Justice Sotomayor's Admonishment of Prosecutor Widely Noted

The statement of Justice Sotomayor in Calhoun v. United States is available in Adobe .pdf format.

"In rare move, Supreme Court justices chastise prosecutor," is Marcia Coyle's report at National Law Journal.

In a rare and forceful slap down of a federal prosecutor, Justice Sonia Sotomayor, joined by Justice Stephen Breyer, devoted a nearly five-page statement on Monday to the prosecutor's racially charged remark during a drug conspiracy trial in Texas.

The U.S. Supreme Court denied review in Calhoun v. U.S., but Sotomayor wrote separately "to dispel any doubt whether the court's denial of certiorari should be understood to signal our tolerance of a federal prosecutor's racially charged remark. It should not."

The remark came during cross-examination of Bongani Charles Calhoun, who claimed he did not know that the friend he had accompanied on a road trip, along with the friend's associates, were about to engage in a drug transaction. Calhoun testified that he detached himself from the group when his friend arrived at their hotel room with a bag of money. On cross, Sam Ponder, an assistant U.S. attorney in the Western District of Texas, repeatedly pressed Calhoun on why did not want to be in the hotel room. The judge eventually ordered the prosecutor to move on, at which point the prosecutor asked:

"You've got African-Americans, you've got Hispanics, you've got a bag full of money. Does that tell you—a light bulb doesn't go off in your head and say, ‘This is a drug deal?' "

ReutersLegal posts, "Justice Sotomayor laments prosecutor's racially charged question," by Lawrence Hurley.

U.S. Supreme Court Justice Sonia Sotomayor on Monday condemned racially charged language used by a federal prosecutor in Texas.

The justice, appointed to the court by President Barack Obama in 2009, took the relatively unusual step of writing a statement to accompany the nine-member Supreme Court's announcement that it would not take up a criminal case.

And:

The first Hispanic Supreme Court justice, Sotomayor wrote that the prosecutor had "tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our nation."

The question was "pernicious in its attempt to substitute racial stereotype for evidence," she added. Sotomayor also accused the Obama administration of playing down the issue.

"Justice Sonia Sotomayor slams Texas prosecutor for racial remark," by David G. Savage in the Los Angeles Times.

Sonia Sotomayor, the Supreme Court's first Latina justice, slammed a Texas prosecutor Monday for citing race as grounds for convicting a defendant of a drug deal, saying the government attorney had tried to "substitute racial stereotype for evidence and racial prejudice for reason."

She filed a rare statement commenting on the court's refusal to hear an appeal, not to dissent from the decision but to "dispel any doubt" that the action "should be understood to signal our tolerance of a federal prosecutor's racially charged remark. It should not."

Sotomayor, who began her career as a prosecutor in New York, said she was troubled by what happened.

"By suggesting that race should play a role in establishing a defendant's guilt, the prosecutor here tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our nation," she wrote. "… It is deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st century."

"I hope never to see a case like this again," she said in a statement joined by Justice Stephen G. Breyer.

The Washington Post reports, "Sotomayor chides prosecutor for ‘racially charged’ question," by Robert Barnes.

The justices did not accept Bongani Charles Calhoun’s request that the court review his conviction, but Sotomayor appended a scathing statement to make sure that the court’s denial would not be seen as a signal of “tolerance of a federal prosecutor’s racially charged remark.”

Sotomayor did not name Assistant U.S. Attorney Sam L. Ponder in her statement, but she denounced his questioning of Calhoun, who maintained in court that he did not know that the friends with whom he was traveling were planning a drug deal.

And:

Sotomayor said she agreed with the rest of the court that technical mistakes by Calhoun’s trial attorney — “Inexplicably . . . Calhoun’s lawyer did not object to the question” — meant his petition should be denied. But she added, “I hope never to see a case like this again.”

Sotomayor’s statement came on a day when the court struggled to find a balance between society’s interest in bringing finality to criminal prosecutions and a defendant’s right to receive competent counsel or to present new evidence of innocence.

Politico posts, "Sotomayor slams prosecutor's racial remarks," by Tal Kopan.

Normally, when the Supreme Court declines to hear a case, the clerk simply issues a one-line order saying certiorari is denied, but Sotomayor wrote in her opinion that she wanted “to dispel any doubt whether the Court’s denial of certiorari should be understood to signal our tolerance of a federal prosecutor’s racially charged remark. It should not.”

Additional coverage includes:

"Sonia Sotomayor rebukes federal prosecutor for racially charged remark against Latinos, blacks," by Pete Williams at NBC Latino.

"Shaming Bad Prosecutors," by Radley Balko at Huffington Post.

"Federal Prosecutor Says the Presence of African-Americans, Hispanics, and Money Must Mean There's a Drug Deal, Then Claims He "wasn't trying to interject race" Into the Case," by Peter Suderman at Reason's Hit & Run blog.

Related posts are in the race index.