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(Talking Points Memo)   Sotomayor puts the smackdown on a U.S. attorney whose remarks were "an affront to the Constitution's guarantee of equal protection of the laws"   (tpmdc.talkingpointsmemo.com) divider line 54
    More: Interesting, Sonia Sotomayor, United States, DOJ, Office of Professional Responsibility, concurring opinions, United States Court of Appeals for the Fifth Circuit, United States Attorney, Circuit Court of Appeals  
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3901 clicks; posted to Politics » on 26 Feb 2013 at 10:50 AM (2 years ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2013-02-26 07:43:48 AM  
During his cross-examination of Calhoun at trial, a skeptical Assistant U.S. Attorney Sam L. Ponder said: "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?"

Wow.
 
2013-02-26 07:49:04 AM  

DoctorCal: During his cross-examination of Calhoun at trial, a skeptical Assistant U.S. Attorney Sam L. Ponder said: "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?"

Wow.


Makes you ponder, doesn't it?
 
2013-02-26 07:50:13 AM  
They still upheld the conviction? This couldn't sway a jury?
 
2013-02-26 07:51:22 AM  
I'm not a Sotomayor fan, but she's right on this one.  That's blatant racism on the part of Ponder, and that statement alone should have resulted in the trial judge instructing the jury to disregard, and to sanction Ponder.
 
2013-02-26 07:52:48 AM  
Damn librul judges, trying to infringe on his first amendment rights to be an asshole.
 
2013-02-26 07:55:52 AM  

johnryan51: They still upheld the conviction? This couldn't sway a jury?


Appellate courts often rule conservatively when the challenge is x is unfairly prejudicial.
 
2013-02-26 08:11:50 AM  
But it's Texas. That's how they roll.
 
2013-02-26 08:19:23 AM  
Dude should change his name to Pander, amirite?
 
2013-02-26 08:27:49 AM  
Wow, counselor. Just wow.
 
2013-02-26 08:43:17 AM  

Bontesla: johnryan51: They still upheld the conviction? This couldn't sway a jury?

Appellate courts often rule conservatively when the challenge is x is unfairly prejudicial.


No, it's simpler than that: there are procedural rules that apply to appeals.  Here, he failed to raise the issue appropriately, and so as a matter of procedural law he was blocked from raising the issue in front of the Supreme Court.

Specifically: the defense attorney failed to object to the question at trial (and moreover, failed to ask for a mistrial either).  By failing to object, the defense attorney prevented the trial court - the court best positioned, by law, to handle disputes over the admission of evidence or testimony - from being able to resolve the issue, and prevented the prosecutor from being able to fix and/or explain the issue.

With highly limited exceptions, Appellate Courts in the US will not hear issues on appeal that were not objected to at the appropriate time in trial.
 
2013-02-26 08:44:38 AM  

Nabb1: Wow, counselor. Just wow.


What's amazing is that, when defense counsel brought it up in closing, the prosecutor didn't really make it any better:

"I got accused by [defense counsel] of, I guess, racially, ethnically profiling people when I asked the question of Mr. Calhoun, Okay, you got African-American[s] and Hispanics, do you think it's a drug deal? But there's one element that's missing. The money. So what are they doing in this room with a bag full of money? What does your common sense tell you that these people are doing in a hotel room with a bag full of money, cash? None of these people are Bill Gates or computer [magnates]? None of them are real estate investors."
 
2013-02-26 08:50:45 AM  

mattharvest: Bontesla: johnryan51: They still upheld the conviction? This couldn't sway a jury?

Appellate courts often rule conservatively when the challenge is x is unfairly prejudicial.

No, it's simpler than that: there are procedural rules that apply to appeals.  Here, he failed to raise the issue appropriately, and so as a matter of procedural law he was blocked from raising the issue in front of the Supreme Court.

Specifically: the defense attorney failed to object to the question at trial (and moreover, failed to ask for a mistrial either).  By failing to object, the defense attorney prevented the trial court - the court best positioned, by law, to handle disputes over the admission of evidence or testimony - from being able to resolve the issue, and prevented the prosecutor from being able to fix and/or explain the issue.

