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Death Row Case is About More Than Innocence

A federal judge said in a recent ruling that he has serious concerns about whether Rob Will committed the murder he was sent to death row for, but the law prevented him from doing anything about it.

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No one saw Rob Will shoot and kill Harris County Deputy Sheriff Barrett Hill in the still-black morning hours in a Houston bayou on Dec. 4, 2000. No physical evidence linked him to the murder.

Will, now on death row, said that he is innocent, but that he has been represented by ineffective lawyers. He has a new lawyer who faces the daunting challenge of representing Will at this late stage in his appeals.

Witnesses have testified that another man confessed to Deputy Hill’s murder. But in a January ruling, U.S. District Court Judge Keith Ellison lamented that even though he was concerned Will could be innocent, he had to deny his motion for a new trial.

“The questions raised during post-judgment factual development about Will’s actual innocence create disturbing uncertainties,” he wrote. “Federal law does not recognize actual innocence as a mechanism to overturn an otherwise valid conviction.”

Will’s best chance for a new trial may lie with an Arizona case that the U.S. Supreme Court is soon expected to rule on. States across the country are anxiously awaiting the ruling, which could establish that defendants have a constitutional right to adequate appellate lawyers. For some states, that could require major spending on court-appointed lawyers for thousands of convicts.

Will said that Michael Rosario, the man he was with the morning of the slaying, shot Deputy Hill. Since Will was sentenced to death in 2002, four witnesses have testified that Rosario — a Houston police officer’s son with a long felony history — confessed. The state has argued that the witness statements are not credible.

On the morning of the shooting, Will, who was 21 and had a criminal history, and Rosario were stealing parts from a car when two deputies arrived. Will and Rosario ran in different directions. Deputy Hill chased Will, and Deputy Warren Kelly pursued Rosario. Deputy Hill radioed that he had Will in custody. Deputy Kelly radioed that he had lost track of Rosario. Eight seconds later, the radio recorded gunfire, gasping sounds and more gunfire.

Deputy Kelly saw Will flee to a nearby apartment complex. A woman who had been sleeping in her car told the police that Will had held a gun to her neck, said he had “just shot a policeman,” and stole her car.

Deputy Hill’s body was found about a half-hour later along with seven spent shell casings.  Will was arrested about 90 miles west of Houston near Brenham. He had a pistol and was bleeding from his left hand.

At Will’s 2002 trial, his lawyers argued that after losing the other officer, Rosario found Deputy Hill and Will, shot the deputy, freed his friend and took off. A cellmate of Rosario’s told the jury that Rosario said “he had no choice but to shoot the cop” and that because his dad was an officer there was “nothing anybody could do.”

Harris County prosecutors argued that as Deputy Hill tried to arrest Will, the young man shot the deputy in his bulletproof vest. The deputy fell over, and Will shot him in the head and face. They said Rosario did not have enough time to run to where the two were.

The lawyer Christopher Downey defended Rosario against charges related to the car parts theft. He no longer represents Rosario, and he said his former client, who has been in and out of prison, is “no saint.” But he said Rosario, who was not charged in the murder, has repeatedly denied that he shot Deputy Hill.

Will was found guilty and sentenced to death. In Will’s first appeal, his state-appointed lawyer, Leslie Ribnik, filed a 29-page boilerplate court document that had little application to Will’s case. Ribnik has defended his work. In 2006, the Texas Court of Criminal Appeals, at Ribnik's request, removed him from the list of approved death penalty defense lawyers.

That initial appeal is the main sticking point in Will’s case. Federal courts cannot consider claims an inmate did not raise from the beginning of the process.

In 2006, when Kenneth Williams, an appellate lawyer with 20 years of death row experience, took over, he knew the odds were long.

“You can’t just go into court and say, ‘I’m innocent,’” Williams said. “You have to raise those claims properly.”

He filed an appeal in 2007, arguing that Will was innocent and that his previous counsel was ineffective.

He filed affidavits from three other cellmates of Rosario, who said he had confessed.

Another key piece of testimony came from Will’s ex-girlfriend. At a 2011 hearing, she testified that Rosario had come to her apartment with blood on his pants and on one of his shoes. He told her that he had shot the deputy and then tried to shoot the handcuffs off Will.

Lawyers for the Texas attorney general’s office argued that the testimony was unreliable and that Will had tried to bribe witnesses. They said Will should have presented his claims earlier.

In his ruling denying a new trial, Ellison said that the lack of physical evidence linking Will to the crime and the reports that Rosario had confessed gave him pause, but that he could not simply overturn the conviction. Ellison wrote that Will had not presented enough evidence to show that Will’s claims of innocence and shoddy lawyering warranted a new trial.

“The court laments the strict limitations placed upon it,” Ellison wrote.

After the January ruling, Williams withdrew as Will’s lawyer. His new court-appointed lawyer, Samy Khalil, is preparing an appeal of Ellison’s ruling. It is due this month. He declined to comment and refused to authorize an interview with Will, now 33.

Will’s best hope may be an Arizona case, Martinez v. Ryan. The Sixth Amendment guarantees a right to adequate trial lawyers, but the issue in Martinez v. Ryan is what happens when a defendant’s trial lawyer is ineffective and then a state appellate lawyer fails to make an argument on the defendant’s behalf that the ineffective representation at trial led to the conviction.

If the high court rules a constitutional right to effective appellate counsel exists, then Will could attempt to argue that his rights were violated when Ribnik filed boilerplate documents and failed to raise other claims, said Lee Kovarsky, an assistant professor of law at the University of Maryland Francis King Carey School of Law.

Even if the court rules in the Arizona defendant’s favor, though, the bar for Will’s argument is high, Kovarsky said. He would have to prove that both his appellate lawyers and his trial lawyers were ineffective. And Ellison has ruled that Will’s trial lawyers performed adequately.

Nearly every week, Dawn Bremer drives 90 miles from her Spring home to the state prison in Livingston to visit Will. She is among a cadre of advocates who believe he is innocent and fear he will be executed because of a legal technicality.

“He’s not some monster as he’s been depicted,” she said.

Bremer said that Will had had an abusive childhood and that his father was murdered when he was a boy.

Will had his run-ins with the law, she said, but he was beginning to turn things around.

“He just chose the wrong friends,” Bremer said.


Editor's Note: An earlier version of this story mis-stated the circumstances surrounding the removal of Leslie Ribnik from the from the list of approved death penalty defense lawyers. Ribnik asked to be removed from the list; he was not removed because of poor performance.

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