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Naming and Shaming: Federal Prosecutor Edition: Assistant United States Attorney Sam L. Ponder

Feb 25, 2013
By .
Effluvia

Today, as CNN reported, the United States Supreme Court rejected cert in the case Bogani Charles Calhoun v. United States. This was notable because Justice Sonya Sotomayor, though joining the decision to deny cert, wrote separately to decry the racially charged prosecutorial comment at the heart of the appeal:

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, insteadcalling it only “impolitic” and arguing that “even assumingthe question crossed the line,” it did not prejudice the outcome. Brief for United States in No. 11–50605, pp. 19, 20. This prompted Judge Haynes to “clear up any confusion—the question crossed the line.” 478 Fed. Appx. 193, 196 (CA5 2012) (concurring opinion). In this Court, the Solicitor General has more appropriately conceded that the “prosecutor’s racial remark was unquestionably improper.”

Justice Sotomayor did not name the prosecutor. The United States Court of Appeal for the Fifth Circuit did not name the prosecutor. CNN did not name the prosecutor. The Chicago Tribune did not name the prosecutor, calling him "unidentified." Courthouse News — which specializes in covering the justice system — did not identify the prosecutor.

I, an obese fuzzy-slippered blogger, was able to identify the prosecutor in ten minutes using PACER. Eight of those minutes were because I accidentally selected the Western District of Tennessee rather than the Western District of Texas the first time I searched. On PACER, I found the case, found the docket, found the trial transcript, found the list of prosecutors on the case, found the transcript of the day in question, and found the exchange in question:

USA PONDER: Okay.
Q (By Ausa Ponder) I didn't — you're telling
this to this jury.
A I understand.
Q 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?
A No, sir.

That's Assistant United States Attorney Sam L. Ponder of the U.S. Attorney's Office for the Western District of Texas in San Antonio suggesting that African-Americans plus Hispanics plus money means drugs.

I have two questions.

First: why 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?

Second: if a numbskull like me can learn to search PACER to find this information out in a few minutes, why can't CNN or the Chicago Tribune or Courthouse News? And why wouldn't they? If a United States Supreme Court Justice says that a prosecutor's question was racially inflammatory and inappropriate, and that the United States' initial defense of it is regrettable, isn't the identity of the prosecutor newsworthy?

Edited to add: Since I posted this, some news outlets have amended their original stories to include the prosecutor's name.

Last 5 posts by Ken White

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65 Comments

  1. TJIC  •  Feb 25, 2013 @10:42 am

    > First: why does the system protect the names of prosecutors

    The System can discipline its own, but it still strives to look infallible in front of the ignorant masses (i.e. the taxpayers who are bled to create and maintain the system).

    I'm sure that the Nazis read the riot act to some of their underperforming skinheads, but that doesn't mean that they named-and-shamed them in front of Jews, Gypsies, or the disabled.

  2. Jess  •  Feb 25, 2013 @10:53 am

    Second: if a numbskull like me can learn to search PACER to find this information out in a few minutes, why can't CNN or the Chicago Tribune or Courthouse News?

    Cough: Because they're real journalists and not just bloggers.

  3. Mitch  •  Feb 25, 2013 @11:27 am

    Ken – you know the answer to this one, but I will bite. As a former AUSA (like you), I know that the system does not name the AUSAs who commit prosecutorial misconduct because there is an outsized fear that this sort of "mistake" will follow the AUSA for the rest of his/her career and make it impossible to get a post-government job. I think these concerns make some sense when a District Judge is reacting in the heat of the moment. It is a form of humility to say, I am really upset by what you did, but I am not going to name you because I might be wrong (or over-reacting) and I cannot unring that bell once I name you.

    Appellate judges are loathe to introduce names into their opinions, because they are dealing with a cold record. They tend to pride themselves on passionless justice. But it is precisely because of that critical distance that they should be more willing to name those who have committed prosecutorial misconduct.

