Oklahoma GOP Tries to Overrule Federal Contraception Mandate »« NOM Spokesperson Misses the Obvious

Fed. Prosecutor Being Investigated for Racist Statement

A federal prosecutor in Texas is under investigation by the Department of Justice Office of Professional Responsibility for asking a racially charged question during a trial, and drawing the ire of Supreme Court Justice Sotomayor as well. During a drug trafficking trial the prosecutor asked the defendant:

“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 case itself was up for review by the Supreme Court, which denied cert (meaning they won’t hear the appeal). But Sotomayor took the opportunity to blast the prosecutor for that statement nonetheless:

“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,” Sotomayor wrote.

“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,” she continued. “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.”

The appeal that the court denied did not deal with that specific question, it was about errors made by the defendant’s attorney (who, oddly, did not object to the question above). But I think this incident is a glimpse of the racist assumptions at the core of our entire criminal justice system, especially when it comes to the war on drugs. Blacks, Latinos and whites buy and sell drugs at almost exactly the same rates, but blacks and Latinos are many times more likely to be arrested, convicted and imprisoned for it.

Comments

  1. Michael Heath says

    Justice Sotmayor:

    We expect the Government to seek justice, not to fan the flames of fear and prejudice.”

    Wow is this wrong. We live in Gerald Ford, Antonin Scalia, John Roberts, Sam Alito, Dick Cheney, George W. Bush, and Barack Obama’s U.S. So high-information voters and public officials are simply wrong if they expect the government to seek justice. Instead some of us instead demand the government seek justice; hopefully we’ll find J. Sotomayor consistently in that camp. But it’s folly for this generation to currently expect such.

  2. Ben P says

    The appeal that the court denied did not deal with that specific question, it was about errors made by the defendant’s attorney (who, oddly, did not object to the question above).

    Prosecutors get away with a lot, but in this case it’s actually kind of tough to specifically articulate an objection that I feel like a judge would grant. You shout loud enough, the judge may strike the question, but “Your honor, I object, that’s racist” isn’t exactly a legal objection. You can always make a general objection that the comment is improper because it’s unduly prejudicial, but in my experience judges don’t often grant those.

    It’s not the most important thing, but I’m also having a very difficult time separating this from the context in my head. The TPM article provides some of it.

    The Defendants were arrested after they tried to buy cocaine from an undercover agent. They had a dead lock as to the other defendant who I believe plead out and admitted to it. This particular guy’s defense was that he was just riding along and he had no idea that his friend was taking him on a trip to buy cocaine.

    His own attorney put him on the stand (which is rare in criminal cases), so he could try to explain how he had no idea that his friend was going to buy cocaine.

    After the defendant testified to this, the prosecutor’s main job on cross examination was going to be to bring out the point to the jury that “you don’t really expect us to believe this lie you’re telling do you?” “How could you not know you were going out to buy cocaine?”

    The prosecutor phrased this in a particularly bad way by emphasizing the race, but I’d have to think long and hard about how to phrase this properly, without at least conveying some racial undertones. If I was the prosecutor (and assuming the facts tie in) I’d probably want to focus on the area of town. It still has some clear racial undertones, but they’re less obvious. Like this.

    “So where were you arrested?”
    *answer*

    “Would you agree with me that this is not a “good area” of town?”
    *defendant’s answer doesn’t matter, provided the jury is local, if he denies it, he looks stupid in front of the jury, if he admits it my purpose is also served*

    “and who were you meeting with when you went there?”
    *answer*

    “did you know them?”
    *again, answer doesn’t matter*

    “Specifically where were you going to meet?”
    *answer*

    “and isn’t it true that you knew that your friend had a bag of cash that we now know had $5000 in it”
    *If defendant answers yes, you go on, if defendant answers you, pick him apart on the details, what exactly did he think was in the bag?”

    “Now you say you didn’t know why you were going out there, why did you THINK you were going out there?”
    *Answer will again probably some variation of I don’t know*

    “so let me get this straight, took a car ride with your friend, to a bad area of town, to meet some men you didn’t know in a parking lot, and your friend was bringing a bag with $5000 in it, and you expect us to believe that you had absolutely no idea why you were going out there?”

