Rebuked by Sotomayor, Texas Prosecutor Defends Reasoning Behind ‘Poorly’ Posed Question
By Tyler Bass | February 28, 2013 10:15 pm

The Assistant U.S. Attorney in San Antonio who was denounced by Supreme Court Justice Sonia Sotomayor for using a racially tinged line questioning in the trial of a drug conspiracy defendant defended himself today in a telephone interview with Main Justice.

Sam Ponder said his question to Bongani Calhoun during his 2011 trial — “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 his inartful way of trying to get the defendant to admit he wasn’t just getting an innocent ride with friends, as he’d testified.

“You know, I mean, in the heat of battle sometimes, you’re not thinking a hundred percent accurately of the way you’re trying to ask a question,” Ponder, age 62, said in the interview. He conceded his question was “poorly thought-out.” But he said by the time he referenced the co-conspirators’ races, the jury already understood their ethnicities from the testimony of two witnesses’ before them.

“These people, most of them were strangers to him,” Ponder said, adding that Calhoun had never met two of the Hispanic individuals. The Western District of Texas Assistant U.S. Attorney added, “It was just the fact that these are people who had nothing in common with each other; you know, they don’t know each other.” Pressed to disassociate himself from a drug deal, the onus was on Calhoun’s defense to explain his motivation for ending up in a proverbial wrong place at the wrong time, he said.

He said he did not mean to imply that certain ethnic groups are more likely to trade illegal drugs. “Nobody trying a case would want to insult their jury,” which he said included Latinos.

He added: “I mean, if he had said there were Asians or whatever, I would have included them.”

Sotomayor’s unusual statement, which was joined by Justice Stephen Breyer, was issued Monday in connection with the Supreme Court’s decision not to hear Calhoun’s appeal. Sotomayor, the only Hispanic on the court, wrote that the prosecutor had “tapped a deep and sorry vein of racial prejudice.” Sotomayor did not name Ponder in her statement.

Asked whether he would have been inclined to mention the parties’ races had they been of the same ethnicity, Ponder said no. Instead, he said he would have said: “Okay, you were in there with strangers.”

Calhoun testified he traveled with companions from Houston to attend a San Antonio strip club. They ended up in a San Antonio hotel room with three others, who had a bag containing approximately $400,000 cash. Calhoun said that an immediate traveling companion relayed that the three strangers were going to show them San Antonio’s entertainments.

Ponder recounted that Calhoun said he “didn’t like the way it looked” and eventually left the room. Later, said Ponder, Calhoun was picked up with more than $2000 in cash.

“And so my question was directed at, you know, what is it about this situation you didn’t like? And his answers are, I don’t know, I don’t know, I don’t know.” Ponder said he sought for Calhoun to clarify what made him uncomfortable about the meeting. “All I was trying to do is just kind of recap what he had already testified to.”

Asked whether he thought people of differing races would be unlikely to associate, Ponder said, “It was just the fact that three people have nothing in common with each other,” adding, “There’s no reason for them to be in this hotel room.”

Ponder grew up in Midland, Texas and graduated from Texas Tech University School of Law in 1974. He worked for 16 years in the San Antonio district attorney’s office. He started work in the U.S. Attorney’s office in 1991 — first in El Paso, before moving to San Antonio in 2001. Over his career Ponder said he has handled everything from juvenile cases to traffic offenses to hard-core felonies, including capital murders.

Asked what he thought about Justice Sotomayor’s rebuke, he chuckled softly. “I just don’t see anything to be gained by, you know, having a war with … a Supreme Court justice, okay?”

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