Supreme Court Justice Sonia Sotomayor arrives for the presidential inauguration on the West Front of the U.S. Capitol January 21, 2013 in Washington, DC. Barack Obama was re-elected for a second term as President of the United States. (Photo by Win McNamee/Getty Images)

A federal prosecutor came in for some biting criticism today from two Supreme Court justices 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 Justices Sonia Sotomayor and Stephen 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.

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