Supreme Court Justices Weigh In On Racially Charged Remarks of Federal Prosecutor

two u.s. supreme court justices weighed in on the racially charged remarks of a federal prosecutor during a criminal trial in texas. the comments of the justices emerged as the court declined to hear the appeal of a man who was convicted in a texas federal court of being in on a drug conspiracy.

the issue for the defendant, bongani charles calhoun, was whether he knew the people he accompanied on a road trip were about to buy illegal drugs, or whether he was merely along for the ride. during cross-examination, calhoun said he distanced himself from the others when one of them arrived at their hotel with a bag of money.

the prosecutor, an assistant u.s. attorney in the western district of texas, pressed calhoun to explain why he didn't want to be there. 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 & say, this is a drug deal?"  

after he was convicted, calhoun - who is african-american - claimed the prosecutor's culturally oppressive statements violated his constitutional rights by appealing to the jury's prejudice. the court today declined to take up his appeal, because his lawyers failed to properly pursue the issue in the lower courts.  

but justices stephen breyer & sonia sotomayor said they couldn't let the case pass without writing to dispel doubts of whether the court's decision to not hear the case "should be understood to signal our tolerance of a federal prosecutor's racially charged remark. it should not." they wrote.

breyer & sotomayor wrote, "by suggesting that race should play a role in establishing a defendant's criminal intent, the prosecutor here tapped into a deep & 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 the united states resort to this base tactic more than a decade into the 21st century. we expect the government to seek justice, not to fan the flames of fear & prejudice."

the justices also said it was troubling to see the justice department fail to immediately condemn what happened. instead, they said, during the appeals in the lower courts, the government called the prosecutor's remarks "impolitic" & said it did not affect the outcome of the trial "even assuming the question crossed the line."

nonetheless, it was only after the case reached the supreme court did the justice department concede the prosecutor's remarks were "unquestionably improper." sotomayor wrote for herself & breyer, "i hope never to see a case like this again."