Kudos to Justice Sonia Sotomayor for refusing to allow a prosecutor’s racist conduct to hide behind an order denying certiorari. On February 25, 2013, the Supreme Court denied a cert petition in Calhoun v. United States, a case that originated from Texas and involved a drug conspiracy conviction. At trial, the prosecutor had argued to the jury:

"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 Fifth Circuit affirmed the conviction and the Supreme Court determined that there was no cert worthy issue. However, Justice Sotomayor, the only Hispanic justice, took the unusual step of issuing a "Statement" with the denial order. It begins: "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." The Statement is eight pages in length. Before discussing the prosecutor’s misconduct, Justice Sotomayor notes that preservation defects prevented appellate review. She then explains why she was issuing the Statement:

"By suggesting that race should play a role in establishing a defendant’s criminal intent, 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 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. We expect the Government to seek justice, not to fan the flames of fear and prejudice…"

This was not about a rogue prosecutor brazenly displaying his prejudice in open court. Rather, the Statement was about the entire Justice Department. The prosecutor was not disciplined. Rather, the government proceeded to defend his actions. Justice Sotomayor would have none of it.

"Also troubling are the Government’s actions on appeal. Before the Fifth Circuit, 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. This prompted Judge Haynes to ‘clear up any confusion — the question crossed the line.’"…

The point of the Statement is that improper conduct by a prosecutor is not limited to damaging the individual prosecutor’s reputation; it impugns the entire justice system. But, the Statement is also a testament to why diversity on the bench is so important. Without Justice Sotomayor’s presence on the Court, it is likely that the federal prosecutor’s comments would have hidden behind a cert denied order. The government would not been chastised for its defense of the misconduct. It took courage for Justice Sotomayor to issue the Statement, which only Justice Stephen Breyer joined.

Connecticut too has witnessed such bravery. In 1997, in State v. Pouncey, the Connecticut Supreme and Appellate courts both wrestled with whether to reverse an attempted assault conviction due to inherently racist comments by a prosecutor. The case involved four white women who were assaulted by a black man in New Haven. The prosecutor argued to the jury:

"They were confronted with what suburbanites would call the ultimate urban nightmare… These women were in the wrong place at the wrong time in an urban neighborhood."

A divided panel of the Appellate Court affirmed the defendant’s conviction. The only black Appellate Court judge at the time, Judge E. Eugene Spear, appreciated the outrageousness of the prosecutor’s argument and issued a Sotomayor-esque dissent:

I view the references to a ‘suburbanite’s … ultimate urban nightmare’ and being in the ‘wrong place’ in an ‘urban neighborhood’ as appeals to racial passion and prejudice…. It is common knowledge that the population of the suburbs in Connecticut is overwhelmingly white, while most of the black population is concentrated in the cities. This state of affairs could hardly have escaped the prosecutor’s notice. Given the starkly different racial composition of suburban and urban Connecticut, given the fact that the defendant is black while the two victims and the other prosecution witnesses are white, and given the lack of any valid reason for the challenged statements, the racial appeal is obvious…. In their representation of the people of the state of Connecticut, prosecutors must choose their words carefully, even in the heat of courtroom battle. They should never, because of personal or other reasons, stoop to appeals to racial prejudice."

As Justice Sotomayor did in her Statement, Judge Spear further criticized the appellate prosecutor for defending the comments rather than apologizing for them. The case was eventually heard by the Supreme Court, which affirmed the Appellate Court’s decision. The Supreme Court’s sole black jurist, Justice Flemming Norcott, Jr., issued a dissent of his own:

Remarks such as those made by the prosecution in the present case are not to be tolerated in any way, shape, or form in the Connecticut courts. Once this court recognized the prosecutor’s comments as exploitative of racial fears, it has the responsibility, indeed the duty, to reverse a condition tainted by such an irrelevant and prejudicial consideration. It seems incongruous to me that the majority here, in essence, concedes the racial connotation of the comments, yet pays mere lip service to the egregiousness of the remarks by ultimately embracing the discretionary determination of the trial court that the challenged comments did not rise to the level of reversible prosecutorial misconduct.

Diversity on the bench is important for a number of reasons, perhaps the most important of which is to ensure that discrimination is not tolerated. Those who have been subjected to racial animus bring a perspective to the issue that cannot be readily learned or acquired by others. Moreover, prosecutorial agencies should not tolerate and certainly should not defend prejudice. Such agencies would benefit from diversifying their leadership ranks to obtain some much needed perspectives. With increased diversity, both in the appellate courts and in the leadership of executive agencies, there will be greater sensitivity.

We commend Justice Sotomayor for her Statement. We are proud to come from a state where such courage was displayed by Justice Norcott and Judge Spear. We hope that our federal and state agencies will heed these words, diversify their ranks, and refuse to place the desire to win a specific case over the need to end discrimination.•