Cop killer case sent to court of appeals
Judge disputes guilt, notes technicality limiting jurisdiction
The gunshots screeched over the static of the police radio, followed by the last breaths of sheriff ’s Deputy Barrett Hill. It was the dark, pre-dawn hours of Dec. 4, 2000, and someone had just committed a capital murder.
There were no eyewitnesses and no forensic evidence. But two years later, Rob Will was sentenced to die for the crime in front of a courtroom crowded with uniformed police officers.
Despite the circumstantial case that sent him to death row, Will has always maintained his innocence. His alibi? He says he was handcuffed at the time. Now, nearly two decades into the legal wrangling, a federal judge is again questioning Will’s guilt.
In a rare, strongly worded order last week, U.S. District Judge Keith P. Ellison advanced the condemned cop killer’s appeal even as he bemoaned his own inability to do more in a case that experts say highlights systemic issues within the death penalty appeals process.
“The Court very much wishes it could take up all of these is-
“The death penalty is supposed to be reserved for the worst-of-the-worst cases. But nobody meant that that should be the worst-of-the-worst judicial process.” Robert Dunham, of the Death Penalty Information Center
sues,” Ellison wrote. “Nevertheless, this Court lacks jurisdiction to explore the troubling concerns that plague Will’s capital conviction.”
The issues before Ellison were among two federal appeals advancing through the legal system — one over claims of withheld evidence and another regarding ineffective lawyers who failed to uncover possible keys to Will’s innocence.
The federal judge indicated he would like to consider Will’s “troubling” innocence claims but couldn’t because of legal limitations — essentially technicalities. Instead, he could only send the case to the to the 5th U.S. Circuit Court of Appeals on the possibility that the judges greenlight a new appeal that could ultimately end up back in his court.
With allegations of withheld evidence, bad lawyering and vexing legal entanglements, the case embodies “everything that is structurally wrong” with key parts of the appeals process, according to Robert Dunham of the Death Penalty Information Center.
“The death penalty is supposed to be reserved for the worst-of-the-worst cases,” he said, “but nobody meant that that should be the worst-of-theworst judicial process.”
On the morning of the murder, two Harris County sheriff ’s deputies responded to a call about four men breaking into cars. When they pulled up, Hill and his partner, Deputy Warren Kelly, shined their spotlight on two of the thieves standing in a cul-de-sac.
The pair took off in different directions, and Hill followed Will, while Kelly chased after Michael Alan Rosario. Hill radioed back that “the tall one” was in custody, but there’s still some dispute as to whether that meant Will was in handcuffs and, if he was, how and when he got out of them. Meanwhile, Kelly lost sight of Rosario behind a tree. A few seconds later, he heard the gunshots over the radio.
Afterward, Will carjacked a woman and sped away, only to be caught in Washington County a few hours later.
It seemed impossible to prosecutors that anyone else could be the killer. Will changed his story to his lawyers repeatedly, and Rosario had simply been too far away, they said. But Will had no gunshot residue on him, and a footprint at the crime scene didn’t match his.
And, as his defense lawyers would later point out, he had a gunshot wound on his hand that could have come from Rosario’s effort to free his friend by shooting off the handcuffs. To the state, that gunshot wound seemed evidence of Will’s guilt, an injury sustained while shooting at the deputy.
For more than a decade, the case has bounced between state and federal appeals courts, generating a complex paper trail Ellison described as a “procedural imbroglio.” And, over time, new evidence emerged: jailhouse snitches who alleged Rosario had confessed finally agreed to come forward; jail records about a suspected gang hit Rosario ordered on Will inexplicably appeared in the prosecution’s files; and previously undisclosed evidence surfaced that could have called a witness into question.
“The Harris County DA’s Office has a lot to answer for,” Will’s legal team, Washington, D.C.-based attorney Jay Ewart and Houston attorney Samy Khalil, said in a statement. “They are playing a game of hide — but Rob Will can never seek — exculpatory evidence. Prosecution by concealment is how innocent people end up on death row.”
The district attorney’s office disputed both the claims of withheld evidence and the possibility of Will’s innocence.
“The Harris County District Attorney’s Office is not hiding evidence in Will’s case,” said spokesman Dane Schiller. “That claim is a desperate effort to divert attention from the wealth of evidence supporting Will being sentenced to death for the capital murder of Harris County Sheriff’s Deputy Barrett Hill.”
Schiller went on to call it “more than ironic” that Will’s attorneys would accuse prosecutors of hiding evidence “because the factual record reflects that Will repeatedly told inconsistent stories.”
When some of the evidence in question landed in front of a state court in 2013, the Harris County judge deemed it not credible or relevant to the outcome, and instead signed off word-for-word on the version of events submitted by the Harris County District Attorney’s Office.
Some of those claims eventually ended up in an appeal now in front of the 5th Circuit. It’s separate from the appeal Ellison ruled on last week, but it raises some of the same concerns. In both cases the federal district judge didn’t have the ability to side with Will but could only forward the case to the 5th Circuit.
“This Court has repeatedly expressed deep concern for the factually complex insinuations that Will may be innocent of the crime for which he faces a death sentence,” Ellison wrote last week. “The Court is particularly sensitive to the absence of any direct evidence of Will’s guilt, and the number of witnesses who aver that another man confessed to the underlying murder.”
Will was in the same position in 2012, when Ellison expressed similar concerns over the case as he sent it up to the 5th Circuit. A U.S. Supreme Court decision over appeals involving claims of ineffective lawyering sent the case through a new round of claims with the same result.
“Everything in the state procedure is inadequate and has been inadequate for the last three decades,” said Patrick McCann, a local attorney and past president of the Harris County Criminal Lawyers Association, calling the extent to which federal judges are expected to defer to state court rulings “an absolute joke.”
In regular criminal cases, Dunham said, a judge can hear the facts and the law and make a decision. But, under a 1996 law known as the Antiterrorism and Effective Death Penalty Act, added limitations in appeals from prisoners mean that federal judges are forced to go along with previous state court findings, even if they don’t agree with them.
In places like Harris County — where a yearlong study recently found that judges adopt the state’s findings more than 90 percent of the time in a key part of the appeals process — Dunham likened the state court review to a ventriloquist act, with judges repeating prosecutors’ assertions made in state court.
Usually, “the federal court is pretending not to see the ventriloquist’s lips move,” he said. “Here, Judge Ellison clearly sees the lips moving, but the federal law prevents him from doing anything about it.”
Eric M. Freedman, a Hofstra University law professor, said the case highlights the need for changes in the law.
“The idea that it would be important to reconsider, rethink and recalibrate in order to serve the very appropriate underlying goals of the statute is well illustrated by this particular case,” he said. “The purpose of the statute is to provide a federal level of supervision of basic rights, like the right not to be convicted and executed if you’re an innocent person.”