With highly limited exceptions, Appellate Courts in the US will not hear issues on appeal that were not objected to at the appropriate time in trial.


Thanks, I was hoping for a legal answer.
 
2013-02-26 09:49:25 AM  

johnryan51: Thanks, I was hoping for a legal answer.


No problem.  Also, to be clear, I'm absolutely <i>not</i> endorsing the prosecutor's question (or his attempt at justifying it in his closing).  I'm just explaining why it wasn't properly preserved for appeal.
 
2013-02-26 10:27:31 AM  

mattharvest: Bontesla: johnryan51: They still upheld the conviction? This couldn't sway a jury?

Appellate courts often rule conservatively when the challenge is x is unfairly prejudicial.

No, it's simpler than that: there are procedural rules that apply to appeals.  Here, he failed to raise the issue appropriately, and so as a matter of procedural law he was blocked from raising the issue in front of the Supreme Court.

Specifically: the defense attorney failed to object to the question at trial (and moreover, failed to ask for a mistrial either).  By failing to object, the defense attorney prevented the trial court - the court best positioned, by law, to handle disputes over the admission of evidence or testimony - from being able to resolve the issue, and prevented the prosecutor from being able to fix and/or explain the issue.

With highly limited exceptions, Appellate Courts in the US will not hear issues on appeal that were not objected to at the appropriate time in trial.


So if defense counsel sucks, you're shiat out of luck, huh?
 
2013-02-26 10:29:27 AM  

mattharvest: johnryan51: Thanks, I was hoping for a legal answer.

No problem.  Also, to be clear, I'm absolutely <i>not</i> endorsing the prosecutor's question (or his attempt at justifying it in his closing).  I'm just explaining why it wasn't properly preserved for appeal.


No appeal based on incompetent counsul?
 
2013-02-26 10:29:51 AM  

mattharvest: Bontesla: johnryan51: They still upheld the conviction? This couldn't sway a jury?

Appellate courts often rule conservatively when the challenge is x is unfairly prejudicial.

No, it's simpler than that: there are procedural rules that apply to appeals.  Here, he failed to raise the issue appropriately, and so as a matter of procedural law he was blocked from raising the issue in front of the Supreme Court.

Specifically: the defense attorney failed to object to the question at trial (and moreover, failed to ask for a mistrial either).  By failing to object, the defense attorney prevented the trial court - the court best positioned, by law, to handle disputes over the admission of evidence or testimony - from being able to resolve the issue, and prevented the prosecutor from being able to fix and/or explain the issue.

With highly limited exceptions, Appellate Courts in the US will not hear issues on appeal that were not objected to at the appropriate time in trial.


Yup. Trial Practice 101: Object loud, object often to keep issues preserved in the record.
Failure to do so leads to losing (again) on appeal, or having to convince the Court you are a moran by arguing "ineffective assistance of counsel" against yourself.
 
2013-02-26 10:40:47 AM  
"Inexplicably, however, Calhoun's counsel did not object to the question at trial."

Oh, FFS.
 
2013-02-26 10:42:09 AM  

coco ebert: So if defense counsel sucks, you're shiat out of luck, huh?


doyner: No appeal based on incompetent counsul?


Ineffective assistance of counsel isn't as simple as "I lost, so he must have been ineffectual".  Among other things, you need to identify how this was more than simple trial strategy or reasonable error.

In this case, for example, the defense attorney could have been hoping the answer would benefit his client, or alternately that he'd get jurors on the defendant's side by using the prosecutor's apparent bias during closing.  Maybe not.  But the fact that a <i>possible</i> strategy exist[ed] means that it wouldn't get reversed for ineffective assistance.

Moreover, even his appellate counsel apparently isn't very good: the appeal failed to even try to argue the Plain Error doctrine (where you can appeal something you didn't object to, so long as the error demonstrably affected the outcome of the case, and where you argue basically that the error is readily apparent and didn't need to be argued below).  Sure, he might have lost, but it might have at least convinced the Court to grant cert.
 
