Robert's Case

  by Rob's friend Rebecca

INTRODUCTION

It is August 7, 2003. I am on my way to visit Robert Will, who is on death row in Texas. He was convicted of murdering a police officer. Driving up Rte. 59 towards Livingston, the location of Texas' infamous death row. I pass road signs that say, "Abortion Stops a Beating Heart," "We Buy Ugly Houses," and "This Ain't Your Momma's Mobile Home." Up and down the sides of the highway are mobile homes for sale. You can pick one out and have it delivered to wherever you want. Just before the Livingston exit, I pass a store that sells tropical plants on the side of the road. A dead armadillo is splattered along the highway.

A stranger stands out in a town like Livingston, which could be considered quaint were it not for the knowledge that most of its inhabitants either work at or know somebody who works at the Polunsky Unit, the prison where all of Texas' executions are currently held. After exiting the highway, town is on my right. I take a left. Less than two miles down the fast-food-restaurant-lined street, I make another left onto a shady "farm to market" road. I drive past an elementary school, two churches and a few small houses. Nearing the prison entrance I see what looks like a red and white checkered water tower peering over the trees to my right. It is actually a septic tank. From there it's all barbed wire fences and guard towers.

I met Robert through Randy Greer, a death row inmate I had been corresponding with over the past two years. I had originally begun writing Randy for a journalism class in which I was writing a story exploring how people end up committing brutal crimes. In corresponding with Randy about prison conditions, his life, and his regrets, I came to believe that those on death row are not monsters so much as ordinary people with families and aspirations who end up doing terrible things due to terrible circumstances.

A few months earlier, Randy had asked me to try to find a pen pal for his friend Robert, who is nicknamed "Dead." Nobody I knew was interested. So one day, mostly out of curiosity, I did some research on his case. Here is what I found:

On December 4, 2000, Robert Will and his friend Rocky were breaking into cars in a residential neighborhood in Houston. Two police officers drove by and saw what the two men were doing. The suspects split up and fled. The police officer who was chasing Robert Will, Deputy Barrett Hill, ended up shot and killed. Rocky was charged with auto theft; Robert with murder.

In reading the accounts of his trial in local news, the case against him appeared flimsy. One article stated that Deputy Hill's gun was found in its holster and that investigators believed that he had reholstered his gun to handcuff Will when Will began struggling and went for his own gun. I was under the impression that police officers check their suspects for weapons before putting away their own. The article also stated that the defense said, "When Will was arrested he had no gunpowder residue on his right hand, with which he [was] alleged to have fired the weapon." Robert Will's attorney, David Cunningham, said that Rocky bragged in jail and that an inmate testified that Rocky confessed to the killing. These articles made me begin to question Robert Will's guilt.

I noticed suspicious involvement in the case on the parts of the prosecution and the Houston police. According to the Houston Chronicle, Rocky's father had been a Houston police officer since 1993, and his older brother was on the Houston Police Department payroll as a part-time aide for two months. Along with my growing doubt about Will's guilt, this made me curious as to why Rocky was never a suspect in the murder. Harris County District Attorney Chuck Rosenthal compared Robert Will, in court, with the terrorists who attacked the World Trade Center and the Pentagon, saying, "what we know from September 11 is that evil exists in the world: it is embodied in Robert Gene Will." Coming only months after the attacks, it was clear that Rosenthal was playing on the still raw emotions of the jurors and the media. Such a statement, it seemed to me, could have a serious effect on the jury's final decision. I would later discover that Robert Will's attorneys failed to object to this statement.

Since I was going to be living in Texas for the summer, I decided to write to Robert and ask his permission for me to further investigate his case. He approved. I went through court records, transcripts, witness statements, and police call logs until we agreed to meet face to face in August.

I park my car and head into the first building. Of the almost 3,000 prisoners at the Polunsky Unit, 449 live on Death Row. Each offender has a single-bed, 60 square foot cell with a small window to let in some natural light.

I park my car and head into the first building. Of the almost 3,000 prisoners at the Polunsky Unit, 449 live on Death Row. Each offender has a single-bed, 60 square foot cell with a small window to let in some natural light. Every cell has a toilet, a sink, a metal bunk with one pillow and a mattress. With two hours of recreation every weekday, prisoners recreate separately in small outdoor cages. Breakfast is served around 2:30 a.m. through a slot in the cell door. Lunch is served at 9:30 a.m. and dinner at 3:30 p.m.

