Two Supreme Court justices reprimanded a federal prosecutor over racially insensitive remarks in a drug case — with the unusual move coming as the court rejected a review of the defendant’s appeal.
In a strongly worded statement, Justice Sonia Sotomayor said on Monday that prosecutor's remarks about an African-American suspect were “an affront to the Constitution's guarantee of equal protection of the laws,” CNN reports.
The prosecutor, identified in a trial transcript as Assistant U.S. Attorney Sam Ponder, said during cross-examination in a drug-conspiracy case: “You've got African-Americans, you've got Hispanics, you've got a bag full of money. Does that tell you — light bulb doesn't go off in your head and say, This is a drug deal?”
The only Hispanic justice on the high court, Sotomayor wrote that the question had “tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our nation,” Reuters reports.
The question was “pernicious in its attempt to substitute racial stereotype for evidence,” she added.
The justice, named to the high court in 2009 by President Barack Obama, also accused the White House of playing down the issue.
She agreed with the majority that the appeal from Bongani Charles Calhoun should be rejected for procedural grounds, but lashed out at the prosecutor’s comments. Justice Stephen Breyer, who also voted with the majority, signed on to Sotomayor’s reprimand.
“It is deeply disappointing to see a representative of the United States resort to this basic tactic more than a decade into the 21st century,” she said, according to CNN. “We expect the government to seek justice, not fan the flames of fear and prejudice.”
Generally, justices do not comment on the appeals they summarily dismiss. If so, the justices might provide a brief written response. But not in this case.
“I write 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,” Sotomayor said, according to CNN. “It should not.”
Calhoun wanted the Supreme Court to order a retrial because he said his right to a fair trial was violated when the question was asked. He was convicted of three offenses stemming from the drug conspiracy in Texas and was sentenced to 15 years in prison.
The issue was whether Calhoun was a willing participant, or was just simply present when others sought to buy drugs from undercover federal agents, CNN reports.
During the trial, Ponder repeatedly pressed Calhoun about his claim he did not want to be in the hotel room in the first place. That is when the inflammatory remarks were made, CNN reports.
Calhoun's lawyers did not formally challenge the statement, or a subsequent remark by Ponder.
He told the jury: "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.”
The justices in rejecting Calhoun's appeal apparently accepted the lower appeals court's conclusion that the inmate never established that the insensitive comments necessarily prejudiced the outcome of the criminal trial, CNN reports.
Sotomayor and Breyer also criticized the Justice Department for its initially tepid response to the remarks, with officials telling an appeals court they were only “impolitic,” CNN reports.
The solicitor general, the Obama administration's top lawyer before the high court, later acknowledged the remarks were “unquestionably improper.”
“I hope never to see a case like this again,” Sotomayor said.
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