2013-02-26 10:57:32 AM  

coco ebert: mattharvest: Bontesla: johnryan51: They still upheld the conviction? This couldn't sway a jury?

Appellate courts often rule conservatively when the challenge is x is unfairly prejudicial.

No, it's simpler than that: there are procedural rules that apply to appeals.  Here, he failed to raise the issue appropriately, and so as a matter of procedural law he was blocked from raising the issue in front of the Supreme Court.

Specifically: the defense attorney failed to object to the question at trial (and moreover, failed to ask for a mistrial either).  By failing to object, the defense attorney prevented the trial court - the court best positioned, by law, to handle disputes over the admission of evidence or testimony - from being able to resolve the issue, and prevented the prosecutor from being able to fix and/or explain the issue.

With highly limited exceptions, Appellate Courts in the US will not hear issues on appeal that were not objected to at the appropriate time in trial.

So if defense counsel sucks, you're shiat out of luck, huh?


You can still petition for collateral relief on the basis of ineffective assisstance of counsel.
 
2013-02-26 10:58:52 AM  
Could a prosecuter throw a case using language like that ....like missing free throws in basketball for the spread?
 
2013-02-26 10:59:15 AM  
A person who is on record as having made a racist comment is upset that somebody made a racist comment?
 
2013-02-26 11:02:12 AM  
In a Supreme Court filing Monday Justice Sonia Sotomayor shone a spotlight on the government's mismanagement of a Texas drug case when she denounced the racially charged remarks of an assistant U.S. attorney as "an affront to the Constitution's guarantee of equal protection of the laws.

Why am I not surprised?
 
2013-02-26 11:03:43 AM  

johnryan51: They still upheld the conviction? This couldn't sway a jury?


They said he should have raised the issue earlier and now it's too late for him to start claiming the comment may have prejudiced a jury.

It's a bit generous to call the courts and law enforcement the "Justice System", it's a "Legal System" with emphasis on the System part.
 
2013-02-26 11:10:37 AM  

randomjsa: A person who is on record as having made a racist comment is upset that somebody made a racist comment?


You sound upset.
 
2013-02-26 11:11:30 AM  

mattharvest: johnryan51: Thanks, I was hoping for a legal answer.

No problem.  Also, to be clear, I'm absolutely <i>not</i> endorsing the prosecutor's question (or his attempt at justifying it in his closing).  I'm just explaining why it wasn't properly preserved for appeal.


according to the article and sotomayor, he still could've used it for the base for his appeal but forgot to. by failing to do so, he forfeited his chance to use it for the supreme court appeal.
 
2013-02-26 11:15:32 AM  

johnryan51: They still upheld the conviction? This couldn't sway a jury?


They upheld it on procedural grounds. Basically the court agreed the defense attorney blew it by failing to object.

He might be able to win on post-conviction relief for ineffective assistance, if he can still timely file that.
 
2013-02-26 11:15:52 AM  

Giltric: Could a prosecuter throw a case using language like that ....like missing free throws in basketball for the spread?


Why would they do that?  Much simpler just to drop the charges.

The only reason I could see that happening is if a prosecutor took a case to trial and then became aware that it was politically a bad move.  Even then, the better thing to do is just drop the case, because there is no way to win publicly opinion by pressing a bad case and performing poorly in court.
 
2013-02-26 11:16:17 AM  
He really didn't say anything untrue.. just not politically correct.
 
2013-02-26 11:18:12 AM  

randomjsa: A person who is on record as having made a racist comment is upset that somebody made a racist comment?


oh_you.jpg
 
2013-02-26 11:20:21 AM  
The DEA used Blacks and Hispanics to pose as drug dealers. Why aren't their procedures an affront to the Constitution?
 
2013-02-26 11:20:32 AM  

MugzyBrown: He really didn't say anything untrue.. just not politically correct.


I can't decide whether to respond to this...

If serious, please expound on your opinion.
 
