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Mortal combat: how the death penalty polarized the Supreme Court.

In September 1985 the conflict within the Supreme Court over the death penalty came to a head with the case of Willie Jasper Darden. Darden was a black man who bad been convicted in a Florida court 12 years earlier of killing a white man during a furniture store robbery, then making sexual advances on the victim's wife and wounding a neighbor who stumbled on the crime. After a Florida state court affirmed Darden's conviction and sentence, his case was appealed on constitutional grounds, and it was again affirmed. Florida set Darden's execution for Sept. 4, 1985 -- well before his deadline for filing the certiorari (cert.) petition that was necessary to grant a full Supreme Court review of the case. Naturally, he applied for a stay of execution to allow him to present his claims, and that application reached the Supreme Court on Sept. 3.

Justices William Brennan and Thurgood Marshall, of course, immediately voted to grant Darden a stay. And Harry Blackmun and John Paul Stevens joined them. Both Blackmun and Stevens believed that every capital defendant deserved one complete round of federal habeas review (an appeal on constitutional grounds). Brennan and Marshall did not pretend that their abolitionist position on the death penalty could be be squared with the court's precedents. Instead, they declared themselves excused from following stare decisis -- the principle of acceding to past decisions, especially ones that the court repeatedly reaffirmed. According to Brennan and Marshall, the court was so fundamentally wrong in its interpretation of the Eighth Amendment [which prohibits cruel and unusual punishment] that they were bound "by a larger constitutional duty ... to expose the departure and point towards a different path."

Whatever the duds justification, the acid stream of abolitionist dissents ensured that the issue of capital punishment continually ate away at the connective tissue of the court community. After Gregg [the 1975 case in which the court reauthorized capital punishment] the court handed down a number of decisions further restricting the death penalty. But every success for Brennan's and Marshall's short-term goal of stalling executions only made an eventual backlash more certain.

By a few minutes after 6:00 p.m., all the votes were in, and Darden's stay application had failed by a now familiar 5-4. On hearing this news, with less than 12 hours before the execution, Darden's lawyers scrambled to think of some strategy to save their client. They knew that they had garnered four votes for a stay. They also knew that two years before, in another capital case where the court had denied a stay 5-4, the conservative majority had promised that if only the applicant had "convinced four Members of the court that certiorari would be granted ... a stay would be issued'

The crux of the problem was that while Justices Warren Burger, Byron White, Lewis Powell, William Rehnquist, and Sandra Day O'Connor could prevent the court from issuing stays of execution, they could not prevent the remaining minority from making two other kinds of decisions central to the consideration of capital cases.

First, under the court's rules, a minority of four justices was sufficient to grant certiorari and force the court to conduct a full review of a case. Second, a mere three Justices could place a "hold" on any cert. petition that they considered related to a case already pending. The hold rule was meant to ensure that the parties to every case still in the judicial pipeline would receive the benefit of whatever changes in the law the court might make in its upcoming decision.

The court's minority-based rules were predicated on a level of trust and consideration among the justices -- the idea that, in certain matters, simply out of respect for one another's judgments, the entire court would allow itself to be bound by a minority of its members.

Given the Burger court's close division between liberals and conservatives in the capital cases and the growing rancor on both sides, it was only a matter of time before the minority-based cert. and hold rules came into direct conflict with the majority rule governing stays. In capital cases, uniquely, a vote to grant cert. or to hold a case was not necessarily self-sufficient. When a capital defendant came to the court with an execution date already set, a cert. grant or a hold vote wouldn't be effective unless the court also issued the defendant a stay of execution. In the absence of a stay (requiring five votes), the defendant would be dead before the court took final action on his case.

The asymmetry in procedures meant that in death cases in which an execution was set, the conservatives held an effective veto whenever the liberals voted to grant cert. or hold: They could simply refuse consent for a stay. It was thus only a matter of time before the question arose whether, in the recrimination-filled context of capital stays, the conservatives would continue to honor the court's nonmajoritarian traditions.

