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

Anne Holsinger 0:01

Hello and welcome to Discussions with DPIC. I’m Anne Holsinger, the Managing Director of the Death Penalty Information Center. In this episode, I’ll be speaking with two members of the legal team representing Alabama death-row prisoner, Rocky Myers. Casey Keaton is an Assistant Federal Defender and Sarah Romano is an Investigator. They have worked on the appeals and clemency case for Mr. Myers, arguing that he is intellectually disabled and was wrongfully convicted. Mr. Myers’ case illustrates numerous problems with the death-penalty system, including racial bias, ineffective counsel, and judicial override of a jury’s recommendation for life. Casey, thank you for joining us today.

Casey Keaton 0:37

I’m so glad to be here.

Anne Holsinger 0:38

And Sarah, thank you as well.

Sarah Romano 0:40

Thank you. I’m glad to be here too.

Anne Holsinger 0:42

So, the death penalty is supposed to be reserved for the worst of the worst murderers and the worst of the worst killers. But in fact, it seems more frequently that it’s imposed on the defendants and prisoners who are the most vulnerable and who have received the worst representation or the worst legal process. Where does Rocky Myers’ case fit in?

Sarah Romano 1:01

Rocky fits into both of what you talked about as far as being most vulnerable as it relates to his, he’s an African American male. The victims in this case were both white females. He also received representation that was not in his best interest at trial and through his appeal system before the Federal Defenders got his case.

Casey Keaton 1:29

One thing I think that sets the tone for the kind of representation that Rocky got, beginning at trial level, and really all the way through his post-conviction appeals process until he got to the Federal Defender’s Office, was actually in opening arguments and voir dear from his trial counsel, where they talked about where the crime happened, which was also where Rocky lived. They refer to it as “literally walking into hell”. And that the people who lived there were not people at all, but that they were animals, that it was crack dealers and prostitutes. And that he 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 beginning set up this us versus them, and putting his own client on the side that was the other, the different.

Anne Holsinger 2:27

I’d actually like to talk a little bit about Mr. Myers’ conviction and his trial. There was no physical evidence against him and the evidence that was used to convict him was seriously flawed. There were conflicting witness accounts, the timeline of the crime was unclear. What happened in Mr. Myers’ trial that led the jury to convicting him on such shaky evidence?

Casey Keaton 2:46

I was really kind of a, I think, a grouping of so many things gone wrong all in one place. Again, having poor representation, lawyers who did not even say their own client is a human being. On top of that, you have a police investigation that initially charges a different person for the crime and then the witnesses that they had in that case, changed their stories multiple times. The witnesses were all people who had interactions with the police. So, this kind of mishmash of mixed-up stories. And we know from later testimony, that one of the most important witnesses, Marzell Ewing, and I say most important, because he was the only witness who testified that he was actually a friend of Rocky Myers, that he knew him. And so therefore, his identification of Rocky as the person who was there that night, really was the most damning of them all. And now we know that Marzell lied. He’s come forward multiple times and acknowledged his lie and indicates that he was really pressured from the police and he was able to walk away from a car theft charge because of his agreement to testify.

Anne Holsinger 4:09

We know that the evidence against Rocky was shaky at best, and that his representation was bad. Were there other factors that you think contributed to him getting a conviction despite all that?

Casey Keaton 4:22

I think, number one — all this happened in Decatur, Alabama, a small southern town in the early 90s. And there were, there was a dead elderly white lady and an injured elderly white lady, and there was a black man charged with it. And there was a jury of 11 white people and one African American, and a prosecutor that was out to see a conviction in this case, and a trial lawyer that was less than interested in representing his client to the best of his ability. And all of that, I think, contributed to that. To move on, when they were actually having their deliberations, it was a holiday weekend. Ironically, it was Martin Luther King Jr. holiday weekend or as in the south, it’s also Robert E. Lee’s birthday. All of that in the room, we know from talking with one of the jurors, there was a lot of pressure, that there were some jurors who wanted to vote to not convict him and find him not guilty. There was pressure from a larger number of jurors who wanted to see him be found guilty. And so there was a compromise. We now know that they agreed — the ones who wanted to find him not guilty — were okay with coming back with a guilty verdict, if the other individuals agreed to come back with a life without the possibility of parole. I think that was really naive on the part of the jurors that wanted the not guilty outcome. And I think we can criticize a lot of it now, but none of us have been in that situation of being really vulnerable. They were the younger jurors out of the group. And now having spoken, Sarah and I’ve spoken with some of the jurors that actually sat on the case. And, you know, we’ve heard them refer to Rocky Myers and some of the other witnesses as “thugs,” we have heard them use the N word in reference to Mr. Myers. So, we know that the jury, in their own minds, continued the thing that Rocky’s own counsel started, which is us versus them. And the them are the other, they are the animals, they are less than human. And I think that makes it easier to convict somebody on less than solid evidence.

