On the morning of 4 December 2000, twenty-two-year old Robert Will, his co-defendant, who was the son of an influential Houston police officer, and others were stripping cars for parts in a suburban Houston neighbourhood. When two Harris County Deputies suddenly arrived, the men fled. A 38-year-old deputy caught Rob, searched him and cuffed his hands behind his back. The Deputy radioed into the station, “4119, I’ve got one in custody”. Less than one minute later, shots were heard on the radio. There was no sound of an altercation.
The responding Deputy’s partner, had been chasing -and lost - a male figure when he heard the sound of gunfire. During Will’s trial,the deputy's partner was unable to identify the male figure he was chasing. According to Will, once he was handcuffed, his co-defendant shot the deputy wounding Will in the process. The Harris County Sheriff’s Department Gunshot Injury Chart, shows, a traverse gunshot wound to the back of the head which directly indicates that the shooter was behind the Deputy to his left.
The co-defendent then unlocked Rob's cuff's with a handcuff key and both men then fled in different directions. Will ran to a nearby parking lot where he ordered a woman out of her car and drove away. The shooter, covered in blood, found his way to Will’s apartment where he saw Will’s girlfriend, his mother, his sister and another young woman. In front of two of these witnesses the co-defendant confessed to shooting a police officer and accidentally shooting Will.
Meanwhile, Will drove the stolen car to Brenham, Texas (approximately one hour northwest of Houston), where he was fully cooperative with the police officer who arrested him. His hands and gloves were bagged for testing, and his wounded left hand was treated.
The co-defendant was subsequently arrested for capital murder but only charged with car theft. Both he and Will were housed at the Harris County Jail. On December 9th, five days after the murder, the co-defendant's parents brought investigators the clothes he supposedly wore on December 4th, carefully washed and folded in a neat pile.
Will was subsequently tried and convicted of capital murder and sentenced to death, all based on circumstantial evidence, despite the fact that:
He had been searched and handcuffed prior to the murder
There was no forensic evidence supporting the charge. In fact, some items were inconsistent with charging Will, and other items were never tested.
The GSR (Gun Shot Residue) tests are completely inconsistent with Will acting as the shooter.
There were several witnesses that were available to testify that the co-defendant admitted to the murder, providing sworn affidavits and one testified in court
The United States District Court Judge stated:
“…Will has submitted no less than five witnesses who have stated that [the co-defendant] confessed to murdering Deputy Hill. Beyond that, the trial court’s exclusion of [witness’] testimony linking [the co-defendant] to the murder was almost certainly an error of grave proportion.”
"I've Got One in Custody"
At 6:36am on December 4th, 2000 the Harris County Deputy radios into dispatch, “4119 I’ve got one in custody”. “4119” refers to that specific Unit. The prosecutor, Charles “Chuck” Rosenthal, Jr. contends that Will shot the Deputy one minute after this call was made. There was no sound of altercation on the recording, only shots fired approximately one minute after this call was made. D.A. Rosenthal contends that the Deputy may have called in that he had Will “in custody”, however, that did not mean that Will had been searched for weapons, subdued, or handcuffed. This scenario offered by the Prosecution is highly unlikely and unbelievable as to have a suspect “in custody” means to have that person either arrested and incarcerated or handcuffed and subdued. “Custody” is different from detaining and individual, which would imply the Officer may simply be holding an individual for questioning (with or without restraints). When a suspect is handcuffed, it’s standard operating procedure for the officer to search that individual for weapons prior to cuffing them.
During the cross-examination of the Dispatch Records Manager and Will’s lawyer, there was the following exchange:
Q. “And you—through your training and experience, you would understand “custody” to mean that he has control of that suspect, correct?”
A. “Yes, sir, I would.”
Q. “As a matter of fact, the dispatcher relays to the other units, recognizing that he has control of the person. On line 65m say: Clear, one in custody at 6:36.”
