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Justice Sotomayor Responds to Prosecutor's Racism in Court Room

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U.S. Supreme Court Justice Sonia Sotomayor today released a statement condemning a federal prosecutor's blatant use of racism to secure a conviction in a 2011 drug case. The Court did not grant the convicted man in question an appeal, but Sotomayor nonetheless remarked that Assistant US Attorney Sam L. Pozner's use of race as an implication of guilt was unacceptable.

When Pozner made the prejudiced remark, at issue was whether the defendant was unaware of his buddies' drug exchange. Pozner said that because Black and Latino people were involved, he MUST HAVE known drugs were, too:

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?

If prosecutors using race as evidence of deviant behavior does not set a light bulb off in your head about the role racism plays in the criminal justice system, I don't know what will. Sotomayor had this to say about the racist bit of evidence:

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,’”... 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,'" ...  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.

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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, instead calling it only “impolitic” and arguing that “even assuming the question crossed the line,” it did not prejudice the outcome. 
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