Conservatives were fed up with Brennan and Marshall behaving like abolitionist agents in judicial garb. Their two automatic votes to grant or to stay or to vacate in every capital case mocked the court's precedents and skewed the balance between its majority and nonmajority rules. From the conservative perspective, the liberals, including Blackmun and Stevens, were manipulating the cert. rule and the hold rule to delay legal executions. First, the liberals would grant cert. in what the conservatives saw as cases clearly unworthy of the court's attention. These internal maneuvers worked hand in glove with the abolitionists on the outside. Trying to take advantage of the three-vote hold rule was a favorite tactic of the death penalty defense bar. As soon as the court granted cert. in a capital case, the NAACPs Legal Defense Fund or some other group would be arguing in every cert. petition that their clients' cases were related and should be held until the court issued its ruling -- and, of course, that stays of execution should be meted out accordingly. In light of these tactics, the conservatives felt perfectly justified in exercising whatever power they could to keep executions on track.

From the liberals' perspective, the conservatives were now willing to subvert even the court's own processes to keep the "Old Sparkys" of the South in business. For justices uneasy about, if not unalterably opposed to state-sponsored killing, that was an insult touched with evil. The whole point of making the cert. and hold rules nonmajoritarian was to give a minority of justices the power to prevent a majority from denying a cert. petition. Surely the majority should not be allowed to defeat those rules by withholding a stay and waiting for the petitioner's execution to moot his appeal.

What was really going on here, the more liberal justices believed, was sheer hostility to capital defendants whatever their claims. Certainly Stevens and Blackmun considered themselves absolutely scrupulous in what cases they voted to stay and hold -- conscientious in their effort to make the death penalty as fair and rational as possible. By contrast, no one could even remember the last time Burger or Rehnquist voted to stay or hold a death case, no matter how appropriate. (Indeed, in his 14 years on the court, Rehnquist had pursued a kind of reverse absolutism, not once voting to overturn a death sentence even on those rare occasions when his colleagues unanimously found that result to be compelled) And the record of the other conservatives wasn't much better. The conservatives' new attitude was simply, "Let's get it over with" That wasn't judicial; that wasn't even toughness; that just seemed mean and wrong.

In May 1986, while Darden was still pending, Brennan, Marshall, Blackmun, and Stevens voted to hold for Darden the cert. petition of Ronald Straight, who was also in need of an emergency stay. Again the liberals and conservatives stared each other down, but this time Powell -- who had emerged as the swing vote in capital cases -- refused to blink. He didn't think Straight's position was sufficiently related to Darden to warrant a hold. Moreover, Straight was on second federal habeas, and Powell thought his new claims presented a clear case of abolitionist "sandbagging." He felt the liberals were invoking the hold rule in bad faith, and he preferred to see the sanctity of the rule broken rather than postpone another execution on mere pretense.

After another night of hair-tearing fury, Brennan fired off a pointed dissent, which Marshall and Blackmun joined. Straining to find language sufficient to his outrage, Brennan wrote that by rejecting the hold rule the majority had rejected "those first principles of justice that ultimately define a system of law: the principles of uniform application of rules of consistency, of evenhandedness, of fairness" He was certainly right that if Straight had been anyone other than a capital defendant facing immediate execution, his case would have been held. But in the last few years, the conservatives had succeeded in turning the trope "death is different" -- once the justification for especially exacting procedures -- on its head.

In the Darden case, as the requisite four votes to grant cert. rolled in, a game of judicial chicken began. Despite their assurance two years previous about issuance of a stay to preserve a granted case for argument and decision, the conservatives were balking. Burger was adamantly opposed to a stay. From out of town, Rehnquist phoned in his vote to deny, as did White, even though he had authored the Autry promise. O'Connor followed suit.