    I also know that there is a fair amount of horse trading that will go on between a US Attorney and a District Judge to keep an AUSAs name out of the opinion. I know of at least two occasions when a US Attorney agreed to take remedial steps (like additional office-wide ethical training) to get a name pulled from an opinion before it issued.

  4. Ken  •  Feb 25, 2013 @11:30 am

    Mitch: that's an accurate description of what happens. But why do the courts tolerate it, and why doesn't the media talk about it?

    There's no such solicitude for the reputation of defendants.

  5. Clark  •  Feb 25, 2013 @11:36 am

    > There's no such solicitude for the reputation of defendants.

    Defendants are the little people, the Other, the taxpayers. Fuck them, we've got a government to run here.

  6. JDDrew  •  Feb 25, 2013 @11:42 am

    > Second: if a numbskull like me can learn to search PACER to find this information out in a few minutes, why can't CNN or the Chicago Tribune or Courthouse News?

    Because they are forced – FORCED – by their journalism degrees and Serious Jobs working for Real Newspapers to wear shoes instead of fuzzy slippers. And because they want to be taken seriously, they have to wear hard, uncomfortable shoes that pinch their toes. And because the terminal with the Internet connection is way over there and they are tired.

  7. Jessica  •  Feb 25, 2013 @11:45 am

    I can't remember the last time I heard of any prosecutor getting anything beyond a minor verbal scolding for even blatant misconduct. The system lets them get away with pretty much anything.

  8. Grandy  •  Feb 25, 2013 @11:45 am

    If we started doing things like this, wouldn't it make it harder to just throw innocent people in jail? What justice is there in that outcome?

  9. Jess  •  Feb 25, 2013 @11:56 am

    @Ken, IANAL and I'm curious given what I've seen of prosecutorial misconduct cases, can someone really go after them – does it make sense to do so given the apparent immunity of the police, DHS, and TSA?

  10. Albatross  •  Feb 25, 2013 @12:02 pm

    A textbook example of a class – in this case the legal profession and their journalistic hangers-on – protecting its own. The legal profession conspired to protect his identity because of the reasons noted above; the "journalists" because they are afraid of annoying their sources and having to work harder to do their jobs – which they mistakenly see as serving the legal profession rather than the public good.

    Heaven help them all if this obese, fuzzy-slippered blogger starts investigating how the private prison industry has conspired with a racist justice system to generate wealth from a nearly 3-million-person strong prison slave underclass in America.

  11. Mitch  •  Feb 25, 2013 @12:04 pm

    In order for the media to get into this, they would actually have to be willing to burn their sources in law enforcement. When I was an AUSA, there was a literal list of reporters whom we were told to give the cold shoulder, because they had burned the office on prior occasions. I have no idea if any of those incidents had anything to do with prosecutorial misconduct, but I sure as hell was not going to be the one to cross the line.

  12. Gregor Mendel  •  Feb 25, 2013 @12:04 pm

    How nice for AUSAs. I can't think of any other attorneys who receive this sort of deference, whether civil or criminal. Ridiculous.

  13. Charles  •  Feb 25, 2013 @12:04 pm

    Bravo. I saw David Carr's (I think) tweet asking who the attorney was and I thought "Isn't finding that out your JOB!?"

  14. Chris Ryan  •  Feb 25, 2013 @12:06 pm

    Let me first start with the caveat that I am a non-lawyer who deals with a very small section of tort law in my (occasional) foray into the working world (usually i am just a stay at home dad).

    I have seen a lot of really bad lawyering and it always annoys me to read a report like this case where an obvious wrong was committed (well maybe according to the original appeal) but that gets overruled by a mistake on the part of the defense counsel.

    Seriously, this reminds me of my folks with my kids saying "don't do that again, here's a cookie now go play." If they just threw out of the conviction as punishment, maybe the prosecutors would learn.