The two responding officers came upon and chased two suspects; Deputy Hill pursued Will and his partner allegedly pursued and subsequently lost the co-defendant. However, the prosecution claims the co-defendant would not have had time to reach Deputy Hill as there was only 8 seconds between his partner losing sight of him, some 470 feet from the scene of the shooting, and the first shot being fired.
At trial, Deputy Hill's partner agreed that he never made a positive identification of the co-defendant and that he could have been chasing any one of these individuals. But if indeed he was chasing the co-defendant, the radio transcript and his own testimony at trial show that the co-defendant would have had, between 26 seconds and 104 seconds, and not the 8 seconds prosecutors claim, to reach the scene and shoot Deputy Hill.
Timeline/Excerpts from Radio Transcript:
At 6:37:02, Deputy Hill's partner states “He’s running along the bayou”
43 seconds later at 6:37:45, Hill says “4119, I’ve got one in custody”
18 seconds later at 6:38:03, Hill's partner asks “19, I got any units in route to me? ”
26 seconds later at 6:38:29, First shot fired as heard over the open radio.
Deputy Hill's partner testified at trial:
“I didn’t catch the second man, lost sight of him, but he was on the east side, I saw him disappear around a tree. I asked [the] dispatcher if any other units were en route and where I had lost sight of him”.
He stated he had lost whoever he was chasing before he radioed in and enquired about additional units en route to him.
If it was the co-defendant that he was pursuing, the co-defendant would have had from at least 6:38:03 (when the deputy radioed in) until 6:38:29 (when the first shot was fired) to reach Hill - a total of 26 seconds.
Prosecutors claim he lost sight of the co-defendant 470 feet from the scene of the crime by the bayou, near the bridge, a young fit man, as the co-defendant was, could easily run 470 feet in 26 seconds. Middle school students routinely run 100 meter hurdles in less than 20 seconds!
In fact, 26 seconds is the minimum amount of time the codefendent had to reach Deputy Hill. He likely had much longer. The last transmission the Deputy heard while he still had the codefendent in sight occurred at 6:36:45 am: 104 seconds before the shooting.
Therefore , the record shows that the codefendent had at least 26 seconds and up to 104 seconds to reach and kill Deputy Hill.
The Deputy's partner did state that he lost the suspect when he “disappeared around a tree”. The suspect must have been near the wooded area and not on the bayou or near the bridge by Darbydale. As trial testimony and crime scene photos show, this is a flat area completely devoid of trees and bushes. There were no trees for a suspect to disappear behind.
He also stated at trial:
“(I) made it to the bayou, looked toward the bridge at the end of the street to the east then started making my way back to where I lost sight of the suspect.”
Thus, he did not lose the suspect on the bayou or near the bridge, but closer to the actual crime scene, where there were trees.
Taking all these facts into consideration, the co-defendant would have in fact had to run less than 470 feet (as he was not last seen on the bayou) and had more than 26 seconds to reach Deputy Hill, meaning the co-defendant could have easily been the shooter.
In addition, according to the K-9 Unit report, a Harris county bloodhound tracked the codefendent's scent all the way back to the scene of the murder. The reporting detective noted that the bloodhound wanted " to track all of the way to [Deputy Hill's body], but was not allowed to enter the inner security perimeter".
The two witness statements The deputy's partner gave directly after the crime differed from his trial testimony and when he took the stand to testify, he offered several different and inconsistent versions of the events of that day.
Gun Shot Residue (GSR)
Rob Will is right handed, and on the morning of December 4th, 2002, he was wearing gloves. When he was arrested in Brenham, his hands were bagged for GSR and any other evidence. The medical Examiner’s office uses both a scanning electron microscope (SEM) and atomic absorption (AA) for GSR. The more sophisticated SEM was used for Rob Will’s gloves, and both the AA and the SEM were used on his hands.
