U.S. Supreme Court

Sotomayor: Prosecutor remark tapped 'deep and sorry vein of racial prejudice'


Photo of Sonia Sotomayor by collection of the
Supreme Court of the United States, Steve
Petteway, via Wikimedia Commons.

In an unusual statement issued Monday, Justice Sonia Sotomayor decried a prosecutor’s “racially charged remark” about money, minorities and drug deals, though she agreed with a decision to deny cert in the case.

Sotomayor’s statement (PDF) was joined by Justice Stephen G. Breyer. “The prosecutor here tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our nation,” Sotomayor wrote. The case is Calhoun v. United States.

The African-American defendant, Bongani Charles Calhoun, had claimed in his trial for drug conspiracy that he was on a road trip with friends and didn’t realize they were about to engage in a drug transaction. Calhoun testified he left the group when a friend arrived in a hotel room with money. Calhoun said he didn’t know what was happening, but he decided he didn’t want to be there. On cross-examination, the prosecutor asked this question:

“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?”

The question should never have been posed, Sotomayor 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,” she wrote. “Such conduct diminishes the dignity of our criminal justice system and undermines respect for the rule of law. We expect the government to seek justice, not to fan the flames of fear and prejudice.”

The U.S. Supreme Court was correct, however, to deny cert, Sotomayor said. Calhoun had claimed the remark violated his constitutional rights. But his lawyer “inexplicably” failed to object to the remark at trial, Sotomayor said, and his appellate lawyers made arguments for an automatic reversal in the cert petition that had been forfeited on appeal.

Sotomayor also criticized the federal government’s arguments when the case was argued in the New Orleans-based 5th U.S. Circuit Court of Appeals. The government had called the prosecutor’s question “impolitic” and said it did not prejudice the outcome “even assuming he question crossed the line.” The Solicitor General later acknowledged the question “was unquestionably improper.”

“I hope never to see a case like this again,” Sotomayor wrote.

Sotomayor had expressed concern about a trial “marred by racial overtones” in 2011 when she dissented from a cert denial in the case of Duane Buck. He had sought to overturn his death sentence because a defense expert testified that being black increases the statistical probability of future dangerousness.

Subsequent coverage:

ABAJournal.com: “Federal prosecutor defends himself after Sotomayor blasts his trial question as ‘racially charged’ “

Updated on Feb. 26 to include information on the Duane Buck case, and on Feb. 28 to link to subsequent coverage.

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