. But much of this rhetoric tends to get thrown by the wayside when trial is approaching. At this point, the prosecutor has made up his mind that the defendant is guilty of the crime charged, and the prosecutor’s primary goal is to win at trial.
Inevitably, race is an issue at trial. The prosecutor, of course, knows just as well as the defense attorney how the “black-as-criminal” bias tends to play out in front of a jury, and in many cases will try to capitalize on this bias by highlighting the stereotype to his advantage. (It should be said, of course, that defense attorneys certainly engage in this practice as well, characterizing victims and witnesses in the ways that are most beneficial to their side of the case). In Julian’s case, the State argued that they should be allowed to discuss a second firearm and clip that was later located in Vickie’s apartment, but that was unrelated to the pistol used during the actual shooting at the 7-Eleven. The second gun was relevant, the prosecutor argued at the suppression hearing, to show that Julian was “familiar with firearms.” Further, the prosecutor argued, since it is legal to possess multiple firearms, how could evidence of multiple firearms be prejudicial to the defendant?”
The answer, of course, is obvious. The possession of multiple firearms is precisely the sort of “facially neutral” evidence that, when associated with Julian, capitalizes on fear-inducing imagery of a violent young black man. The prejudicial effect of this sort of “lawful” activity simply doesn’t apply (or applies in less prejudicial ways) to non-black defendants.
In other evidentiary motions, the prosecutor argued to allow evidence at trial that seemed to associate Julian with elements of black criminality. For example, the State petitioned the court to allow at trial the testimony of a young black male who had shared a cell with Julian at the Washoe County Jail. The actual content of the man’s testimony was of little concern to us on the defense team; his statement to the lead detective was primarily a retelling of Julian’s account, which we didn’t dispute. But the real prejudice came from associating Julian with black criminality in the form of this witness, who was not only young and black, but also a convicted felon. Our worry was that, aside from Julian, the only other young African-American male in the courtroom during the trial would be a prototype of black criminality, playing into the jury’s fears. (Ultimately, the court allowed this witness’s testimony, though the State was unable to locate him for trial).
In other pretrial motions, the prosecutor argued to keep out evidence that tended to individualize Julian, or that tended to rebut the black-as-criminal stereotype. In one motion, the prosecutor argued that the defense team “should not be permitted to offer testimony that the defendant was a good boyfriend, a good father-figure,” on the basis that this information was not relevant to the issues at trial. And while the prosecutors may have legitimately felt that this evidence would not be relevant with a different defendant, it seems to me that they failed to realize that such testimony should be admissible to disprove deeply-rooted stereotypes of young African-American males as absent fathers and partners and as potential offenders.
****
The closer to trial we came, the more Theresa and I began to second-guess ourselves. The facts, essentially, were uncontested: Julian had shot Merlin Herrald from a moving vehicle. I began to wonder if, in our affection for Julian and our zealousness to defend him, we’d become too close to the events. That the jury was going to see these undisputed facts and come to the same conclusion the lead detective had: that Herrald’s death had been the result of nothing more than a “chicken-shit drive-by.” The stress of these final days leading up to trial was so intense that a nickel-size chunk of my beard spontaneously fell off in the weeks before jury selection. I was sleeping only a few hours a night, working seven days a week. When I did sleep, I dreamed about opening arguments and cross-examination. I recited the facts of the case to other defense attorneys whenever I had the chance; they agreed that we had a strong case, but they seemed less enthusiastic about our chances than I was. I wondered if they saw something I didn’t, if we weren’t missing a key element of the case.
When we visited Julian at the jail I tried to hide my uncertainty, but I always felt like he knew I was getting anxious. Once or twice, I even caught him trying to bolster my confidence:
“When I get out of here, first thing I’m going to do is make you buy me a Number One from Port of Subs,” he said, a few days before trial.
“Sure,” I said, trying to put on a good front. “Absolutely.”
It was a strange reversal of roles, and one that only added to my anxiety.
***
Julian Acox’s trial lasted six days. The trial went, with a few exceptions, according to script for both sides. The State seemed to be attempting to paint Julian as a reckless, calculating thug who had killed Herrald not out of fear, but out of anger and bravado. Theresa and I focused on the subjective threat that Julian felt when he was accosted by the bikers that night, the rush of fear that compelled him to fire back at the 7-Eleven when Jessica screamed, “They’re shooting!”
