Alabama Attorney General’s Office

The Alabama Attorney General’s Office represented the State in the appellate and post-conviction stages of Walter McMillian’s capital case, first arguing that his conviction and death sentence should stand, then asking the appellate court to wait while the State investigated evidence that might support a new trial. Its changing role shows how the same office could defend a conviction and later acknowledge that potentially exculpatory evidence warranted further inquiry.

Role in Capital Appeals

In Alabama, capital cases on appeal were managed by the attorney general rather than by the local district attorney. At the oral argument in McMillian’s direct appeal, an assistant attorney general presented the State’s position: that the case was a routine capital murder prosecution and that the death penalty had been properly imposed. The State’s argument came after Bryan Stevenson had urged the court to confront the weakness of the evidence, including the lack of the corroboration required for accomplice testimony in a murder case.

Stevenson expected the appellate court to have difficulty affirming a conviction on such a record, but the court did not overturn it. The appeal’s failure left McMillian’s conviction and sentence in place and shifted the effort to challenge them toward post-conviction proceedings.

Defense of the Conviction

When the case reached a post-conviction hearing, local prosecutor Tom Chapman enlisted the Alabama Attorney General’s Office to help defend McMillian’s conviction. The office sent Don Valeska, a longtime prosecutor whom the account describes as intense and combative. The defense team had sought another review of the evidence, but Chapman and law-enforcement officials had grown increasingly hostile toward its repeated requests and challenges.

The State’s defense unfolded amid a dispute over access to evidence. After the defense’s repeated requests for police and prosecution files, Judge Thomas B. Norton Jr. had characterized its efforts as fishing. The lawyers believed that previously undisclosed exculpatory material pointed to the possibility that additional evidence remained unavailable. In this setting, the office’s participation helped sustain the State’s effort to preserve the conviction against claims of misconduct, ineffective counsel, and newly discovered evidence.

Reconsideration During the Appeal

The office’s posture shifted after investigators reopened the case and developments emerged that favored McMillian. Ken Nunnelly, another lawyer from the office who took over the appeal, told Stevenson that the State’s lawyers had been discussing the case. Nunnelly offered no immediate commitment to resolve the matter, instead asking McMillian to wait several more months. Stevenson objected that delay mattered for a man who had already spent years on death row despite being wrongly convicted.

Within days, the attorney general’s office submitted a motion to the Alabama Court of Criminal Appeals asking it to stay the litigation and withhold a ruling. The motion said the State might have uncovered exculpatory evidence favorable to McMillian that could entitle him to a new trial, but needed more time to complete its investigation. It did not itself establish that the conviction had been overturned; it marked a significant change from arguing that the death sentence was appropriate to asking the court to leave the appeal unresolved while the State examined evidence that might undermine the prosecution.