NEW PODCAST: He May Be Innocent and Intellectually Disabled, But Rocky Myers Faces Execution in Alabama

Rocky Myers (pic­tured) may be inno­cent and intel­lec­tu­al­ly dis­abled, and his jury vot­ed to sen­tence him to life. So why is he fac­ing exe­cu­tion in Alabama?

In the February 2020 episode of Discussions with DPIC, mem­bers of Myers’ legal team tell the sto­ry of how racial bias, poor rep­re­sen­ta­tion, and judi­cial over­ride led to the pos­si­ble wrong­ful con­vic­tion of an intel­lec­tu­al­ly dis­abled man. Assistant Federal Defender Kacey Keeton and Investigator Sara Romano speak with DPIC Managing Director Anne Holsinger and describe the shod­dy evi­dence used to con­vict Myers, his aban­don­ment by his orig­i­nal appel­late attor­ney, and the legal hur­dles that have blocked his claims of inno­cence and intel­lec­tu­al dis­abil­i­ty from being heard in court.

Rocky Myers, a Black man, was con­vict­ed of the 1991 mur­der of his white neigh­bor, Ludie Mae Tucker. His jury had 11 white mem­bers and one Black mem­ber. Myers’ own lawyer told the jury going into the neigh­bor­hood where Myers lived was ​“lit­er­al­ly walk­ing into hell” and com­pared the peo­ple who lived there to ani­mals. Keeton recounts that defense coun­sel ​“apol­o­gized to the jury that he was going to have to be talk­ing about this place, because he knew that wasn’t how they lived. So he imme­di­ate­ly, from the begin­ning, set up this ​‘us ver­sus them,’ and put his own client on the side that was the ​‘oth­er,’ the ​‘dif­fer­ent.’” Members of the jury talked about Myers as a ​“thug” and a ​“n****r,” and his defense attorney’s notes use a racial slur to char­ac­ter­ize jury mem­bers, describ­ing one juror as a ​“n****r‑hater.”

No phys­i­cal evi­dence linked Myers to the crime. Witnesses gave con­flict­ing accounts of the crime, and one key wit­ness, Marzell Ewing, has acknowl­edged that he lied about Myers’ involve­ment in the mur­der in exchange for not being charged with a car theft in an unre­lat­ed mat­ter. The weak­ness of the evi­dence against Myers led some mem­bers of the jury to ques­tion his guilt. According to juror Mae Puckett, she and the oth­er jurors who were not con­vinced of Myers’ guilt felt pres­sured to con­vict him, but made a deal with the oth­er jurors that they would con­vict if the rest of the jury rec­om­mend a life sen­tence. The jury vot­ed 9 – 3 for life, but the judge over­rode their rec­om­men­da­tion and sen­tenced Myers to death. 

Although Alabama end­ed the prac­tice of judi­cial over­ride in 2017, Myers is one of 32 peo­ple cur­rent­ly on Alabama’s death row whose judges over­rode jury rec­om­men­da­tions for life. Each of Alabama’s six death-row exon­er­a­tions involved judi­cial over­ride, non-unan­i­mous rec­om­men­da­tions for death, or a waiv­er of jury sen­tenc­ing. Keeton explains that non-unan­i­mous sen­tenc­ing rec­om­men­da­tions sug­gest ​“that there was at least some kind of con­cern” on the part of jurors. ​“Maybe it didn’t rise to the lev­el of rea­son­able doubt, but it was a doubt.”

After his con­vic­tion, Myers received pro bono appel­late rep­re­sen­ta­tion from a lawyer in Tennessee who abrupt­ly stopped rep­re­sent­ing Myers and gave him no notice that he was doing so. Myers only learned he had been aban­doned when he received ​“a let­ter stat­ing that they’re going to move for an exe­cu­tion date.” Because of his intel­lec­tu­al dis­abil­i­ty, Myers reads at about a third-grade lev­el, so ​“he couldn’t read the let­ter, he had a friend on the row help him read the let­ter.” At that point, he sought help and his case was referred to the fed­er­al defender’s office. But the dam­age to his appeal already had been done: the lawyer had missed cru­cial fil­ing dead­lines. Myers’ new lawyers asked the court not to hold his attorney’s aban­don­ment against him, but the court said the intel­lec­tu­al­ly dis­abled man had failed to exer­cise ​“dili­gence” by call­ing his attor­ney reg­u­lar­ly and keep­ing track of dead­lines in his case. However, Keeton said, one symp­tom of Myers’ intel­lec­tu­al dis­abil­i­ty is dif­fi­cul­ty keep­ing track of time and dead­lines. ​“The court put a bur­den on him that was impos­si­ble for him to meet,” she said, and as a result, “[n]one of his issues have real­ly been pre­sent­ed in court.”

At this point, Myers has a pend­ing appeal chal­leng­ing his sen­tence in light of Alabama’s abo­li­tion of judi­cial over­ride. His only oth­er legal rem­e­dy is clemen­cy, which has been grant­ed in only one Alabama death-penal­ty case in the mod­ern era. His legal team explained why they’re tak­ing the unusu­al strat­e­gy of pub­li­ciz­ing his case, say­ing, ​“Rocky’s desire is that maybe some­body else can be helped by his sto­ry. That’s why our clemen­cy plan is not your stan­dard writ­ing a peti­tion just to the gov­er­nor, but try­ing to make sure peo­ple hear his sto­ry, know his name, and under­stand that maybe there is some­thing that they can do to pre­vent anoth­er Rocky from happening.”