But to the jury, this fear was still an abstraction. They were still only the words of an attorney.
On the second-to-last day of trial, Julian took the stand. Theresa and I had visited him at the Washoe County Jail the night before to go over his testimony. It was late, and because the rest of the inmates were asleep we met in the Area Control room, apart from the jail’s housing units. Witness preparation is often a delicate exercise in rehearsing questions and answers, but our job was easy that night. We knew that a rehearsed answer would make Julian seem disingenuous, like the criminal the State had tried to portray over the course of the trial. After eight months actively investigating the case, we still believed that the facts spoke for themselves. There was no need to rehearse an answer. “Just tell the jury what happened,” we told Julian. “The facts are on our side.” We only hoped that a jury in Reno, Nevada, would look beyond the issues of race and consider the facts as they’d been presented.
But we also told Julian to be himself—we had decided early on that our strategy would not be to try to avoid Julian’s race, but to embrace it. Part of this strategy was born of necessity; you simply can’t change the color of a person’s skin for trial. If the attorney tries to transform their client into a person that doesn’t match the witnesses’ description, the jury is going to feel like they’re being lied to. Julian seemed to understand this better than anyone; when we first asked, then begged him to cut his long hair, he was adamant in his refusal. “It’s who I am,” he told us.
As we saw it, the “black-as-criminal” bias—like all biases—only applies in a generic situation, when the observer doesn’t personally know the young Black male in question. To attack the bias, we wanted to jury to feel like they knew Julian the way we did. We weren’t arguing that Julian was not a young black male, that he didn’t dress or talk like a young black male. Instead, our strategy was to individualize him, to make clear that this young Black male was not a criminal, even if his appearance might initially trigger a “black-as-criminal” bias. When he explained the altercation with Herrald on the stand, Julian described his fear in his own words. He spoke the way that he always had in the eight months that we had worked with him—calmly, thoughtfully, in the way that people do when they’re telling the truth. Even when the prosecutor questioned him, Julian’s story was powerful and consistent—I shot that man because I was afraid for my life and for the lives of Vickie and Jessica.
***
On Monday, March 23, 2015—more than two years after the incident at 7-Eleven—the jury heard closing arguments from both the prosecution and the defense. The prosecutor argued that Julian had fired his pistol not in self-defense, but out of anger. That Julian had been so disrespected by Merlin Herrald’s confrontation that he’d waited until Vickie’s car was leaving the parking lot before firing, that he’d had time to deliberate before shooting. It was, in essence, a reiteration of the lead detective’s description of a “chicken-shit drive-by.”
Theresa made closing arguments for our defense team. Her presentation was concise, reviewing the facts, highlighting deficiencies in the State’s case. We’d always planned to make this case about facts, not about race. (But by the end of trial we both realized that race was a part of the facts.) After going over witness testimony, surveillance video, and the application of the law, Theresa couldn’t help but bring up the issue of race in a single question to the jury: “Would we even be here if Julian Acox was white?”
It was a question that seemed to surprise even Theresa. It hung in the air not because it was provocative, but because—in light of the six days of evidence—it was so clearly appropriate. But I worried that the question would come across as “playing the race card,” that the jury would see this as a misdirection, as a distraction from the facts of the case. This single question seemed to linger a half-hour later, when the jury was sent out to deliberate.
After closing arguments the bailiff took Julian back to a holding cell in the courthouse, and I walked down the street to a bookstore. I was suddenly sure that we’d walked Julian into a life sentence, that he’d never see the outside of a prison again. I bought a novel—Eleanor Henderson’s "Ten Thousand Saints"—and spent the afternoon and early evening trying to read. I obsessed over Theresa’s closing, wanted desperately to take back the question she’d asked about race, already felt the guilt that would come with Julian’s conviction.
Almost seven hours later, the jury returned with its verdict. That the jury only took a day to deliberate didn’t bode well for us; a quick deliberation usually means a quick conviction. Julian’s mother and sister had taken a bus in from Sacramento for the verdict, and were sitting in the front row of the spectator’s gallery. As I stood next to Julian, facing the front of the courtroom, we could hear his mother hyperventilating behind us. Julian leaned in towards me; by now, we were both shaking visibly.
“Tell her to breathe,” he told me.
