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In cross-examining an African-American defendant, Assistant U.S. Attorney Sam Ponder attempted to throw doubt on the defendant’s claim that he did not know his friend was buying cocaine when the pair were arrested by federal agents in 2008. Ponder put to the defendant, Bongani Charles Calhoun,

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?’

Those remarks drew the ire of U.S. Supreme Court Justices Sonia Sotomayor and Stephen Breyer, whose unusual move drew the attention of the nation yesterday when they released a statement to accompany their denial of certiorari in the case (Calhoun v. U.S. (12-6142).)

Sotomayor began,

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. It should not….
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.

Read the 4 page statement here.

AUSA Sam Ponder responded by diminishing the significance of the statement: “It was just one of those throw-out questions based on the people he described being in the room.” But he managed to concede, “It could have been phrased a little better.”

Calhoun’s attorneys failed to object to the statement at trial.

The Justice Department initially minimized the comments to the 5th Circuit Court of Appeals, and was subsequently rebuked by Sotomayor and Breyer also:

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. I hope never to see a case like this again.

 CNN reports that the solicitor general later acknowledged the remarks were “unquestionably improper.”

Despite Sotomayor’s hope that the criminal justice system would deliver better in the future, the case of Duane Buck is sure to disappoint.

Under Texas’ death penalty statute, the state is required to demonstrate “future dangerousness” of the defendant in recommending he be sentenced to death. During the penalty phase of Buck’s 1997 trial, an expert witness suggested Buck’s race would increase the likelihood that he would commit another crime.  Buck is African-American.

Sotomayor dissented from the Court when it denied certiorari in the case in 2011. If the intermediary courts do not intervene, SCOTUS may need to re-examine the case.

James Marcus, Adjunct Clinical Professor at the University of Texas School of Law suggests,

As Mr. Buck’s case is now making its way back through the state courts, it is entirely possible that Justice Sotomayor’s hope to “never see another case like” Calhoun will be dashed. If and when the Buck case returns to the Supreme Court, hopefully the Court will treat it as an important opportunity to take a forceful stand against racial bias and discrimination in the criminal justice system by reviewing and reversing Mr. Buck’s death sentence.




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