Justice Sotomayor: you wouldn’t like her when she’s angry.

As we recently observed, Justice Sonia Sotomayor could be thought of as the people’s justice. The Wise Latina is also the Warm Latina.

Justice Sotomayor shows up on Sesame Street as well as One First Street. She hugs little girls on her book tour. She hires law clerks from outside the top 14 law schools.

But you need to stay on her good side; if you tick her off, woe unto you. Let’s check out the Beloved World (affiliate link) — of pain — that Her Honor just inflicted on a federal prosecutor down in Texas….

As we mentioned in Morning Docket, yesterday Justice Sotomayor took the unusual step of issuing a statement on a certiorari denial. The vast majority of cert denials are issued without comment, but not the one in Calhoun v. United States.

Here’s the start of Justice Sotomayor’s statement (joined by Justice Stephen Breyer, which surprised me; I would have expected Justice Ruth Bader Ginsburg instead):

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.

So what was the remark? During the drug conspiracy trial of petitioner Bongani Charles Calhoun, who is African-American, the prosecutor said the following while cross-examining Calhoun:

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?

Aww man. Talk about a case of foot in mouth disease. You see a bunch of white prosecutors in a criminal trial, and a light bulb doesn’t go off that something RACEIST™ is going down?

After offering a brief history of race baiting in the legal system, Justice Sotomayor continues:

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. In discharging the duties of his office in this case, the Assistant United States Attorney for the Western District of Texas missed the mark.

Justice Sotomayor refrains from naming the AUSA in question, and early news reports omitted his name too. But Ken of Popehat, who believes that misbehaving prosecutors should be called out by name more frequently, was happy to identify him as Sam Ponder. Consider this reason #8,437 why Samantha Steele shouldn’t have changed her name.

Justice Sotomayor’s statement concludes with words for AUSA Ponder to ponder: “I hope never to see a case like this again.”

Ouch. But in fairness to Sam Ponder, one of our Western District of Texas tipsters — and not a member of the U.S. Attorney’s Office, it should be noted — piped up in his defense:

I have met this attorney several times, and wouldn’t have expected he be involved in something like this. He is a pretty well-known AUSA here at the federal courthouse. He is very capable, and very respectful generally. The federal courthouse here [in San Antonio] is virtually entirely staffed with Hispanic lawyers and judges, deputy clerks, court reporters, etc., so it really doesn’t make sense that he would purposefully make such a point in open court. I feel like this maybe made more sense in context, or wasn’t meant to have the discriminatory meaning it was given.

What does Sam Ponder have to say for himself? Here’s what he told the San Antonio Express-News:

Ponder said he was just trying to put into context for the jury the scenario Calhoun was describing and to point out how his 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.”

You can say that again — and again, and again. Ponder should stick to prosecuting, because his defensive advocacy isn’t very persuasive.

Ponder would have been better off saying, “I am very, very sorry. I blurted these words out unthinkingly during cross-examination of the defendant, one of the most sensitive and stressful parts of a criminal trial. Maybe the high stakes and the stress of trial brought out some unconscious racism in me. I am signing up immediately for sensitivity training classes.”

“This is just explanation, not excuse. Again, I am so deeply, deeply sorry. I deserve no points, and may God have mercy on my soul.”

Naming and Shaming: Federal Prosecutor Edition: Assistant United States Attorney Sam L. Ponder [Popehat]
2 justices rip S.A. assistant federal attorney [San Antonio Express-News]
Justice Sotomayor Chastises U.S. Attorney For Race Baiting In Drug Case [NPR via Morning Docket]
Calhoun v. United States: Statement Respecting the Denial of Certiorari [Supreme Court of the United States]

Earlier: It’s Justice Sotomayor’s Beloved World; The Rest Of Us Are Just Living In It (Plus Tales From Her Honor’s Neighbors)


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