Prosecutor: Blacks and Hispanics with money? Must be drug dealers

SCOTUSBlog brings word of a federal case originating in Texas in which a prosecutor made an improper, race-based argument, earning him a stern rebuke from the newest US Supreme Court justice:

The comments by Justices Sotomayor and Breyer on a Texas prosecutor’s racial remarks in a drug conspiracy trial came as the Court denied review in Calhoun v. United States (docket 12-6142).   The two Justices did not dissent from that denial, but said they were commenting “to dispel any doubt whether the Court’s denial of certiorari should be understood to signal our tolerance of a federal prosecutors’ racially charged remark.  It should not.” ...

At the trial of Bongani Charles Calhoun, who is African American, the issue of his intent came up when he was being cross-examined by a prosecutor.  Calhoun had contended that he did not know what was going on when a friend arrived at their hotel room with a bag of money, and had said that he did not want to be there.

Here is what Sotomayor’s opinion said happened next: “The prosecutor pressed Calhoun repeatedly to explain why he did not want to be in the hotel room.  Eventually, the District Judge told the prosecutor to move on.  That is when 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?’ ”

The two Justices went on to criticize not only the prosecutor, but also Calhoun’s defense lawyer for failing to object, as well as Justice Department lawyers for their response.  When the case was on appeal to the Fifth Circuit Court, Sotomayor wrote, “the government failed to recognize the wrongfulness” of the prosecutor’s question, calling it “impolitic.” Belatedly, Sotomayor wrote, the U.S. Solicitor General had called the remark “improper” as the case unfolded in Supreme Court filings.

Sotomayor commented: “It is deeply disturbing to see a representative of the United States resort to this base tactic more than a decade into the 21st Century.”

The two Justices did not dissent from the denial of review, concluding that the Court was right because Calhoun and his lawyer had forfeited the arguments they could have made in lower courts and in their Supreme Court petition.

Go here to read Sotomayor's full statement. Ken at Popehat identified the prosecutor in question as Assistant US Attorney Sam L. Ponder of Texas' Western District in San Antonio. Talking Points Memo (TPM) identified Calhoun's defense attorney at trial, the one who failed to object, as Jay Moritz, who now says he "probably should have asked for a mistrial." TPM added that, "A spokesman for the U.S. Attorney’s Office ... said the incident was referred to the Office of Professional Responsibility at the Justice Department but declined to comment further. The Office of Professional Responsibility is the Justice Department’s internal watchdog tasked with investigating allegations of misconduct involving DOJ attorneys. The Justice Department has not responded to requests for comment about Sotomayor’s statement."

The Supreme Court’s refusal to hear the appeal by Danielczyk and Biagi means that the case will now return to lower courts, either for trial or for a plea.   In their petition, the two contended that the Citizens United decision requires that the flat ban on corporate contributions be struck down.  As usual, the Supreme Court offered no explanation in denying review.
The comments by Justices Sotomayor and Breyer on a Texas prosecutor’s racial remarks in a drug conspiracy trial came as the Court denied review in Calhoun v. United States (docket 12-6142).   The two Justices did not dissent from that denial, but said they were commenting “to dispel any doubt whether the Court’s denial of certiorari should be understood to signal our tolerance of a federal prosecutors’ racially charged remark.  It should not.”
At the trial of Bongani Charles Calhoun, who is African American, the issue of his intent came up when he was being cross-examined by a prosecutor.  Calhoun had contended that he did not know what was going on when a friend arrived at their hotel room with a bag of money, and had said that he did not want to be there.
Here is what Sotomayor’s opinion said happened next: “The prosecutor pressed Calhoun repeatedly to explain why he did not want to be in the hotel room.  Eventually, the District Judge told the prosecutor to move on.  That is when 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 bul doesn’t go off in your head and say, This is a drug deal?’ ”
The two Justices went on to criticize not only the prosecutor, but also Calhoun’s defense lawyer for failing to object, as well as Justice Department lawyers for their response.  When the case was on appeal to the Fifth Circuit Court, Sotomayor wrote, “the government failed to recognize the wrongfulness” of the prosecutor’s question, calling it “impolitic.”   Belatedly, Sotomayor wrote, the U.S. Solicitor General had called the remark “improper” as the case unfolded in Supreme Court filings.
Sotomayor commented: “It is deeply disturbing to see a representative of the United States resort to this base tactic more than a decade into the 21st Century.”
The two Justices did not dissent from the denial of review, concluding that the Court was right because Calhoun and his lawyer had forfeited the arguments they could have made in lower courts and in their Supreme Court petition.
- See more at: http://www.scotusblog.com/2013/02/court-grants-two-cases-5/#more-159938