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Susan Estrich
12 Feb 2016
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Prosecutorial Indiscretion


"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'?"

Sam Ponder, an assistant U.S. attorney in Texas, said that — and successfully convinced a jury to reject the defense that Bongani Charles Calhoun did not realize the road trip he went on involved buying drugs.

The jury convicted. Calhoun was sentenced to 15 years for participating in a drug conspiracy. The appeals court affirmed.

The Supreme Court declined to hear the case.

Justice Sonia Sotomayor, joined by Justice Stephen Breyer, wrote separately. The two joined in the court's decision not to hear the case, but wanted to "dispel any doubt" that refusing to hear the appeal would "signal our tolerance of a federal prosecutor's racially charged remark. It should not."

So Calhoun goes to prison for 15 years.

Sometimes I ask my students: Would you rather be rich and guilty or poor and innocent? Most of them pick the former because rich people get much better lawyers, not to mention expert investigators, jury consultants and the rest.

The reason the court did not take the case, according to most observers, is not only because the business of the Supreme Court isn't to correct mistakes made below (unless they raise major legal issues of broader application), but also because Calhoun's lawyers did not object when the prosecutor made the comment, nor did they raise it in his appeal to the United States Court of Appeals. As we lawyers say, the objection was not properly preserved. It had not been addressed by any court below. There was no conflict among the circuit courts that the Supreme Court needed to resolve. "Cert denied."

You've heard it on television a million times. Criminal defendants have a right to a lawyer, and if they can't afford one, a lawyer will be appointed to represent them. They must be told that when they are taken into custody, or their statements cannot be used against them.

Even if they talk to police without a lawyer, appointing one is the first step in the judicial process. Under the constitution, you're entitled not simply to the assistance of a person who passed a bar exam; you are entitled to the effective assistance of counsel. Justice, we say, demands no less.

A few years ago, a defendant convicted in a capital case and sentenced to death appealed to the Supreme Court on the grounds that he had been denied the effective assistance of counsel because his lawyer fell asleep (this was uncontested) during the trial.

He lost.

Ask anyone who has practiced law, and they will tell you: Some lawyers are better than others. There are some good lawyers at the very bottom of the legal food chain (where lawyers agree to represent indigent defendants for hourly wages that few lawyers in private practice would accept). But there are, as in most things, more good lawyers at the top than at the bottom. The real question is: How low can you go?

The answer, sadly, is very low.

I wish that at some point in my career I'd been a prosecutor. Prosecutors, many of them just a few years out of law school, decide whether a Calhoun will be charged and for what. Supreme Court justices make law. Prosecutors make life-and-death decisions.

Faith in our system requires that the fight between prosecution and defense not necessarily be equal, which it rarely is (rich defendants can often outlawyer the government, and poor defendants almost never do), but that it at least be fair. In Calhoun's case, it wasn't. Pure and simple.

The prosecutor, as Sotomayor put it, "tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our nation." The defense lawyers were too stupid or distracted or disinterested to object. And even so outspoken a defender of racial equality as Sotomayor couldn't right that wrong. Had she not written separately, we probably never would have heard of the case.

It should make you wonder: How many more cases like that are out there?

Take my word for it. Too many.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at



5 Comments | Post Comment
Let's take a close look at this issue.

The offending quote is: "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'?"

The evaluation of Sotomayor is: It "tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our nation."

I have to say that I think the "Wise Latina" is full of bosh in this case. Let me provide an alternate, more probable, explanation for prosecutor's question and the defendant's conviction.

The prosecutor was essentially asking the defendant about the unusual circumstances surrounding the meeting that led to his arrest. For example, you have a meeting of two groups made up of individuals who usually don't congregate with one another. There is a large bag of cash involved (N.B., How many times in your life have you had a large bag of cash in your presence?). This really is a drug deal, so they are likely meeting in a lonely, isolated spot (N.B., A spot no normal person would likely visit since there was probably absolutely nothing to do there). Again, this is a real drug deal, so it is almost a certainty that the people attending the meeting are all well armed. (Think some of these guys might have clips that carried greater than 10 bullets?)