The guards refer to men behind bars as inmates rather than prisoners. Prisoners may receive letters from family and friends, and these are slid under the cell doors. If a prisoner becomes sick he must send a request to the hospital explaining his illness. He will be seen within a week.

Visitors are not allowed to wear open-toed shoes or revealing clothing. This includes tank tops and skirts above the knee. These are typical rules found in just about any prison in this country and each is considered essential to the "security" of the prison. Only pocket change can be brought into the prison; no paper money is allowed. Few Death Row prisoners have visitors, primarily because most of their loved ones want nothing to do with them after they've been convicted and sentenced to death. Most of the occasional Death Row visitors are born again Christians; they come every day. Those on Death Row appreciate these visits because it allows them to get out of their cells (and into visiting cells) and eat vending machine food.

After making sure my name is on the visitation list and checking my ID, the correctional officer behind the bulletproof glass tells me to walk through the metal detector. Once I've walked through, she electronically opens the first door. When I get through that door and it has fully closed and locked, another electronic door opens. In order to get to the outdoor walkway that leads to the visitation building, I have to pass through two more electronic gates, each one locking itself behind me as I pass. I feel the curious stares of prisoners on me from their cell windows. Upon entering the visitation building, I walk through two more computer-operated doors. The whole process has taken about ten minutes.

A corrections officer looks up my name on her list and directs me to a seat in front of a window. There is a row of seats on either side of me. The prisoners sit in single cells behind the window. Small dividers separate the visitors from each other. Each booth has three phones: one on the prisoner's side and two on the visitor's. I take my seat and wait another ten to fifteen minutes before three correctional officers bring Robert to our booth, lock him inside, then take off his handcuffs through a little slot in the door.

Visitation normally takes place while lunch is being served. Prisoners miss lunch when meeting with their visitors. Fortunately, there is a vending machine in the visitation area. Guests are allowed to put the change in the vending machines and press the button for the desired item. Visitors cannot, however, physically bring the food out of the machine. This is intended to make the hiding of "contraband," such as drugs, weapons, or escape plans, more difficult. The officer on duty physically takes the food from the machine, puts it in a white paper bag, and delivers that bag to a guard on the prisoners' side of the glass who then gives it to the prisoner.

Robert Gene Will was born on June 29, 1978 in Houston's Harris County, famous for handing out more death sentences than any other county in the country. With blonde-hair and blue-eyes, he stands at six feet tall and weighs just under 200 lbs. He has that Vanilla Ice look that makes adolescent girls squeal. Robert has prominent cheekbones and a toothy smile. Tattoos of women, grim reapers, and gang insignia cover his arms. He calls them "stupid tattoos," left over from his adolescence. With the exception of a brief handshake with another prisoner who had been given his execution date, Robert has not touched another person since he was first sentenced to death two years ago. "Regardless of how 'hard' anyone here thinks he is," he says, "everyone craves affection and love." For his size, Robert is surprisingly soft-spoken.

During our meeting, Robert told me about his family. He told me that his mother, Debbie, worked as a meat wrapper and his father worked occasionally as a mechanic when they married in 1978. His father had a serious heroin problem and abused Robert's mother. When his mother decided to file for divorce, Robert's father kidnapped him and didn't return for almost two weeks. When Robert was ten years old, his father was murdered.

After the murder, Debbie took Robert and his younger sister Kristina to live with her parents. Around this time, Debbie's brother Daniel told her and other members of the family that he had repeatedly sexually abused Robert between the ages of four and twelve years old. He also admitted to giving Robert alcohol and drugs during this period.

Debbie finally moved out of her parents' house and got her own place in Spring, Texas. While she was working she was injured on the job and spent two years bedridden. During this time, she lived from worker's compensation. She got into debt and had to move two or three times.

