EJI Seeks Stay of Execution for Willie McNair


On Friday, May 8, 2009, EJI attorneys filed a motion asking the Alabama Supreme Court to stay the execution of Willie McNair because of questions about the validity of his sentence. Mr. McNair’s execution currently is scheduled for Thursday, May 14, 2009.

In 1993, a jury heard evidence and determined that Mr. McNair should be sentenced to life imprisonment without the possibility of parole for capital murder. However, the elected trial judge in the case applied Alabama’s “override” provision to ignore the jury’s verdict and instead imposed a death sentence. The judge’s oral sentence and written order did not provide any reasons for setting aside the jury’s judgment, as is required under Alabama law.

Of the thirty-eight states with the death penalty, Alabama is one of only three that allows a trial judge to override a jury’s verdict of life without parole and impose death. Of these three, Alabama is the only state that elects trial judges in partisan elections. The other two states, Florida and Delaware, have long maintained tight regulations on a trial judge’s ability to overrule the jury’s judgment in this way. By contrast, when Mr. McNair’s sentence was reviewed on appeal, there did not appear to be any meaningful standards to regulate an Alabama trial judge’s ability to ignore a jury’s recommendation of life without parole.

Several years after Mr. McNair’s state appeals, the Alabama Supreme Court clarified that such standards do exist. The Court ruled that when a jury has recommended life without parole, the trial judge must give serious consideration to that recommendation and can only set it aside and impose death if he provides a convincing written explanation of the problems with the jury’s verdict. Mr. McNair’s trial judge clearly did not comply with these requirements. EJI lawyers are asking the Alabama Supreme Court to stay Mr. McNair’s execution so that it can consider whether Mr. McNair’s sentence is valid under current Alabama law.

In addition, the trial court that sentenced Mr. McNair did not hear all the relevant evidence. Mr. McNair’s court-appointed lawyers could not be paid more than $1000 for out-of-court work on the case, and they failed to present to the trial court compelling mitigating evidence. For years, Mr. McNair tried to convince a court that he had not received a fair sentence because his lawyers failed to present proper evidence at the sentencing. In 2004, a federal court in Montgomery heard all of the relevant penalty phase evidence that trial counsel did not present in state court and determined that, based on the new evidence, Mr. McNair’s death sentence was invalid.

A federal appeals court later reversed that ruling, but not because it was wrong on the merits. Instead, the federal appeals court held that Mr. McNair should not have been permitted to present new evidence in federal court. While the appeals court dismissed Mr. McNair’s claim by relying on technical reasons not to consider his evidence, the only court that has considered all of the available penalty phase evidence concluded that Mr. McNair’s death sentence is invalid. Mr. McNair is seeking a stay from the Alabama Supreme Court so that this evidence can be properly considered.