    As to the journalists, I have stopped getting most of my news from "mainstream" sites because they just arent willing to ask hard questions. I prefer finding that 800lb man with fuzzy slippers, because even if he is nuts, its more entertaining then FoxNews.

  15. Waldo  •  Feb 25, 2013 @12:30 pm

    Good on you for actually doing the job of some of these pussilanimous journalists.

    After reading some posts here about cops shooting dogs, I started following a site that publishes newspaper stories about such shootings. I have noticed that cops get similar treatment. The newspapers never name the cowardly cops who shoot family pets.

  16. Paul Alan Levy  •  Feb 25, 2013 @12:33 pm

    I am all for your public shaming, and I personally have spread your post further. Still, I wonder whether the fact that Sotomayor herself has been a prosecutor played some role in her not having named the individual lawyer. And, if the norm were that the individual prosecutor had to be named, that might create a disincentive to other judges to do this.

  17. En Passant  •  Feb 25, 2013 @1:07 pm

    Mitch wrote Feb 25, 2013 @11:27 am:

    Ken – you know the answer to this one, but I will bite. As a former AUSA (like you), I know that the system does not name the AUSAs who commit prosecutorial misconduct because there is an outsized fear that this sort of "mistake" will follow the AUSA for the rest of his/her career and make it impossible to get a post-government job.

    As well it should. The "outsized fear" should reflect the ordinary reality.

    Anyone who uses a government office to be an asshat just because he thinks he can get away with it is unfit for that office. If he can't find employment because that fact is revealed, so much the better. That state of affairs would create a strong disincentive to behave badly when exercising government privilege and power.

    I heartily agree with Waldo's thanks to Ken at Feb 25, 2013 @12:30 pm, so I'll repeat it: Good on you for actually doing the job of some of these pussilanimous journalists.

  18. Waldo  •  Feb 25, 2013 @1:18 pm

    I was a little curious about Mr. Ponder, so I looked him up on the Texas Bar website. Interestingly, he was first licensed to practice in May 1975. By my reckoning, assuming 18 when graduated high school, 4 years college, and three years law school, he would've been 25 in 1975 and should be about 62 or 63 now, at a minimum. He's a Texas Tech (which is in West Texas) grad. West Texas was not exactly a model of racial sensitivity in Mr. Ponder's formative years in the 60s and 70s.

  19. Mitch  •  Feb 25, 2013 @1:30 pm

    To be clear, the "outsized" fear that former AUSAs who are named and shamed for prosecutorial misconduct will be unable to find work later comes from the natural human instinct of empathy. AUSAs spend an enormous amount of time in front of the same judges. They often put their kids in the same federal day care centers. The only defense attorneys who have a similar amount of exposure to federal judges are FPDs, and (to my experience) they also received similar solicitude.

    One additional reason that judges are hesitant to name AUSAs who engage in prosecutorial misconduct is that the judges know that the DOJ OPR (Office of Professional Responsibility) will investigate any finding of professional misconduct. Judges tend to believe that the DOJ will clean up its own messes.

    There is also an issue that the charge of prosecutorial misconduct is often made and seldom proven. Right or wrong, not naming the prosecutor is viewed as a way to tamp down on the number of accusations that are made.

    Finally, the existence of prosecutorial immunity is the best argument for naming AUSAs who commit prosecutorial misconduct. The only possible sanctions against the prosecutor come from OPR, bar committees (rarely) and public shaming.

  20. James Pollock  •  Feb 25, 2013 @1:43 pm

    Perhaps the concern is that a single poorly-chosen "impolitic" improper question doesn't necessarily imply "racist doofus". Does AUSA Ponder have a history of incidents that suggest "racist doofus", or just this one? The Court, not being asked to determine the question "Is AUSA Ponder a racist doofus" but rather "Was AUSA Ponder's racist question sufficient to justify a new trial for the defendant?", didn't inquire as to AUSA Ponder's racist-doofusness.

