victim. A new formula emerged for criminal prosecution, especially in high-profile cases, in
which the emotions, perspectives, and opinions of the victim figured prominently in how
criminal cases would be managed.
However, as Mozelle and Onzelle discovered, focusing on the status of the victim became
one more way for the criminal justice system to disfavor some people. Poor and minority
victims of crime experienced additional victimization by the system itself. The Supreme
Court’s decision in Payne appeared shortly after the Court’s decision in McCleskey v. Kemp, a
case that presented convincing empirical evidence that the race of the victim is the greatest
predictor of who gets the death penalty in the United States. The study conducted for that
case revealed that offenders in Georgia were eleven times more likely to get the death penalty
if the victim was white than if the victim was black. These findings were replicated in every
other state where studies about race and the death penalty took place. In Alabama, even
though 65 percent of all homicide victims were black, nearly 80 percent of the people on
death row were there for crimes against victims who were white. Black defendant and white
victim pairings increased the likelihood of a death sentence even more.
Many poor and minority victims complained that they were not getting calls or support
from local police and prosecutors. Many weren’t included in the conversations about whether
a plea bargain was acceptable or what sentence was appropriate. If your family had lost a
loved one to murder or had to suffer the anguish of rape or serious assault, your victimization
might be ignored if you had loved ones who were incarcerated. The expansion of victims’
rights ultimately made formal what had always been true: Some victims are more protected
and valued than others.
More than anything else, it was the lack of concern and responsiveness by police,
prosecutors, and victims’ services providers that devastated Mozelle and Onzelle. “You’re the
first two people to come to our house and spend time with us talking about Vickie,” Onzelle
told us. After nearly three hours of hearing their heartbreaking reflections, we promised to do
what we could to find out who else was involved in their niece Vickie’s death.
We were getting to the point where, without access to police records and files, we wouldn’t
be able to make more progress. Because the case was now pending on direct appeal, the State
had no obligation to let us see those records and files. So we decided to file what is known as
a Rule 32 petition, which would put us back in a trial court with the opportunity to present
new evidence and obtain discovery, including access to the State’s files.
Rule 32 petitions are required to include claims that were not raised at trial or on appeal
and that could not have been raised at trial or on appeal. They are the vehicle to challenge a
conviction based on ineffective counsel, the State’s failure to disclose evidence, and most
important, new evidence of innocence. Michael and I put a petition together that asserted all
of these claims, including police and prosecutorial misconduct, and filed it in the Monroe
County Circuit Court.
The document, which alleged that Walter McMillian was unfairly tried, wrongly convicted,
and illegally sentenced, drew a lot of attention in Monroeville. Three years had passed since
the trial. The initial confirmation of Walter’s conviction on appeal had generated significant
press in the community, and most people now felt that Walter’s guilt was a settled matter. All
there was left to do was wait for an execution date. Judge Key had retired, and none of the