Sarah Romano 6:47

The other thing that I would add to, as far as like, you know, kind of the perfect storm for having him convicted and getting the death sentence, definitely has to do with the fact that he is intellectual. disabled. So he made statements, you know, agreeing that at one point in time he had traded in a VCR at the crack house. I’m sure he did that, as did probably 50 other people trying to get, you know, drugs from the crack house.

Anne Holsinger 7:18

And just to clarify the relevance of that — there was a VCR stolen from the victim’s home, right?

Sarah Romano 7:23

Yes, thank you. So, he did say that he had traded in a VCR. However, the timing was important for them to convict him and arrest him. And so, when somebody with an intellectual disability tries to make sure that they’re saying what they need to say when somebody is interrogating them, they mask issues that they’re uncomfortable about themselves and when he talked about the timeframe, it was within, like the last 30 days. But I mean, I’ve known Rocky for 16 years now, and there is no way that he had the ability to know the timing and the things of what he did back then. Certainly, because he was, at that time, a crack user. I think that played big into his conviction as well.

Anne Holsinger 8:23

So, as Casey mentioned, the jury ended up recommending a life sentence by nine votes to three. And that was part of a deal, where some of the jurors had some doubts about his guilt but agreed to convict because fellow jurors agreed to recommend a life sentence. Despite that, the judge overrode the recommendation and sentenced him to death. How common was that practice of judicial override in Alabama?

Casey Keaton 8:47

I can’t say that it was common amongst all the capital sentences that have happened, but we know that currently there are approximately 32 individuals on Alabama’s death row who are there because of judicial override. We do know and can say that — while the practice of judicial override was allowed in Alabama, which was from the modern era of the death penalty to 2016, 2017, when the governor of Alabama signed it out of law, those people are left on death row from that practice. We know that it has only been used in Alabama, or mostly — I can’t say only because I think there are a few where it was actually used to override a death sentence to life — but the predominant use of it has been to sentence individuals to death.

Anne Holsinger 9:49

And none of the six death row exonerees from Alabama had unanimous jury votes for death. Three times the judge overrode jury votes for life and twice there were non-unanimous recommendations for death. In the sixth case, the exoneree, Gary Drinkard, waived his jury sentencing altogether. So what is it about judge override and non-unanimous juries that makes them such a red flag for potential innocence?

Casey Keaton 10:15

I think Rocky’s case is really a perfect example of that kind of red flag because we’ve had the benefit of kind of seeing behind the jury door with talking with Mae Puckett. We know that there was this conflict amongst them, and it’s kind of how they settled that out. So, I think when we say those recommendations for life, or the less than complete jury voting one way or the other, we know that that suggests that there was at least some kind of concern. You know, I think if it’s like an eleven to one, maybe there’s less of a concern that that’s an actual conflict, maybe that’s one person who just didn’t feel comfortable. But I think when you see those numbers grow to two people, three people — somebody had a serious concern and maybe they didn’t feel like it rose to the level of reasonable doubt, but it was a doubt. Particularly when we know that when you get jurors, most of them are people who are willing to vote for death. In fact, you really don’t get anybody on a jury that that’s not willing to vote for death, you know, that’s kind of weeded out within the voir dire practice.

Anne Holsinger 11:35

Another fact that we know about judicial override is that it was disproportionately used against black defendants. So could you discuss the evidence that Mr. Myers’ trial was infected by racial bias, including some of the statements that have been made by his jurors?

Sarah Romano 11:50

Well, I believe Casey had mentioned some of that. Certainly, the description of the opening statements made by trial attorneys to the jurors affected that. At one point during our review of trial counsel files, we came up with a document that somebody was describing one of the jurors, saying that he was an N hater, and it’s written right in the notes by trial counsel.

Anne Holsinger 12:25

And they allowed that juror to remain, they didn’t attempt to remove them from the jury pool?

Sarah Romano 12:30

We weren’t exactly sure which juror they were talking about in the notes.

Casey Keaton 12:35

But, it is language that the trial counsel is comfortable using.