As clerks scurried from one heated argument to another, Darden's fate came to hinge on justice Powell. Despite his hostility to federal habeas, and his abhorrence of abolitionist tactics, Powell was not, as were Burger or Rehnquist (and increasingly White), totally immune to allegations of constitutional error. As circuit justice for Georgia and Florida, Powell served as the court's point man on a disproportionate number of capital cases, a chore that nourished his personal discomfort with administering the death penalty. On many late death-watch nights, clerks remember seeing Powell's frail, almost ghostlike figure hovering around Chris Vasil's desk, supervising the final hushed communications between the court and a prison. Some clerks worried that the pressure of so often casting the crucial life-determining vote might ruin Powell's own fragile health. The pressure was never greater than in Darden's case, but Powell, unlike Blackmun and Stevens, saw nothing in Darden's papers that called his guilt into question or in any other way merited a cert. grant.

The next day, Powell circulated a rare angry memo. To him, Darden's 12 years of appeals, now extended by the court's own acceptance of the case, symbolized everything that was wrong with the system. "I have no doubt as to the constitutionality of capital punishment," he wrote, but because of the delays caused by federal habeas, "I have grand doubts as to whether it now serves the purposes of deterrence and retribution, the principal purposes we identified in Gregg." Indeed, Powell was so upset he raised the possibility of dramatic reform: increase the number of justices required for a cert. grant to five.

By 1985, the bruising arguments over the death penalty, beyond straining relations among the justices, had begun to break down the internal rules that for decades had governed the court and its docket. Of the 1985 term, Blackmun had suggested that perhaps the Supreme Court's center had held, but "it had bled a lot" That loss of blood was not merely a matter of politics, liberal or conservative. The wound to the center was a wound to the most vital organ of the court -- to its ability to reach collective judgment, to deliberate on the nation's fundamental values and beliefs, and to translate those values and beliefs into a coherent rule of law. There are some disagreements so deep that the disputants share no moral ground and have no mutually recognized obligations to meet. Neither side can shake the other's convictions, and both are reduced to exchanging accusations of hypocrisy and bad faith. The capital cases were driving the court toward this polarized nightmare.

A Hard Case

If the court's liberals often ignored precedent in their furious opposition to the death penalty, the conservatives overreacted by turning a blind eye to the details of many capital cases. Nothing illustrated the dangerous potential of this conservative backlash better than the case of the "cop killer" Warren McCleskey.

At approximately 2:15 p.m. on Saturday, May 13, 1978, four armed men, all black, robbed the Dixie Furniture Company, at 993 Marietta Street, N.W., in the midst of on unremarkable business district of Atlanta, Georgia. Having cased the store earlier in the day, three of the men -- David Burney, Bernard Dupree, and Ben Wright Jr. -- lowered stocking masks over their faces, rounded up several store employees, and moved into Dixie's back offices in search of money.

The fourth man, Warren McCleskey, ran into the front of the store and disarmed Dixie's private security guard. McCleskey ordered the guard, his brother, and the two other Dixie employees who were present to lie on the floor, but not before one of them managed to hit the store's silent alarm. Oblivious to the alarm, McCleskey continued to watch over the front while, in the rear, his cohorts forced the store manager to hand over an undetermined amount of cash (somewhere between $500 and $1,500).

At 2:20, police officer Frank R. Schlatt responded to the Dixie alarm. Officer Schlatt parked his squad car in front of the store and walked through the glass-paneled front door. Inside, a voice called out a warning -- "The cops. -- The next few moments passed in silence as Schlatt, gun drawn, walked roughly 40 feet up the stores center aisle. Then, two shots. The first bullet entered Schlatt's right eye and lodged in his brain. The second hit his chest, deflecting off his cigarette lighter. Thirty years old, white, married with a child, Schlatt died almost instantly.