The results of AA tests on both of Will’s hands proved ‘inconclusive’. The following exchange was noted during cross-examination between [one of] Will’s Attorneys, and a senior forensic chemist from the Harris County Sheriff’s Office:
Q. “But yet, again, if there are zero particles of antimony [a particle of GSR] present, under your standards or the Harris County standards, again, you’re not going to tell us it’s negative of antimony. You’re going to say it’s inconclusive, correct?”
A. “Yes, sir.”
Q. “So, moving on to Mr. Will’s test, his hands were inconclusive; in other words, you can’t tell the jury today as you sit here reading this report that having examined my clients hands using an AA atomic absorption test that his hands were positive for gunshot residue. Correct?”
Will’s left hand, which had a close gunshot wound, tested positive for GSR under the SEM. The following exchange is during direct examination of the expert witness by the Assistant District Attorney:
Q. “…suppose someone is actually shot, injured in an area around their hands. Would you expect to see any of these particular elements [gunshot residue] near or on their hands?”
A. “If it is a close-range shot, absolutely. The chances of deposition are very significantly increased.”
Q. “Okay. So, if someone is shot in their wrist, and depending upon the angle of their hand, even if they had gloves on, these chemicals could enter into the upper palm of their hand?”
A. “Yes, ma’am.”
The co-defendant’s hands were neither bagged nor tested for GSR.
The most important fact regarding the GSR testimony and the test results is that Will was shot in his left hand. It is important to note that Will is right handed. His right hand tested ’inconclusive’ (negative) on both the hand itself and the glove he was wearing. This proves that the gunshot injury was not as a result of Will shooting himself. It is also highly unlikely that he was shot by Deputy Barrett Hill, who was wearing gloves at the time of the murder, because his gun was in the holster. The Prosecutors office always contended that Will shot himself.
The GSR evidence proves that Robert had not fired a gun even once, let alone multiple times, that night and therefore could not have murdered Deputy Hill.
DNA and Fingerprints
All of Will's clothes were tested. The only DNA found to be present was that of Will. One of Will’s gloves contained both his DNA and that of an “unknown” donor which was not a match with either Will or Deputy Hill.
No other DNA specimens, including the co-defendant’s, were ever submitted for comparison.
Similarly, all of Deputy Hill's clothing was tested and apart from one small drop of Will’s blood on the tip of his boot, none of Will's DNA was found to be present on any item.
The co-defendant’s pants were tested after his father handed them in to police. The pants were stained with blood but Forensic Services were unable to extract any DNA as the pants had been bleached, destroying all DNA/blood evidence. A fact previously confirmed by witnesses at Will’s apartment.
The DNA evidence does not support the Prosecution's assertions that Will shot himself and Deputy Hill at close range and then stood over the victim, repeatedly shooting him.
As previously stated, the gunshot wound trajectories were not consistent with the Prosecutors' version of events.
Forensic scientists also testified that Will’s clothing had neither been cleaned nor bleached, which would have enabled the removal of DNA evidence prior to testing.
Fingerprints were taken from items at the crime scene, including the shell casings of the bullets. Also tested were items found in Will’s utility closet at his apartment, which witnesses stated the co-defendant left there. These items included the murder weapon's holster, additional bullets, a loaded .38 calibre Smith and Wesson revolver, two shotguns, a bulletproof vest, a dagger, and ammunition. A photograph of the co-defendant wearing the bulletproof vest and holding one of the firearms was admitted into evidence as proof of the co-defendant’s ownership of these items.
Will’s fingerprints were not found on any items at the crime scene, in the utility closet or on any items deemed to be associated with the murder of Deputy Hill.
According to the prosecution's ballistic expert witness, the first shot was fired from a distance of less than 8 inches.
If the first shot took off Will’s knuckles, as they claim, and it was shot from less than 8 inches, Will’s blood/DNA would have been present at the site of the wound and on Deputy Hill's clothing. This was not the case.
