Death row inmate’s effort to spare life gains momentum
By Mike Tolson
Robert Gene Will II says he couldn’t have killed a Harris County officer because Will’s hands were tied behind his back.Photo: Ben DeSoto / Houston Chronicle
Houston and Texas
Like so many before him, Texas death row inmate Robert Gene Will II says he’s not guilty. Given the state of Texas’ record in seeing its death sentences carried out, the odds on getting the right people to believe him are not great.
But there have been exceptions. Will insists that if he can get a fair hearing, he will be another one. He admits he was no saint in his younger days, that he ran with a bad crowd, and yes, that he and a buddy were breaking into a car on the morning of Dec. 4, 2000, when a spotlight suddenly caught them in its glare. Within moments his life changed forever, and Harris County Sheriff’s Deputy Barrett Hill lost his.
Will claims he did not shoot Hill. He has claimed as much since the day of his arrest. He could not have done it, he says, because his hands literally were tied behind his back.
“I am COMPLETELY INNOCENT,” Will wrote on a website dedicated to securing his freedom, “and I am sure anyone who takes the time to look into my case will come to that same conclusion.”
Perhaps not. Those convicting of killing law enforcement officers are even less likely than most of death row’s 288 residents to find sympathy. So it was bound to draw notice when U.S. District Judge Keith Ellison recently showed legal solidarity even as he denied Will’s latest appeal. Ellison said legal limitations – technicalities, if you will – precluded him from siding with Will.
“Questions as to Will’s possible innocence do remain,” Ellison wrote in a March 19 order granting Will the right to appeal to a higher court. “Unfortunately, the court is powerless to address the merits of additional claims raised post-judgment, unsettling though they are.”
Judge suggests review
In a separate opinion two months earlier, issued after a hearing at which Will was allowed to introduce evidence, Ellison reiterated his frustration at not being able to help, and he went further. Although he also denied Will’s motion, the judge made clear that Will’s case should get a broader review. He called one of the original trial judge’s rulings an “error of grave proportion” and said that the presence of rows of uniformed law enforcement officers in the courtroom “would have likely justified post-trial relief had the issue risen on direct appeal.”
“The questions raised during post-judgment factual development about Will’s actual innocence create disturbing uncertainties …,” Ellison wrote in a Jan. 17 memorandum. “On top of the considerable evidence supporting Will’s innocence and the important errors in the trial court, there must also be addressed the total absence of eyewitness testimony or strongly probative forensic evidence. With facts such as these, and only circumstantial evidence supporting Will’s conviction and death sentence, the court laments the strict limitations placed upon it.”
Will, 33, admits that he and Michael Rosario were burglarizing a car when Hill came across them. They ran, but Will was apprehended. He claimed that he was handcuffed when Rosario showed up and shot the deputy. Prosecutors contended that Will shot the deputy and admitted as much to a motorist he encountered during a later carjacking as he was trying to escape. Will’s lawyers argue that the motorist did not mention that in any of her early statements to police.
Will’s lawyers also have argued that Rosario, the son of a Houston police officer who was not charged in the murder, has admitted killing Hill to at least five individuals. They also point to an absence of any forensic evidence connecting Will to the shooting, and to a bullet graze on the back of a jacket Will wore that morning – consistent with a shot being fired by Rosario toward Hill when the latter was close by and in custody. Hill’s weapon was not fired.
Justices’ ruling a factor
Ellison’s sympathetic language after reviewing the case was the first good news Will’s legal team has had in a long time. But even better news arrived on March 20 when the U.S. Supreme Court ruled that simple fairness, if not the Constitution, requires that the lawyers who handle the early appeals of a capital murder conviction do so competently.
In a 7-2 decision in Martinez v. Ryan, the high court ruled those convicted of a crime can in some instances challenge the effectiveness of those hired for so-called habeas corpus appeals at the state level. It is unclear, experts said, whether such a challenge is limited to the very narrow circumstances raised by that Arizona case, or whether it can be applied to all manner of misconduct that results in a defendant being unable to raise an issue in future appeals, such as missing a deadline or failing to file certain claims.
“I think it is arguable that Martinez covers the latter scenario and will be argued by defense counsel that way, but the opinion as written is pretty restrictive,” said Brad Levenson, head of the State Office of Capital Writs, a public defender’s office for appeals in capital murder cases that was established in 2010 in part because of concern over the consistence of legal representation. “I think only time will tell how far Martinez can be interpreted.”
If the decision turns out the be less restrictive than the specifics of the Martinez case, the ruling could be significant. Critics of the decision, including dissenting Justice Antonin Scalia, raise fears that it will prolong death row appeals and be a burden to states. Defense lawyers who specialize in capital cases say it could be a great boon to those who have drawn the black bean of a lousy appeals lawyer.
Ex-lawyer defends work
Will’s former state habeas lawyer, Leslie Ribnik, filed a 28-page legal brief on Will’s behalf, the first 20 pages of which were the same — word for word, typo for typo — as the one he filed in the case of Angel Maturino Resendiz, the notorious “railroad killer” whose serial murders led to his conviction and ultimate execution in 2006.
Ribnik admitted making mistakes in Resendiz’s appeal and missed deadlines, which resulted in the default of some claims. Ribnik later removed himself from the appellate lawyer list and acknowledged he suffered from Parkinson’s disease and likely was feeling the effects even as he was preparing Will’s appeal.
Nevertheless, Ribnik has previously insisted he did an adequate job on Will’s appeal.
“I will own up to my screw-ups — I’ll take my lumps,” Ribnik told the Austin American-Statesman in 2006. “As for Will, I think I did a good job on that one.”
Will’s later appeals lawyers disagreed, pointing out that Ribnik did not investigate the statements from individuals about Rosario’s alleged statements about the shooting, or investigate anything.
“The damage was real,” Will’s lawyer, Samy Khalil, said of Ribnik.
Ellison seemed inclined to agree. If Will’s appeal is again placed before him, he may be able to do something.
“It seems that Judge Ellison could hear the claim now,” Levenson said. “And from what I know, it could be a substantial claim.”
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