The judge, Robert E. Lee Key, Jr., had McMillian await trial on death row, as if a death sentence were a foregone conclusion, and relocated the trial from a county that was forty per cent black to an overwhelmingly white one. The trial lasted a day and a half. Twelve defense witnesses swore that McMillian was at home on the day of the crime, hosting a fish fry. There was no physical evidence. Nevertheless, the jury found McMillian guilty based on the testimony of three state’s witnesses, two of whom reported seeing McMillian’s truck at the dry cleaner’s around the time that Morrison was strangled and shot. The jury recommended life in prison. In overriding this decision, Judge Key remarked that McMillian deserved to be executed for the “brutal killing of a young lady in the first full flower of adulthood.” The Judge’s confidence was misplaced—McMillian was exonerated after his appellate lawyers discovered that prosecutors had withheld evidence and that the state’s star witnesses had lied. By the time McMillian was set free, in 1993, he had spent six years on death row.
More than twenty override decisions have involved white defendants, but in some of these cases, too, the judge’s reasoning has had a racial subtext. In 2000, a judge ordering the death of a white defendant noted that if he hadn’t overridden the jury he’d have “sentenced three black people to death and no white people.” The comment has been interpreted as an attempt to cover up racial disparities in the death penalty. Race is “a real consideration here,” Douglas Johnstone, a retired Alabama Supreme Court justice, told me. Some judges, he said, “want to make sure they put enough white people to death to hang on to the prerogative” of override.
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