On being questioned about the Dixie case, McCleskey denied having anything to do with the robbery and shooting. He said he just knew what he'd read in the papers. The next day McCleskey decided to give the police a new statement. This time, he admitted being part of the Dixie Furniture robbery but denied shooting Schlatt.

McCleskey's preliminary hearing (at which a judge evaluates whether the state has probable cause to indict a defendant) was set for a week later, June 7 McCleskey was leery of the public defender's office, and his sister, Betty Myers, managed to retain a lawyer. For the price of $2,500, Myers hired John Turner, a solo practitioner concentrating mainly on criminal matters who had several years' experience as a federal prosecutor in Atlanta. The fee was paltry for virtually any case, much less one involving a highly publicized cop killing and the possibility of a death sentence, but it was all Myers could afford.

At the preliminary hearing, it became apparent what a godsend Burney's and McCleskey's confessions were for the prosecutor. None of the Dixie store employees could positively identify McCleskey; indeed, some of their descriptions from the day of the robbery did not resemble him. Moreover, none of the employees had seen who shot Schlatt, or even knew with any degree of certainty where in the store each of the robbers was at the time of the shooting. All the potential eyewitnesses had been facedown on the floor, with the ones at the back bound and blindfolded as well. The prosecution had not recovered a murder weapon.

At McCleskey's arraignment on July 20, the judge set trial for Sept. 25. At this point, McCleskey's lawyer had yet to interview any potential witnesses. In Turner's view, the D.A. had "almost an air tight case." Although he informed McCleskey that no eyewitnesses had yet identified him as one of the robbers, Turner consistently advised his client to plead guilty rather than risk the death penalty, which the D.A. intended to seek assuming the case went to trial.

Despite his confession, McCleskey wanted to risk a trial. He intended to put forward an alibi defense -- that he had spent the afternoon of May 13 at his sister's house playing cards. McCleskey hoped to suppress or at least discredit his confession by claiming that the police had coerced him into making up lies. And, thus, while Turner and Parker discussed the possibility of Parker accepting a guilty plea in exchange for a sentence of life imprisonment, no deal was ever offered and McCleskey refused even to consider the idea.

Turner's defense consisted almost entirely of putting McCleskey on the stand to disavow his confession and put forward his alibi. Thirty years old, divorced, the father of a 12-year-old daughter, McCleskey admitted to spending more than seven years in prison for a series of armed robberies committed in 1970.

The jury took only two hours to return a guilty verdict.

The same jury then convened again to consider whether to sentence McCleskey to death. Under Georgia law (similar to that of a number of states), during this penalty phase the prosecutor must prove that the murder in question involved at least one of the statutorily enumerated aggravating circumstances distinguishing capital murder from ordinary murder. These circumstances included whether the murder involved torture, whether it was a murder for hire, or, as in McCleskey's case, whether the murder occurred during the course of another serious felony or the victim was a police officer.

At the same time, the law provided the defendant with the opportunity to present any mitigating evidence to suggest that the jury should not impose the death penalty. Such testimony often took the form of a personal statement by the defendant; favorable testimony about his character from family members, friends, or ministers; evidence that the defendant had been abused as a child, or was mentally or emotionally impaired. Assuming that the jury did find the presence of an aggravating circumstance qualifying the defendant for death, it still had absolute discretion to forgo that sentence if it so chose.

Parker argued passionately for the jurors to return a sentence of death. "Have you observed any repentance by Mr. McCleskey?" he asked them. "Has he exhibited to you any sorrow? ... Have you seen any tears in his eyes for this act that he has done?"

Turner presented not an iota of the mitigating evidence that frequently proved decisive in averting a death sentence -- nothing about McCleskey's illegitimate birth to skid row parents, his childhood spent selling bootleg liquor to patrons of neighborhood gambling houses to supplement the family income, or the many times he called the police to stop his stepfather from battering his mother. Turner later claimed he had asked McCleskey's sister about potential character witnesses; she denied he had done so. In any event, the jury went back to the jury room never having heard a word of testimony that McCleskey did not deserve death or for simple mercy, even from McCleskey himself.

