Despite Possible Innocence and Intellectual Disability, Alabama Intends to Execute Rocky Myers

Rocky Myers (pic­tured) may be inno­cent and intel­lec­tu­al­ly dis­abled. His jury did not think he should be sen­tenced to die. Alabama intends to exe­cute him any­way. Myers’ case is rife with legal issues, but he received no fed­er­al court review because his appel­late lawyer aban­doned him with­out notice, let­ting the fil­ing dead­line for chal­leng­ing Myers’ con­vic­tion and death sen­tence expire. In a recent fea­ture sto­ry in The Nation, reporter Ashoka Mukpo tells the sto­ry of how the intel­lec­tu­al­ly-dis­abled Myers was con­vict­ed and sen­tenced to death for the 1991 mur­der of his neigh­bor, Ludie Mae Tucker, even after his jury rec­om­mend­ed 9 – 3 that he should be sen­tenced to life.

Mukpo reports that the pros­e­cu­tion evi­dence against Myers was prob­lem­at­ic. Two infor­mants ini­tial­ly told police that, on the night of the mur­der, anoth­er man — Anthony ​“Cool Breeze” Ballentine— had trad­ed a VCR stolen from Tucker’s house for crack cocaine. Another wit­ness cor­rob­o­rat­ed their sto­ry, inform­ing police that she had seen Ballentine, wear­ing a white shirt stained with blood, run into an alley near Tucker’s house. Weeks lat­er, anoth­er man, Marzell Ewing, who had known Ballentine for 30 years, came for­ward to claim a reward for infor­ma­tion about the mur­der. He told police he’d seen a short, stocky man near the crime scene, car­ry­ing the stolen VCR. After his state­ment, the orig­i­nal infor­mants changed their sto­ries, nam­ing Myers as the man who had trad­ed the VCR for drugs. Myers lat­er admit­ted that he had found the VCR in an alley next to his house — a com­mon drop spot for stolen goods. Because of his intel­lec­tu­al dis­abil­i­ty, Myers was unable to tell police when he had found the VCR, lead­ing police to con­clude he was lying. In 2004, Ewing recant­ed his sto­ry. In a signed state­ment, he revealed that a detec­tive had offered to elim­i­nate the record of a pri­or arrest if Ewing tes­ti­fied against Myers. Ewing’s state­ment admit­ted that his tes­ti­mo­ny was ​“not truth­ful. I did not see who brought the VCR to the shot house that night.”

Other evi­dence also sug­gest­ed Myers is inno­cent. Before she died, Tucker was able to describe her assailant to the police and the cloth­ing he was wear­ing. Although Tucker knew Myers, she did not iden­ti­fy him as her attack­er. Multiple wit­ness­es tes­ti­fied at Myers’ s tri­al that he had been wear­ing a dark shirt the night of the mur­der, not the light shirt described by Tucker. No phys­i­cal evi­dence linked Myers to the mur­der and none of the fin­ger­prints found at the crime scene matched his. Mae Puckett, one of the jurors in Myers’ case, said she and a few oth­er jurors were not con­vinced of his guilt but felt pres­sured by the major­i­ty of the jury to vote for guilt. One white juror lat­er spoke to Myers’ defense team, refer­ring to him as a ​“thug” and describ­ing him with a racial slur. ​“I nev­er thought for a moment that he did it,” Puckett said, but she and the oth­er jurors who doubt­ed his guilt agreed to vote for con­vict if the jury would rec­om­mend a life sen­tence. Nonetheless, exer­cis­ing a since-repealed pow­er to over­ride a jury’s vote for life, the tri­al judge sen­tenced Myers to death.

After Myers was sen­tenced to death, a Tennessee attor­ney, Earle J. Schwarz, agreed to rep­re­sent him pro bono in his post-con­vic­tion appeals. But when the state courts denied Myers’ appeal, Schwarz nev­er told Myers and nev­er filed a fed­er­al habeas cor­pus peti­tion, caus­ing Myers to miss the fed­er­al fil­ing dead­line. ​“Mr. Schwarz decid­ed that he could no longer rep­re­sent Rocky, but unfor­tu­nate­ly he just sat in a room and said that qui­et­ly to him­self,” said Kacey Keeton, who now rep­re­sent­ed Myers. ​“He didn’t tell Rocky, he didn’t call the courts and let them know, he didn’t tell the pros­e­cu­tors, he just quit doing any­thing.” On behalf of Myers, Keeton is now seek­ing clemen­cy from Governor Kay Ivey, Myers’ last chance to avoid exe­cu­tion. ​“The fact that we are poten­tial­ly exe­cut­ing a man who did not have his day in court because an attor­ney screwed up should give every­body pause,” Keeton said.

Studies sug­gest that wrong­ful cap­i­tal con­vic­tions are more like­ly in cas­es of judi­cial over­ride or non-unan­i­mous jury votes for death. Five of Alabama’s six death row exon­er­a­tions, involved either judi­cial over­ride or non-unan­i­mous jury votes for death In 2002, the U.S. Supreme Court ruled that the death penal­ty can­not be imposed on intel­lec­tu­al­ly disabled defendants.