U.S. Supreme Court Justice Sonia Sotomayor continues to impress me as a bold, fresh voice with the courage to break some of the court’s musty traditions. On Monday the justice made headlines when she took the unusual step of voicing her outrage about a prosecutor’s racially-charged statements in a criminal case that the court declined to hear.
I’m glad she spoke out. But I’m disappointed that Sotomayor chose to follow an entrenched judicial tradition that needs to change. The justice never named the prosecutor who uttered the remarks she found so disturbing.
The case is U.S. v. Calhoun, where Bongani Calhoun argued that his 15-year sentence for drug trafficking should be reversed because the prosecutor indulged in a racially inflammatory stereotype during the defendant’s cross-examination. When the African-American Calhoun claimed that he didn’t know that his co-defendants were planning a drug deal, the prosecutor responded: "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?"
Sotomayor stressed in her statement that even though the court chose not to grant certiorari in the case, its decision shouldn’t be understood to "signal our tolerance of a federal prosecutor’s racially charged remark." (Cert was denied largely for procedural reasons, she explained.) Sotomayor, who was joined in the statement by Justice Stephen Breyer, lambasted the prosecutor, saying his approach "tapped into a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our Nation."
For the record, the prosecutor was Sam Ponder, who is still an assistant U.S. attorney in San Antonio. I contacted Ponder, but did not hear back. Ponder told the San Antonio Express-News that he was just trying to point out how Calhoun’s story didn’t add up. "It was just one of those throw-out questions based on the people he described being in the room," Ponder said. "It could have been phrased a little better."
In the annals of prosecutorial misconduct, Ponder’s question was far from the worst thing that a government lawyer has ever done. Innocent people have been executed because prosecutors concealed and distorted evidence. Many others have wasted their lives on death row or behind bars for the same reasons. But even when courts have found prosecutorial misconduct in the most egregious cases, they almost never identify the offending lawyers in their opinions. It’s as if courts will protect the reputations of prosecutors as a professional courtesy, regardless of what they’ve done.
In fact, prosecutors almost never face any consequences when they cross the line. They’re rarely disciplined, and enjoy absolute immunity from lawsuits by defendants. I examined this situation back in 2009 (here and here), when I wrote about the suspect prosecution of an African-American boy in a small town in Ohio for the murder of a young white girl.
Shielded by absolute immunity, prosecutors can trample on defendants’ rights without personal consequence. But there is one small thing that judges can do to impose just a little bit of accountability. When prosecutors do wrong, name them.