Justice Sonia Sotomayor issued a blistering statement today concurring in the denial of cert in Calhoun v. US. While agreeing with the Supreme Court’s decision on procedural grounds, Sotomayor — with (only) Breyer joining in — tore into the prosecutor in the underlying case for making an “argument[] calculated to appeal to the prejudices of the jury” and tapping “a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our Nation.”

The statement is powerful stuff. Justice Sotomayor mercifully does not name the prosecutor in her statement, thus saving him or her a lifetime of Internet-search-aided indignity.

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7 Responses to POW!

  1. Just me says:

    She should have named the prosecutor. That was horrible.

  2. Vic says:

    As an African-American, I find it equally distasteful that a Supreme Court Justice appeals to comments in cases from a bygone era (the 40’s) to imply, if not outright state, that current white Americans are so prejudiced on a deep level that one can simply say “C’mon, it’s a black guy,” and every white juror will nod his head and convict.

    I think what was said was wrong, and possibly reflective of the prosecutor’s own prejudices, but it would have been sufficient to simply state, “you can’t say these sorts of things,” without impugning the character of white Americans generally.

    This is not to say that our Courts are all unbiased and free of things like racism, but to pander to another stereotype does not display a moral highground, it is only pandering to the race-traffickers and race-baiters that want to keep falsely reminding every African-American that white society views them as worthless ‘cept for the help of kind ole folks like Massa Sotomayor. In my opinion, she went too far herself down her own road of prejudice.

    Finally, I’d point out that if she ACTUALLY cared, she would have stated his name and suggested that his employment for the Government be reevaluated. After all, if he really is the racist that she states that he is, then he has no defensible business working for the Justice system as he does.

    • What was a forbidden appeal to prejudice in the ’40s is still forbidden today; that people may, we hope, be less prejudiced now doesn’t make it any less wrong — if anything it makes the racist appeal harder to accept.

      More generally, courts site precedent. The point of this precedent wasn’t that today’s audience *necessarily* reacts the same way, but rather that prosecutors were not allowed to attempt to get the jury to react that way even in the 40s and certainly should have better sense today.

      As for the mercy, there is first the tradition that many judges have of not naming lower court judges or prosecutors, but referring to them by function; I have no idea If Justice Sotomayor adheres to that tradition, but she might.

      Or, it might have been simple mercy: we don’t know what was in the prosecutor’s heart. He/She might not be a racist, just someone caught up in the desire to win the case. A very bad thing, certainly, but more curable.

      FWIW, my first reaction was also that the Justice should have named names, but on reflection, I’m less sure. That would amount to trial and conviction without due process or even a chance to defend oneself. Perhaps the proper place for that debate over trial court performance is a disciplinary proceeding, not an ex cathedra statement from the Supreme Court bench?

      • Vic says:

        I’m NOT saying that whatever the prosecutor said was not potentially wrong (depending on a whole lot of context which we don’t have – and that SCOTUS only MAY have had).

        What I am saying is that using the context of the 1940’s as a mirror or example of what may be true today is inappropriate. Whatever one might think of the prevalence of racism today, we ALL know it is not as it was in 1940 – a time when blacks could not even fully serve in the U.S. military. To use descriptive language from the 1940’s to describe the current mindset of white americans as a generalization is wrong, inflammatory, and quite possibly just as racist.

        Yes, she should have stuck down that prosecutor. I would have named him if I felt that strongly about it, but as you say, she may have had other considerations. But I would not have painted a huge chunck of the American poulace with the broad brush of hate while doing so.

        This is just one of those things that happens when someone with an important pulpet finds it necessary to go beyond their mandate to opine further. You just don’t want to question the appropriateness of her opinion because in your liberal club, to speak out against even the most rediculous anti-racism remarks carries the risk of the risk of being thought racist by your fellows.

        Personally, I think you should think for yourself.

  3. I mean, imagine a white kid in Boca Raton, with a gun, gets in a car with his white friends and a bag of money heading for Overtown in Miami. Is it racist for me to suspect they’re going there to buy drugs?

    The opinion’s description of the testimony is confusing: were Calhoun’s friends racially mixed, or were his African-American friends (like him) all of the sudden meeting a group of unfamiliar Hispanics at a hotel with a bag of money?

    Would it be so bad if the question had been, “all of the sudden you and your friends are going to meet these other people, of a different race, from a different part of town, who they barely knew, with a bag of money no less, and you didn’t suspect a drug deal was afoot?”

    I understand the point could have been made without mentioning the specific races, but are the racial differences always irrelevant?

    The point is trials are all about speaking off-the-cuff, and sometimes things don’t come out right. Maybe the prosecutor is black or Hispanic herself?

  4. Just me says:

    This business that Sotomayor “want[s] to keep falsely reminding every African-American that white society views them as worthless ‘cept for the help of kind ole folks like Massa Sotomayor” is silly. It is much more likely that the hispanic Sotomayor was pissed as hell that the prosecutor implied that the involvement of blacks and HISPANICS (a group to which the fine Justice belongs) and a bag full of money should automatically make you question whether a drug deal is going on.

    As far as what the Marksman says, I think you miss the point. The guy from Boca going to Overtown with a bag full of money IS suspicious, but because of the soci-economic issues and not because of the race issues. Unfortunately, Overtown is an economic wasteland. What the heck is there to buy there? On the other hand, if a caucasian living in Coral Gables goes over to his back friend’s Coral Gables house with a bunch of cash on him, do you automatically think a drug deal is going on? Probably not. If you did, it would probably have very little to do with the color of people’s skin and more to do with the bag of cash.

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