California Lawyer


May 2013

"I write to dispel any doubt whether the [U.S. Supreme] Court's denial of certiorari should be understood to signal our tolerance of a federal prosecutor's racially charged remark. It should not.

"The issue of [defendant] Calhoun's intent came to a head when the prosecutor cross-examined him. ... The prosecutor pressed Calhoun repeatedly to explain why he did not want to be in the hotel room. Eventually, the District Judge told the prosecutor to move on. That is when 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?'

"Calhoun, who is African-American, claims that the prosecutor's racially charged question violated his constitutional rights. Inexplicably, however, Calhoun's counsel did not object to the question at trial. ... Given this posture, and the unusual way in which this case has been litigated, I do not disagree with the Court's decision to deny the petition.

"There is no doubt, however, that the prosecutor's question never should have been posed. ... 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. ...

"We expect the Government to seek justice, not to fan the flames of fear and prejudice. ...

"I hope never to see a case like this again."

- Justice Sonia Sotomayor in a statement (joined by Justice Stephen G. Breyer) regarding the Court's denial of certiorari in Calhoun v. United States (133 S.Ct. 1136 (2013).)

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