Further testimony stated that a trail of Will’s blood was found leading from the crime scene, confirming that Will was bleeding profusely. If he had shot his own left hand less than 8 inches away from Deputy Hill, a significant quantity of Will’s blood should have been found on Hill's clothing, especially if Will had stood over Hill as he lay on the ground and shot him repeatedly.
Only one small drop of Will’s blood was found on the tip of Deputy Hill's boot. No other blood was present. Also, at close range, Will would have been unable to avoid getting blood splatter from Deputy Hill on himself and all over his own clothing.
Blood stain tests were conducted on both Deputy Hill's and Will's clothes. A senior forensic expert testified at trial:
“The officers clothing, his uniform shirt, his shirt and pants they came back having the officer’s blood on them.”
He also testified:
“The clothes Mr. Will was wearing, the jacket he had on… Purple pants that he had on, his shoes all came back as having his blood on them, except his socks, I didn’t test them… all came back with blood being consistent with him, his own blood on his own clothing...it was his blood and no one else’s, not the Deputy’s”.
Forensic Pathologist Dr. Jesse Adams’ testimony does not support the Prosecution's theory, that Will shot Deputy Hill from the ground and then fired additional shots when Deputy Hill was on the ground. At trial he stated the following with regard to one of the Deputy Hill's gunshot wounds:
“This would be consistent, with the shooter being to the side of the Deputy or the Deputy’s head being turned away from the shooter. It would be consistent with both those scenarios. It would be consistent if they were approximately the same size and in the standing position.”
“It would be possible that if the defendant and victim were standing face to face being handcuffed someone could approach from the left and shoot. That would be consistent with the entry and exit wounds. Someone could have been hiding in the bush and approached from the left side.”
This testimony supports Will’s version of events and throws into doubt the prosecutors’ version, which supposes the first shots were fired while Will was on the ground, the remainder of the shots being fired as Deputy Hill lay on the ground.
The Clorox Bottle
Prosecutors claim that: “Will also apparently doused himself with bleach while driving away, which would only make sense as an attempt to clean himself (of blood, gunshot residue or some other trace of the murder).”
A Clorox bleach bottle was removed from the vehicle that Will had stolen. The Deputy who conducted investigations at the scene of the arrest stated:
“We did remove a Clorox bottle that had what appeared to be gasoline inside. Deputy Kuhlman took that out and brought a canister, a gas canister, and emptied gas [from the Clorox bottle] into it…We kept the Clorox bottle”.
The Clorox bottle was in fact filled with gasoline not bleach. The gasoline from the Clorox bottle was emptied into a gas canister by a Deputy, not Will, and after they had emptied the Clorox bottle, the officers retained the bottle. Therefore Will did not and could not have “doused himself in bleach” as Prosecutors claim “as an attempt to clean himself (of blood, gunshot residue or some other trace of the murder)”, as there was no bleach in the first place.
Will’s gloves were tested and analysed and there was no evidence of gasoline or bleach on them, making it extremely unlikely that Will had handled the bottle. Forensic experts also confirmed by testimony that the gloves had not been the subject of any cleaning process, which would have removed any such evidence.
When Rob is Arrested
Prosecutors claim that “Will did not shoot the officer who actually arrested him hours later, but he did drive away from the initial traffic stop and position his vehicle in a secluded place before jumping out and charging the officer. Only the precaution of keeping Will face down on the ground at gunpoint, instead of the probationary officer to approach him without backup, may have prevented the second murder.”
Robert Will never made any attempt to murder the Washington County Sheriff.
At trial the arresting officer testified:
“He [Robert Will] didn’t try to shoot at me. He didn’t make any gestures consistent with shooting at me”.
Will was parked as the deputy sheriff approached and although he did initially drive off about 100 feet, he claims this was only because he did not realize the person approaching his vehicle was an officer. Once he realized it was a police officer, he stopped the vehicle in a populated area and got out. The Deputy explains what happened next: “He did not then try to discharge his weapon at me… He never went for the gun in his waistband. He put his hands in the air. He dropped to the ground. He spread his hands from his body”.
