Today, as CNN reported, the United States Supreme Court rejected cert in the case Bogani Charles Calhoun v. United States. This was notable because Justice Sonya Sotomayor, though joining the decision to deny cert, wrote separately to decry the racially charged prosecutorial comment at the heart of the appeal:
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.
Also troubling are the Government’s actions on appeal.Before the Fifth Circuit, the Government failed to recognize the wrongfulness of the prosecutor’s question, insteadcalling it only “impolitic” and arguing that “even assumingthe question crossed the line,” it did not prejudice the outcome. Brief for United States in No. 11–50605, pp. 19, 20. This prompted Judge Haynes to “clear up any confusion—the question crossed the line.” 478 Fed. Appx. 193, 196 (CA5 2012) (concurring opinion). In this Court, the Solicitor General has more appropriately conceded that the “prosecutor’s racial remark was unquestionably improper.”
Justice Sotomayor did not name the prosecutor. The United States Court of Appeal for the Fifth Circuit did not name the prosecutor. CNN did not name the prosecutor. The Chicago Tribune did not name the prosecutor, calling him "unidentified." Courthouse News — which specializes in covering the justice system — did not identify the prosecutor.
I, an obese fuzzy-slippered blogger, was able to identify the prosecutor in ten minutes using PACER. Eight of those minutes were because I accidentally selected the Western District of Tennessee rather than the Western District of Texas the first time I searched. On PACER, I found the case, found the docket, found the trial transcript, found the list of prosecutors on the case, found the transcript of the day in question, and found the exchange in question:
USA PONDER: Okay.
Q (By Ausa Ponder) I didn't — you're telling
this to this jury.
A I understand.
Q 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 No, sir.
That's Assistant United States Attorney Sam L. Ponder of the U.S. Attorney's Office for the Western District of Texas in San Antonio suggesting that African-Americans plus Hispanics plus money means drugs.
I have two questions.
First: why does the system protect the names of prosecutors even on the rare occasions that the system criticizes them? Why wouldn't Justice Sotomayor call out AUSA Sam L. Ponder by name if she found his conduct so remarkable that she penned an opinion about it even as she agreed to deny cert? What expectation of functional anonymity does Mr. Ponder have? Isn't that just part of a system that makes it vanishingly rare for prosecutors to be held accountable in any way for misdeeds?
Second: if a numbskull like me can learn to search PACER to find this information out in a few minutes, why can't CNN or the Chicago Tribune or Courthouse News? And why wouldn't they? If a United States Supreme Court Justice says that a prosecutor's question was racially inflammatory and inappropriate, and that the United States' initial defense of it is regrettable, isn't the identity of the prosecutor newsworthy?
Edited to add: Since I posted this, some news outlets have amended their original stories to include the prosecutor's name.
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