Clearly, our protestations have failed to change the advocacy of some prosecutors. It is as if they intentionally engage in improper conduct, safe in the belief that this court will continue to protest with no consequences. In the interest of the integrity of the criminal justice system in this state, we must demonstrate that our protestations are more than utterings of frustration.
Fears was appealing his conviction and death sentence. It was
another in a string of cases in which the Ohio Supremes recognized that
prosecutors repeatedly engaged in misconduct and warned that one of
these days they might do something about it.
I've often quoted, too, Cathy Cook's word in the same court about the same prosecutor just a week after Fears came out. She quoted Moyer's words, and then told the Justices,
You've got to make them lose to make them learn.
The court didn't make them lose. Cases since then demonstrate clearly that the prosecutors didn't learn.
* * * * *
Duane Buck remains on death row in Texas though within the next couple of weeks he'll be asking the Texas Court of Criminal Appeals to grant him a new sentencing hearing.
Buck, you'll recall, is the one whose lawyers entered into evidence at the sentencing phase of his capital trial their expert's report saying, among other things, that because Buck was African American he was especially likely to be a violent sort and future danger. And then they had him testify to the same thing.
Samuel Alito, no friend of the capitally sentenced he, said the testimony was "bizarre and objectionable." (Scalia and Breyer joined his opinion.) Oh, he didn't say it was reversible. He didn't even say it was enough to make the Court hear the case. Just that it was "bizarre and objectionable."
Perhaps Justices Thomas, Ginsburg, and Roberts agreed. Perhaps not. They didn't join Alito's opinion, and none wrote a separate one. On the other hand, none of them voted to hear the case.
The dissenters from the refusal to hear it did file an opinion, written by Sotomayor (Kagan joined it). It begins this way.
Today the Court denies review of a death sentence marred by racial overtones and a record compromised by misleading remarks and omissions made by the State of Texas in the federal habeas proceedings below. Because our criminal justice system should not tolerate either circumstance—especially in a capital case—I dissent and vote to grant the petition.
* * * * *
And then there's Bongani Charles Calhoun. The feds down in Texas prosecuted him for involvement in a drug conspiracy. Sotomayor (this time joined by Breyer) tells the relevant parts of the story.
The primary issue was whether Calhoun knew that the friend he had accompanied on a road trip, along with the friend’s associates, were about to engage in a drug transaction, or whether instead Calhoun was merely present during the group’s drive home, when the others attempted to purchase cocaine from undercover Drug Enforcement Agency (DEA) agents. . . .The issue of Calhoun’s intent came to a head when the prosecutor cross-examined him. Calhoun related that the night before the arrest, he had detached himself from the group when his friend arrived at their hotel room with a bag of money. He stated that he “didn’t know” what was happening, and that it “made me think . . . [t]hat I didn’t want to be there.” . . . The prosecutor pressed Calhoun repeatedly to explain why he did not want to be in the hotel room. Eventually, the District Judge told the prosecutor to move on. That is when the prosecutor asked, “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?”
Got it? That last bit, the racial stereotyping and appeal to prejudice (did I mention that Mr. Calhoun is himself of what used to be politely known as a person of the "colored persuasion"?) is the problem.
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,’” Holland v. State, 247 Ala. 53, 22 So. 2d 519, 520 (1945), or assure a jury that “‘I am well enough acquainted with this class of niggers to know that they have got it in for the [white] race in their heart,’” Taylor v. State, 50 Tex. Crim. 560, 561, 100 S. W. 393 (1907). 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.
So, of course, the Court granted cert and then ordered a new trial voted unanimously not to hear the case. Because, you see,
Inexplicably, however, Calhoun’s counsel did not object to the question at trial.
So
the burdens shift and the legal standards are messy and the arguments
weren't really made properly in the lower courts and good golly Miss
Molly.
Hell, even Sotomayor, for all she wrote, didn't vote to hear the case. Nevertheless, she expressed her abiding good wishes.
I hope never to see a case like this again.
And she won't, of course.
Until the next time. Because, as Chief Justice Moyer said,
Clearly, our protestations have failed to change the advocacy of some prosecutors. It is as if they intentionally engage in improper conduct, safe in the belief that this court will continue to protest with no consequences. In the interest of the integrity of the criminal justice system in this state, we must demonstrate that our protestations are more than utterings of frustration.
And as Cathy Cook added,
You've got to make them lose to make them learn.
UPDATE
Ken at Popehat identifies AUSA Sam L. Ponder (ponder that, if you will) as the prosecutor who made what Sotomayor generously described as the "racially charged remark." Then he asks the altogether proper question.
[W]hy 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?
The reason, of course, the same reason the courts don't make them lose, is that the system doesn't really care.
Law of Rule.
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