    Hopefully, the journalistic followup would be to inquire into AUSA Ponder's history to settle the question of racist-doofusness authoritatively, rather than by inference from a single moment.

    Then you need to settle the question: do we require our AUSAs to not be racist doofuses, or, for those who ARE racist doofuses, that they not reveal this fact in open court?

  21. Mooj  •  Feb 25, 2013 @1:47 pm

    Let him know you feel:

    phone number deleted — we don't to that stuff here

  22. Mitch  •  Feb 25, 2013 @2:19 pm

    Given the enormous amount of discretion invested in AUSAs, I vote for keeping racist doofuses out of the fold. Since AUSAs are attorneys, it is virtually impossible to keep doofuses out. If being a doofus was a disqualifier, I never would have gotten the job.

  23. ShelbyC  •  Feb 25, 2013 @3:43 pm

    The USA today had a great series on prosecutor misconduct, including the lengths prosecutors go the keep their name off of records that highlight their misconduct. This includes plea deals that require defendants not to oppose the prosecutor's motion to remove his name from the record. But oddly enough, I can't find this series, and every time I click on a link from a site that talked about it, like talk left, I get a 404.

  24. AlphaCentauri  •  Feb 25, 2013 @3:57 pm

    It isn't necessary for a journalist to expose the guy as a racist doofus. Just publish the transcript and let his own words indict him. If he's so convinced his questioning didn't cross the line, he can hardly claim the journalist was stabbing him in the back. I mean, if he TRULY believes it didn't cross the line, he should be thanking the journalist for backing him up with the facts.

  25. C. S. P. Schofield  •  Feb 25, 2013 @3:58 pm

    Albatross,

    While I agree that it would be NICE if reporters considered it their job to inform the public, in fact their JOB is to provide material for their papers (new channels), that is generally in line with the editorial policy of the management and won't scare away advertisers.

    Maybe if more people would remember that we could kill for all time the idiotic idea that it is possible for News to be bias-free.

  26. AlphaCentauri  •  Feb 25, 2013 @3:58 pm

    oops, my tag didn't display:

    /snark

  27. Personanongrata  •  Feb 25, 2013 @4:18 pm

    Thank you obese fuzzy-slippered blogger of the tubes.

  28. En Passant  •  Feb 25, 2013 @4:24 pm

    C. S. P. Schofield wrote Feb 25, 2013 @3:58 pm:

    While I agree that it would be NICE if reporters considered it their job to inform the public, in fact their JOB is to provide material for their papers (new channels), that is generally in line with the editorial policy of the management and won't scare away advertisers.

    It is sometimes worthwhile to point out the actual market structure underlying any "media market", newspapers, radio, TV or teh intarwebz:

    The customer is not the reader, listener or viewer. The customer is the advertiser. The reader, listener or viewer is the product delivered to the customer.

    Many forget that, or never even knew it.

    That structure is not evil. It's just a longstanding reality ever since invention of the printing press. But ignorance of the simple fact can lead to unproductive critiques.

  29. NM  •  Feb 25, 2013 @4:54 pm

    Chicago Tribune has updated with Ponders name.
    I hope it becomes his first google hit.

  30. James Pollock  •  Feb 25, 2013 @5:39 pm

    "It isn't necessary for a journalist to expose the guy as a racist doofus. Just publish the transcript and let his own words indict him."

    Saying something racist doesn't necessarily imply racism, and saying something stupid doesn't necessarily imply stupidity. Once (MAYBE twice) is "oops". But if there's a pattern…

    I want to know if there's a pattern before I "let his words indict him".

  31. Ken  •  Feb 25, 2013 @5:44 pm

    James:

    I think there are two separate questions.

    One is whether one should judge a prosecutor as "racist" based on one utterance.

    Another is whether a prosecutor who employs racial language and stereotyping in prosecuting someone should be identified in a news story about the case.

