When Justice is Mocked

By Mansfield Frazier

He said what?

Supreme Court Justice Sonia Sotomayor’s remarks in a drug case illustrate the inner-workings — and failings — of our federal criminal justice system.

According to an article by David G. Savage, writing for the Los Angeles Times, Justice Sotomayor “filed a rare statement commenting on the court’s refusal to hear an appeal.”  She took a federal prosecutor to task for “citing the race of a defendant as grounds for convicting him of a drug deal.”

Sotomaor wrote that the prosecutor had attempted to “substitute racial stereotype for evidence and racial prejudice for reason.”

Those words were a strong rebuke from the Court’s first Latina Justice. The harsh words were not only warranted: they perhaps didn’t go far enough.

Justice Stephen G. Breyer signed on to the statement, and added, “I hope I never see a case like this again.”

The facts are essentially this: Bongani Calhoun was indicted on a drug conspiracy charge. His defense was that while he did go on a road trip with some friends, he didn’t know they were planning to purchase cocaine.

Admittedly, that would sound a little fishy to a jury. Two of his co-conspirators testified that Calhoun knew what was about to go down, and the $400,000 in cash they were carrying in a bag is what’s known in detective work as a “clue.”

But Sam Ponder, the assistant federal prosecutor in San Antonio, took the point further.  He said that “common sense” should inform the jurors as to why the men were in the hotel room. 

“You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money,” he said.  “Does that tell you… a light bulb doesn’t go off in your head and say ‘This is a drug deal?’”

Was the jury to suppose — from the prosecutor’s statement — that had the men in the room been white, everything would have been hunky-dory?  That when whites conduct business in hotel rooms, with large sums of cash, everything is on the up-and-up?  

Justice Sotomayor, who once was a prosecutor in New York, further wrote: “By suggesting that race should play a role in establishing a defendant's guilt, the prosecutor here tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our nation.”

She continued: “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.”

Justice Sotomayor was right to be outraged at the prosecutor’s remarks (he later made the lame excuse his words were “taken out of context, ” an excuse that doesn’t pass the straight-face test, since he made the same comment during his closing argument).

But she should have been equally outraged at the defense attorney who sat in the courtroom and said absolutely nothing at the time.

Either Calhoun’s lawyer was totally inept for not realizing how prejudicial the comments were, and for failing to call them to court’s attention (he immediately should have jumped to his feet, objected, and call for a mistrial), or he was deathly afraid of the might of the federal government and elected to remain silent out of a form of timidity seen all too often among members of the defense bar.   

This type of outrageous conduct by federal prosecutors has not gone unnoticed before.

“The rule of law has vanished in America’s criminal justice system,” the late Harvard Law Professor William J. Stuntz wrote in The Collapse of American Criminal Justice.  “Prosecutors now decide whom to punish and how severely.”

Stuntz’ call for a complete overhaul of our criminal justice system is being noted in the highest levels of the legal profession; but sadly, no organization is making too much noise.

Which raises the question: why? Clearly something is amiss.

In America, we’re not supposed to attempt to frame even those we highly suspect of being guilty.  The real question is, why hasn’t this prosecutor been fired?

Common sense seemingly dictates that the judge hearing the case would have taken note of such a racist remark and addressed it in the proper judicial manner. But, after all, the case was in Texas, so the judge also remained mute, when even a first-year law student would have known how far out of line the comment was.

The end result was that the defendant paid the price for judicial malfeasance. He was convicted and sentenced to 15 years in federal prison.

Certainly the facts of the case are such that, even without such prejudicial comments, Calhoun was likely to be convicted. His co-conspirators had turned on him. Nevertheless, the fair administration of justice dictates that such racially inflammatory comments would be challenged at some point in the process.

But they weren’t.

And since the attorney failed to do his job in court (or in the initial appeal), the Supreme Court ruled that Calhoun was not entitled to get a new trial, in spite of the prejudicial comments made by the prosecution.

The ruling brings to mind the case of a prisoner condemned to death who, in the 1990s, petitioned a Virginia Circuit Court to review new evidence on his behalf.  The state’s then-Attorney General Mary Sue Terry argued against such a review by stating: “Evidence of innocence is irrelevant.” 

Cases are often overturned citing “ineffective assistance of counsel,” and this case is so egregious, so beyond the pale, that it calls into question the “effectiveness” our entire system of justice at the federal level. 

To deny an appeal in a case that was so obviously flawed in the manner in which it was handled by the attorney of record — to keep someone in prison because the lawyer didn’t do his or her job — makes a mockery of justice and threatens the rights of all citizens.

The fact that Justice Sotomayor later wrote a scathing condemnation of the prosecutor’s actions is all well and good.  But in the end the man is still in prison, is being denied a new trial, and the law — once again — is being made into a complete ass.

Mansfield Frazier serves as the executive director of Neighborhood Solutions, Inc. in Cleveland. His column can currently be seen weekly on CoolCleveland.com and The Cleveland Leader. He also occasionally contributes to The Daily Beast. Frazier is the co-publisher of Reentry Advocate, a magazine that currently goes into all Ohio prisons, select prisons in Michigan, and the Federal Bureau of Prisons. He welcomes reader comments.

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