Alabama death row inmate Casey McWhorter seeks delay of pending execution

Two appeals filed with U.S. Supreme Court and Alabama Supreme Court

By: - November 7, 2023 7:00 am
A hand holds a cell door with a white sign saying "Please secure gate."

A gate opens at Holman Correctional Facility in Atmore, Alabama on October 22, 2019. (File)

Attorneys for an Alabama death row inmate scheduled to face execution a week from Thursday have filed a series of appeals with the Alabama Supreme Court and the U.S. Supreme Court.

Attorneys for Casey McWhorter, convicted of capital murder in 1994 for the murder of Edward Lee Williams in 1993, argue that the Nov. 16 timeline set for his execution violates state law because McWhorter received notice 29 days before the execution, instead of the 30 that normally precede it.

“The Governor’s inadequate notice violates Mr. McWhorter’s constitutional rights to due process and equal protection,” McWhorter’s attorneys wrote in an appeal to the Alabama Supreme Court. “This Court should act to ensure it retains control over, and consistency in, its rulemaking power and exercises its supervisory authority over executions.”

Gov. Kay Ivey announced in an Oct. 18 news release that she had set the time window for executing McWhorter between midnight Nov. 16 to 6am Nov. 17.

The Alabama Attorney General’s Office in August filed a motion with the Alabama Supreme Court to have McWhorter executed , which the state supreme court granted on Oct. 16.

McWhorter’s attorneys argue that the execution date cannot be set less than 30 days from when the court issued its ruling.

“On information and belief, since the first modern era execution — that of John Louis Evans III, on April 22, 1983 — through the 71st — that of James Edward Barber, on July 21, 2023 —no condemned prisoner received fewer than 30 days’ notice of an execution date,” McWhorter’s attorneys wrote in his appeal.

The Alabama attorney general’s office dismissed the argument in a response brief, saying that the 30-day notice is a “a procedural matter that this Court is statutorily permitted to establish by rule.”

The office argued that the  clock began when the court issued the order, not when the governor publicized her decision. According to the Attorney General’s response, the court issued the order Oct. 13, and his execution is not set until Nov. 16, which is beyond the 30 days that the law requires.

”‘What a difference a day makes,’ the illustrations McWhorter cites as to the difference between having twenty-nine days versus thirty days of certain knowledge of an execution date fail to identify a specific harm,” the state wrote in its response to McWhorter’s appeal.

Federal court

In their appeal to the U.S. Supreme Court, McWhorter’s attorneys argued that McWhorter, who was 18 when Williams was murdered, was under Alabama’s definition of legal adulthood beginning at age 19. The attorneys argue that executing a person for a crime committed while they were under the legal age of adulthood violates his protection under the sixth, eighth and 14th Amendments to the U.S. Constitution.

“Most prosecutors in the country would not have sought the death penalty against a barely 18-year-old teenager involved in a robbery gone bad,” wrote Robert Dunham in response to request for comment Monday, director of the Death Penalty Policy Project and who teaches death penalty law at the Temple University Beasley School of Law.

McWhorter was convicted of murdering Williams in a scheme to steal money from the victim. At the time, McWhorter was about three months past his 18th birthday. Alabama does not recognize people as adults until they are 19 years old.

McWhorter’s attorneys argue that because he was under the legal age, he could not be tried by a jury of his peers in violation of his Sixth Amendment rights to a jury trial from a cross-section of the community. Alabama only allows jury service for those 19 and older.

“If an 18-year-old is old enough to be sentenced to death for a criminal act, that 18-year-old should also be old enough to sit on a jury weighing a capital sentence,” McWhorter’s attorneys wrote in their appeal.

McWhorter’s attorneys also argue he was a “statutory juvenile” at the time of the crime, and that executing him would amount to cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution and Roper v. Simmons, a 2004 case that prohibited the execution of people for crimes committed under the age of 18.

“To deny McWhorter protection under Roper when he was a statutory juvenile just three months past his 18th birthday at the time of the crime is the epitome of cruel and unusual punishment,” his attorneys wrote.

McWhorter’s attorneys also make a more general 14th Amendment discrimination argument against the state’s rule, claiming that they, including McWhorter, cannot access the full range of their constitutional rights because of that rule.

The state had not filed a response to McWhorter’s federal appeal as of early Monday afternoon.

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Ralph Chapoco
Ralph Chapoco

Ralph Chapoco covers state politics as a senior reporter for States Newsroom. His main responsibility is the criminal justice system in Alabama.