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 youa light bulb doesn't go off in your head and say, 'This is a drug deal?' "
In rebuttal comments at closing, the prosecutor said:
"I got accused by [defense counsel] of, I guess, racially, ethnically profiling people when I asked the question of Mr. Calhoun, 'Okay, you got African-American[s] and Hispanics, do you think it's a drug deal?' But there's one element that's missing. The money. So what are they doing in this room with a bag full of money? What does your common sense tell you that these people are doing in a hotel room with a bag full of money, cash? None of these people are Bill Gates or computer [magnates]? None of them are real estate investors."
Calhoun, an African-American, claimed that the racially charged comment on cross-examination violated his constitutional rights and unsuccessfully sought reversal of his conviction in the U.S. Court of Appeals for the Fifth Circuit and review in the high court.
Both courts found that Calhoun forfeited his claim that the comment constituted structural or plain error because he failed to raise that argument in his appeals.
"There was a time when appeals to race were not uncommon, when a prosecutor might direct a jury to 'consider the fact that Mary Sue Rowe is a young white woman and that this defendant is a black man for the purpose of determining his intent at the time he entered Mrs. Rowe's home,' wrote Sotomayor, adding, "or assure a jury that 'I am well enough acquainted with this class of niggers to know that they have got it in for the [white] race in their heart.' The prosecutor's comment here was surely less extreme. But it too was pernicious in its attempt to substitute racial stereotype for evidence, and racial prejudice for reason."
She called it "deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st century."