Robert never did very well in school. On his report cards, his teachers agreed that he was a "very smart boy and if it weren't for all his absences and the fact that he rarely turned in his work, he probably could have been at the top of his class." When he was seventeen, he started getting in trouble while living with his mother. He was arrested and put on probation for unauthorized use of a motor vehicle. While on probation, he was charged with aggravated robbery. As a result, Robert went to jail and spent a year and a half at boot camp, where he excelled and became a squadron leader. After boot camp he wanted to join the military but was rejected because of his record and instead enrolled in Houston Community College, where he had a grade point average of 3.43. He dropped out after his first year, and began working as a locksmith and as a vehicle repossessor. His various employers all said Robert was a good worker and a nice kid.

Two years later Robert got involved with Brenda Venegas. He met her in 1998, when she was pregnant and dating a man named George who physically abused her. Brenda had been trying to get him out of her life, and Robert made sure George understood that he wasn't welcome. Robert took on the responsibility of taking her to doctor's appointments, even to the point of holding her hand when the baby was finally born. They remained friends until about a year later, when their relationship turned romantic. She gave birth to their son, Robert Angel Will, whom Robert considers his greatest source of pride. Robert told me Brenda was a wonderful mother until he was sentenced to death. Then she "just kind of freaked out." Brenda left town and one of Robert's uncles took custody of the baby.

Currently, the wife and parents of Deputy Barrett Hill, the police officer Robert was convicted of murdering, are suing Robert for ten million dollars. Hill's family received a temporary court order that prevented Robert from having access to money in his prisoner account. This means he cannot buy stationery, envelopes, stamps, and soap. Barrett Hill's mother was quoted in the Houston Chronicle as having said, "Let's make these guys miserable. Prison isn't enough."

Sentencing Phase

For the punishment phase, Judge Brown told the jury to ask themselves two questions: Do you think the defendant poses a dangerous threat to society? And are there any mitigating circumstances to warrant a life sentence instead of a death sentence?

If the jury unanimously felt that Robert Will did not constitute a significant threat to society, he would automatically receive a life sentence of forty years. The prosecution showed that Mr. Will had been convicted of two non-violent misdemeanors and that he had owned guns. In the year he spent in jail awaiting trial, he had been written up by correctional officers for kicking a door when he was not allowed to use the telephone, for possessing three cigarettes, and for yelling names at an inmate who had thrown urine and feces into his cell. The defense showed the jury how well Mr. Will performed in the structured environment of boot camp and how he would probably perform well in such an environment in the future. Jerome Banks Brown, a clinical psychologist with extensive experience testified that murderers like Robert Will were unlikely to commit future violent offenses. Having just found Robert Will guilty of murdering a police officer, would it have been possible for the jury not to think him a threat? Unwilling to tolerate any risk, at whatever time of the Defendant;s release, the jury determined that the defendant constituted a threat to society, including prison society.

When it came time to answer the second question, the jury examined mitigating factors that included testimony regarding Robert Will's broken family, the sexual abuse committed against him and his difficult upbringing. The judge failed to instruct the jury that jurors were not to use the victim's worth to the community or to his family in making their decision. After a tearful statement by Deputy Hill's wife, the jury determined that there were no mitigating factors that would warrant a sentence less than death. On January 24, 2002, Robert Gene Will was sentenced to die.

It is not surprising that the jury sentenced Will to death. Throughout the trial, many uniformed police officers stood in the courtroom, wearing ribbons to honor the memory of the victim. This could have easily served as an intimidating factor for the jury. Even if there were no officers in the courtroom, the jury was still predisposed to a sentence of death. A brief look at their backgrounds and beliefs prove this. All this in combination with the fact that the defense overlooked significant evidence and failed to thoroughly rebut the prosecution's main points suggests that Robert Will was, in many ways, condemned to die even before the trial began. Robert Will's case exemplifies the problems that are inherent within the death penalty.

Overview of the Death Penalty in The United States

Over the past two centuries, the implementation of the death penalty has changed in ways that appear to be more humane. The first major change was marked by the end of public executions in 1835. Until then, public hangings were a sort of gruesome spectacle which, rather than making the general population fearful, only raised resistance and revolt in the population. The second major change had to do with the execution process. In 1888, when hanging was viewed as "cruel and unusual," the electric chair was introduced. By 1923, after a series of botched electrocutions, lethal gas became the main method of execution. Finally, as a more "civilized" form of execution, lethal injection became the top choice for most states after it was first used in Texas in 1982.

