legal case

At 11 P.M. on July 16, 1994, Robert Earl Council received a call from Robert Henderson, who wanted to make a trade: Henderson had run out of crack cocaine, and he wanted to sell his rifle to be able to get more drugs. Council initially declined the offer but ultimately agreed to check out the weapon and consider the trade. Council went to the home of Venus Flowers, where Henderson and four other men were ingesting drugs and socializing.

After inspecting the gun, Council declined the trade. Henderson, in an agitated and excited state due to being high on crack cocaine, did not want to take no for an answer. Henderson began loading the gun, presumably to show Council how well it worked. Flowers, frustrated with Henderson’s erratic behavior and concerned for the safety of the children in the house, kicked the group out.

The men left for Dale Green’s house (where the robbery of Henderson’s rifle ultimately took place). Shortly after arriving at Green’s home, Henderson began shooting his rifle, causing a commotion and alarming the neighbors. At this point, wanting nothing to do with Henderson, Council broke off from the group, leaving Green’s home. It was only after his departure that another man, Willie Adams, stole Henderson’s gun. A review of witness statements from the trial and police reports show that Council’s absence at the time of the robbery went undisputed at trial.

Given that Council was not present when the robbery took place, prosecutors knew that the only way they could implicate Council for capital murder would be to imply that he was an accomplice to the robbery – meaning that the state had to show that Council:

1. procured, induced or caused such other person to commit the offense; or
2. aided or abetted such other person in committing the offense.

At trial, the only evidence presented that implicated Council as being an “accomplice” to the robbery came from the testimony of Marcus Neal. Neal stated that after leaving Venus Flowers’s home, he overheard Council state “I should have just took it” in the presence of Willie Adams. According to the state, “I should have just took it” proved that Council encouraged Adams to commit the robbery, and therefore was guilty of accomplice liability.

Neal went on to testify that upon arriving at Green’s house, Council left the group and departed the home. Neal testified that, once inside Green’s house, while trying to display the rifle, Henderson fumbled 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, “[a]fter everything was over and we were on our way back to Brian Council’s house, a car came from out of nowhere and ran us off the road.” Henderson, while under the influence of alcohol and cocaine, was using his car as a weapon to ram into Council’s car. Neal testified that at this time, he got down on the floor of the car, as he thought he was about to die. While on the floor of the car, Neal heard several gunshots. Council shot into the car that was barreling toward him, striking and killing Henderson.

Council has always maintained that he shot Henderson in self defense as Henderson was attempting to ram the passenger side- where Council was seated- of Brook’s car, with his car. This very plausible claim of self defense – bolstered by testimony that Henderson was high and acting in a very erratic and dangerous manner leading up to the shooting – would reverse Council’s conviction for capital murder.

The state convicted Robert Earl Council through a theory of complicity, arguing that he promoted or encouraged the theft of Ronald Henderson’s firearm, an event which prosecutors say precipitated the shooting that led to Henderson’s death. However, Council was not present at the robbery of Henderson’s firearm that occurred before Council shot him in self defense. The District Attorney had only one witness, Marcus Neal, testify to Council’s involvement. During Neal’s initial interrogation, Neal stated that he never heard Council say anything about taking the gun. The recording of the interview was then stopped. An hour later, Investigator Jeff Spence conducted a second interview, in which Neal completely changed his story, saying he heard Council say he wanted to take the gun (after leaving V. Flower house). Then, in a third interview, Neal changes his story, he heard Council say he wanted to take the gun before going to Venus house.

Neal was the sole witness to present testimony which supports the state’s complicity theory that Council intentionally promoted and encouraged Adams to take Henderson’s rifle.

In 2007, Neal signed an affidavit stating that he testified falsely because an Enterprise Police Department threatened to charge him with capital murder, a crime punishable by life in prison or death in Alabama. Without Neal’s false and uncorroborated testimony, there was no other evidence to support the state’s charge of capital murder or other charges, since Council was not even present during the robbery

Council has never received competent legal counsel – either when the trial originally took place or in the years following. Council’s court-appointed trial attorney, Dale Marsh, was a long-time friend and colleague in the National Guard with the alleged victim Ronald Henderson. In fact, the two had seen each other just days before Henderson died. Council submitted his objections to Marsh serving as his attorney for these reasons, but the court denied his request.

