Washington (CNN) – Two members of the Supreme Court took the unusual step of speaking out over racially insensitive remarks by a federal prosecutor in a drug case, when rejecting review of the defendant's appeal.
Justice Sonia Sotomayor wrote a strongly worded statement Monday, saying the prosecutor's remarks about an African-American suspect were "an affront to the Constitution's guarantee of equal protection of the laws."
The prosecutor–whom Sotomayor refused to name–said during cross-examination of a drug conspiracy case: "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?"
Sotomayor, the only Hispanic on the high court, agreed with the majority that the appeal should be rejected for a variety of procedural reasons, but was nevertheless adamant on her larger point.
"It is deeply disappointing to see a representative of the United States resort to this basic tactic more than a decade into the 21st century," she said. "We expect the government to seek justice, not fan the flames of fear and prejudice."
Most appeals are summarily rejected by the high court without comment. Those that do merit a brief written response typically involve a justice objecting to the denial of review. But here, Sotomayor and Justice Stephen Breyer supported the denial, and decided to take the next step and comment on the source of the controversy.
"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," said Sotomayor. "It should not."
Bongani Calhoun was convicted of participating in a drug buy in Texas and given 15 years behind bars on various charges. The issue was whether he was a willing participant, or just happened to be present when others attempted to purchase narcotics from undercover federal agents.
The prosecutor repeatedly pressed Calhoun on the stand about the defendant's claim he did not want to be in the hotel room in the first place. That is when the inflammatory remarks were made.
Calhoun's lawyers did not formally challenge the statement, or a subsequent remark by the prosecutor, who told the jury, "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."
The justices in rejecting Calhoun's appeal apparently accepted the lower appeals court's conclusion that the inmate never established that the insensitive comments necessarily prejudiced the outcome of the criminal trial.
Sotomayor and Breyer also criticized the Justice Department for its initial, tepid reaction to the remarks, with officials telling an appeals court they were only "impolitic." The solicitor general, the Obama administration's top lawyer before the high court, later acknowledged the remarks were "unquestionably improper."
"I hope never to see a case like this again," concluded Sotomayor.
The case is Calhoun v. U.S. (12-6142).