The Trial & Appeals Process
Will’s trial and appeals process was riddled with incompetency on the part of his legal team. His lawyers either had little or no experience in defending capital cases or did not remain on record long enough to accomplish anything of substance.
At trial, Will was represented by two court-appointed attorneys.
One of his attorneys was married to an Assistant District Attorney working in the Prosecutors’ office. District Attorney Charles “Chuck” Rosenthal Jr., who personally prosecuted Will, was his wife’s boss
Both attorneys failed to provide Will with adequate counsel. They did not speak to key witnesses because the investigator they employed was unwilling to locate and interview these people. Therefore, they were unable to present these witnesses at trial in Rob’s defense, even though these possibly exculpatory witnesses were still living at the addresses at which they has resided at the time of the crime, or were being held in County Jail.
Most egregiously, the attorneys did not call most of the inmate witnesses that were able to testify they had heard the co-defendant confessing to the crime. They provided various reasons for not calling these witnesses, but after careful investigation, it was found that none of the reasons were valid.
They stated that, according to the records subpoenaed from the Harris County Sherriff’s Office (H.C.S.O.), one particular witness had never been housed next to, near, or with the co-defendant. Therefore, this witness’ testimony regarding the co-defendant's confession to murdering Deputy Hill and his admissions of guilt had to be false. Information has since been subpoenaed from the H.C.S.O., which clearly states this particular inmate and Rosario were in fact housed in the same cell area for a total of 11 days.
Will’s court-appointed attorneys did not carry out their own independent investigations into the case. Many inconsistencies and false accusations presented to the Court by the prosecution were left unchallenged by the attorneys. The ‘version’ of events the attorneys presented at trial was contradictory to the version Will had provided them with. They went to trial completely unprepared to effectively represent Will.
In the months leading up to the January 2002 trial, one of Robert's attorneys was campaigning to be elected to a seat on the Houston City Council, which he lost.
A new attorney was appointed on January 23, 2002, to represent Will on his direct appeal. She filed a Motion for New Trial (and a request for an evidentiary hearing) on February 22, 2002.
At the time of this filing, the full trial transcript record had not yet been completed by the court reporter. It was not completed until March 18, 2002. Fully aware that the trial transcript was not available to properly prepare a motion for a new trial on Rob Will’s behalf, his attorney did not make the simple request for an extension of pending availability of the trial record. Subsequently, the court denied the motion for a new trial. An Appellant’s Direct Appeal (and request for oral argument) was filed by counsel on January 24, 2003 with the Court of Criminal Appeals. That appeal was also denied on April 27, 2004.
Leslie Ribnik was appointed on March 19, 2002, as Will’s State habeas Appeals Attorney by the Court which had sentenced him to death.
Mr. Leslie Ribnik admitted that he had hired no outside investigator or experts to review Will’s case, but denied that this indicated a lack of effort on his part. He stated that, following his review of Will’s case, he found no legitimate issues to pursue, even though he informed Will that he intended to file more than twenty separate issues.
The habeas writ provides the defendant with an opportunity to raise any new issues or evidence, such as DNA, witness tampering, or evidence withheld by the prosecution and to set out any mitigating issues such as mental illness or childhood abuse which they wish to be considered. It is also a defendant’s chance to offer claims of innocence and supporting evidence.
The state writ of habeas corpus filed by Ribnik on Will’s behalf did not include any additional information or claims of innocence. It centered mainly on just one single technical challenge to Texas law and made no direct mention of Will.
In fact, according to Chuck Lindell of the Austin American Statesman Will’s state habeas lawyer, Leslie Ribnik, filed a brief where two thirds of his brief was “word-for-word identical, right down to the capitalization error on page 17” to one that he had previously filed for another Texas death row inmate, Angel Maturino Resendiz, a notorious serial killer executed in 2006. The brief was itself only 28 pages, exceedingly short for a capital habeas brief. Both writs failed to mention Resendiz or Will by name or refer to their trials and listed incorrect conviction dates for both men.
In his statement to Congressional subcommittees regarding the Innocence Project Act, Stephen B. Bright, President and Senior Council of the Southern Center for Human Rights wrote:
“As in Alabama, many of those sentenced to death in Texas receive completely incompetent lawyers on appeal and in post-conviction representation. For example, a lawyer assigned to Robert Gene Will filed the same brief for Will that he had filed for another inmate, Angel Resendiz’, a year and a half earlier. The lawyer missed the statute of limitations for filing Resendiz’ federal habeas corpus petition.
As a result, Resendiz was executed without any habeas review of his case. Will was denied relief based on the shoddy brief that had been filed earlier in Resendiz’ case.”