Two hours later the jury sentenced Warren McCleskey to death, and Judge Mackenzie set an execution date a month hence, Nov. 27,1978. John Turner looked at his client and asked whether he didn't wish now that he'd copped a plea.

Color Scheme

McCleskey's case soon became an important test for the NAACPs Legal Defense Fund (LDF). Starting in 1978, the LDF had commisioned a series of state-of-the-art analyses to assess the role race played in several of the new capital sentencing schemes. The lead study -- known and the Baldus study after its principal architect, David Baldus of the University of Iowa -- examined more than 2,400 post-Furman [the court's 1972 abolition of the death penalty] homicides in Georgia and became the basis of a new claim that Georgia's post-Gregg system for imposing the death penalty was unconstitutionally biased against blacks.

From the moment his became the test case for the LDF's discrimination claims, McCleskey's lawyers faced a crucial choice. They could focus on his case: a midrange case in which the evidence of discrimination was strongest, a cop killing in a county where not one of 16 other cop killers had received a death sentence. Such a strategy would have highlighted the sentencing disparities at his level of aggravation, the unbridled prosecutorial discretion in his case, and possible remedies short of shutting down Georgia's capital system.

But agenda-driven litigation inevitably brings competing obligation. A tension develops between achieving victory for the individual client and advancing the broader goals of the interest group molding a test case. Some of the most powerful arguments to get Warren McCleskey off death row would at best secure only a modest gain for the larger cause of abolition.

As argument day for McCleskey approached, Eben Moglen, a new clerk for Justice Marshall, started work on his bench memo. The level of apprehension about the case was already extremely high. It was the biggest case of the October sitting, perhaps of the whole term, a case that had been simmering at the court for a year, now moving toward boil. Although absolutely convinced of the merits of the LDF's arguments, Moglen wasn't optimistic. "A loss is very likely indeed," he wrote Marshall, "but I think if we choose our ground right, we have some running room, and we should be able to make a real fight of it"

For Moglen, the right ground was undoubtedly that of race discrimination. Under the court's precedents, to prove a case of race discrimination, a plaintiff had to show: 1) disparate impact on a group entitled to special judicial protection (such as blacks or women); 2) the existence of sufficient discretion in the system to make discrimination against this class possible; and 3) a history of past discrimination.

The Baldus study fulfilled the first requirement. As for the second, the Georgia death penalty system was among the most discretionary. And no one could deny Georgia's history of maintaining a dual system of justice for blacks and whites. At a minimum, then, Moglen considered it irrefutable that the justices should send McCleskey's case back to the lower courts to see if Georgia could come up with a plausible and legitimate explanation for Baldus' results. Fantasizing, Moglen couldn't resist predicting: "I think the state will necessarily fail and the party will start'

Separate from the technical merits of McCleskey's equal protection claim, Moglen advised Marshall to make a stand on the race issue rather than some Eighth Amendment argument because it was the alternative "which frees us most to talk about what's really going on here." In Moglen's view, McCleskey at its core was about the ancient southern rule governing what happened to any black so-and-so who dared kill a white. In the last 30 years, the justices had fought racism in schools, at lunch counters, in the workplace, and at the local pool. Would they now turn their backs on that quest for racial justice because the stakes were not swimming pools but a man's life?

What Moglen called "the immense rhetorical and substantive advantage" of focusing on race, however, was not so keenly felt in the chambers of those justices who might conceivably join Brennan, Marshall, Blackmun, and Stevens as a fifth vote to annul Georgia's death statute. In the center of the court, the once powerful consensus to sweep away the vestiges of slavery and Jim Crow had shattered on the diamondhard issues of remedy, specifically busing and affirmative action. In the face of public resistance and personal uncertainty, the justices had come to disagree sharply over what role the judiciary could and should play in seeking to right historic wrongs and in pursuing the goal of equality under law. In seeking to build on achievements of the past, the civil rights community still won occasional victories at the court (especially in gender discrimination cases), but they were hard fought and close, and each one seemed to dissipate what had been a shared vision for reshaping the racial balance of society.