2013-02-26 11:31:32 AM  

randomjsa: A person who is on record as having made a racist comment is upset that somebody made a racist comment?


Right because of someone is Hispanic and they talk about their background of being Hispanic that's "Racism" to Republicans. Any none white should be ashamed that they aren't from a white background.

Keep it up. Keep giving Hispanics a reason to vote in droves for Democrats.
 
2013-02-26 11:31:52 AM  

AFKobel: MugzyBrown: He really didn't say anything untrue.. just not politically correct.

I can't decide whether to respond to this...

If serious, please expound on your opinion.


What is the point of even engaging in this conversation?

This country is incapable of having a discussion about the relationship between poverty, culture, race and crime without that discussion degenerating into one side calling the other racist.
 
2013-02-26 11:33:10 AM  

Corvus: randomjsa: A person who is on record as having made a racist comment is upset that somebody made a racist comment?

Right because of someone is Hispanic and they talk about their background of being Hispanic that's "Racism" to Republicans. Any none white should be ashamed that they aren't from a white background.

Keep it up. Keep giving Hispanics a reason to vote in droves for Democrats.


Hispanics are white people.
 
2013-02-26 11:36:21 AM  

Giltric: Could a prosecuter throw a case using language like that ....like missing free throws in basketball for the spread?


Prosecutorial discretion is easier (not bringing the case in the first place), unless they're trying to close the chance of anyone else from ever prosecuting via double jeopardy.
 
2013-02-26 11:48:17 AM  
a group of rednecks, you got animal poking.

a republican convention and you got lots of underage male prostitutes.

a teaparty rally, you got a blackhole of ignorance.

a creationist parent, you got child abuse.

a republican president, you got at least one war being declared.

an old racist sheriff and his female leader, you got much sadness for 'merica........

facts of the matter is, if you don't have the cash and the brains and the connections to be able to break lots of laws without any penalty, you will go to prison whether you are guilty or not.
 
2013-02-26 12:02:26 PM  

somedude210: DoctorCal: During his cross-examination of Calhoun at trial, a skeptical Assistant U.S. Attorney Sam L. Ponder said: "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?"

Wow.

Makes you ponder, doesn't it?


Not a farking bit.

This is what Texas deputies did to me in the 80s. I had black people in my car, therefore it was a drug deal, so they pulled me out of my car and smashed my face into the hood before pistol whipping me in the back of the head.

They declined to file charges after they searched the car without my permission and found nothing illegal, although they did threaten to hold me for 72 hours without charging me because I had the audacity to question why they were stopping me. They freely admitted that seeing two blacks and two whites in the same car at 3:00 a.m. was the reason they'd stopped me.

After I complained to the sheriff's dept. one of them showed up at my night job and lectured me while knocking all the goods off the shelves.

Fark Texas.
 
2013-02-26 12:11:47 PM  

dr-shotgun: AFKobel: MugzyBrown: He really didn't say anything untrue.. just not politically correct.

I can't decide whether to respond to this...

If serious, please expound on your opinion.

What is the point of even engaging in this conversation?

This country is incapable of having a discussion about the relationship between poverty, culture, race and crime without that discussion degenerating into one side calling the other racist.


Can you forward the list of Things We're Allowed to Discuss?
 
2013-02-26 12:16:28 PM  

Giltric: Corvus: randomjsa: A person who is on record as having made a racist comment is upset that somebody made a racist comment?

Right because of someone is Hispanic and they talk about their background of being Hispanic that's "Racism" to Republicans. Any none white should be ashamed that they aren't from a white background.

Keep it up. Keep giving Hispanics a reason to vote in droves for Democrats.

Hispanics are white people.


And black people too.  "Hispanic" has no correlation with race.  It's a language and cultural designation.
 
2013-02-26 12:18:56 PM  
Silly prosecutor, you're not supposed to SAY that you're suspicious of darkies. For all you know, they could doing harmless negro shenanigans.

/Ducks and runs
 
2013-02-26 12:26:16 PM  
The bags of money must be under the robe.

www.info4guns.com
 
2013-02-26 12:35:08 PM  

Giltric: Hispanics are white people.