Californian lawyer, Richard Ellis, was said to be troubled by Ribnik's duplicate appeals and the apparent lack of substance in Will’s state habeas writ. Mr. Ellis said:
"It seems a little thin. I average filing around 400 to 450 pages on habeas writs, not including exhibits, which can be another 1,000 pages".
In response, Ribnik dismissed length as a measure of a habeas writ's quality and said that his writ contained every worthy issue.
Ribnik's writ contained no worthy issues related to Robert's case and failed to assert Robert Will's claims of innocence.
Currently Robert Will is nearing his final stage of appeals. After his state habeas appeal was denied Will moved into the Federal District Court and a new federal habeas attorney was appointed. This attorney filed a woefully inadequate writ which was subsequently denied. Although issuing a denial the US District Court Judge wrote the following (in 2012):
“The questions raised…about Will’s actual innocence create disturbing uncertainties…
This Court does not approach this dismissal lightly. Will has repeatedly and persistently argued that[the co-defendant] killed Deputy Hill. Now, with [Robert Will’s girlfriend’] testimony, Will has submitted no less than five witnesses who have stated that [the co-defendent] confessed to murdering Deputy Hill. Beyond that, the trial court's exclusion of [a] testimony linking [the co-defendant] to the murder was almost certainly error of grave proportion. Moreover, as set forth in the Court's Memorandum and Order of May 25, 2010, the presence in the trial courtroom of so many uniformed policemen would have likely justified post-trial relief had the issue arisen on direct appeal rather than in a petition for habeas corpus. 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.
“Within the narrow borders of federal review, this Court has allowed liberal exploration of Will's various arguments. The questions raised during post-judgment factual development about Will's actual innocence create disturbing uncertainties that, under federal habeas jurisprudence, the Court is powerless to address. While this Court cannot answer those questions, it notes that the state executive branch might consider the evidence of actual innocence in this case and exercise restraint in the execution of Will's sentence.”
The Judge is saying that if by late-stage appeals, no matter what evidence has come forward, there is nothing he can do, and he is procedurally barred from giving and/or adding weight to actual innocence evidence.
After this denial order was issued Will the moved into the 5th Circuit Court of appeals with the new appointed and pro bono counsel. The 5th Circuit issued a stay and abate order and remanded the case back to the Federal District Court.
The Federal District Court then issued a remand order back to the Texas Criminal Court of Appeals (CCA) regarding Will’s innocence claims and issues regarding prosecutorial misconduct. The CCA ordered the case back to the trial court instructing the trial court to hear the claims. In 2013 a writ was filed (you can read this HERE) covering the evidence in more detail and includes evidence previously illegally suppressed by the prosecution that jail records show the co-defendant attempted to put a hit on Rob to ensure he was unable to implicate him in the murder he had committed.
In recent years there has been a renewed criticism of the functioning of Texas trial courts in capital post conviction proceedings. As a panel of legal experts recently noted:
“ While Texas provides Death Row inmates with a right to seek post conviction review in state habeas proceedings. Texas procedures do not permit adequate development and judicial consideration of all claims...moreover, Texas district courts routinely decline to hold evidentiary hearings, even when issues of facts are in dispute. Texas courts also frequently adopt the factual findings proposed by the prosecution in state habeas cases, often verbatim. When a court’s order does not, reflect a independent assessment of the factual claims of the parties, the judicial systems reputation as a neutral arbiter is compromised. These practices seriously undermine the credibility of the district court’s finding in the most serious case in Texas Justice System.”
-Evaluation Fairness and Accuracy In State Death Penalty Systems: The Texas Capital Punishment Assessment Report, American Bar Association (2013)
The trial court in Will’s case refused to hold an evidentiary hearing and on January 26, 2015 the court simply signed off on the prosecutors proposed factual findings verbatim.
As of May 2017, Will’s case is in the District Court awaiting review and a ruling
On September 26th 2018, the District Court unfortunately reconfirmed that despite “the troubling possibility of Robert Will’s actual innocence”, under the Anti-Terrorism and Effective Death Penalty Act, the court did not have the jurisdiction to consider Rob’s petition for an Emergency Motion for Relief.
This has followed several years of back and forth through the courts to consider the Supreme Court’s ruling in Martinez and its application to Rob’s case in regards to ineffective assistance of counsel.
In a rare and sympathetic four-page order, the Judge repeatedly voices his concerns regarding Rob’s innocence but reiterates that under the AEDPA, he does not have the jurisdiction to grant relief.
The outcome of this order is that Rob’s case will now proceed to the notoriously conservative 5th Circuit of Appeals.