In 1972, the death penalty was suspended due to the Supreme Court decision of Furman v. Georgia. Until then, both rape and murder were considered capital crimes, that is, eligible for the death penalty. The Supreme Court determined that sentencing a rapist to death was disproportionate to the crime. A study of capital cases from 1924-1968 showed the Supreme Court Justices how the death penalty was being applied arbitrarily based on race and class. The Supreme Court decided that the death penalty was being handed out arbitrarily and could therefore be considered a cruel and unusual punishment, thereby violating the 8th and 14th amendments.

In 1976, Gregg v Georgia, the Supreme Court re-evaluated the death penalty and determined that it did not violate the 8th amendment. In order to make this determination, the Supreme Court had to be convinced that the sentence of death would no longer be given out arbitrarily. To do so, the Court endorsed some regulations and guidelines. From then on, every death penalty case would require a transcript, a complete record of the trial and a report by the judge. This report would touch upon all the details of the trial and it would be "designed to test for arbitrariness and disproportionality of sentence."

Also, capital cases would henceforth be divided into two stages, guilt and sentencing. The guilt stage would remain the same, but the sentencing stage would allow for more jury discretion. Mitigating and aggravating circumstances would be presented to the jury in this stage. In order to impose the death sentence on a defendant at least two aggravating factors would have to be shown. In Robert Will's case these factors included a murder committed during a felony and the murder of a police officer. Therefore, there would be specific factors to be weighed and procedures to be followed in deciding when to impose a capital sentence. With these new factors and procedures supposedly ending the arbitrariness of the death sentence, the death penalty was declared constitutional. A closer look at the functionality of the death penalty will demonstrate continual arbitrariness.

Who ends up on death row? Nearly 60% of all arrests for criminal homicide involved people between the ages of 15 to 24, most of whom were men. The weapon used in most murders is a gun and most murders occur during robberies and arguments, as in Robert Will's case. It has not seemed to occur to lawmakers that perhaps a better way of discouraging homicide is to enforce stricter gun control laws.

As of December 28, 2003, there were 3,504 people on death row in the United States. Of these, 1,477 were African-American and 1,593 were white. African-Americans make up almost 41% of the death row population in the U.S. However, they make up only 13% of the U.S. population as a whole. Some 49 were women and 3,455 were men. Only twelve states do not have the death penalty. These are Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia and Wisconsin. Around the world, 111 countries have abolished the death penalty in practice. Of the 84 countries that retain the death penalty, the United States stands with countries it considers enemies such as Iran, Iraq, and Cuba.

As of January 28, 2004, 452 men and 8 women were on death row in Texas. Of the men, 185 were African-American, 142 were white and 120 were Latino. Since 1976, 108 African-Americans and 163 whites have been executed. Texas does not offer the option of life without possibility of parole.

Currently, Nebraska is the only state that uses electrocution as its only method of capital punishment. Alabama, Arkansas, Florida, Illinois, Kentucky, Oklahoma, South Carolina, Tennessee and Virginia offer a choice between electrocution and lethal injection. Death row inmates in Idaho, Oklahoma and Utah have the choice between lethal injection and death by firing squad. In New Hampshire and Washington, the choice is between lethal injection and hanging. Arizona, California, Maryland, Missouri and Wyoming offer a choice between lethal injection and lethal gas. Lethal injection is considered the preferred method of execution because it is thought to be safer and less painful than the other methods. The truth is that there is always potential for an execution to be botched.

There is nothing "humane" about lethal injection. In Texas on December 13, 1988, Raymond Landry was pronounced dead 40 minutes after being strapped to the execution gurney and 24 minutes after the drugs first started flowing into his arms. This was because two minutes after the drugs were administered, the syringe came out of Landry's vein, spraying the deadly chemicals across the room toward witnesses. Also in Texas, on April 23, 1998, it took two attempts to execute Joseph Cannon because a vein in his arm collapsed and the needle popped out. Since 1982, almost 25 executions have been botched using lethal injection.

