Racial Comments by Federal Prosecutor Provoke Condemnation By Supreme Court Justices

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United States Supreme Court Justice Sonia Sotomayor, joined by Justice Stephen Breyer, issued a scathing condemnation of a federal prosecutor's "pernicious . . . attempt to substitute racial stereotype for evidence, and racial prejudice for reason" in a Texas drug conspiracy case.

Bongani Calhoun was tried in federal court in Texas for participating in a drug conspiracy. The main question for the jury was whether Mr. Calhoun knew that the friends he'd gone with on a road trip were about to engage in a drug deal or whether he was merely there on the drive home when other people tried to buy cocaine from undercover agents.

Mr. Calhoun testified he was not part of and did not know about his friend's plan to buy drugs, did not understand the agents who spoke to him only in Spanish, and had a gun when he was arrested with the others because he was licensed to carry a concealed firearm and always did so.

The prosecutor questioned Mr. Calhoun about why he left the hotel room the previous night when his friend arrived with a bag of money: "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?"

Mr. Calhoun, who is African American, argued on appeal that the prosecutor's racially charged question violated his constitutional rights. His lawyer did not object at trial and the claims were not properly preserved on appeal, and the Supreme Court issued an order yesterday denying review of Mr. Calhoun’s conviction.

"There is no doubt, however, that the prosecutor's question never should have been posed," Justice Sotomayor wrote in Monday's statement regarding the denial of certiorari. The prosecutor's argument "is an affront to the Constitution's guarantee of equal protection of the laws" and offends the right to an impartial jury by arousing the jurors' prejudices. The justices also found it troubling that the attorney general's office did not recognize on appeal the wrongfulness of the prosecutor's question.

"By suggesting that race should play a role in establishing a defendant’s criminal intent," Justice Sotomayor explained, "the prosecutor here tapped a deep and sorry vein of racial prejudice that hasrun through the history of criminal justice in our Nation. . . 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. Such conduct diminishes the dignity of our criminal justice system and undermines respect for the rule of law."