Assistant U.S. Attorney Sam Ponder asked a jury in 2011, speaking of defendant Bongani Charles Calhoun, who said he didn’t realize the men he was with were planning a drug deal,
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 bag full of money may be an unusual accessory for a road trip, but the ethnicity of the people carrying it shouldn’t affect anyone’s interpretation of it. After all, one of the groups in which “you’ve got African Americans, you’ve got Hispanics” is the Supreme Court.
So when Ponder’s remark about African Americans and Hispanics was brought in front of the Supreme Court, Justice Sotomayor responded with indignation. Sotomayor, who is herself of Puerto Rican heritage, wrote,
I write to dispel any doubt whether the court’s denial of certioari should be understood to signal our tolerance of a federal prosecutor’s racially charged remark…
By suggesting that race should play a role in establishing a defendant’s guilt, the prosecutor here tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our nation…
It is deeply disappointing to see a representative of theUnited 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…
I hope never to see a case like this again.
Justice Stephen Breyer, who is nether African-American nor Hispanic, joined Sotomayor in the statement.
Ponder eventually agreed that his question was “impolitic,” but did not admit that Sotomayor was correct when she described it as “pernicious.” In fact, he claimed that the comment was “taken out of context” and that he did not agree with an internal Justice Department brief describing his behavior as “improper.”
The context was a Texas court trial in which Calhoun, who had been present during the sale of cocaine in a hotel room, was convicted. He had claimed that he was along on a road trip with friends but wasn’t aware that a drug deal was planned. The prosecutor suggested that Calhoun should have realized a drug deal was going on, based at least in part on the presence of African-American and Hispanic people in the hotel room.
Calhoun’s lawyer didn’t object at the time and the issue didn’t come up in his appeal, factors which led to the decision of the Supreme Court to dismiss the case. Sotomayor agreed with that decision, but couldn’t allow the possibility that this decision might be understood to condone the racial slur. Her public reprimand of the prosecutor avoids the possibility.