Robert Will and the Debate Over the Death Penalty

Robert Will's case calls into question the fairness of the death penalty. His case breathes life into the debate over the functionality of the death penalty. In discussing this debate seven key arguments arise in academia, three of which were most influential in determining Robert Will's fate. One of the arguments is whether the death penalty serves as a deterrent to other murderers. Another is whether murderers need to be prevented from committing further homicides. Then there are those that argue over the financial cost of the death penalty versus a sentence of life without chance of parole. There is also the issue of life sentencing and whether that sentence is more justifiable than a death sentence. Then there are the issues that had the strongest influence in Robert Will's case: social class, location and race.

Anti-death penalty advocates argue that the death penalty does not serve as a deterrent. Deterrence only works if the would-be offender believes the costs to him outweigh the benefits. Since most murders occur during a robbery or an argument, as in Will's case, deterrence doesn't work for most offenders; in the heat of a stressful moment, a person is not going to take a moment to evaluate the consequences of his actions. Actions happen before consequences can be considered.

The only way to prove that deterrence works is to verify that fewer homicides occur where the death penalty is active. However, research has not been able to find support for the argument that the level of use of capital punishment influences U.S. murder rates. When homicide rates were compared for abolitionist versus retentionist jurisdictions, or before and after a change in capital punishment policy, or before and after highly publicized executions, no proof was found that was able to correlate homicide rates with executions. Therefore, it could not be proven that the death penalty serves as a deterrent. However, conservative political commentator William Tucker remarked, "The most dramatic decline in murders over the last decade has been precisely in those regions that have had the most executions." From 1940-1965, when New York regularly executed murderers, there were 12,652 homicides in the state. From 1966-1991, when there were no executions, homicides quadrupled to 51,638. However, over the past sixty years, abolitionist and retentionist states outside of New York have had a drastic decline in murder rates. Thus it cannot be said that there is tangible proof that the death penalty serves as a deterrent.

While there has not been much evidence to suggest the death penalty serves as a deterrent, there also has been better evidence to suggest it does not. Yet pro-death penalty academics, such as Marquette University Professor John McAdams, argue that, "if we execute murderers and there is in fact no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of a bunch of innocent victims." After all, the desire for rewards and the avoidance of punishments affect every human being. This argument is based on the assumption that most murders are premeditated, which, as in Robert Will's case, is not usually true.

Another death penalty controversy has to do with whether or not the sentence prevents murderers from committing further crimes. The belief that convicted murderers are a threat to society is not inevitably true. Two hundred forty-three death row prisoners whose sentences were commuted as a result of Furman have been released. For these inmates, only one killed again. Certainly execution of all Furman prisoners would have prevented this additional killing. Yet, the fact of the matter is that most convicted murderers do not murder again. Data shows that 0.3 percent of offenders- three in a thousand- released after conviction for murder were later convicted of another willful homicide. These statistics suggest that paroled murderers do represent a disproportionate threat to the larger society. Therefore, life without parole would serve the purpose of incapacitation as opposed to the death penalty.

Many states forbid the judge from explaining anything to the jury about parole possibilities and as a result, jurors are left to their own misinterpretations. If the possibility of life without parole were explained to the jurors, they would understand that a life sentence does not mean the murderer will be out in seven years. Life without parole means that convicted murderers will remain in prison until the day they die, with no chance of ever being allowed to leave. When people are given the choice between the death penalty and life without parole, they tend to pick the latter. A Gallup Poll showed that support for the death penalty dropped from 76% to 53% if murderers were sentenced to life in prison without the possibility of parole.

However, Texas, New Mexico and Kansas do not offer the option of life without chance of parole. This could explain the high number of people sentenced to death in these states, especially in Texas. Every time the legislature attempts to pass a law that would allow a sentence of life without parole rather than a death sentence, the Governor vetoes it. If the possibility of life without parole were offered, the jury might not be so hesitant in choosing a life sentence rather than a death sentence. In other words, Robert Will might have been sentenced to life without parole, instead of death, if that option had been available.

Some people believe that life imprisonment is a poor substitute for the death penalty. They believe that such a plan heaps additional punishment upon victims by insisting that they pay for the living expenses, the education expenses, the recreation expenses, the medical expenses of the man who killed their kin. Emotionally, this may be true. But in looking at the facts, one will discover that it is actually cheaper to keep a person in a maximum-security prison for the rest of his life than to execute him. According to the Joint Legislative Budget Committee of the California Legislature, getting rid "of the death penalty would result in a net savings to the state of at least several tens of millions of dollars annually, and a net savings to local governments in the millions to tens of millions of dollars on a statewide basis."

