Sonia Sotomayor, the Supreme Court's first Latina justice, criticized… (Justin Sullivan, Getty…)
WASHINGTON — Sonia Sotomayor, the Supreme Court's first Latina justice, slammed a Texas prosecutor Monday for citing race as grounds for convicting a defendant of a drug deal, saying the government attorney had tried to "substitute racial stereotype for evidence and racial prejudice for reason."
She filed a rare statement commenting on the court's refusal to hear an appeal, not to dissent from the decision but to "dispel any doubt" that the action "should be understood to signal our tolerance of a federal prosecutor's racially charged remark. It should not."
Sotomayor, who began her career as a prosecutor in New York, said she was troubled by what happened.
"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," she wrote. "… 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."
"I hope never to see a case like this again," she said in a statement joined by Justice Stephen G. Breyer.
Bongani Calhoun appealed after he was convicted of participating in a drug conspiracy and sentenced to 15 years in prison. He contended that while he went along on a road trip with several friends, he did not know they planned to buy cocaine.
The jury heard two of the co-conspirators testify that Calhoun knew about the drug deal. They also said they had more than $400,000 in cash.
When Calhoun took the stand, Sam Ponder, an assistant U.S. attorney in San Antonio, pressed him for an explanation. He said "common sense" should tell jurors why the men were in the hotel room.
"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?'" the prosecutor said.
Calhoun's lawyer did not object at the time to the racial reference in the question, which Ponder repeated in his closing statement, and the issue was not raised in his initial appeal. For that reason, the Supreme Court turned away the appeal Monday. Last year, a federal appeals court judge raised a similar objection in response to Calhoun's case.
"Such racially charged comments are completely inappropriate for any lawyer. It is particularly inappropriate for an assistant U.S. attorney — a prosecutor — to behave this way," wrote Judge Catharina Haynes, an appointee of President George W. Bush.
Contacted by phone, Ponder said he had not read Sotomayor's comments.
"It was a question taken out of context. It was one question out of several hundred," he said. "It was the end of the day, and it was something I was trying to articulate, and I didn't do a very good job of it. That's all I can say."
The Supreme Court agreed to hear two new criminal cases Monday, both raised by state prosecutors. In a Michigan case, Vonlee Titlow faced a sentence of seven to 15 years in prison after she pleaded guilty to manslaughter in the death of her uncle. But with the advice of new attorney, she withdrew her plea, proclaimed her innocence and sought a trial.
She was convicted and sent to prison for more than 20 years. She won a reversal from the U.S. 6th Circuit Court of Appeals, which blamed her attorney for bad advice. The court will hear the state's appeal in Burt vs. Titlow.
The court will also decide whether it violates a defendant's right against self-incrimination when a jury is told that a psychiatrist had found him mentally competent. Scott Cheever shot and killed a sheriff who came to arrest him on drug charges. His defense was that he was mentally incapacitated because of his drug addiction.
The case, scheduled to be heard in the fall, is Kansas vs. Cheever.