    I think that when a public servant uses racial language in trying to put someone in jail in such a way that the Solicitor General concedes that they were definitely over the line, then their name is newsworthy, and that it is questionable for courts and media to conceal it.

  32. Lucy  •  Feb 25, 2013 @6:05 pm

    A Google search under "Sam L Ponder" brings this blog post up 3rd down on the list. Of course, one would have to know the name they were looking for to see it. No mainstream journalism showed up on the short first page on my mobile.

  33. Dan Weber  •  Feb 25, 2013 @6:26 pm

    Googling for "US attorney sam ponder" makes this blog number one, followed by a number of news stories.

    Top of that list: Fox News

    Eh, good on them.

  34. Mercury  •  Feb 25, 2013 @6:38 pm

    Yeah, so…was money exchanged for drugs or not?

  35. Bill Stewart  •  Feb 25, 2013 @9:58 pm

    Around 1990 a coworker of mine was on a jury for a drug case. The 10 jurors who didn't work for high-tech companies accepted the prosecutor's assertion that the Hispanic guy who was carrying a tube of model-airplane glue in a plastic shopping bag from the hardware store obviously must have been intending to sniff it, which also meant that the bag was drug paraphernalia, because he could have been planning to sniff the glue from the bag. If the guy had been white, he presumably wouldn't have been arrested, or prosecuted, or gotten to trial, so that's a cop, a prosecutor, and a judge who all have no business in a courtroom.

    Shame on Ponder.

  36. James Pollock  •  Feb 25, 2013 @11:07 pm

    "I think there are two separate questions.
    One is whether one should judge a prosecutor as "racist" based on one utterance."
    There seems to be at least a strong plurality who vote yes. On the off chance that he is NOT racist, but misspoke in a very, very unfortunate way, then he should not be named to protect him from the people who make snap judgments. That, I think, might justify NOT naming prosecutors (or defense attorneys, or civil attorneys) who do not have a known history of racist utterances (of course, the bar C&F panel should take note, and perhaps the defense bar as well, if a prosecutor says something this far over the line, and be watchful and perhaps poke a bit into the background, to see if there's a skeleton wearing a robe and hood in the closet.)
    My opinion is based largely on the fact that I've been known to start thinking about what I'm going to say next and not be thinking enough about what I'm saying now, and getting them crossed up. People who know me know that I'm not racist, but someone who got just that one worst sentence or two, when I had two separate ideas tangled up together, might not.
    Thus, I could see excluding specific information from the public record. (The fact that appellate opinions are forever probably influences the judges who write them).

  37. Ken  •  Feb 26, 2013 @7:38 am

    On the off chance that he is NOT racist, but misspoke in a very, very unfortunate way, then he should not be named to protect him from the people who make snap judgments.

    Does the system — or the press — offer that solicitude to anyone else? Why should the system or the press offer it to a prosecutor?

  38. JRM  •  Feb 26, 2013 @8:17 am

    James Pollock/Ken@7:38 a.m:

    I'm a prosecutor.

    First off, I think there are probably cases where suppressing the prosecutor's name is appropriate during some interval of time. This doesn't look like one of them, and I don't think it's particularly close.

    While I would take care before accusing Ponder of being actually racist – people say dumb things – I think the case for the publication of the name here is quite strong.

    This is not a disingenuous attack on Ponder; he said what he said, and it was wrong in a way we want to deter. The lack of a full walkback in close was regrettable, too.

    As Sotomayor notes, this isn't the Worst Thing In History. But it's bad. The question is racially spiked, appeals to racism, and is wrong.

    (Accusations of prosecutorial misconduct are made freely and falsely in some circles. Th

  39. JRM  •  Feb 26, 2013 @8:23 am

    Whoops, cut off: This was self-evidently not one of those cases, so those concerns are not germane to this analysis.)

  40. ShelbyC  •  Feb 26, 2013 @8:24 am

    I'm assuming that Sotomayor's point was not that Ponder should have known that the Hispanics involved were too wise to be involved in drug dealing?

