Don’t look under that federal prosecutor’s bag!

Not for the first time by a longshot, lawyer/First Amendment warrior/blogger Ken at the sui generis blog Popehat has earned an Ethics Hero award. This time, his achievement included:

• Recognizing the widespread perpetration of a double standard that cannot be justified

• Opposing it, though the legal and journalistic establishments are firmly on the other side, and

• Remedying the immediate situation through his own efforts.

That’s a good year for most bloggers.

Ken was responding to a story that was widely publicized. Justice Sotomayor  had taken the unusual course of writing a separate opinion as she and her colleagues denied cert (that is, refused to take an appeal) in the case of Bogani Charles Calhoun v. United States, using it to condemn what she called the racist tactics of a federal prosecutor. Among her comments, she wrote, sharply,

“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.”

What did this prosecutor do? The Assistant U.S. Attorney had suggested in open court, in the course of cross-examination, that African-Americans and Hispanics were automatically suspects for illegal drug dealing:

Prosecutor: Okay. I didn’t — you’re telling this to this jury.

Witness: I understand.

Prosecutor: 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?”

Witness: No, sir.

“Hmmmm,” thought Ken, reading Sotomayor’s rebuke. “Who is this guy?”…

“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….”

So Ken tracked down the name of the prosecutor, which, he notes, wasn’t difficult or time consuming. In his post, he points out that prosecutors, especially of the federal variety, are virtually never held to account for their misconduct by either the system, the profession or the media. He properly wonders why. He is right to wonder, for the presumption of virtual immunity from the same accountability for wrongful conduct non-prosecuting attorneys are subjected to routinely contributes to the arrogance and recklessness of too many prosecutors. The main reason, I have surmised, is that despite all evidence to the contrary, which is considerable, prosecutors are still presumed to be “the good guys,” with nothing but good intentions, who, if they occasionally cross an ethical line here and there, ought to be given second, third, and fourth chances because it’s a tough, underpaid job and society should be grateful them. Many prosecutors in fact fit this exalted description, but those who don’t, don’t, and should not be protected by institutionalized anonymity from facing the consequences of their conduct.

Thanks to Ken, who broke the wall of silence, we now know that the prosecutor Sotomayor was referring to is Assistant United States Attorney Sam L. Ponder of the U.S. Attorney’s Office for the Western District of Texas in San Antonio. Other sources have begun using his name as well, which they easily could have done from the beginning. Ken didn’t just shame Ponder, he shamed them as well.

Excellent work, sir.

You should read Ken’s entire post here.

[While you are visiting, I recommend that you also read an excellent post (and comment thread) by Ken’s less-prolific colleague at Popehat, Charles, regarding the Onion’s misbegotten satirical joke on Twitter at the expense of  the nine-year-old Oscar nominated actress. I nearly wrote about this incident and the subsequent apology, but other matters intervened, and I wasn’t sure how to do it. Charles showed me. Terrific piece.]