    But for example, if they were meeting in the wal-mart parking lot, in an area of town that was normal. WHat do you ask?

  3. Ben P says

    Still thinking about objections, maybe you treat it like the prosecutor made prejudicial comments in the presence of the jury and ask for a mistrial, which is probably the closest to what this is, but again, almost no judge is going to grant that. Few judges throw away long scheduled trials without really major cause. At best, the judge gives a curative instruction, and tells the jury “you will disregard that comment and you are not to consider the race of the parties as evidence in this matter.”

    But that’s almost worse than the original comment, because now the jury’s thinking about it anyway.

  4. Michael Heath says

    When it comes to the law and racism, check out this column from Dana Milbanks which is partly about Antonin Scalia’s barely hid racism: http://goo.gl/CPbhE.

    Mr. Milbanks distinguishes himself as a dead-tree opinion writer who both remains relevant and continues to improve the quality of his insight and arguments.

    One of the biggest revelations coming out of the rise of the Internet and our new-found ability to sufficiently fact-check was how full of shit so many of Milbanks’ peers have always been.

  5. says

    Ben P:

    Sorry, I’m not buying it. Only one fact would change my mind … what was the makeup of the jury? If it was all anglo whites, it was a clear dog whistle and few lawyers of my acquaintence could have just stumbled into such phraseology.

    And what was the judge doing … taking a nap? Why didn’t s/he knock down such a comment immediately?

    Even if it was unintentional, that is, in some ways, worse. It would show a pervasive, not even questioned, racism in the entire system of “justice” in Texas that even extends to the Federal courts, which are supposed to be better than that.

  6. Ben P says

    Sorry, I’m not buying it. Only one fact would change my mind … what was the makeup of the jury? If it was all anglo whites, it was a clear dog whistle and few lawyers of my acquaintence could have just stumbled into such phraseology.

    And what was the judge doing … taking a nap? Why didn’t s/he knock down such a comment immediately?

    Even if it was unintentional, that is, in some ways, worse. It would show a pervasive, not even questioned, racism in the entire system of “justice” in Texas that even extends to the Federal courts, which are supposed to be better than that.

    A judge will virtually never sua sponte comment. That’s a good way for one party or another to end up asking for a mistrial.

    And this occurred in the Western District of Texas, that’s Waco, Austin, San Antonio, Del Rio, Midland, Pacos, Alpine and El Paso. Just given the demographic of that region it is likely the jury would be mostly white, probably with several Hispanics. (Texas overall is 70% white, 12% black, with 37% identifying as hispanic. THe African American population is overwhelmingly concentrated in East Texas and the Houston and Dalls metro areas).

    And you dont’ have to believe me, but most lawyers don’t precisely script out their cross exmination because you have to be very flexible and respond to what the Defendant is saying. Also given that lawyers often deal with race in very stark terms, it’s not hard at all for me to see how a lawyer searching for a question comes up with “and you’ve got black guys and hispanic guys meeting with a bag full of cash and you’re telling me you had no idea drugs were involved?” Without it being an intentional dog whistle at all. That doesn’t make it ok, but I seriously doubt that was a deliberate pre-thought out question.

  7. says

    A judge will virtually never sua sponte comment. That’s a good way for one party or another to end up asking for a mistrial.

    That doesn’t describe any Federal judge I’ve practiced before.

    most lawyers don’t precisely script out their cross exmination because you have to be very flexible and respond to what the Defendant is saying

    Granted. But the idea that “lawyers often deal with race in very stark terms” is exactly what Sotomayor was complaining (justly, in my opinion) about.

    I seriously doubt that was a deliberate pre-thought out question

    And, as I said, that (and the judge’s inaction) makes it worse.

  8. Ichthyic says

    Heath says it well.

    the expectation that any government of the US won’t fan the flames of prejudice has been shown to be horribly mistaken repeatedly over the last 100 years.