The Prosecutors' claims are unfounded and completely contradictory to the arresting officer's testimony.
Robert Will’s co-defendant initially ran to the apartment of a friend of his, but the friend's roommate refused to open the door. The roommate described him as “crying and sweating at the door”. Unable to gain access to his friend's apartment, he ran instead to Will's apartment.
When there, he confessed to Robert's girlfriend and the other occupants of the apartment that he'd just shot a police officer and accidentally shot Robert. Robert Will’s co-defendant proceeded to remove his bloody clothes and wash and pour bleach over them to destroy any DNA evidence.
Will’s girlfriend testified at an Oct 2011 hearing that she told the co-defendant he couldn’t wear his clothes AND none of his clothes were there when police searched. He took the holster and gun case and spare bullets of the murder weapon and placed them in an outside utility closet with a note that read: “Rob, here’s my stuff”. The co-defendant signed it with the name of a mutual friend of both his and Will in an attempt to frame their mutual friend.
Several people witnessed the co-defendant at the apartment covered in blood and performing all of the above stated actions that day. All have now provided sworn affidavits.
Four inmates came forward and stated that when they were housed together with the co-defendant at the Harris County Jail, he had confessed to them that he had murdered Deputy Hill. He also provided details about the crime that were not publicly known or available. They also stated that Will had always maintained that he was innocent. Three of these four inmates were intimidated into not testifying at trial on Will's behalf, only later providing affidavits.
During the trial, under direct examination between one of Will’s lawyers and a former inmate of the Harris County Jail, the following exchange took place:
Q. “What did he tell you?”
A. “…I don’t remember exactly what he [the co-defendant] told me what happened, but I remember he said that he [the co-defendant] had no choice but to shoot the cop. It was instinct and he ran…”
Q. “Did he tell you ..”he” being [ the co-defendant].. tell you anything about the type of weapon that was used?”
A. “It was a big 40, 40 mag, something like that.”
Q. “Did he tell you anything about his father?”
A. “He said his father was a police officer and that it was really nothing anybody could do to him.”
Note : the murder weapon was a 40 caliber
Another inmate stated:
“I was brought to Court to testify, I was put in the Court’s holding cell area, only a few cells away from [the co-defendant]. [The co-defendant] threatened me and said I’d better not testify about what he told me. I told him I wasn’t going to.”
The co-defendant had no reason to be at the Court’s holding cell area that day; he wasn't due to testify at any trial and therefore should not have been at the Courts.
The trial record indicates that another inmate refused to testify, because when he was bench-warranted back from Texas Department of Corrections. Deputies severely beat him and told him not to testify.
This inmate claimed that he “told them [Robert Will's Lawyers] that police officers or Deputies broke his arm in classification because he was coming to Court to testify”.
Testimony before the Court shows his arm was broken and a fresh cast was present.
Another inmate informant explained that the night after he had initially spoken to Detectives, an inmate known to be dangerous was moved into the cell next to him. He attempted to intimidate him as the co-defendant previously had:
Inmate: “I think it was Wednesday when I came to talk to ya’ll man. And they moved him up there. And he was asking me about it, hey man, so, what? You’re gonna snitch on this and tell about this case and shit, you’re a fucking snitch”.
Detectives: “You realize that there is always the possibility that you might have to testify in Court with regards to these statements”.
Inmate: “I told [Will’s lawyer] that I didn’t really want to… I mean, cause if I go to prison or something and you know, say [the co-defendant] gets charged with it, he goes to prison. I mean he’s got a lot of friends; you know he says he’s Puerto-Rican. So, he’s got a lot of friends, you know what I’m saying, and I’m trying to come home alive, man… And he done told me, my dad’s a cop and I can have you tooken care of and I have pull and I have this and why do you think I am getting charged with a lesser crime?”.