Sarah Romano 12:39

Yeah. Totally use, you know, using that. And also, you know, as Casey had mentioned, so we have spoken with a number of the jurors that convicted Rocky and they had no trouble at all, like a couple of the jurors had no trouble at all describing him as a thug and as all the witnesses in the same way. I mean, Marzell Ewing, who is an African American male, that, you know testified, that Casey mentioned, was one of the most damning pieces against Rocky, described several other witnesses in that same exact way, like thugs and using the N word. Like, that was their belief about people that were African American.

Casey Keaton 12:52

And I think and one of them kind of, not explicitly, but in this kind of discussion, general discussion of, well, you know, he was guilty of something.

Anne Holsinger 13:40

Mmm hmm.

Casey Keaton 13:42

And so it’s that idea, again, I think, a theme that began from trial, from his own trial counsel, that — here’s this person who’s from this horrible place that none of you should ever go to and then none of you are familiar with because you’re these nice white people, and so this is somebody that is different from you. I think it’s hard to hate someone when you know them or when you have some sense of who they are. And as a trial counsel, I think it is your job to make your client someone who the jury can empathize with, no matter what. You know, we all have something in common, somewhere along the way.You know, Rocky was a father, a husband, a son. He grew up in church, his grandfather and the siblings had a church choir, they even had a church album at one point. This is a family. And instead, he was portrayed by his own lawyer and the prosecutor, in tandem, as somebody that was animalistic. And it’s easy to convict somebody with that as the description. And I think that’s also kind of the racial bias that was injected, again, by his own lawyer. And then the witnesses, you know, they are individuals. You know, I think you hear prosecutors all the time and their opening arguments, you know, “I apologize, but sometimes to get a bad guy, you have to go to hell to get the witnesses” over and over again, kind of. And in this sense it was the prosecutor kind of giving that indication and the defense lawyer. And then that’s what proceeded to happen — the witnesses against Rocky were a guy who sold crack out of a crack house, a young man who ran drugs for that same person, and then, you know, another guy who was a protector for that drug dealer. You know, these are kind of the witnesses that are coming in, and they changed their story multiple times. But in the end, you know, it was kind of what was presented finally at trial.

Sarah Romano 16:16

One of the reasons, too, as far as like, you know — Casey had mentioned that Marzell Ewing had the car theft — he was never even charged with it. So, the person that he was working for, was a big person in the area that brought in drugs and sold a lot of drugs. We later learned that that man was in fact, a confidential informant not only in the county, but for the Feds. So that definitely played into where Marzell was. He was a very young man at the time, and he felt pressure working under Butch Madden to say, “Oh, yeah, it was Rocky Myers.” And he’s already given us the truth about that. And unfortunately, it really hasn’t helped Rocky now.

Anne Holsinger 17:15

What was the portrayal of the victim like? I know she was a neighbor of Rocky’s and you’ve mentioned that with the trial, the defense counsel and the prosecutors presented the neighborhood is like going into hell. So how did they reconcile that?

Casey Keaton 17:29

Well, she lived on the other side of the street, so that makes her okay. I know that sounds really simplistic, but I think that the absolute implication and the assumption is, is that she’s a white lady, so she doesn’t fall into that category.

Anne Holsinger 17:45

Mmm hmm.

Casey Keaton 17:46

Instead of acknowledging that all these people lived in a poor part of town.

Anne Holsinger 17:49

Mm hmm.

Casey Keaton 17:50

She was I mean, she was an elderly white woman who was attacked in her own home, and you can’t take away that’s incredibly sympathetic, I think that’s horrifying. We all have a grandmother, or you know, myself in my home, that’s terrifying to have that happen. So I, you know, I think that was definitely an easy kind of sympathy rouser, in that she is an incredibly sympathetic victim.

Anne Holsinger 18:16

We’ve talked about the poor representation that Mr. Myers received in his trial, but even after he was sentenced to death that continued. An attorney in Tennessee took up his appeals pro bono, but then abandoned Mr. Myers with no notice at all, causing him to miss critical filing deadlines. What happened there and how did Mr. Myers end up learning that his attorney had abandoned him?