The reason it costs more to seek the death penalty than life without parole is because of the extensive appeals process and special expenditures such as expert testimony, DNA research, and lawyers' fees. Eliminating the appeals process could save money, but in doing so the rights of defendants would be violated. The Constitution promises defendants a fair trial. What constitutes "fair," is left open to interpretation. Therefore a case like Robert Will's, where the defense failed to include or properly explain pertinent information, could be considered "fair."

While the trial was determined to be fair by the conclusion of Will's direct appeal, an understanding of the way the death penalty functions in regard to social class, location and race attests to the total arbitrariness of the death penalty. I believe that Robert Will was wrongfully sentenced to death because he was a poor male in Harris County, Texas, accused of murdering a white police officer. Social class, location and race were defining factors during Robert Will's trial.

The arbitrary nature of the death penalty shows up when looking at social class. In other words, the death penalty is almost always a punishment for the poor. Poor people are more likely to end up with a capital sentence than wealthy people due in part to the inadequate and ineffective assistance of their counsel. This is primarily because lawyers who lack the skills, resources, and commitment to handle capital cases frequently defend poor people.

These court-appointed attorneys are unable and/or unwilling to provide adequate services for a variety of reasons. One of these reasons is that they are simply not paid enough money for the job at hand. The salary of a court-appointed lawyer is so minimal that few accomplished lawyers can be enticed to defend capital cases. The few qualified attorneys who are willing to take on a capital case often cannot afford to devote the time required to defend it properly.

Making the fact that ill-equipped lawyers generally represent the poor even worse is that the prosecution has access to a variety of resources. The District Attorney's office employs attorneys who have spent years handling criminal cases, pay decent salaries, provide good benefits, and have lots of experts at their disposal. Chuck Rosenthal, the prosecutor at Will's trial, was more than an attorney. He was the District Attorney, the head honcho. Compared with Will's court-appointed lawyers, who could not devote the time or money necessary to win the case, Rosenthal's confidence made sense.

Such an arbitrary factor as location influences who gets the death penalty and who doesn't. Different counties have different prosecution patterns for similar crimes. For example, on December 5, 2000, Sergeant Furrh of Gonzales County Sheriff's Department in Texas was shot five times and killed by a man who had twice served jail time for two separate murders. The man was not sentenced to death, but to three life sentences plus twenty years. Robert Will was convicted in Harris County of a similar crime, except that he had never been charged with a violent crime. Yet he was sentenced to death, due largely in part to the county where he was prosecuted.

Indeed, there is a pattern of widely varying rates of prosecution from one prosecutorial jurisdiction to another. Harris County, where Houston is located, hands out more death sentences than any other county in the United States. If Will had been prosecuted in Gonzales County, the chances of him being sentenced to death would be severely reduced. Such arbitrariness in deciding which cases should be tried as capital cases points to the continued unconstitutionality of the death penalty.

Southern states have carried out nearly two thirds of all executions since Furman. Texas, Florida, Virginia, Louisiana, and Georgia take the lead among southern states. In fact, since the reinstatement of the death penalty in 1976, there have been about 834 executions in the United States. 82% of these executions have occurred in the South. This figure strongly suggests the arbitrariness of the death penalty relative to location.

The South also tends to have laws that make it legal to execute someone who committed a crime when they were under the age of 18. This is true of Alabama, Arkansas, Georgia, Kentucky, Mississippi, Oklahoma, Texas and Virginia. Between 1973-95, 71 African-American juveniles and 56 white juveniles were sentenced to death. Most juvenile executions between 1976-1994 took place in Texas. Texas is not ashamed to be known as the death penalty capital of the world. Florida is famous for its oranges, Texas for its executions.

