The attorney for convicted killer Michael Marnell Smith asked Virginia Gov. Gerald L. Baliles yesterday to block Smith's execution, scheduled for Thursday.
"We are asking the governor to do what the jury couldn't do -- a life sentence without parole," Lloyd Snook said.
When the jury asked about the possibility of parole, the trial judge told them not to consider it in Smith's case, Snook said.
Snook said it showed the jury did not want to see Smith die, but had no way to make sure he never got out again.
Smith, 40, was sentenced to die in November 1977 for the capital murder and rape of Audrey Weiler, 35, a York County mother of two who was raped, choked, stabbed and drowned as she sunbathed alone near Williamsburg.
Four months before Weiler's murder, Smith was paroled after serving about one-third of a 10-year sentence for raping a William & Mary student.
He has been on death row longer than any other Virginia inmate.
Snook has said he will not pursue further appeals in the courts if the clemency request is denied.
Friday, the Virginia Supreme Court refused to block Smith's execution and denied a request to consider his appeal. The U.S. Supreme Court denied a similiar appeal last month.
Snook said his client was "basically prepared to die" before a last-minute stay in May, and that he is prepared this time as well.
"One characteristic of his fundamentalist faith is whatever happens is God's will," Snook said.