On March 22, 1995, Robert Earl Council was convicted of Capital Murder, i.e., Murder committed during the course of a Robbery in the First degree.

Robert Earl Council is innocent of charges.

On Direct Appeal of the Capital conviction, Robert Earl Council challenged the Sufficiency of the Evidence presented by the State establishing his guilt.
To sustain a conviction under 13A-5-40 (a) (2) for Robbery-Murder, the State was required to prove beyond a reasonable doubt:

(1) a Robbery in the First Degree
(2) a Murder
(3) The Murder was committed during the Robbery or connection with the commission of, or in the immediate flight from the commission of the Robbery in the First Degree.

On Direct Appeal, Robert Earl Council contended that the evidence presented at trial did not establish that the Murder occurred during a Robbery or that he was involved in the theft, made the basis of the Robbery Offense.

At trial, the only evidence presented, in regards to the Robbery Offense, was from the testimony of Marcus Neal.

Neal testified that after leaving Venus Flowers’ house, while walking to Larry Brooks’ house, he overheard Robert Earl Council state:

“I should have just took it”

in the presence of himself and Willie Adams. Neal went on to testify that upon arriving at Dale Green’s house (where the theft took place) Robert Earl Council left the group and departed.

At which time Neal, Adams, Green and Ronald, Green and Ronald Henderson went into Green’s house to negotiate a trade of drugs for the rifle. Once inside Green’s house, Neal testified that while trying to display the rifle, Henderson fumbled with the rifle and dropped it.

According to Neal, he (Neal) caught the rifle as it was falling, at which time Adams got the rifle from Neal and ran out of the house.
Several minutes later, based upon Neal’s testimony,

“After everything was over and we were on our way back to Brian Council’s house, a car came from out of no where and ran us off the road.”

Neal, further, testified that at this time, he got down in the floor of the car, as he knew he was about to die. At this time he heard several gun shots.

Based upon these facts, the only legal way Robert Earl Council could be convicted for Murder during the course of a Robbery in the first Degree, was by way of Accomplice Liability; as the crux of the State’s Theory was that Robert Earl Council promoted or encouraged Willie Adams to commit the theft by stating that he (Robert Earl Council) “should have just took it” in the presence of Willie Adams, prior to the actual theft. As it was explicitly testified to, that Robert Earl Council was not present in Green’s house when the theft took place nor did Robert Earl Council participate in the theft of the rifle.

On Direct Appeal, the ALABAMA COURT OF CRIMINAL APPEALS was presented with the question of, WHETHER THE STATE HAD PRESENTED SUFFICIENT EVIDENCE TO ESTABLISH THAT ROBERT EARL COUNCIL INTENTIONALLY MURDERED RONALD HENDERSON DURING THE COURSE OF A ROBBERY IN THE 1 ST DEGREE?

In place of reviewing the Record of Appeal to determine whether the State had presented sufficient evidence to establish the Capital Offense, in direct contradiction to the facts adduced at trial and stipulated to in the Briefs of Appeal, –that Robert Earl Council was not present in the house when the theft occurred— the Alabama Court of Criminal Appeals changed and/or altered the facts of the case on the most crucial aspect of the Offense. Particularly, in their April 19, 1996 Memorandum Opinion, as the basis for upholding Robert Earl Council’s Capital Conviction, the Court States:

“…while Henderson was fumbling with the gun, the appellant (Robert Earl Council) told Willie Adams to grab the rifle because Henderson was intoxicated.”

As can and should be noted, the Alabama Court of Criminal Appeals modified the facts of the case to place Robert Earl Council in Green’s house during the theft and giving Willie Adams a direct order to take the gun.

How can this be, when Marcus Neal, the only witness to present testimony, regarding the theft of the gun, testified that Robert Earl Council was not present in Green’s house when the theft occurred?

This one altered line changes the entire factual basis of the Appellate Review, as it supplements the State’s case, by making Robert Earl Council an actual participant in the theft of the gun.This alteration of the facts is the linchpin that ties the theft and death of Ronald Henderson together and supplies the “essential element” of the Capital Offense, which the State failed to prove at trial.

The ALABAMA COURT OF CRIMINAL APPEALS embellished the facts to justify holding Robert Earl Council responsible for a theft he did not commit, which elevated Henderson’s death to a Capital Offense.

The Integrity of the judicial process is called into question where, as here, through the alteration of material facts, the Alabama Court of Criminal Appeals has subjected Robert Earl Council to a Capital Conviction and a Life without Parole sentence, based upon unsubstantiated facts as to anessential element” of the Capital Offense.

Fundamental fairness and the right to an impartial jury as guaranteed by the Due Process Clause of the U.S. and Alabama Constitution compel the Alabama Court of Criminal Appeals to correct this error. Yet, on three (3) different occasions (*Complaint to Judiciary Inquiry Commission, Declaratory Judgment and Writ of Mandamus), in the face of the facts, the Court has refused to acknowledge and correct this alteration. As to do so, would render Council’s Capital conviction a Sham.

According to Alabama law, there is NO recourse for this type of blatant disregard for truth and justice. Specifically, if your Attorney doesn’t Object to the Court of Criminal Appeals changing the facts of the case, in 14 days, it becomes a forfeited issue and you are barred from complaining about it.
So this distorted version of the facts became the legal version- not the right or true, but the Legal Version. And serves as the gatekeeper to an unjust conviction.

“The role of the Appeals Court is NOT to say what the facts are. Our role is to judge whether the evidence is legally sufficient…”
Ex Parte Bankston, 358 So. 2d 1040.

That’s what Alabama law explicitly states, so Why did they alter the facts of Robert Earl Council’s case, then use those altered facts as the basis for upholding his Capital Murder conviction and Life without Parole sentence?

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Could it have anything to do with the fact that Robert Earl Council was a young Black male and the victim was a White male from a well known family? Help us find the answer to these questions.

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