As Council’s attorney, among other failures, Marsh declined to present as witnesses during trial any of the other individuals who were in the car with Council when he fired the shots. The testimony of these witnesses would have supported Council’s self-defense claim and refuted the complicity theory presented by prosecutors

Racism and judicial misconduct played a crucial role in Council’s conviction. The District Attorney attempted to remove all Black people from the jury during his trial. Judge McAiley approved the removal of all 19 Black people from the jury pool from consideration, before adding one Black juror back. This resulted in a jury composed of 11 white people, with a single Black juror, and two white alternates. Research has proven that all-white or nearly all-white juries convict Black people at much higher rates than their white counterparts.

‍Additionally, Henderson was a relative of the Mayor of Enterprise, Alabama, creating a highly charged environment in which the State felt a duty to secure a conviction at all costs. If any case would be an ideal candidate for a change of venue, it would be this one. However, the judge declined to remove the case to another jurisdiction.

One glaring error occurred at the appellate stage that has tainted Council’s chances at a fair appeal since 1996. The appeals court based their opinion denying Council relief on a statement of “facts” that is clearly and indisputably at odds with the trial transcripts – an error of the highest significance that has followed Council in all of his subsequent appeals.

As detailed above, Council was convicted of Capital Murder in 1994 using a theory of felony murder and accomplice liability. Council shot and killed Ronald Henderson while Henderson, high on crack cocaine, was in his car barreling toward Council and his friends. The State argued that Henderson was justified in driving his car toward Council and his friends, because Council’s friend had just stolen a rifle from Henderson. Though it was undisputed at trial that Mr. Council was not present during the robbery that Council’s friends committed, the State argued that Council was guilty via “accomplice liability” – prosecutors claimed Council encouraged his friend to steal Henderson’s weapon. Council has always maintained that he was not a part of any robbery, and was acting in self defense when he shot Henderson.

In 1996, Council appealed his conviction based on insufficiency of evidence. Council’s appeal was denied. The Court of Appeals based their opinion denying Council relief on a set of “facts” that is indisputably at odds with the 1995 trial transcripts. The resulting 1996 memorandum opinion denying his appeal argues that Council was in fact present at the time of the theft. In their decision the Court holds that:

While Henderson was fumbling with the gun, the appellant [Council] told Willie Adams to grab the rifle because Henderson appeared to be intoxicated. Adams took the rifle and ran. The appellant, Willie Adams, Marcus Neal, and Antonio Frazier jumped into Larry Brooks’ automobile, a yellow Cadillac, which was parked across the street. The appellant was sitting in the rear passenger seat. After they had traveled several blocks, Henderson blocked the car with his car and ran the car off the road. Neal ducked and the appellant said, “M_____ F_____, you trying to block me.” Neal testified that he then heard gunshots and looked up and saw that the appellant's forearm was out of the window. He turned around and saw Henderson’s car run into a fence. (emphasis added)

In Council’s 1994 trial, the State admitted that Council was not present in the home during the alleged robbery, and that he never gave an order to commit the robbery. In the appellate decision, the Court falsely claims that Council was not only present when Henderson’s rifle was taken, but also that Council actually instructed his friend to steal the rifle. The Court’s error significantly bolsters the State’s claim that Council was an accomplice to an underlying felony, and thus eligible for a Capital Murder conviction. It also makes it impossible for Council to argue that he was acting in self-defense, because the Court falsely makes Council the aggressor and Henderson justified in his potentially lethal attack of Council.

This error has remained in the record as “fact” ever since the 1996 Court of Appeals decision, barring Council from any further avenues for relief. Without these fabricated statements, the court would be forced to contend with the fact that there is insufficient evidence to uphold the Capital Murder conviction. Yet, on three different occasions, in direct contradiction to the facts, the Alabama courts have refused to acknowledge and correct this error.

It is also worth noting that the ONLY state witness Marcus Neal submitted an affidavit in 2007 recanted his testimony at court, admitting that he was intimidated into saying that Council had uttered the words “I should have just took it” regarding Henderson’s rifle. The court denied the appeal that was submitted after this affidavit became available. Because of the way the Appellate Court had misstated the facts, Neal’s affidavit was not given the proper weight that it deserved. Without the Appellate Court’s revision to the facts, the State would have nothing to uphold Council’s Capital Murder conviction after Neal recanted his testimony.