  41. Ken  •  Feb 26, 2013 @8:28 am

    FWIW, I think JRM is correct that charges of prosecutorial misconduct are sometimes made freely and falsely.

    I was accused falsely — I would say frivolously — on a couple of occasions. One I added a bank robbery count because fingerprints had come back after the initial indictment and the defendant accused me of adding the counts vindictively because of his motion to suppress. In another case, the defendant hired a famous Kennedy conspiracy theorist as her lawyer, who constructed an internet-worthy conspiracy theory with me at the center.

    Judges rejected the accusations both times. They were right.

    Yet actual prosecutorial conduct is generally not addressed and generally does not lead to consequences.

  42. Neal  •  Feb 26, 2013 @9:21 am

    Local papers in TX (Houston Chronicle, SA Express Times) have published Ponder's name. Even shaming is bigger in Texas.

  43. David Nieporent  •  Feb 26, 2013 @9:59 am

    I can't remember the last time I heard of any prosecutor getting anything beyond a minor verbal scolding for even blatant misconduct. The system lets them get away with pretty much anything.

    In the Ted Stevens case, the outcry — far too late to help Stevens, of course — was great enough that they actually conducted an investigation. And decided that because the judge didn't actually order the prosecutors to comply with their constitutional obligations, they couldn't be punished for violating them.

  44. Windypundit  •  Feb 26, 2013 @10:03 am

    "…might justify NOT naming prosecutors (or defense attorneys, or civil attorneys) who do not have a known history of racist utterances…"

    But if they aren't named, how will we know if they have a history?

  45. David Nieporent  •  Feb 26, 2013 @10:22 am

    One is whether one should judge a prosecutor as "racist" based on one utterance."

    As Sotomayor points out, it was two utterances, not one.

    The bumbling defense attorney did not object at the time Ponder made the statement, but in closing argument he criticized it. Ponder stood up and rebutted that, saying that he wasn't making a racist comment because he wasn't saying that all black and Hispanic were criminals — just black and Hispanic people with money.

  46. En Passant  •  Feb 26, 2013 @10:23 am

    Ken wrote Feb 26, 2013 @8:28 am:

    Yet actual prosecutorial conduct is generally not addressed and generally does not lead to consequences.

    I thimk you mipspleled "misconduct".

  47. ParatrooperJJ  •  Feb 26, 2013 @10:27 am

    While insensitive, the statement is statisticly correct.

  48. James Pollock  •  Feb 26, 2013 @12:12 pm

    "if they aren't named, how will we know if they have a history?"
    The bar's C&F staff will know. (Now, there's certainly room for "but if they know, will they do anything about it?"-type questions… but these ARE the people who are SUPPOSED to be patrolling the membership to identify people who are temperamentally unfit to be lawyers.)

  49. Dan Weber  •  Feb 26, 2013 @12:31 pm

    I don't think he's a racist. (Although I don't come from the social justice world where the biggest worry in the universe is that there might be a racist somewhere we've failed to out.)

    But he did say those words in order to try to get some people sent to jail. He thought saying "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?" was a worthy argument to put someone in prison.

  50. ShelbyC  •  Feb 26, 2013 @1:18 pm

    Posner called out Juliette Sorensen a couple of years ago in an opinion for prosecutorial misconduct. Nothing happened to her she got a job teaching at Northwestern.

  51. George William Herbert  •  Feb 26, 2013 @7:58 pm

    Waldo wrote earlier:

    After reading some posts here about cops shooting dogs, I started following a site that publishes newspaper stories about such shootings. I have noticed that cops get similar treatment. The newspapers never name the cowardly cops who shoot family pets.

    Around here (San Francisco Bay Area), I have observed that both the TV news and newspapers report such identifications about half the time. Less so when it's a SWAT team mistake, perhaps, moreso where it's individual-officer-responding-to-something. Every time there's a lawsuit about it, as far as I know.