Among Hispanics, about 56% self-identify as white, 4% as black, and 40% as other -- give or take about 5%.
 
2013-02-26 12:39:07 PM  

Giltric: Corvus: randomjsa: A person who is on record as having made a racist comment is upset that somebody made a racist comment?

Right because of someone is Hispanic and they talk about their background of being Hispanic that's "Racism" to Republicans. Any none white should be ashamed that they aren't from a white background.

Keep it up. Keep giving Hispanics a reason to vote in droves for Democrats.

Hispanics are white people.


Actually I believe most are mestizo. But thanks for being an ass.
 
2013-02-26 12:41:24 PM  

mattharvest: Bontesla: johnryan51: They still upheld the conviction? This couldn't sway a jury?

Appellate courts often rule conservatively when the challenge is x is unfairly prejudicial.

No, it's simpler than that: there are procedural rules that apply to appeals.  Here, he failed to raise the issue appropriately, and so as a matter of procedural law he was blocked from raising the issue in front of the Supreme Court.

Specifically: the defense attorney failed to object to the question at trial (and moreover, failed to ask for a mistrial either).  By failing to object, the defense attorney prevented the trial court - the court best positioned, by law, to handle disputes over the admission of evidence or testimony - from being able to resolve the issue, and prevented the prosecutor from being able to fix and/or explain the issue.

With highly limited exceptions, Appellate Courts in the US will not hear issues on appeal that were not objected to at the appropriate time in trial.


Out of curiosity (IANAL), would that also apply to an appeal on the basis of inadequate counsel? That is, would the guy's legal defense be "inadequate" because he neglected to hop up and object?
 
2013-02-26 01:01:04 PM  
Reading this thread is giving me pleasant flashbacks to Crim Pro and Trial Tactics. I loved law school.
 
2013-02-26 01:29:53 PM  
"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."


applause.
 
2013-02-26 01:48:17 PM  
But hispanics, much like Argentina, are white, and it's impossible to be racist against whites.


/tongue firmly in cheek
 
2013-02-26 02:24:45 PM  

mksmith: Out of curiosity (IANAL), would that also apply to an appeal on the basis of inadequate counsel? That is, would the guy's legal defense be "inadequate" because he neglected to hop up and object?


See my later post: in general, only if there is no conceivable strategic reason.  Generally speaking, failing to object has the implied possible strategy of using that evidence for the defense case, so it's exceedingly difficult to get a reversal for that sort of thing.
 
2013-02-26 02:41:29 PM  

dr-shotgun: What is the point of even engaging in this conversation?

This country is incapable of having a discussion about the relationship between poverty, culture, race and crime without that discussion degenerating into one side calling the other racist.


All of those things get talked about fairly regularly. The only ones getting called "racist" are the ones who aren't interested in "discussion" at all, and are merely content to weakly insinuate that certain kinds of people are inherently inferior.
 
2013-02-26 04:25:05 PM  

Lenny_da_Hog: somedude210: DoctorCal: During his cross-examination of Calhoun at trial, a skeptical Assistant U.S. Attorney Sam L. Ponder said: "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?"

Wow.

Makes you ponder, doesn't it?

Not a farking bit.

This is what Texas deputies did to me in the 80s. I had black people in my car, therefore it was a drug deal, so they pulled me out of my car and smashed my face into the hood before pistol whipping me in the back of the head.

They declined to file charges after they searched the car without my permission and found nothing illegal, although they did threaten to hold me for 72 hours without charging me because I had the audacity to question why they were stopping me. They freely admitted that seeing two blacks and two whites in the same car at 3:00 a.m. was the reason they'd stopped me.

After I complained to the sheriff's dept. one of them showed up at my night job and lectured me while knocking all the goods off the shelves.

Fark Texas.


Bullshiat.  Even in Texas in the 80s, if that had actually happened, you would have made national news when you reamed their asses out in the civil litigation.

I don't buy your story, sorry.
 
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