The fourth inmate informant was also a victim of intimidation but testified regardless of this.
An individual who witnessed the intimidation of this inmate informed Will’s lawyers that he “was handcuffed to a bench in the back of the courtroom, by himself, on the “witness bench”. An inmate that was not wearing handcuffs, who he did not know, came up to him and began beating him and screaming, “You fucking snitch, you better not testify!”
Codefendant Attempts to Have Rob Murdered
New evidence reveals that after the co-defendant was booked at the Harris County Jail, he attempted to have the only witness to his crime, Rob, killed. Jail records indicate that the co-defendant was placed into administrative separation in the Harris County Jail after Deputy Hill’s murder because he solicited an inmate and a prison gang to make a hit on Rob. The discovery of this document led to the recent sworn affidavit of the inmate.
Despite having access to these records, the prosecution failed to turn these over to the defense, a clear Brady violation.
The new evidence demonstrates that the co-defendant attempted to have Rob killed because he feared Rob would expose him as the shooter in Deputy Hill’s murder. In his sworn affidavit, the inmate also reports that the co-defendant confessed to shooting Deputy Hill and told him he planned to “blame Rob.” This confession is similar to at least two other confessions he made to other inmates. A Harris county jail officer also reported that the co-defendant had bragged to her about his involvement three days after the murder.
Wall of Blue
Will expressed concerns, on several occasions, regarding the amount of uniformed police officers that were present at his trial on a daily basis. At one point the Judge ordered the doors of the Court to be locked because of the overwhelming number of police officers present.
This presence in Court is known by police officers as “the wall of blue,” a tactic often used to influence and/or intimidate the juries of defendants accused of murdering a police officer.
During Will’s trial there were countless uniformed deputies or police officers displaying badges of mourning sitting with the family of the slain Deputy. These seats were closest to the jurors’ seats. In the December 2001, Houston Star, a newspaper for local law enforcement personnel, the following notice was on the front page:
“The trial of Robert Gene Will II, who was charged with capital Murder of a Police Officer after the murder of one of our brothers begins January 7, 2002, in the 185th District. This is a reminder for as many uniformed deputies, that can be there, attend.”
The defense objected to this “Wall of Blue", but the Judge overruled their concerns, saying the officers had a right to be present. It must be questioned whether having that many uniformed police officers standing arm-in-arm against Will had a prejudicial effect on the sitting jurors?
When these facts were presented to the Court of Criminal Appeals, it was noted that they: “found no evidence that jurors’ sympathies were susceptible to being swayed by the police presence, such as it would, for instance, if the jurors had close ties to law enforcement.”
Meaning, had the jurors had “close ties to law enforcement” they would have in fact been “susceptible to being swayed by the police presence” in the Court on a daily basis.
The Voire Dire Transcript provided the following information:
One Juror had friends who were police officers and a brother who was a State Trooper.
Another Juror had a friend who was a police officer who had actually been involved with this very case, the murder of Deputy Hill. This juror also spoke to this officer, who was testifying, during the trial, outside the courtroom.
A Juror stated that a good friend of her husband's was with the Houston Police Department.
Three jurors did indeed have “close ties to law enforcement”.
This would have made them already biased in favour of the police even without the addition of a large police presence in the courtroom, which surely could have only added to that bias.
The Prosecutor at Will’s trial was Charles “Chuck” Rosenthal, a man who was forced to resign in 2008 after being besieged by scandals, including accusations of intoxication at work, sending sexist and racist emails, having an adulterous affair, and deleting over 3,500 emails that were under subpoenas and a court order.
Mr. Rosenthal had shown a history of poor judgment in office, including throwing firecrackers down his office stairs following the Oklahoma City Bombings, and sending two undercover police officers into the city jail to pose as defence attorneys in order to get information from individuals who were under arrest for cocaine charges.