    I recall my Dad telling me the story of the American internment of Japanese citizens during WWII.

    many decades later, even Ronald Reagan had to admit to the truth of that:

    In 1988, Congress passed and President Ronald Reagan signed legislation which apologized for the internment on behalf of the U.S. government. The legislation said that government actions were based on “race prejudice, war hysteria, and a failure of political leadership

    Sotomayor was stating the ideal, not the reality, unfortunately.

  9. Ichthyic says

    Also given that lawyers often deal with race in very stark terms, it’s not hard at all for me to see how a lawyer searching for a question comes up with “and you’ve got black guys and hispanic guys meeting with a bag full of cash and you’re telling me you had no idea drugs were involved?” Without it being an intentional dog whistle at all.

    so, Ben, ask yourself if you personally would find the statement silly if you substituted white guys for “black guys and hispanic guys”

    if the answer is yes…

    oops, you’re a racist. might want to work over those preconceptions some in your own head.

  10. jonathangray says

    Blacks, Latinos and whites buy and sell drugs at almost exactly the same rates, but blacks and Latinos are many times more likely to be arrested, convicted and imprisoned for it.

    You’re saying conviction rates are no sound guide to offending rates? Presumably due to racism.

    How is it known that “Blacks, Latinos and whites buy and sell drugs at almost exactly the same rates”?

  11. Childermass says

    In Making Your Case: The Art of Persuading Judges, Scalia mentioned a judge who fined a lawyer for repeatedly making fun of the name of the defendant if memory serves.

    I personally think it is very fair for judges to demand that the lawyer that practice before them non make blatant appeals to the prejudices of the jury.

  12. Ben P says

    so, Ben, ask yourself if you personally would find the statement silly if you substituted white guys for “black guys and hispanic guys”

    if the answer is yes…

    oops, you’re a racist. might want to work over those preconceptions some in your own head.

    It’s amazing what people assume. I guess I didn’t make the point “the statement is still wrong” clear enough.

    I’m saying that I don’t think this was intentional. I seriously doubt the prosecutor sat down in advance and said “I’m going to prove my case by suggesting that the defendants are guilty because they’re black.” I also said I can see why the prosecutor was going down that road. The defendant told a stupid lie “I didn’t know we were going on a trip to buy cocaine,” and your job on cross examination is to ask questions that demonstrate why this lie is stupid.

    A statement that you come up while searching for something on the spur of the moment can still be wrong and can still be racist.

  13. dingojack says

    a) Whether the statement was intentional or not is irrelevant, it was racist.
    b) When you go driving with a fiend and he drives into a ‘bad area’ of town, suddenly you become a mind reader – is that what you’re saying Ben? Have you any logically consistent mechanism that would explain how a certain locale in a city gives you ESP? Does it also allow you to teleport backward in time to the point that you were about to leave and suddenly refuse to go, as well?

    Dingo

  14. dingojack says

    Be P – “It’s amazing what people assume.”

    I guess we’re not in the ‘bad’ part of town.

    Dingo

  15. says

    jonathangray: You’ve never heard of something called surveys? This Drug Policy Aliiance report on marijuana and arrests of African-Americans, for instance, cites the National Survey on Drug Use and Health conducted by the US Dept. of Health and Human Services. In any case, though, conviction rates wouldn’t be reasonable assumptions of rates of use, since we would have to presume that our justice system catches and effectively prosecuted all users and no non-users, which is manifestly false.

  16. says

    ““and you’ve got black guys and hispanic guys meeting with a bag full of cash and you’re telling me you had no idea drugs were involved?”

    Off the top of my head, carrying a wad of cash might be for the purpose of buying:

    A vehicle that is being sold for cash, only.

    Guns, not even a stretch in Texas or about 20 other states where buying and selling guns is pretty much unregulated except where FFL’s are concerned.

    A nice, 2 carat, flawless diamond.

    So, yeah, drugs are THE ONLY THING that a guy might be carrying a wad of cash for.

    The comment was and the prosecutor is racist.

  17. jonathangray says

    TCC:

    conviction rates wouldn’t be reasonable assumptions of rates of use, since we would have to presume that our justice system catches and effectively prosecuted all users and no non-users, which is manifestly false.

