Sotomayor Criticized for Not Naming Prosecutor Who Used Racially Tinged Language
By Mary Jacoby | February 28, 2013 12:40 am

The unusual statement by Supreme Court Justice Sonia Sotomayor on Monday denouncing a San Antonio Assistant U.S. Attorney for using racially charged language during the 2011 trial of a black defendant has come under fire for not naming the prosecutor.

At the legal issues blog Popehat, a contributor (ironically identified only by his firm name, “Ken”) noted that not only Sotomayor but also several news outlets failed to identify Sam L. Ponder as the prosecutor who made the racially tinged remarks, which came to light when the Supreme Court declined to review the appeal of convicted drug conspirator Bongani Charles Calhoun.

“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?” wrote “Ken” on Popehat. He said he identified Ponder through a Pacer search of the trial transcript.

“Ken” cited initial reports from the Chicago Tribune, CNN and Courthouse News Service as those that didn’t name Ponder. He later updated his post to say that some outlets updated their articles with his name after he wrote his blog post. Other articles written later in the day did name Ponder. It is likely that those organizations that didn’t identify Ponder were under deadline pressure to react quickly to Sotomayor’s statement.

At the Atlantic Wire, David Wagner wrote: “[A]ll the attention toward this case has also brought up the question of anonymity. AUSA Ponder uttered the racist argument in trial, knowing full well that it would end up in public records. The blogger who first cited him by name, who goes by ‘Ken’ on the law blog Popehat, asks, ‘Isn’t that just part of a system that makes it vanishingly rare for prosecutors to be held accountable in any way for misdeeds?’”

A Huffington Post contributor, Radley Balko, took up the cry, linking the Ponder matter to the prosecution of the late Internet activist Aaron Swartz by the office of Massachusetts U.S. Attorney Carmen Ortiz. Swartz committed suicide in January and his family blamed pressure from Ortiz’s office to negotiate a plea agreement for unauthorized downloading of academic articles from the online database JSTOR.

Balko, who seemed to be somewhat blurry about the difference between a politically appointed U.S. Attorney and a career civil servant Assistant U.S. Attorney, wrote: ” A U.S. Attorney position is also often a springboard to elected office,” adding, “Federal prosecutors are appointed, but public pressure can still be effective, as we’ve seen from reaction to the death of Aaron Swartz.”

In an article published Monday evening, The Washington Post reached Ponder for comment.

“I can’t disagree with the idea she was expressing,” Ponder told the Post of Sotomayor’s criticism. He said he “wasn’t trying to interject race” into the case but was trying to determine the defendant’s “state of mind” when he claimed he got nervous while traveling with friends who were planning a drug deal that he also said he wasn’t aware of.

During the trial, Ponder asked Calhoun: “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?”

Sotomayor, the first Hispanic Supreme Court Justice, wrote in her statement: “It is deeply disappointing to see a representative of the United States resort to this basic tactic more than a decade into the 21st century. We expect the government to seek justice, not fan the flames of fear and prejudice.”

The statement was joined by Justice Stephen Breyer.

A spokesman for the U.S. Attorney’s office in San Antonio told Talking Points Memo the Ponder matter was referred to the Justice Department’s internal Office of Professional Responsibility, which investigates claims of prosecutorial misconduct.

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