Prosecutor's Racial Note Draws Supreme Court Ire

     WASHINGTON (CN) - Justice Sonia Sotomayor showed her contempt Monday for a prosecutor who implied that the presence of minorities suggested illegal activity.
     Though she found the remark unpalatable, Sotomayor joined her colleagues in denying a writ of certiorari, saying the petitioner, Bongani Calhoun, simply failed to show that the remark affected the outcome of his trial.
     Facing federal drug conspiracy charges in Texas, Calhoun had claimed that he was an unwitting bystander in his friend's drug deal.
     Under cross-examination, 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?"
     Sotomayor noted that Calhoun's defense attorney "inexplicably" failed to object to that question at trial.
     On that basis, Calhoun, who is black, had to show that the remark affected the outcome of the federal trial proceedings.
     He instead argued that his rights were violated and that the court should award an automatic reversal because the question constitutes either structural error or plain error, regardless of whether it prejudiced the outcome.
     But Sotomayor noted that he forfeited the arguments by failing to press them on appeal to the 5th Circuit.
     "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 wrote in a statement accompanying the orders published Monday. "It should not."
     "There is no doubt ... that the prosecutor's question never should have been posed," she added.
     "Such argumentation is an affront to the Constitution's guarantee of equal protection of the laws. And by threatening to cultivate bias in the jury, it equally offends the defendant's right to an impartial jury."
     "By suggesting that race should play a role in establishing a defendant's criminal intent, the prosecutor here tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our nation," she added.
     Sotomayor likened the remark to more "appeals to race" that were once commonplace among prosecutors.
     In the 1945 case Holland v. State, for example, a prosecutor asked the jury to "consider the fact that Mary Sue Rowe is a young white woman and that this defendant is a black man for the purpose of determining his intent at the time he entered Mrs. Rowe's home," Sotomayor noted.
     In the 1907 case Taylor v. State, another Texas prosecutor assured a jury, "I am well enough acquainted with this class of niggers to know that they have got it in for the [white] race in their heart."
     "The prosecutor's comment here was surely less extreme," Sotomayor wrote. "But it too was pernicious in its attempt to substitute racial stereotype for evidence, and racial prejudice for reason. 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. We expect the government to seek justice, not to fan the flames of fear and prejudice. In discharging the duties of his office in this case, the Assistant United States Attorney for the Western District of Texas missed the mark."
     Sotomayor also found the government's actions on appeal "troubling."
     "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," she noted. "This prompted Judge Haynes to 'clear up any confusion - the question crossed the line.' 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."
     "I hope never to see a case like this again," Sotomayor concluded.
     Justice Stephen Breyer joined in the statement.