What it comes down to is that the prosecutor is asking the defendant (who claimed he didn't realize that he was participating in a drug deal) what his interpretation of the meeting of two large, unusually mixed, groups of heavily armed individuals in a remote location actually was? Oh, and why would this secretive cabal take you along as a witness if you were unaware that the meeting was a drug deal?

Allow me to suggest that the defendant's answer to these questions was so improbably stupid that no one believed it. And that it was this lack of belief in his foolish alibi is what led the judge/jury to convict this idiot. He could have been a Martian or an Anglo and he still would have been convicted because there really is no decent alternate explanation for the defendant's presence at the drug deal other than he was in on it. Only a complete idiot who wasn't in on the deal would have gone to such a danger fraught meeting.

It is a sad comment on the fractured nature of our society that the "Wise Latina" jumped on such a simplistic and unlikely explanation for the prosecutors question. Her statement really wasn't very 'wise' or judicial at all. In fact, her interpretation of the question is indicative of an unhealthy preoccupation with race and ethnicity. That is the real punchline to this story.
Comment: #1
Posted by: Old Navy
Wed Feb 27, 2013 4:14 AM
Would you rather be rich and evil or poor and good? Most people today would pick the former because we no longer have morals, thanks to the progressives who are slowly taking God out of our lives. It's hard to believe that a law professor would use this stupid logic in her classroom!
Comment: #2
Posted by: Oldtimer
Wed Feb 27, 2013 4:48 AM
Being a Lawyer, Susan has some ethos on this subject, but what does she expect us to take away from this article? That the criminal justice system is corrupt? No kidding. Everyone knows that. I really don't like anticdotal stories because they rarely address all sides and its still just one example.
Comment: #3
Posted by: Chris McCoy
Wed Feb 27, 2013 6:29 AM
Ms. Estrich acknowledges that the US Supreme Court upheld Mr. Calhoun's conviction on drug trafficking charges. Presumably the Court felt that the defendant had committed the underlying crime which had brought him to trial. There's a weird paradox when matters are brought into a courtroom: the public expects a much different standard of behavior from the participants than outside the courtroom. A guy can sit in a room with a bag full of money and a group of strangers who conspire to put together a drug deal and that's ignored; but let a man in a courtroom stray into syntax which is "politically incorrect", then suddenly it is a matter for the Supreme Court.

The government has a very serious responsibility to keep heroin, methamphetamine, and crack cocaine out of the hands of children, diseased and mentally ill people. But that duty applies just as stringently to every law-abiding person in the United States. Mr. Calhoun committed a crime and the prosecutor blundered into improper behavior by suggesting that some groups of people have the reputation of being more prone to drug deals than other groups. How would Mr. Calhoun's situation be better if the prosecutor didn't make the blunder?

In fact Ms. Estrich greatest criticism is for Calhoun's own attorney who did not object to the prosecutor's racial profiling and thereby preserve the issue for appeal. In her mind it was an easy out; the equivalent of the short-stop missing a pop fly. Everything else Calhoun's lawyer did was insignificant. This was sleeping on the job.

Seriously, wouldn't the jury have convicted if it didn't hear the ethnicity of the conspirators? Maybe the defense attorney thought it best not to draw attention to the circumstances of the crime. After all his client's story amounted to, "I thought I was at a bachelor party!" Yeah, right.

The state of Utah executed Gary Gilmore by firing squad. Lawyers I knew used to say that the difference between the United States and Cuba was that in the United States we give a guy a fair trial before we shoot him. Great consolation. Now we can say that before you are convicted of conspiring to smuggle drugs no one in the court room will mention the race of anyone involved. It won't stop you from going to prison. It won't prevent drug abuse from oppressing innocent communities. But it will make the lawyers happy.
Comment: #4
Posted by: Cowboy Jay
Wed Feb 27, 2013 9:45 AM
Where in the Constitution does it say that the government is responsible for keeping drugs off the streets and away from kids? Isen't it the parents job to protect their children? If the government can protect us from drugs, why not hamburgers, cigarretes, and soda? This is a slippery slope.
Comment: #5
Posted by: Chris McCoy
Thu Feb 28, 2013 6:22 AM
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