Sarah Romano 18:38

So, as Rocky was going through his appeals, and he got into the state post-conviction appeal — in the state of Alabama, they don’t have a right to counsel during that appeal system. And so Mr. Schwartz took on his case and represented him through the state post-conviction. The interesting thing is that he was doing some good work, and he was investigating and trying to follow up some leads initially for Rocky’s case — he was at a big firm in Tennessee and so doing the pro bono was really kind of fine for him to do that and easy for him to do it. But at one point, the law firm dismantled, and he just had to go out on his own and stopped working — 100% — on Rocky’s case. So he just stopped and never informed Mr. Myers at all. So Rocky had no idea that he didn’t have any attorney. And so then once a filing was missed that needed to be filed— what happened to Rocky is that at that point, he was procedurally barred from moving forward in his appeals. The really sad part about that too is, of course, he had no idea. Rocky’s intellectually disabled. So he ends up getting a letter stating that they’re going to move for an execution date because he missed his appeal and that he should make contact. So again, Rocky’s intellectually disabled — he couldn’t read the letter, he had a friend on the row read him the letter, and helped him make a call. The call actually at that time went to Equal Justice Initiative to represent him. However, at that time, the Federal Defenders Capital Habeas Unit had just started and so Bryan Stevenson and the people that day I decided that this would be a good case to send our way, so that we could get cases and start working better — so this was back in 2004. So from that moment, we started working on Rocky’s case. Sadly, we’ve never been able to overcome the fact that Rocky’s attorney, Mr. Schwartz, dropped his case. So none of his issues have really ever been heard in court.

Anne Holsinger 21:25

One of the arguments that you’ve presented for sparing Mr. Myers’ life is that he’s intellectually disabled. You’ve mentioned that several times. And the U.S. Supreme Court has said that executing a person with intellectual disability is unconstitutional. If a court had acknowledged his intellectual disability, then Mr. Myers would be exempt from execution. How has his disability affected this case and why hasn’t a court found him ineligible for the death penalty?

Casey Keaton 21:49

Why the court hasn’t found him ineligible for the death penalty plays a little off what Sarah just mentioned in that we have been barred from pursuing claims in his case because Earl Schwartz dropped his appeals. And what we were able to argue in federal court, and what we were very lucky to extend some time out arguing in federal court, is that he should have been given equitable tolling, which would mean that he would have kind of a pass on missing the deadline. But in order to get equitable tolling, we had to show that not only was the attorney significantly negligent, but that Rocky had made diligent efforts. And I think right there is one of the most significant impacts Rocky’s intellectual disability has had on his case, because the court found that he was not diligent. But Rocky is an intellectually disabled man, who the court, I think, put a burden on him that it was impossible for him to meet — because in order to show diligence, the court was anticipating that he should be calling his attorney regularly, that he should know when his deadline was, and that things have been filed. Well, here’s the thing is — he didn’t get any pleadings mailed to him at the prison. So he didn’t know that the Court of Criminal Appeals in Alabama had denied his pleading. He can’t read the rules to know that he should then file a motion for reconsideration. And after the motion for reconsideration is denied, that he has a particular period of time to file a petition for cert to the Alabama Supreme Court and that within that time, he then has, you know, another year to file a 2254. All of those roles are at a college reading level. And he is someone who reads at a third or fourth grade level. Again, the calendaring alone — Rocky doesn’t remember days. His wife testified at a hearing that she’s the person who filled out job applications for him, that reminded him what time he had to be up, and when holidays were and when other deadlines in their life — like when is a bill due? That’s not Rocky’s in his wheelhouse of abilities. There are a lot of things he can do. But the diligence that the court was looking for, is not in that ability.

Again, I think Sarah touched on in terms of intellectual disability. Places where it impacted Rocky in the investigation of the case is his sitting down and talking to police officers, not asserting his right to counsel. He sat down and talked to them because he knew he hadn’t killed this lady. And he talked to them. But he’s also a people pleaser as somebody with an intellectual disability. And when they said, well, didn’t you trade a VCR over there. “Well, yeah I did.” And then he proceeds to say that absolutely, yes, absolutely. It was that night. This happened. And again, Rocky couldn’t have told you what anything that he was doing. Number one — because he was a heavy crack user at the time. But number two — the intellectual disability, timing is difficult for him in those ways. I think his ability to interact and have a relationship with his trial counsel was impacted by that. But definitely the most harmful impact for him, very likely, happened at the appeal stage when his appeals were dropped. And he had an inability to show the diligence that unfortunately, and I think wrongly, the 11th Circuit looked for.

Anne Holsinger 25:47

At this point, what legal remedies are possible in Mr. Myers’ case?