According to the Bureau of Justice Statistics, "convicted white murderers are more likely to be sentenced to death than their black counterparts." Since cases in which the victim is white tend to result most often in the death penalty, and considering that whites tend to murder whites and blacks tend to murder blacks, it makes sense that white murderers are most likely to be sentenced to death. From 1995-2000, 682 Federal capital cases were submitted to the Attorney General. Of those, 20% were white and 48% were black. The death penalty was sought for 33% of the white defendants and 22% of the black defendants. The death penalty is sought in 38% of cases involving a white defendant and a white victim, 36% with a black defendant and a white victim, 35% with a white defendant and a black victim, and 20% with a black defendant and a black victim. In other words people who kill whites more often get the death penalty than those who kill blacks. It could be argued that this evidence shows that if anything, the death penalty is racially bias toward whites. However, because the percentage of African-Americans on death row is totally disproportional to the percentage of African-Americans in the United States and because the percentage of whites on death row is proportional to the percentage of whites in the United States, this type of racial bias would be difficult to prove.

The racism of the death penalty can be seen in the fact that capital cases in which the victim is white are much more likely to end in the death penalty than those cases in which the victim is black. In the year 2000, the FBI reported that, "although blacks and whites are victims of murder in about equal numbers, over 80% of the victims in death penalty cases resulting in execution since 1976 have been white."

The main reason Robert Will was sentenced to death was because he was convicted of killing not just a white man, but a white police officer. Legally speaking, the life of a police officer is more valuable than the life of an ordinary citizen. Murder of a police officer, not murder, is considered an aggravating factor in the sentencing phase. In 2002, when Deputy Hill was murdered, 49 other police officers were killed by gunfire as well. In Harris County, the county where Robert Will was charged with murder, since 1990, eleven men have been convicted of murdering a white police officer. Nine of these men were sentenced to death, two to life, and one was shot and killed. One of the men sentenced to life was over seventy years old, which might explain why he did not receive a death sentence. Given such information, it comes as no surprise that Robert Will was sentenced to death.

Wrongful Conviction

Robert Will was not the first person wrongfully sentenced to death, nor will he be the last. The Death Penalty Information Center states that 113 innocent people on death row have been exonerated across the United States since the reinstatement of the death penalty in 1967. Many pro-death penalty organizations such as Justice For All argue that there is no evidence to support the claim that all 113 prisoners were innocent. Nonetheless, by briefly examining these cases I saw that, for the majority of them, important evidence was withheld, witnesses gave perjured testimony and often times another person eventually confessed to the murder. Similar issues come to light in Robert Will's case. While there is no evidence that completely proves Will's innocence, there is plenty of evidence that suggests he did not receive a fair trial. Unfortunately, the result of his direct appeal was the conclusion that he did receive a fair trial.

It would be very reassuring to think that the original capital trial came to the right verdict. This, however, is not the case. Between 1973 and 1995, about 5,760 death sentences were imposed. Of these, 79% were reviewed by a state high court on direct appeal and, of those, 41% were thrown out on the basis of serious error. Robert Will's case was not thrown out on direct appeal. Between 1973 and 1995, the overall error-rate in the capital punishment system was 68%.

This does not mean that 68% of people on death row were found to be innocent. Instead, this number points to the percentage of any reversal of a capital sentence at any stage of the appellate process. Again, this usually had to do with incompetent defense lawyers and prosecutorial suppression of evidence. For each of the individuals whose death sentences were overturned for serious error, 82% were found on retrial not to have deserved the death penalty, including 7% who were cleared of the capital offense.

According to a staff report from the Subcommittee on Civil and Constitutional Rights of the House Judiciary Committee, people have been falsely convicted "on the basis of perjured testimony or because the prosecutor improperly withheld exculpatory evidence." Cassandra Simmons' change of story could be considered perjured testimony. The failure of defense counsel to conduct the necessary investigation was another reason for false convictions. The failure of Will's defense team in finding evidence of Rocky's potential guilt would fall into this category. It is important to note, however, that those who were found innocent were so only as a result of extraordinary efforts not generally available to death row defendants. There are probably even more people wrongfully convicted on death row because it takes such extraordinary effort to find expert appellate counsel, a sympathetic judge willing to waive procedural barriers, and a compelling set of facts which can overcome the presumption of guilt.

Mistaken convictions are so easy to come by because after trial, the legal system becomes locked in a battle over procedural issues rather than a reexamination of guilt or innocence. For example, in Texas a defendant has only 30 days after his conviction to present new evidence, and the state strictly adheres to that rule. If the proper papers are even one hour late, the new evidence will be ignored. Also, while all death row inmates are assured representation to make one direct appeal in their state courts, representation is no longer assured if that appeal is denied.