The Richmond Register

Viewpoints

February 27, 2013

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.

© 2013 CREATORS.COM

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