In a rare and forceful slap down of a federal prosecutor, Justice Sonia Sotomayor, joined by Justice Stephen Breyer, devoted a nearly five-page statement on Monday to the prosecutor’s racially charged remark during a drug conspiracy trial in Texas.

The U.S. Supreme Court denied review in Calhoun v. U.S., but Sotomayor wrote separately "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 remark came during cross-examination of Bongani Charles Calhoun, who claimed he did not know that the friend he had accompanied on a road trip, along with the friend’s associates, were about to engage in a drug transaction. Calhoun testified that he detached himself from the group when his friend arrived at their hotel room with a bag of money. On cross, Sam Ponder, an assistant U.S. attorney in the Western District of Texas, repeatedly pressed Calhoun on why did not want to be in the hotel room. The judge eventually ordered the prosecutor to move on, at which point 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 and say, ‘This is a drug deal?’ "

In rebuttal comments at closing, the prosecutor said:

"I got accused by [defense counsel] of, I guess, racially, ethnically profiling people when I asked the question of Mr. Calhoun, ‘Okay, you got African-American[s] and Hispanics, do you think it’s a drug deal?’ But there’s one element that’s missing. The money. So what are they doing in this room with a bag full of money? What does your common sense tell you that these people are doing in a hotel room with a bag full of money, cash? None of these people are Bill Gates or computer [magnates]? None of them are real estate investors."

Calhoun, an African-American, claimed that the racially charged comment on cross-examination violated his constitutional rights and unsuccessfully sought reversal of his conviction in the U.S. Court of Appeals for the Fifth Circuit and review in the high court. Both courts found that Calhoun forfeited his claim that the comment constituted structural or plain error because he failed to raise that argument in his appeals.

Both courts found that Calhoun forfeited his claim that the comment constituted structural or plain error because he failed to raise that argument in his appeals.

"There was a time when appeals to race were not uncommon, when a prosecutor might direct a jury to ‘consider the fact that Mary Sue Rowe is a young white woman and that this defendant is a black man for the purpose of determining his intent at the time he entered Mrs. Rowe’s home,’ wrote Sotomayor, adding, "or assure a jury that ‘I am well enough acquainted with this class of niggers to know that they have got it in for the [white] race in their heart.’ The prosecutor’s comment here was surely less extreme. But it too was pernicious in its attempt to substitute racial stereotype for evidence, and racial prejudice for reason."

She called it "deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st century." And Sotomayor also found "troubling" the government’s actions on appeal in the case.

"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," Sotomayor wrote. "In this Court, the Solicitor General has more appropriately conceded that the ‘prosecutor’s racial remark was unquestionably improper.’Yet this belated acknowledgment came only after the Solicitor General waived the Government’s response to the petition at first, leaving the Court to direct a response."

She ended by writing, "I hope never to see a case like this again."

In the lower court appeal, Judge Catharina Haynes of the Fifth Circuit also addressed the prosecutor’s comments, writing, "First, it should be very clear (certainly to a lawyer licensed thirty-seven years in Texas) that such racially-charged comments are completely inappropriate for any lawyer.

"Finally, perhaps the most troubling of all is how the United States Attorney’s Office has handled this matter thereafter. While I do not fault the determination to argue in favor of sustaining the verdict, I am dismayed by the cavalier approach to this situation. Let me clear up any confusion—the question crossed the line. An apology is in order, and I do not see it in the briefing. Indeed, it should trouble the Assistant United States Attorney in question and all those in his office not just that he said such a thing, but that he thought it. The title ‘prosecutor’—indeed, the title ‘lawyer’—demands better. I hope I will not have to say this again."

Neither the judge nor the justice named the assistant U.S. attorney, but the trial transcript indicates that Ponder gave the closing argument.

The Supreme Court on Monday also denied review in a closely watched campaign finance case.

The criminal defendants in U.S. v. Danielczyk had challenged the federal ban on direct contributions to candidates by corporations. They had argued that the ban violated the First Amendment based on the justices’ reasoning in Citizens United v. Federal Election Commission, the 2010 decision invalidating the federal ban on the use of corporate or union general treasury funds for independent campaign expenditures.

"Today’s decision does nothing to mitigate the Court’s disturbing decision last week to revisit the aggregate contribution limits passed in the wake of the Watergate scandals, which if overturned would enable individual to make contributions of one-, two- or even three-million dollars to buy influence in Washington," said Campaign Legal Center senior counsel Tara Malloy in a statement."But at least today the Court has decided to stay its deregulatory hand."

Marcia Coyle can be contacted at mcoyle@alm.com.