the second floor. The chief judge of the court was former governor John Patterson. He had made national news in the 1960s as a fierce opponent of civil rights and racial integration. In 1958, with the backing of the Ku Klux Klan, he defeated George Wallace for governor. His positions were even more pro-segregation than Wallace’s (who, having learned his lesson, would become the most famous segregationist in America, declaring in 1963 “segregation now, segregation tomorrow, segregation forever” just a block away from this courthouse). When he was attorney general before becoming governor, Patterson banned the NAACP from operating in Alabama and blocked civil rights boycotts and protests in Tuskegee and Montgomery. As governor, he withheld law enforcement protection for the Freedom Riders—the black and white college students and activists who traveled south in the early 1960s to desegregate public facilities in recognition of new federal laws. When the Freedom Riders’ bus traveled through Alabama, they were abandoned by the police. Alone and unprotected, they were beaten violently, and their bus was bombed.
Still, I forced myself to be hopeful. That was all long ago. During my argument, the court’s five judges looked at me with curiosity but asked few questions. I chose to interpret their silence as agreement. I hoped they saw so little support for the conviction that they didn’t think there was much to discuss. Judge Patterson’s only remark during the oral argument came at the end, when he slowly but firmly asked a single question that echoed through the mostly empty courtroom.
“Where are you from?”
I was thrown by the question and hesitated before answering.
“I live in Montgomery, sir.”
I had foolishly discouraged McMillian’s family from attending the oral argument because I knew that the issues were fairly arcane and that there would be very little discussion of the facts. Supporters would have to take off from work and make the long drive to Montgomery for an early morning argument. Since each side had only thirty minutes to present, I hadn’t thought it worth the effort. When I sat down after the argument, I regretted that decision. I would have appreciated some sympathetic faces in the courtroom to signal to the court that this case was different, but there were none.
An assistant attorney general then presented the State’s arguments—capital cases on appeal were managed by the attorney general, not the local district attorney. The State’s lawyer argued that this was a routine capital murder case and that the death penalty had been appropriately imposed. Following the oral argument, I still had hope that the court would overturn the conviction and sentence because it was so clearly unsupported by reliable facts. State law required credible corroboration of accomplice testimony in a murder case, and there simply wasn’t any in Walter’s case. I believed that the court would have a hard time affirming a conviction with so little evidence. I was wrong.
I drove to the prison to deliver the news. Walter didn’t say anything as I explained the situation, but he had a strange, despairing look on his face. I had tried to prepare him for the possibility that it could take years to get his conviction overturned, but he had gotten his hopes up.
“They aren’t ever going to admit they made a mistake,” he said glumly. “They know I didn’t do this. They just can’t admit to being wrong, to looking bad.”
“We’re just getting started, Walter,” I replied. “There is a lot more to do, and we’re going to make them confront this.”
I was telling the truth: We did have to press on. Our plan was to ask the Court of Criminal Appeals to reconsider its decision, and if that turned out to be a dead end, we would seek review in the Alabama Supreme Court. And we had uncovered even more evidence of Walter’s innocence.
After filing the appeal brief, I’d continued investigating the case intensively. If we hadn’t come up with so much new evidence to prove Walter’s innocence, I think the court’s ruling would have been even more overwhelming. I told Walter before I left the prison, “They don’t know what we now know about your innocence. As soon as we present the new evidence to them, they’ll think differently.” My hopefulness was genuine, in spite of everything that had happened already. But I was underestimating the resistance we would face.
I’d finally been able to hire some additional lawyers for the organization, which gave me more time to investigate Walter’s case. One of my new hires was Michael