    Yes, one might reasonably expect such generalised anomalies; but Ed asserted there is a specific racial bias in conviction rates, ie that the number of convictions of blacks and Hispanics for using and dealing drugs are disproportionate to the number of drug offences actually committed by blacks and Hispanics. How do we know this? You answer:

    You’ve never heard of something called surveys? This Drug Policy Aliiance report on marijuana and arrests of African-Americans, for instance, cites the National Survey on Drug Use and Health conducted by the US Dept. of Health and Human Services.

    That study claims: The substantial disparities in marijuana possession arrest rates of whites and blacks cannot be explained by their patterns of marijuana use. As the marijuana use graphs on the next page show, U.S. government studies consistently find that young blacks use marijuana at lower rates than young whites. [Emphasis in original.]

    How did these surveys come by their figures? The illustrative graphs break the sample of ethnic groups (how big was that sample?) down into age-groups 12-17 and 18-25, and ranks them against the categories “Ever Used Marijuana in Life”, “Used Marijuana in Past Year” and “Used Marijuana in Past Month”. Are we to understand that folks with clipboards went round houses and asked young people if and how often they used marijuana? This isn’t a victim survey — young people are being asked by government officials if they’ve used an illegal drug! Are we expected to take their answers seriously?

    Moreover, that survey is limited to marijuana offences and to possession/use, not dealing. “Excuse me sir, I’m doing a government survey. Would you mind telling me how many times you have dealt heroin or crack cocaine in the past month?” Give me a break.

  18. Ben P says

    a) Whether the statement was intentional or not is irrelevant, it was racist.
    b) When you go driving with a fiend and he drives into a ‘bad area’ of town, suddenly you become a mind reader – is that what you’re saying Ben? Have you any logically consistent mechanism that would explain how a certain locale in a city gives you ESP? Does it also allow you to teleport backward in time to the point that you were about to leave and suddenly refuse to go, as well?

    Dingo

    This is just completely separate from the statement the guy made. I want that to be clear.

    But it appears you don’t understand the job of a prosecutor. I work as an attorney for a state agency now, I’m not a prosecutor but I work in some of the same space. (My job has to do with child welfare and abuse/neglect cases).

    In the past week I’ve been told very earnestly that:
    (a) I have no idea how I tested positive for meth, I haven’t touched the stuff in years.
    (b) I don’t smoke meth, the positive test must be because I bumped into someone on the street who had smoked.
    (c) The department agents are putting cocaine in my water and that’s why I tested positive.
    (d) I’m taking *over the counter medication X* and that must be why I tested positive for meth.

    I can tell you sitting right here, right now, that there is a near certainty that each of (a)-(d) above are false, the reason someone tested positive for meth/cocaine is because they were using it. But that didn’t stop people from lying, from the witness stand, under oath. If I believed every BS statement that people come up with for why they don’t

    In the case that is the subject of this post, two guys got in a car with a bag full of cash, after one guy made a phone call with DEA agents to arrange to buy cocaine. One guy admits it and says “Of course the other guy was in on the deal.” The second denies it and says he knows nothing about any of this.

    Imagine you’re on a jury, do YOU honestly believe he’s telling the truth when he says he didn’t know what was going on?

    I can tell you I don’t believe it. If I were a prosecutor my job would be to demonstrate to the jury that it’s a lie.

    Now, implying that the jury should assume this because of the race of the people involved is unequivocally wrong. But how else do you demonstrate that he’s a liar through cross examination. Yeah, your witness has already said “he was in on it, he gave me half of the money,” but your witness is also a criminal and has had his credibility attacked because he cut a plea deal and implicated the other guy as part of that.

    SO again, how do you attack the lie, and do so in a way that doesn’t even come close to implying things for people who are predisposed to believe them.

  19. jonathangray says

    OK I’ll play.

    Yes, democommie, I’m a racist. I’m actually the Imperial Grand Poohbah of the Klan. I also enjoy parading in front of a full-length mirror while wearing SS uniform, my favourite easy listening is Blood Axis and my private cinema plays Leni Riefenstahl movies non-stop.

    Now we’ve got that sorted, can you tell me how we know that drug offence conviction rates for NAMs (Non-Asian Minorities) are higher than their actual drug offence rates due to institutional racism?

