Sotomayor also found "troubling" the government's actions on appeal in the case.
"Before the Fifth Circuit, the Government failed to recognize the wrongfulness of the prosecutor's question, instead calling it only 'impolitic' and arguing that 'even assuming the question crossed the line,' it did not prejudice the outcome," Sotomayor wrote. "In this Court, the Solicitor General has more appropriately conceded that the 'prosecutor's racial remark was unquestionably improper.' Yet this belated acknowledgment came only after the Solicitor General waived the Government's response to the petition at first, leaving the Court to direct a response."
She ended by writing, "I hope never to see a case like this again."
In the lower court appeal, Judge Catharina Haynes of the Fifth Circuit also addressed the prosecutor's comments, writing, "First, it should be very clear (certainly to a lawyer licensed thirty-seven years in Texas) that such racially-charged comments are completely inappropriate for any lawyer.
"Finally, perhaps the most troubling of all is how the United States Attorney's Office has handled this matter thereafter. While I do not fault the determination to argue in favor of sustaining the verdict, I am dismayed by the cavalier approach to this situation. Let me clear up any confusionthe question crossed the line. An apology is in order, and I do not see it in the briefing. Indeed, it should trouble the Assistant United States Attorney in question and all those in his office not just that he said such a thing, but that he thought it. The title 'prosecutor'indeed, the title 'lawyer'demands better. I hope I will not have to say this again."
Neither the judge nor the justice named the assistant U.S. attorney, but the trial transcript indicates that Ponder gave the closing argument.
Campaign finance case
The Supreme Court on Monday also denied review in a closely watched campaign finance case.
The criminal defendants in U.S. v. Danielczyk had challenged the federal ban on direct contributions to candidates by corporations. They had argued that the ban violated the First Amendment based on the justices' reasoning in Citizens United v. Federal Election Commission, the 2010 decision invalidating the federal ban on the use of corporate or union general treasury funds for independent campaign expenditures.
"Today's decision does nothing to mitigate the Court's disturbing decision last week to revisit the aggregate contribution limits passed in the wake of the Watergate scandals, which if overturned would enable individual to make contributions of one-, two- or even three-million dollars to buy influence in Washington," said Campaign Legal Center senior counsel Tara Malloy in a statement."But at least today the Court has decided to stay its deregulatory hand."
Marcia Coyle writes for The National Law Journal, a Daily Report affiliate.