Redressing racism in the courts: The Rocky Myers case 

The Constitutional guarantee that anyone accused of a crime has a right to the assistance of counsel has long been regarded as a key to fairness in the criminal justice system. Almost 100 years ago, in Powell v. Alabama, the Supreme Court explained that “The right of the accused, in a capital case, to have the aid of counsel for his defense … is one of the fundamental rights guaranteed by the due process clause of the Fourteenth Amendment.”

As the court noted, that guarantee means that a lawyer must provide what it called “effective aid” to their client. “Even the intelligent and educated layman,” the court said, “requires the guiding hand of counsel at every step in the proceedings against him.” 

Or as former Justice John Paul Stevens put it in 1984, “Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have.” 

In a case sure to please law professors seeking new examples for courses on legal ethics, on March 11 news broke that Rocky Myers, a Black man serving a prison term for killing a white woman in 1991, is asking the courts to consider whether a lawyer with deep ties to the Ku Klux Klan provided him with the kind of guidance that the Supreme Court envisioned in Powell.  

They should answer with an unequivocal “no,” and the cout should grant Myers’s request for a new trial.  

Lawyers in this country are expected to put aside their personal beliefs and to represent people whose views they may not share. But, as the New York City Bar Association notes, there are “rare cases where deeply held views may pose a ‘significant risk’ of materially limiting the lawyer’s ability to represent a client competently and diligently.”  

The Myers case is one of those rare exceptions.  

The NYC Bar says that “Because such a personal conflict is at odds with long-standing norms in the legal profession,” in such cases, the lawyer needs to secure “the client’s informed consent” before they can represent them. 

Of course, that does not mean that any characteristic or identity of a lawyer should disqualify them from representing someone. This principle was put to the test in 1993, when Anthony Griffin, a Black lawyer affiliated with the ACLU, agreed to represent Michael Lowe, who was at that time the grand dragon of the Ku Klux Klan. 

Giffin explained that “The Klan says some vile and vicious and nasty and ugly things. But the Klan has a right to say them.” Griffen took a lot of heat for what he did. But Lowe could not complain. He knew what he was getting when he agreed to let Griffin represent him. 

Rocky Myers did not. His court-appointed lawyer, John Mays, said nothing about the Klan and his role in it. 

The jury in the Myers case recommended that he be given a life sentence without parole. However, the trial judge overrode that decision and sentenced him to death. 

As the Equal Justice Initiative explains, Myers’s trial was deeply flawed, and Mays did little to expose those flaws. Last year, doubts about Myers’s conviction and sentence led Alabama Gov. Kay Ivey to commute his sentence to life without parole.   

In his request for a new trial, Myers alleges that “Mr. Mays failed to adequately investigate the State’s case against Mr. Myers. Mr. Mays failed to interview the State’s witnesses and ensure that his own witnesses were available for trial.” In addition, Mays used degrading language about his own client during the trial, referring to Myers as a “crackhead” and a “criminal” in front of the jury. 

Myers’s petition for relief details Mays’s long-standing affiliation with the Klan. Mays denies that affiliation, but the evidence seems overwhelming that he “acted under an unwaivable conflict of interest: his racism, which ran so deep that there is no plausible way it did not impact his representation of Mr. Myers, a poor Black man.” 

Even so, Myers faces an uphill battle since, as an article in the California Law Review observes, “Courts usually don’t grant habeas claims for criminal defendants who allege that their lawyer’s racism prejudiced their defense unless the racial animus is obvious on the cold trial record.”  

However, the Supreme Court has recognized that, in some cases, courts can find a constitutional violation even if a defendant does not present evidence that racism affected their counsel’s performance or the outcome of their trial. Citing Powell, Justice Stevens said that it is enough to examine the “circumstances” surrounding the representation, to see if “the likelihood that counsel could have performed as an effective adversary was so remote as to have made the trial inherently unfair.” 

Myers’s case fits the bill.  

The principle is simple: No Black defendant in a murder case should be represented by a lawyer affiliated with the KKK without their knowledge and consent. It is now up to the courts to apply it.

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.

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