The remarks in question came during the March 2011 trial of Bongani Charles Calhoun, a black man who was convicted on drug conspiracy charges after his companions on a road trip attempted to purchase cocaine from dealers who turned out to be undercover agents from the Drug Enforcement Agency. Calhoun contended he was not aware of the nature of the trip.
During his cross-examination of Calhoun at trial, a skeptical Assistant U.S. Attorney Sam L. Ponder said: "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?"
A spokesman for the U.S. Attorney's Office in Western Texas said the incident was referred to the Office of Professional Responsibility at the Justice Department but declined to comment further. The Office of Professional Responsibility is the Justice Department's internal watchdog tasked with investigating allegations of misconduct involving DOJ attorneys. The Justice Department has not responded to requests for comment about Sotomayor's statement.
Ponder, who is still an assistant U.S. attorney with Justice Department, told the Washington Post on Monday that he had not been trying to inject race into the trial but also said of Sotomayor's statement, "I can't disagree with the idea she was expressing." Asked by the Post if he had been criticized by his superiors, Ponder said "that already happened" before the statement from Sotomayor.
Though Sotomayor joined the majority of the Supreme Court in declining to review the case, she took the opportunity to condemn not only the comments but also the government's meager response to the incident. Justice Stephen Breyer joined in Sotomayor's 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," Sotomayor wrote.
"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," she continued. "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."
Ponder had already been similarly reprimanded at an earlier stage of the appeals process.
Catharina Haynes, a George W. Bush appointee on the 5th Circuit Court of Appeals, also took issue with Ponder's questioning when the case reached the appellate level. "It is hard to think of a more foul blow than implying that the race or national origin of a group of people has anything to do with whether Calhoun should have known they were involved in dealing drugs," Haynes wrote in a concurring opinion declining to overturn Calhoun's conviction.
Haynes also chastised government lawyers for understating the gravity of the language in question in their brief to the 5th Circuit and noted that the government had not issued an apology. "The Government's brief calls the question 'impolitic' and states: 'even assuming the question crossed the line,' as if that is in doubt," she wrote. "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." Sotomayor quoted Haynes decision in her statement Monday.
Jay Moritz, Calhoun's defense attorney when Ponder asked the racially-charged question, told TPM Monday that he was "disappointed" with the outcome and felt in retrospect that he should have called for a mistrial. Sotomayor's statement Monday questioned his decision not to do so: "Inexplicably, however, Calhoun's counsel did not object to the question at trial."
"I'm upset that I probably should have asked for a mistrial at the time," Moritz said. "It's one of those types of things that shocks you all in the courtroom when it happens and you know, you don't -- I've never had to object to anything like that, I haven't."
Moritz, who described Ponder as a "pretty easy-going guy," said that was the first time he had heard him say something like that. Moritz said he, his client and his client's family were offended at the time and that he brought up the comments as racial bias in his closing argument.
But as Sotomayor pointed out Monday, Calhoun's attorneys failed to argue that the Ponder's question had violated his right to a fair trial during the appeals process, too. "Calhoun contends that the comment should lead to automatic reversal ... regardless of whether it prejudiced the outcome," Sotomayor wrote. "Those arguments, however, were forfeited when Calhoun failed to press them on appeal to the Fifth Circuit."
The government's mishandling of the case didn't stop at the 5th Circuit, wrote Sotomayor, also taking issue with the solicitor general's handling of the case once it had reached the Supreme Court. "In this Court, the Solicitor General has more appropriately conceded that
the 'prosecutor's racial remark was unquestionably improper,'" Sotomayor wrote. "Yet this belated acknowledgement came only after the Solicitor General waived the Government's response to the petition at first, leaving the Court to direct a response."
For his part, Ponder defended his question when challenged by Moritz during closing argument of the trial, according to Sotomayor's statement:
"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."
"I hope never to see a case like this again," Sotomayor concluded.