Leslie Gielow, the clerk handling McCleskey for Justice Powell, was convinced that McCleskey and the LDF should prevail. She even approached the clerks in more liberal chambers hoping to find arguments that might persuade her boss. It was true that the previous year Powell had written a strong equal protection opinion in Batson v. Kentucky, which lessened the evidentiary burden on a defendant trying to prove that a prosecutor had used peremptory challenges to exclude blacks from the jury. Powell in that case had adopted exactly the method of proof the LDF was suggesting in McCleskey: Once the defendant demonstrated a racial pattern in a prosecutor's peremptory challenges, the burden shifted to the prosecutor to rebut this inference of discrimination. Powell's Batson ruling seemed perfectly suited for a case involving (in large part) a prosecutor's discretionary decisions leading up to a death sentence. And it was certainly a favorite clerk tactic to try to influence a justice by hoisting him on the petard of his previous writings.

Gielow, though, despite considerable agonizing, never really pressed the case with Powell. She was new at her job and had the strong sense that her boss's mind was made up. It seemed to her that Powell had crossed the point of no return in Gregg, when he not only approved Georgia's capital punishment system but applauded it as among the nation's best. More liberal than the Justice she worked for, Gielow know shed have to pick her fights, and there was little point in wasting precious capital on a lost cause.

Clerks in other conservative chambers shared her sense of helplessness. A number of them were impressed with the Baldus study and tried to get their bosses to give it careful attention. Several clerks, even one of Relinquist's, suggested that the court appoint a special master -- an independent expert -- to give the mathematically challenged justices a neutral assessment of Baldus' methods and findings. The conservative justices would have none of it, though.

The idea of appointing a special master presupposed that the conservative justices were still open to convincing. But the evidence was increasingly to the contrary. Even before hearing oral argument, Justice White took the extremely unusual (and perhaps unprecedented) step of sending Justices Rehnquist, Powell, O'Connor, and Scalia a detailed memo -- behind the liberals' backs -- urging a unified vote to reject McCleskey's claims and laying out his analysis for dispensing with the Baldus study. In Whites view, to accept the LDFs arguments in McCleskey would be to return the court to the position it had taken in Furman, and he wanted to preempt any possibility of heading back down that road.

In this he succeeded. By the time Jack Boger (the LDF lawyer representing McCleskey) stood before the bench at oral argument on Oct. 15, for all practical purposes, the fix was already in, preset in White's memo and subsequent conservatives-only tete-a-tetes.

The conservatives made no secret of their hostility. Five minutes into Boger's presentation, Justice White hit him with a series of curt questions insinuating that the data collectors for Baldus' study had been insufficiently trained or incompetent. White always seemed to take great pleasure in intimidating lawyers appearing before the court, badgering them, often about small points, demanding a yes or no answer whenever his targets tried to offer a nuanced or qualified response. And he turned on Boger with enthusiasm.

The Justices took up McCleskey at their conference on Friday, Oct. 17, but White did not wait even that long to resume his crusade. In a rare preconference memo (this one to all the Justices), he not only tried to undermine one of McCleskey's key claims but also called into question Boger's truthfulness. At oral argument, White had suggested that McCleskey was hard-pressed to argue that he was a victim of prosecutorial discrimination because, according to Judge Forrester, he "was offered a plea bargain and turned it down." Boger had responded that Forrester had gotten the facts wrong, that John Turner, McCleskey's original lawyer, had urged his client to plead guilty in exchange for a life sentence, but that the prosecutor had never offered a plea bargain, and McCleskey had decided against asking for one. Parker had confirmed this himself in a deposition before the state habeas court.

