In a dissental [Update: It was not a dissental, but a statement concurring in the denial of cert–the rarer concural] in Calhoun v. United States, Justice Sotomayor, joined by Justice Breyer, takes exception to a racially-charged comment made during the prosecution of a drug conspiracy case, and bench-slaps the Assistant U.S. Attorney for the Western District of Texas
The issue of Calhoun’s intent came to a head when the pros- ecutor cross-examined him. Calhoun related that the night before the arrest, he had detached himself from the group when his friend arrived at their hotel room with a bag of money. He stated that he “didn’t know” what was happening, and that it “made me think . . . [t]hat I didn’t want to be there.” Tr. 125–126 (Mar. 8, 2011). (Calhoun had previously testified that he rejoined the group the next morning because he thought they were finally returning home. Id., at 109.) 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?” Id., at 127.
Though Sotomayor agrees that the comment was not objected to, thus procedurally defaulted, and Calhoun failed to show that there was a plain error, she wrote separately to express her opinion about the invidiousness of this comment from an AUSA.
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. There was a time when appeals to race were not uncommon, when a prosecutor might direct a 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,’” Holland v. State, 247 Ala. 53, 22 So. 2d 519, 520 (1945), or assure a jury that “‘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,’” Taylor v. State, 50 Tex. Crim. 560, 561, 100 S. W. 393 (1907). The prosecutor’s comment here was surely less extreme. 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.
She stops short of naming names, though I’m sure that AUSA was already in some hot water. Sotomayor also comments on the manner in which the government appealed this case to the 5th Circuit:
Also troubling are the Government’s actions on appeal. 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. Brief for United States in No. 11–50605, pp. 19, 20. This prompted Judge Haynes to “clear up any confusion—the question crossed the line.” 478 Fed. Appx. 193, 196 (CA5 2012) (concurring opinion). In this Court, the Solicitor General has more appropriately conceded that the “prosecutor’s racial remark was unquestionably improper.” Brief in Opposition 7–8. Yet this belated ac-knowledgment 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.
I have written in the past about Justice Sotomayor’s practice of dissenting from denial of cert–something that has been cited as evidence of her “guiding” the liberal wing of the Court (we can probably expect a NYT editorial praising this dissental).
It is an interesting use of the SCOTUS dissental to point out egregious facts of a single case, rather than a broader trend of the law that may relate to certain recurring, structural problems.
On the topic of racial stereotypes, I am reminded, somewhat, of Justice Thomas’s opinion in Grutter v. Bollinger, where he discounts the difference between the beneficial, as opposed to invidious use of racial stereotypes. The Grutter majority likely saw the use of Affirmative Action as the former. Justice Thomas saw it as the latter.
Undoubtedly there are other ways to “better” the education of law students aside from ensuring that the student body contains a “critical mass” of underrepresented minority students. Attaining “diversity,” whatever it means,3is the mechanism by which the Law School obtains educational benefits, not an end of itself. The Law School, however, apparently believes that only a racially mixed student body can lead to the educational benefits it seeks.
3. “[D]iversity,” for all of its devotees, is more a fashionable catchphrase than it is a useful term, especially when something as serious as racial discrimination is at issue. Because the Equal Protection Clause renders the color of one’s skin constitutionally irrelevant to the Law School’s mission, I refer to the Law School’s interest as an “aesthetic.” That is, the Law School wants to have a certain appearance, from the shape of the desks and tables in its classrooms to the color of the students sitting at them. I also use the term “aesthetic” because I believe it underlines the ineffectiveness of racially discriminatory admissions in actually helping those who are truly underprivileged. Cf.Orr v.Orr,440 U.S. 268, 283 (1979) (noting that suspect classifications are especially impermissible when “the choice made by the State appears to redound … to the benefit of those without need for special solicitude”). It must be remembered that the Law School’s racial discrimination does nothing for those too poor or uneducated to participate in elite higher education and therefore presents only an illusory solution to the challenges facing our Nation.
I’m certain the issue of the downsides of the former will come up soon in Fisher v. Texas, which tees up the so-called mismatch effect.
I suspect that Justices Sotomayor and Thomas disagree on this issue.
Update: Ken at Popehat names the prosecutor (I tried, but could not find his name, and did not have time to look at PACER):
Justice Sotomayor did not name the prosecutor. The United States Court of Appeal for the Fifth Circuit did not name the prosecutor. CNN did not name the prosecutor. The Chicago Tribune did not name the prosecutor, calling him “unidentified.” Courthouse News — which specializes in covering the justice system — did not identify the prosecutor.
I, an obese fuzzy-slippered blogger, was able to identify the prosecutor in ten minutes using PACER. Eight of those minutes were because I accidentally selected the Western District of Tennessee rather than the Western District of Texas the first time I searched. On PACER, I found the case, found the docket, found the trial transcript, found the list of prosecutors on the case, found the transcript of the day in question, and found the exchange in question:
USA PONDER: Okay.
Q (By Ausa Ponder) I didn’t — you’re telling
this to this jury.
A I understand.
Q 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?
A No, sir.
That’s Assistant United States Attorney Sam L. Ponder of the U.S. Attorney’s Office for the Western District of Texas in San Antonio suggesting that African-Americans plus Hispanics plus money means drugs.