How attorneys pushed back on the flawed 1987 McCleskey decision.
s another season of last-minute U.S. Supreme Court opinions are handed down, Americans are faced with a perennial question: how much compliance is obligatory and how much room is there to disagree?
Justice Powell protected the prerogative of prosecutors because he believed that racial disparities were inevitable in any system that entailed discretion. In the wake of, advocates could have acquiesced to the court’s exceedingly narrow concept of equality, one that refused to see structural inequality, but recognized only isolated acts of individual wrongdoing.
The strategy worked. In the 1987 retrial of George Dungee, a Black man charged in the slaying of a white family in Georgia, the Southern Center insisted that a judge recuse himself because he had used the N-word in open court when referring to a defendant, had supported a segregationist for governor, and was complicit in prosecutorial efforts to remove Black jurors. Accused of being part of a local “system of white dominance,” the judge was forced to step aside.
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