  20. Ben P says

    young people are being asked by government officials if they’ve used an illegal drug! Are we expected to take their answers seriously?

    Actually you’d really be shocked how often people admit in open court that they’ve smoked marijuana within the past week. Now usually in my cases it’s in the context of a denial that they’ve used meth, but some of these people have very little problem admitting they smoke marijuana.

  21. says

    Awwww,. poh widdow Johnny, him think him have argument.

    Here’s the deal fuckdouche, arguing with you would be comparable to arguing with a shitfilled diaper, except that the shitfilled diaper will have actually served some purpose in its life.

    You are aware, no doubt, that the reason that people do not engage with you is that they think you’re a fucking tool, yes?

  22. jonathangray says

    But do you know us? I’m not sure
    We have been introduced. We are
    The neo-McCarthyists. Our motto:
    This time, we’ll finish the job.

    - Mencius Moldbug

  23. jonathangray says

    Ben P:

    Actually you’d really be shocked how often people admit in open court that they’ve smoked marijuana within the past week. Now usually in my cases it’s in the context of a denial that they’ve used meth, but some of these people have very little problem admitting they smoke marijuana.

    I’m sure you’re right, although as you acknowledge, there’s a big difference between admitting it in court (particularly when denying using harder drugs) and admitting it in a survey. Of course, a marijuana survey’s results might be skewed in any number of ways — some young people might exaggerate their use of the drug as an act of bravado, for instance.

    At any rate I still don’t see how anyone could give any credence to a voluntary survey into rates of meth or crack dealing. Apart from anything else, it would mean researchers having to venture into ‘bad parts of town’ where their personal safety would be at risk. (The effective inability to canvass inner-city areas has been acknowledged as one of the British Crime Survey’s methodological limitations.)

    One is left with an uncomfortable suspicion: it is felt that ethnic disparities in conviction rates must must MUST be a result of institutional racism because the very notion that certain ethnic groups might commit a disproportionate amount of certain crimes is simply unacceptable to a certain mindset. (Unless those ethnic groups are white, of course.)

  24. dingojack says

    Jonathon – but at least the surveyor will be able to use their magic ESP to find the truth, being ‘in the ‘bad’ part of town and all.

    BenP – you want to convince me, prove it by using actual facts, not prejudices and guesswork.
    Show me that the passenger knew there was gonna be a drug deal but went anyway.

    Dingo

  25. Anthony K says

    Yes, democommie, I’m a racist. I’m actually the Imperial Grand Poohbah of the Klan. I also enjoy parading in front of a full-length mirror while wearing SS uniform, my favourite easy listening is Blood Axis and my private cinema plays Leni Riefenstahl movies non-stop.

    Well, rates for racism among whites, like jonathangray, is fairly high, even among those who claim they aren’t.

  26. jonathangray says

    dingojack:

    at least the surveyor will be able to use their magic ESP to find the truth, being ‘in the ‘bad’ part of town and all.

    I don’t know why you put “bad” in scare quotes. Such places do exist, you know. Perhaps this particular part of town is well-known for being a haunt of drug-dealers. Perhaps the drug trade in that part of town is known to be dominated by members of the black and Hispanic communities — that’s quite possible even if “blacks, Latinos and whites buy and sell drugs at almost exactly the same rates”. Who knows?

    Anthony K:

    Well, rates for racism among whites, like jonathangray, is fairly high, even among those who claim they aren’t.

    Thanks to the miracle of the internet, I see Professor Kawakami is paid a salary of $124,086.64 for conducting such valuable research. If she wants to go some way towards actually earning it, she could conduct a follow-up experiment to monitor the reactions of black students when one of their fellows racially abuses a lone white student. Somehow I doubt the idea will occur to her.

  27. Pierce R. Butler says

    The race of the parties involved does make the question relevant – if all involved with the bag full of cash were white men, the defendant may quite reasonably have thought he was witnessing a Wall Street transaction or a political campaign contribution.

