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Thread: Robert Gene Will II - Texas Death Row

  1. #11
    Senior Member Member Big Jon's Avatar
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    With the DP in Texas, how long does it usually take between the time of filing the Federal habeas petition to actual execution date? How about the rest of the country?

  2. #12
    Administrator Moh's Avatar
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    On October 12, 2017, Will filed an appeal before the US Court of Appeals for the Fifth Circuit.

    https://dockets.justia.com/docket/ci...s/ca5/17-70022

  3. #13
    Moderator Ryan's Avatar
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    Federal judge raises questions of innocence in condemned Harris County cop killer

    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 whether Will may be telling the truth.

    In a rare, strongly worded order, U.S. District Judge Keith Ellison in Houston last week advanced the condemned cop killer’s appeal even while bemoaning his own inability to do more in a case that experts say highlights systemic issues with the death penalty appeals process.

    “The Court very much wishes it could take up all of these issues,” Ellison wrote. “Nevertheless, this Court lacks jurisdiction to explore the troubling concerns that plague Will’s capital conviction.”

    The federal judge would like to consider Will’s “troubling” innocence claims but he can’t because of legal limitations, essentially technicalities. Instead, he can only send the case up to the U.S. Fifth Circuit Court of Appeals on the possibility that they greenlight a new appeal - which 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 the worst 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 his partner chased after Michael Alan Rosario. Hill radioed back that he’d gotten “the tall one” and that he was "in custody," but 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, to prosecutors, impossible 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, 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 back and forth 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 alleging 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 that could have called a witness into question surfaced.

    “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” to his trial team.

    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 same claims eventually ended up in an appeal now in front of the Fifth 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. He could only forward the case to the Fifth 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 Fifth 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 explained, 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 necessarily agree with them.

    In places like Harris County — where a year-long 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 statue 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.”

    https://m.chron.com/news/houston-tex...-13273279.php?

  4. #14
    Moderator Bobsicles's Avatar
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    The Fifth Circuit has affirmed the district court’s request to allow Will to file a successive habeas petition to continue his Brady claims.

    https://law.justia.com/cases/federal...020-08-05.html
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  5. #15
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    Even if everything he claims is true, would he not still be guilty because of the law of parties. . . .

  6. #16
    Moderator Bobsicles's Avatar
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    Yes he would still be guilty. The officer caught him in the commission of a felony so whether or not he or his accomplice pulled the trigger is irrelevant
    Thank you for the adventure - Axol

    Tried so hard and got so far, but in the end it doesn’t even matter - Linkin Park

    Hear me, my chiefs! I am tired. My heart is sick and sad. From where the sun now stands, I will fight no more forever. - Hin-mah-too-yah-lat-kekt

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  7. #17
    Administrator Moh's Avatar
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    On August 17, 2020, the Fifth Circuit DENIED Will's appeal. The panel was made up of Chief Judge Owen (G.W. Bush), Judge Willett (Trump) and Judge Ho (Trump).

    http://www.ca5.uscourts.gov/opinions...-70030-CV0.pdf

  8. #18
    Moderator Bobsicles's Avatar
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    On October 22, 2020, The Fifth Circuit granted Will’s petition for en banc rehearing.

    https://law.justia.com/cases/federal...020-10-22.html

    The panel consisted of Judge Owen (Bush), Judge Willett (Trump), and Judge Ho (Trump).
    Thank you for the adventure - Axol

    Tried so hard and got so far, but in the end it doesn’t even matter - Linkin Park

    Hear me, my chiefs! I am tired. My heart is sick and sad. From where the sun now stands, I will fight no more forever. - Hin-mah-too-yah-lat-kekt

    I’m going to the ghost McDonalds - Garcello

  9. #19
    Senior Member CnCP Legend FFM's Avatar
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    They essentially rendered the same opinion as before. The rehearing didn't mean much.

  10. #20
    Senior Member Member Dillydust's Avatar
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    Quote Originally Posted by Bobsicles View Post
    Yes he would still be guilty. The officer caught him in the commission of a felony so whether or not he or his accomplice pulled the trigger is irrelevant
    True, but still would be worth a retrial, if he was found guilty on the bases of being the trigger man, it’s very possible he would have got life in prison if they knew he was just there. I’ve got no pity for the man, but due process is due process, and if he was found guilty and they thought he was the trigger man, and it turns out he wasn’t. That’s a big key difference and he probably deserves a retrial.
    Last edited by Dillydust; 11-01-2020 at 11:48 AM. Reason: Typo

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