This morning, U.S. Supreme Court Justice Sonia Sotomayor scolded a federal prosecutor for a racist comment he made during a drug trial. While questioning the defendant, 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 bulb doesn't go off in your head and say, This is a drug deal?"
This struck Sotomayor as a wholly inappropriate thing for an Assistant U.S. Attorney to even be thinking, let alone blurting out in open court, in front of a jury. And rightly so. More troubling, as both Sotomayor and United States Court of Appeals for the Fifth Circuit Judge Catharina Hayes point out, is the Justice Department's nonchalance about the comment. From Hayes' concurring opinion last June:
Finally, perhaps the most troubling of all is how the United States Attorney's Office has handled this matter thereafter. While I do not fault the determination to argue in favor of sustaining the verdict, I am dismayed by the cavalier approach to this situation. The Government's brief calls the question "impolitic" and states: "even assuming the question crossed the line," as if that is in doubt. Let me clear up any confusion - the question crossed the line. An apology is in order, and I do not see it in the briefing. Indeed, it should trouble the Assistant United States Attorney in question and all those in his office not just that he said such a thing, but that he thought it. The title "prosecutor" -- indeed, the title "lawyer" - demands better. I hope I will not have to say this again.
But the courts contribute to this problem, too. Even in chastising the AUSA, neither Sotomayor nor Hayes actually name him. It's bad enough that state bars the Justice Department, and state attorneys general are so reticent about hitting misbehaving prosecutors with professional sanctions. But by not naming prosecutors who commit misconduct, even in opinions in which they find it to be egregious, the courts make it more difficult for the public to know when these public servants are out of line.
Over at the Popehat blog, Ken -- a former prosecutor -- pulled the case in question up on PACER and was able to identify the offending prosecutor as Assistant U.S. Attorney Sam L. Ponder.
And yes, Ponder does still work as a prosecutor in the U.S. Attorney's Office for the Western District of Texas.
Distasteful as Ponder's question was, prosecutors frequently get away with far more damaging misconduct -- withholding or even manufacturing evidence, for example -- and thanks to this habit of not naming them in appellate opinions, they not only escape professional sanction, but public accountability. It's also virtually impossible to sue them, even if, say, they've wrongly convicted you, causing you to spend several decades in prison.
Ken at Popehat is right -- those of us who cover these issues need to do a better job of identifying prosecutors who cross the line. But this is also information that should be readily and publicly available. These are public officials. They work for us. And they have incredible power -- the power to ruin lives. There's really no good reason why their misconduct should be obscured.
To that end, I'm going to start a recurring feature at this blog that will -- as Popehat puts it -- "name and shame" misbehaving prosecutors. We've sorta' been doing that here at The Agitator already with the annual "Worst Prosecutor of the Year" poll I've done in years past. (Which, alas, I didn't have time to get to for last year.) But this will be more regular -- and tagged.
But I also think that compiling and posting online comprehensive, searchable records of prosecutorial misconduct would be a great project for some public interest, criminal justice advocacy, voter information, or transparency organization. At the state level, prosecutors are elected. Knowing if an incumbent has had any verdicts thrown out due to misconduct would seem like the sort of information voters might want to know, and should be able to access rather easily. Federal prosecutors are appointed, but public pressure can still be effective, as we've seen from reaction to the death of Aaron Swartz. A U.S. Attorney position is also often a springboard to elected office. So again, any incidence of misconduct would certainly be of value to voters deciding whether an ambitious prosecutor deserves a promotion.
There's also at least a chance that once such a project was up and running, the knowledge that going forward, any findings of misconduct will be more readily available to voters, the media, activist groups, and any potential future political opponents would also serve as a deterrent, and help push back on some of the perverse incentives the job currently carries.
Perhaps someday the state bars, the courts, or the politicians will come around, and do something to hold prosecutors more accountable. But this is something that could be done soon. The information is out there. It just needs to be made more usable and accessible.