by Pete Williams, NBC News
11:29 am on 02/25/2013

A federal prosecutor came in for some biting criticism today from Supreme Court Justices Sonia Sotomayor and Stephen Breyer for a racially charged remark made during a criminal trial.

The comment by the justices came as the court declined to hear the appeal of a man who was convicted in a Texas federal court of being in on a drug conspiracy.

The issue for the defendant, Bongani Charles Calhoun, was whether he knew that the people he accompanied on a road trip were about to buy illegal drugs, or whether he was merely along for the ride.

During cross-examination, Calhoun said he distanced himself from the others when one of them arrived at their hotel room with a bag of money. The prosecutor, an assistant US attorney in the Western District of Texas, pressed him to explain why he didn’t want to be there. The prosecutor asked, “You’ve got African-Americans. You’ve got Hispanics, and 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?’”

After he was convicted, Calhoun — who is African-American — claimed the prosecutor’s racially charged remark violated his constitutional rights by appealing to the jury’s prejudice. The court today declined to take up his appeal, because his lawyers failed to properly pursue the issue in the lower courts.

But Sotomayor and Breyer said they couldn’t let the case pass without writing “to dispel any doubt of whether the Court’s denial of the case “should be understood to signal our tolerance of a federal prosecutor’s racially charged remark. It should not,” they wrote.

“By suggesting that race should play a role in establishing a defendant’s criminal intent, the prosecutor here tapped into a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our Nation.

“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,” they said.

“We expect the government to seek justice, not to fan the flames of fear and prejudice.”

The justices also said it was troubling to see the Justice Department fail to immediately condemn what happened. Instead, they said, during the appeals in the lower courts, the government called the prosecutor’s remark “impolitic” and said it did not affect the outcome of the trial “even assuming the question crossed the line.”

Only when the case reached the Supreme Court did the Justice Department concede that the remark was “unquestionably improper.”

“I hope never to see a case like this again,” wrote Justice Sotomayor for herself and Justice Breyer.