  52. Jamie  •  Feb 26, 2013 @11:45 pm

    Does the system — or the press — offer that solicitude to anyone else? Why should the system or the press offer it to a prosecutor?

    This, to me, is the big question. Put aside attempting to read someone's mind. In what other professional field can someone say something like that and not face professional consequences? One would think lawyers, even ones that do criminal law, would be sensitive to phrases like "hostile work environment" and "bias".

    I know being an AUSA is very different than working for a private company, but if I said that, I would expect to be fired right after HR talked to legal. And my responsibility is strictly to my clients and coworkers, not to the public.

  53. Kilroy  •  Feb 27, 2013 @7:46 am

    I seem to be missing the racist comment. What did he say that was racist? Or is this just another P.C. paranoia run amok.

  54. Patrick  •  Feb 27, 2013 @7:54 am

    Don't feed it.

  55. John Regan  •  Feb 27, 2013 @8:06 am

    Of course, in Holland v. Florida they were all over an incompetent defense attorney – and they named him, seemingly with relish.

  56. Kilroy  •  Feb 27, 2013 @8:09 am

    Pretty sure i've been called a troll… but really, that is what passes for racism these days? We've made a lot of progress if that is what deserves all the hubbub.

  57. James Pollock  •  Feb 27, 2013 @9:37 am

    " if I said that, I would expect to be fired right after HR talked to legal."

    If you work in a place where you expect to be fired for mis-speaking just once, it must be a very stressful workplace, indeed.

  58. Mitch  •  Feb 27, 2013 @9:44 am

    Just in case Kilroy really does not get it, here is the nut graf from Sotomayor's opinion:

    The issue of Calhoun’s intent came to a head when the pros- ecutor 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.” Tr. 125–126 (Mar. 8, 2011). (Calhoun had previously testified that he rejoined the group thenext morning because he thought they were finally returning home. Id., at 109.) The prosecutor pressed Calhounrepeatedly 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 bulbdoesn’t go off in your head and say, This is a drug deal?” Id., at 127.

    As a prosecutor, when the entire issue is intent and knowledge, it is a bald appeal to racism (and incitement to racism) to say "You must have known that this was a drug deal because there were a bunch of blacks and hispanics with a lot of money in a motel." I have no idea whether the other evidence of knowledge and intent was strong or weak. But it is not PC or oversensitivity to attack this as racist. For example, the AUSAs argument would fit just a neatly if the "blacks and hispanics" at issue were a group of reverands and deacons, or a group of Vietnam Veterans, or a sewing circle. The mere fact that the alleged co-conspirators were black and hispanic cannot be viewed as dispositive evidence that would "make a bell go off" that "I must be in the middle of a drug deal."

  59. Kilroy  •  Feb 28, 2013 @8:23 am

    I just don't see that as racist. There is a stereotype in play. But that isn't necessarily racist. If I was in a hotel room with a group of frat boys, a group of hoods, and a bag of money, that would make the same bell go off. Is that fratist?

  60. Mitch  •  Feb 28, 2013 @10:02 am

    Hey Kilroy. The point here (which apparently is lost on you, unless you are really trolling) is that the prosecutor did not say, "You have a bunch of young black males meeting up with a bunch of young hispanic males in a cheap motel with a bag full of money in circumstances that were so sketchy that you felt like you wanted to get out of there, didn't you think it was a drug deal." Instead, he literally said, “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulbdoesn’t go off in your head and say, This is a drug deal?” Id., at 127. That is racist, because the comment, on its face, says that the fact that it was blacks and latinos meeting up, you should have concluded that it was a drug deal. That comment would apply to a high school reunion, a meeting of paramedic squads or a million other circumstances. I doubt that you would think it was appropriate to say, "You've got blacks, you've got hispanics, you've got a bag full of money, doesn't a bell go off?" if the blacks and hispanics at issue were members of the Salvation Army.

