WASHINGTON -- Justice Sonia Sotomayor strongly objected Monday to a Texas prosecutor’s reference to the race of the defendants as an argument to convince a jury they were involved in a drug deal.

The high court refused to hear the case of Bongani Calhoun, a black defendant who was convicted in the drug case, but Sotomayor wrote an unusual statement to “dispel any doubt” that turning away his appeal would “signal our tolerance of a federal prosecutor’s racially charged remark. It should not.”

Calhoun was arrested with several other men and charged with taking part in a drug conspiracy. He contended that while he went along on a road trip with friends, he did not know they planned to buy cocaine.


The prosecutor told the jury that the men were together in a hotel room. “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’?”

Calhoun’s lawyer did not object at the time to the racial reference, and the issue was not raised in his appeal. For that reason, the court turned away the case. Calhoun was given a 15-year prison term, and his sentence and conviction were upheld.


But Sotomayor wrote a separate statement, joined by Justice Stephen G. Breyer, to voice her objection.

She said the “prosecutor here tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our nation.… 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.”


Sotomayor, the court’s first Latina justice, began her career as a prosecutor in New York City. Using the race of the defendants as an argument for their guilt “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,” she wrote.

Sotomayor said she ultimately agreed with the court’s refusal to hear the case, one of several dozen appeals turned down on Monday. Nevertheless, she remained troubled by what had happened.


“I hope never to see a case like this again,” she said.

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David.Savage@latimes.com