DA Rosenthal also was aware about the serious problems with the police department crime lab, and under his watch, three men were exonerated of their crimes, based on shoddy work undertaken by this lab. Rosenthal also argued on behalf of the State of Texas in Lawrence v. Texas, where he sought to defend Texas’ anti-gay sodomy laws.
During the Sentencing Phase of Will’s trial, when the jurors listen to mitigating evidence, and any evidence that points to the possibility of Will being a future danger to the public, DA Rosenthal made the following statement about Will:
“…it goes to the fact that what we really learned from September 11th is that evil exists in this world. If we didn’t know it before, we know it now. And we know the embodiment evil came out and has manifested itself in Robert Gene Will, II.”
The 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.
Where Are We Now?
UPDATE AUGUST 2020!
It is with extreme joy and gratitude that we would like to announce that the 5th Circuit Court of Appeals released its decision regarding Rob’s case on the 5th August 2020.
In a 23-page decision released just yesterday, the court stated:
“We affirm the district court’s transfer order and grant the motion for authorization. Will’s arguments may not prevail, but he should be allowed to make them.”
The 5th Circuit Court of Appeals is notoriously conservative and rarely grants relief. With that in mind, and that it is the last real step prior to receiving an execution date, Rob’s supporters have been awaiting this decision with bated breath.
The three requirements in order for the court to grant a successive appeal are that:
(1) his Brady claim was not presented in a prior application
(2) the factual predicate for the Brady claim “could not have been discovered previously through the exercise of due diligence”
(3) he can establish by “clear and convincing evidence that, but for [the Brady] error, no reasonable factfinder would have found” him guilty
All of which the court agreed had been met.
Although the court took the time to list the many convincing factors pointing towards Rob’s innocence, the decision hinged on the Brady evidence of jail records that show Rob’s co-defendant had been transferred into administrative segregation after attempting to have a “Hit” put on Rob. In addition to this, further records show that the co-defendant made incriminating statements to an officer at the jail. This evidence was never turned over by the prosecution to the defence at time of trial, and only came to light a decade after Rob’s conviction and well past the time of his direct and Habeas appeal.
The 5th Circuit stated:
“As the district court stressed, there is “considerable evidence supporting Will’s innocence,” including “the total absence of eyewitness testimony or strongly probative forensic evidence.” There were “disturbing uncertainties” of Will’s culpability even before the introduction of the withheld evidence. Now, with the new evidence in hand, the uncertainties are even more disturbing. Based on the probative value of the previously withheld evidence, Will has made a sufficient showing to proceed to a fuller review. He’s demonstrated it is reasonably likely that, after hearing the new evidence alongside the old evidence, every reasonable juror would have some level of reasonable doubt.”
We would like to thank everyone that has supported us thus far as ask for your continuing support as we continue Rob’s fight for freedom.
UPDATE MARCH 2023!
In 2022 Rob's legal team gained a new lead attorney, who, along with his existing team, worked tirelessly to argue Rob's innocence with the District Court. Not only did they do an outstanding job with their filings but also managed to uncover further Brady material that the prosecution had YET AGAIN failed to hand over to the defence.
All their hard work was not in vain. In March 2023, the District Court ordered that Rob had met the requirements to be allowed to proceed with his brady claim stating:
"This Court has presided over hearings which have questioned the trial representation Will received and the integrity of the evidence showing his guilt. As time has passed, Will has poked more and more holes in the case that the State presented at trial. This Court has previously expressed deep misgivings about the state of the evidence and given voice to weighty concerns about Will’s conviction. This Court has “lament[ed] the strict limitations placed upon it” by federal habeas law in light of the “disturbing uncertainties,” “total absence of eyewitness testimony or strongly probative forensic evidence,” and “considerable evidence supporting Will’s innocence...
The question at issue is whether the Anti-Terrorism and Effective Death Penalty Act (AEDPA) will allow Will’s successive petition containing the Brady claim to proceed. As the Court discusses below, Will has met the legal standards which will allow his Brady claim to be heard."