  61. James Pollock  •  Feb 28, 2013 @12:38 pm

    Mitch, I think you're overstating the case by treating it as if it stands in isolation. (Yes, the statement IS racist, that's not the point I'm contesting). The prosecutor here spent however long exploring the specifics of the meeting… where it was, who was involved, and (probably) other indicators that this was NOT a class reunion, a meeting of paramedics, or a group of the Salvation Army but a drug deal (and, I think, the fact that it was a drug deal was already established). Yes, he SHOULD have made reference to ALL of the factors, and left out the discussion of race UNLESS it was relevant (unlikely, but possible).
    The point he was trying to make {"Look at all these things that indicate 'drug deal' [list] and you still claim you had no idea?" is perfectly valid. He botched delivery of this question in a really, really big way. He didn't explicitly refer to the factors that suggested drug deal, but if you look at the transcript, I bet you'll find more than "blacks and Hispanics were involved" and "bag full of money" were referenced in the preceeding testimony.
    Further, I bet if you could poll the people who heard the comment might have interpreted the question as racist (because it assumes that blacks and Hispanics have no reason to gather other than criminality, or, shorter, that blacks and Hispanics are inherently criminals), they actually, having heard the totality of the testimony and not just the one question, convicted because they did not find the defendant's testimony credible, and this is because, given the indicators presented as evidence, a light bulb went off in their heads that said "this is a drug deal". (Obviously, I have absolutely no evidence, much less proof, that this is so; it is entirely speculative on my part.)
    Bottom line: "These guys are [race], therefore they [attribute]" is an argument one must be very careful with, and AUSA Ponder wasn't… (I'm not sure that's the argument he was TRYING to make, but it IS the one he said out loud.)
    I agree with the appeals court that this was not a case that required a new trial, and I'm going to guess that the USA for that district took a new interest in supervising AUSA Ponder's work and caseload for a while… and if anything had come of that, we'd probably have, if not heard about it, been able to see the effects.

  62. AlphaCentauri  •  Feb 28, 2013 @5:06 pm

    I think that if you're a detective or prosecutor or someone else who makes a living through deductive logic, part of your job is to be highly aware of your own biases. In the case of a prosecutor, where the consequences are so great if you make a false assumption, it's particularly important. Ponder should be parsing his words very carefully whenever he is discussing race because those are exactly the cases where he needs to realize he is most likely to make an error of logic because of his preconceived biases.

  63. Ken  •  Feb 28, 2013 @5:22 pm

    Look, I have no idea if the guy is racist or not. It's entirely possible that this was a stupid way of phrasing a question in the heat of the moment. (Though, in general, a cross-examination is meticulously prepared in advance.)

    BUT — if the Solicitor Freaking General of the United States admits that you asked a question that was clearly over the line, and two Justices of the United States Supreme Court agree, then there's no earthly reason you should get to be anonymous. Defendants don't get that.

  64. Scooby  •  Mar 7, 2013 @10:17 am

    AUSA Sam Ponder attempts to explain his question, basically saying (paraphrase follows) "I screwed up in naming their ethnicities- the jury could see that they were different colors. I don't see what's wrong with the line of questioning. I'm also not going to defend myself only because arguing with a SC justice is futile."

    He adds (not paraphrased) "I mean, if he had said there were Asians or whatever, I would have included them." It's a great comfort to know he's not leaving out the Yellow Peril.

  65. Sidney  •  Mar 30, 2013 @6:52 pm

    For many of the reasons stated in the comments above, several of us have started a blog devoted to exposing prosecutorial misconduct, especially Brady violations, and ethical complaints against prosecutors. See http://www.seeking-justice.org. So far, efforts to hold them accountable in any forum usually fail. It is a horrible comment on our system, our bar associations, and a Department of Justice that continues to oppose any kind of codification of Brady.

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