Casey Keaton 25:51

Rocky has currently has a Successor Rule 32, which is a successive state petition pending, arguing he should not receive the death penalty, because now following the U.S. Supreme Court’s decision in Hurst, which did away with Florida’s judicial override system, that because he received a life without parole sentence from the jury, that that is what the Alabama courts should now honor. So he has that pending. Other than that his only remedy is clemency, which in Alabama is granted by the Governor alone. And in the modern era of the death penalty that has happened a whopping one time in Alabama. And that was for a white lady who was on death row, and it was the Governor’s last day in office.

Anne Holsinger 26:45

Wow.

Casey Keaton 26:46

So, likelihood is a far stretch, and that something we recognize, and that Rocky recognizes.

Anne Holsinger 26:52

Is there anything else that you think our listeners should know about this case?

Casey Keaton 26:55

I think one thing — we have tried to talk anywhere that anybody will listen to us about Rocky’s case. And I think the part that I really want people to hear and understand about why we’ve done that is that when Rocky lost his last appeal, he actually called me and he told me that he did not want clemency. And he said, I know that you’re going to want to talk about this. And I said, Well, yeah, you are right. We’re going to talk about it, and went down there to visit with him. And, you know, he listed the reasons that he did not want to ask for clemency. And one is that he was very tired. He’s very tired. And number two — that he had never begged anybody for anything. And he did not want to beg the Governor for his very life. And I said, well, you’re in luck, because it’s going to be me doing the begging and I don’t mind that.But we were very frank with him, that clemency is an extreme long shot, and that the odds are not in his favor for that. But the one thing that I thought we could do is in pursuing clemency for him, that we would promise to educate people, educate people about the system, educate people about what went wrong in his case, and why he should not be there, but also to be alert and aware in our own communities, how these things happen, and how we can work to prevent them by having our voices heard. And that’s really why we’re doing any of this, because Rocky’s desire is that maybe somebody else can be helped by his story. And that’s why our clemency plan is not your standard writing a petition just to the Governor, but trying to make sure that people hear his story, know his name, and understand that maybe there is something that they can do to prevent another Rocky from happening.

Sarah Romano 29:22

I just want to say this specifically about Rocky. So Rocky is a very, very kind, gentle, honest man. I’ve known him for 16 years, Casey has known him for how many?

Casey Keaton 29:39

Over 12.

Sarah Romano 29:40

…12 years working on his case, meeting almost all of his family. This is what’s important about Rocky. He’s a family man. He communicates with his siblings, provides emotional support for them, some direction for them, so that they can learn from where he is. Now, because Rocky has never denied that he was a crack user — that’s also fed into his, just, acceptance of where he’s at, even though he did not kill Mrs. Tucker. But he blames himself for putting himself in a situation that led to him getting convicted. So he uses that experience and brings that to his siblings and to his children to help them better their lives. So he’s a man who has strong relationships with family members. He also, 100%, helps so much on death row. We have a letter from an officer who retired, talking about how much he trusted and appreciated Rocky, because he was a hall runner on the row and he said that he could trust him all the time. Not only trust him, but gave us both an example of something that he did. Because the prisoners get, they get boxes and they can like buy things like for sneaks, stuff like that. So once some of the boxes came in, and one of the inmates had gotten a new pair of sneakers. This is not like you can’t just do this on your own. So Rocky went to the officer and said, Hey, can I just take these sneakers, they’re in good shape and give them to another inmate. Like he did that on his own. And because of the relationship he built with the officer, he allowed him to do that. So I want you, to I want peeople to know who he is today and really who he was then — he was a crack user, but he wasn’t a murderer.I’d also say this too. We’ve worked with him for so long, we have a very close relationship with him. At various times over the years when either Casey or I or even our other team members or people in our office, were going through anything that was difficult or hard in our lives — Rocky always prayed for us, would call and check in to see how either one of us or any one of us were doing during our difficult times. So I think this is important for people to know what we are in fact talking about. When I first started working at the Capital Habeas Unit for death row people, when I would talk about Rocky’s case people would say, “Oh, well, that shouldn’t happen.” I was like, okay, but that’s exactly what happens, you know. So I just wanted to make sure that I was able to say the things about Rocky. And I will also say this — he says thank you.

Anne Holsinger 33:22

Well, thank you both so much for taking the time to tell us Rocky’s story and to give him a voice. We really appreciate it. Listeners can find more information by visiting deathpenaltyinfo.org or clicking the link in the Show Notes to read more about Rocky Myers. To make sure you never miss an episode, please subscribe to Discussions with DPIC in your podcast app of choice.