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GEOFFREY D. MUELLER

U.S. Supreme Court Rebukes Federal Prosecutor For Racially Charged Remarks - Calhoun v. U.S.

Per The National Law Journal:

"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 you—a light bulb doesn't go off in your head and say, 'This is a drug deal?''"

...

"[Justice Sonia Sotomayor writing, with Justice Stephen Breyer joining] 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.' And 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.'"

Full article after the jump...