  28. says

    “don’t know why you put “bad” in scare quotes. Such places do exist, you know. Perhaps this particular part of town is well-known for being a haunt of drug-dealers. Perhaps the drug trade in that part of town is known to be dominated by members of the black and Hispanic communities — that’s quite possible even if “blacks, Latinos and whites buy and sell drugs at almost exactly the same rates”. Who knows?”

    Perhaps you can explain wtf “trends” have to do with establishing guilt in a criminal trial? Do you know why so many drug deals take place in black/latino/inner city neighborhoods? It’s because the white boys don’t want the homies in their neighborhoods.

    Racist piece-of-shit (that would be you, fuckface) will be racist piece-of-shit (that will still be you, fuckface).

  29. dingojack says

    Because ‘bad’ is not an objective measurement of anything at all.
    Who decides what ‘bad’ is? Who quantifies ‘badness’? And who determines it’s borders of the ‘badness’?*
    Dingo
    ——-
    * Do we know, for a fact, that the defendant knew he was in a ‘bad’ part of town? [Perhaps his ESP getting ramped-up to 11 was a giveaway.] And even if he did, so what? Being in the ‘bad’ part of town doesn’t constitute a reasonable basis for suspecting a crime was going to be committed.
    For example, if I go through the ‘bad’ suburb of Kings Cross (prostitution, strip-clubs, sleazy bars and drunken street violence etc.) whilst going to the adjoining affluent suburb of Elizabeth Bay (swimming pools, movie-stars) does that mean I was going to commit a crime while I was in the Cross but I wouldn’t dream of it in the ‘nice’ suburb of Elizabeth Bay?

  30. jonathangray says

    democommie:

    Perhaps you can explain wtf “trends” have to do with establishing guilt in a criminal trial?

    This sort of circumstantial data may not be admissible in a court of law; in which case the prosecutor deserved a censure. But that doesn’t mean his remarks were wrong in principle or motivated by racism.

    Do you know why so many drug deals take place in black/latino/inner city neighborhoods? It’s because …

    Whoah, what was that again?

    so many drug deals take place in black/latino/inner city neighborhoods

    OK. Carry on.

    … It’s because the white boys don’t want the homies in their neighborhoods.

    If I understand you correctly, you’re saying white kids who take or deal drugs don’t want to do business with NAM dealers in white neighbourhoods because they (the white kids) are racist, so the drugs trade gets pushed into NAM neighbourhoods. But if, as Ed says, “blacks, Latinos and whites buy and sell drugs at almost exactly the same rates”, why should these racist white kids need to do business with NAMs in the first place? Why not just keep it in their own neighbourhoods?

    dingojack:

    Because ‘bad’ is not an objective measurement of anything at all.
    Who decides what ‘bad’ is? Who quantifies ‘badness’? And who determines it’s borders of the ‘badness’?

    That’s just smoke-pumping. In this context it’s perfectly clear what is meant by “bad”. A “bad area” is one where a certain type of crime is commonly committed.

    Do we know, for a fact, that the defendant knew he was in a ‘bad’ part of town?

    Well I don’t know if he knew and neither do you. Maybe the prosecutor thought anyone with eyes in his head would have known what sort of area he was in. Maybe the prosecutor was wrong; maybe he was wrong because he’s a racist. But we don’t know that either.

    And even if he did, so what? Being in the ‘bad’ part of town doesn’t constitute a reasonable basis for suspecting a crime was going to be committed.
    For example, if I go through the ‘bad’ suburb of Kings Cross (prostitution, strip-clubs, sleazy bars and drunken street violence etc.) whilst going to the adjoining affluent suburb of Elizabeth Bay (swimming pools, movie-stars) does that mean I was going to commit a crime while I was in the Cross but I wouldn’t dream of it in the ‘nice’ suburb of Elizabeth Bay?

    Well there are a great many variables aren’t there? If you were in the company of known criminals or members of an ethnic group known for being over-represented in certain criminal activities in that area; if in addition you were in possession of items that could facilitate such a crime; then it might constitute a reasonable basis for suspecting a crime was going to be committed. As as said, it may not be admissible in a court of law — and I don’t doubt there are very good reasons for that — but it’s not intrinsically unreasonable, let alone racist.

Leave a Reply