White, though, was not a justice to take contradiction lightly. Immediately after argument, he ordered the entire habeas record sent overnight to the court so that one of his clerks could evaluate what had happened. What White found, and reported in his memo, was that in his view Boger had deliberately misled the court. White's proof was Turner's testimony at McCleskey's state habeas hearing that "the Prosecutor was indicating that we might be able to work out a life sentence if he were willing to enter a plea. But we never reached any concrete stage on that because Mr. McCleskey's attitude was that he didn't want to enter a plea."

White either didn't realize or ignored the fact that Turner gave this self-serving testimony in the context of trying to defend the competency of his representation of McCleskey, that the state had never claimed it offered McCleskey a plea bargain, that the prosecutor had specifically denied making such an offer, and that the issue of whether the prosecutor had offered a plea bargain had never been litigated. Instead, White was so suspicious of abolitionist lawyering that he was willing on flimsy evidence to implicitly accuse a leading lawyer at the nations foremost civil rights organization of baldly lying to the court.

Whatever the effect of White's accusatory memo, his preargument campaign for a unified conservative front was fully realized. When the justices discussed McCleskey the next day, they lined up precisely as they had at the cert. stage. Briefing and argument -- which the conservatives had not wanted to see in the first place -- had changed nothing. Justices Rehnquist, White, Powell, and O'Connor voted to affirm the Eleventh Circuit's denial of McCleskey's appeal; the newcomer, justice Antonin Scalia, joined them; and Justices Brennan, Marshall, Blackmun, and Stevens wanted to reverse.

Justice Brennan gave instruction to his clerk Mitt Regan about preparing a dissent in McCleskey. As January wore on with still no sign of Brennan's dissent, Chief Justice Rehnquist began to fume. Every week the court delayed in handing down McCleskey was another week the LDF could use the case as the basis for getting holds and stays of execution in other cases. In the eight months since cert. had been granted, McCleskey had created a huge backlog of capital cases, and Rehnquist suspected that Brennan's tardiness was not the product of diligence but another of his abolitionist guerilla tactics to clog up the system. Indeed, Rehnquist became so angry that he threatened not to assign Brennan another majority opinion until he circulated a McCleskey dissent.

On Jan. 30, Brennan finally distributed his rejoinder. At the outset, it traced the court's commitment in past cases to free the death penalty from even the "risk that prejudice or other impermissible influences might have infected the sentencing decision" Then it made the case for why Baldus' statistics and the whole run of southern history compelled the "human moral judgment" that in Georgia the risk -- indeed, the virtual certainty -- of that infection was too great for any court to bear. Brennan dismissed Powell's fear that crediting Baldus' statistics would lead to widespread challenges to numerous other aspects of criminal sentencing. "Such a statement seems to suggest a fear of too much justice," he replied. "The prospect that there may be more widespread abuse than McCleskey documents may be dismaying, but it does not justify complete abdication of our judicial role'

In McCleskey, the conservative justices chose not to even look. Depending on the individual, that choice may have stemmed from a simple refusal to acknowledge the evidence, or a concern for the consequences of acknowledging the evidence, or an exasperation with the abolitionists who presented to evidence, or a conviction that a certain degree of racism, however regrettable, is an inevitable part of American society and law. Whatever the cause or combination of causes, this blinkering had been coming on for years as, in the face of seemingly endless litigation and abolitionist maneuvering, the conservative justices increasingly closed themselves off from the persistent proof streaming into the court that the system of death penalty adjudication seethed with error and abuse.

From the book Closed Chambers by Edward Lazarus Copyright [C] 1998 by Edward Lazarus. Reprinted with permission of Times Books, a division of Random House.
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Title Annotation:1985-86; excerpt of book, 'Closed Chambers'
Author:Lazarus, Edward
Publication:Washington Monthly
Article Type:Cover Story
Date:Jun 1, 1998
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