When I turned around, there were only a handful of people in the gallery. A few of Merlin’s family members, some court staff. Julian’s mother caught my eye instantly. We’d spoken on the phone, but this was the first time we’d met in person. Her chest heaved in and out, and Julian’s sister was trying to relax her.
“Breathe,” I whispered to her. She nodded, and tried to force a smile. This was likely the last time she would ever see her son outside of a prison, and Theresa and I had led him there. “Breathe,” I said again.
None of the jury members made eye contact with us—or even so much as glanced in the direction of Julian—when they entered the courtroom with their verdict. When Julian looked at me, I could tell we were thinking the same thing.
“It’s going to be all right,” I lied.
When the bailiff handed the verdict sheets to the judge, the judge looked at the defense table for a long moment. I felt that I might be sick, certain that I was about to watch Julian—a man who I by now considered a friend, but most importantly, who I knew to be innocent—be convicted of murder. I felt the world unhinging, the control of our intricately planned defense slipping away, sounding so stupid in retrospect.
The judge read the charges one-by-one: murder in the first degree, murder in the second degree, voluntary manslaughter, involuntary manslaughter. After each charge, he read the words “Not guilty.” The first sound in the courtroom was the gasp from Julian’s mother.
***
After the final verdict form had been read, Julian collapsed into his chair, weeping. The judge instructed the bailiff to return Julian to the jail, and then to release him. When Julian stood to embrace Theresa and then me, I realized that I had been crying as well.
Julian’s case may seem like a success story; certainly, when the court clerk read out each of the four verdict forms, each acquittal seemed like a victory for us and for Julian. But the process had taken two years of Julian’s life, and for those two years Julian had lived with his neck under a guillotine. Up until the moment the last verdict form was read, Julian had believed that his life was over.
I don’t fool myself into thinking that Theresa’s and my work on Julian’s behalf is the only thing responsible for his acquittal, or that we alone had overcome the influence of the “black-as-criminal” bias that we’d worried about. Consider this: In a county where African-Americans make up 2.6 percent of the population, there were—just by chance—two black jurors on the jury. (That is to say, the jury was nearly 17 percent black). If the jury had followed demographics, would the outcome have been the same? It’s a question that, thankfully, I’ll never know the answer to.
It may seem like overt racial bias on the part of law enforcement or of the prosecutor that brings people like Julian to moments like these (or worse, with different outcomes), but I believe that in most instances it’s something different—implicit stereotypes often become subtly, subconsciously reinforced for those working in law enforcement. In a speech at Georgetown University last year, FBI Director James B. Comey addressed the issue of race bias in law enforcement, and how it differs from overt racism. “Something happens to people in law enforcement,” Comey says. “Many of us develop different flavors of cynicism that we work hard to resist because they can be lazy mental shortcuts.” In the context of a young black male using a firearm in self-defense, this cynicism can be the difference between lawful homicide and murder. It can be the difference between life and life in prison.
In Julian Acox’s case, the lead detective and the prosecutors seemed truly convinced that Julian was acting from malicious, violent motives—even though the evidence showed otherwise. An entire investigation and prosecution can be guided, unconsciously, by the black-as-criminal biases, just as much as anyone else can. The mere introduction of evidence that would ordinarily be less prejudicial with a non-black defendant may be uniquely prejudicial against a black defendant. And this, of course, is exactly why the bias is so dangerous.
I know, of course, that defense attorneys aren’t immune to these sorts of biases. I remind myself that, like the attorneys that prosecuted Julian Acox, I live in a town with a virtually nonexistent African-American population. I have no idea how, with the many African-American clients I’ve represented, bias might affect in subtle ways the manner in which I assess their cases, their chances before a jury. I think of the many times I’ve spoken to minority clients about how a Nevada jury might not give them a fair trial, and I wonder if even this acknowledgment of “the way things are” is itself an endorsement of the bias.
I think back to the motto on the Washoe County district attorney’s wall: “Sin ain’t sin when good people do it.” I believe entirely in the proposition—it’s the right to self-defense and defense of others in a nutshell—but the arbitrariness of its application is what’s so frightening. As a defense attorney, I saw how disproportionately often people of color are forced to defend themselves before a predominantly white criminal justice system. “Good people” tend to look a lot like ourselves—like names and faces that we’re familiar with, like people we know as individuals already. But what happens when good people look like Julian Acox, instead?
Theresa Ristenpart, Julian Acox, and Gabriel Urza, a few days after the verdict
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