U.S. Supreme Court Justice Sonia Sotomayor, in her writing to illuminate the high court’s denial of a petition for writ of certiorari in a Texas case, issued a statement to dispel any doubt that her colleagues’ refusal to hear the case signals "our tolerance of a federal prosecutor’s racially charged remark. It should not."

In her Feb. 25 statement in Bongani Charles Calhoun v. United States, Sotomayor recounted how Calhoun, who is African-American, stood trial in U.S. District Court for the Western District of Texas for participating in a drug conspiracy. The primary issue in the case was whether Calhoun knew that the friend with whom he was traveling, and his friend’s associates, were about to engage in a drug transaction or whether Calhoun was merely present during the group’s drive home when they attempted to purchase drugs from undercover Drug Enforcement Agency agents. According to Sotomayor’s statement, an assistant U.S. attorney for the Western District of Texas asked Calhoun on cross-examination: "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 does not identify the prosecutor.

Not only does Sotomayor call out the prosecutor, but she also points out that Calhoun’s trial counsel, whom she also does not identify, "inexplicably" did not object to that question at trial. Calhoun argued on appeal that the question should lead to automatic reversal because it constitutes structural or plain error — arguments forfeited when Calhoun "failed" to press them at the 5th U.S. Circuit Court of Appeals, Sotomayor notes in her statement.

"We expect the Government to seek justice, not fan the flames of fear and prejudice. In discharging his duties of his office in this case, the Assistant United States Attorney for the Western District of Texas missed the mark," Sotomayor wrote, joined by Justice Stephen Breyer. "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."

"Basically all we can say about this is: The matter was referred to the Office of Professional Responsibility," says Daryl Fields, a public affairs officer for the U.S. Attorney’s Office for the Western District. "At this point, that’s all I’m at liberty to discuss."

Robert Pittman, the U.S. Attorney for the Western District, declines comment.

Sotomayor also pointed out that, while the 5th Circuit also declined to grant Calhoun relief, 5th Circuit Judge Catharina Haynes wrote a concurring opinion to " ‘clear up any confusion — the question crossed the line.’ "

Sotomayor concluded her opinion by stating: "I hope never to see a case like this again."