WASHINGTON D.C. – In a rare and forceful take-down of a Federal prosecutor, Supreme Court Justice Sonia Sotomayor, joined by Justice Stephen Breyer, devoted a nearly five-page statement to the Government’s racially charged remarks during a Texas drug trial.
“I get accused by defense counsel of, I guess, racially, ethinically profiling people when I asked the question of Mr. Calhour, Okay, you got African-Americans 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.”
From the Court’s special comment:
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. 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 or assure a jury that I am well enough acquainted with this class of niggers to know that they have got it for the white race in their heart. [citations omitted]
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.
Related: Sotomayor Scolds Prosecutors, New York Times, 2.26.2013