Will v. Lumpkin
| Decision Date | 28 March 2023 |
| Docket Number | Civil Action 15-CV-3474 |
| Parties | ROBERT GENE WILL, II, Petitioner, v. BOBBY LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. |
| Court | U.S. District Court — Southern District of Texas |
This Court has a long history with this case. Will filed his initial federal petition well over a decade ago. Throughout the years, the Court has considered various-and evolving-challenges to Will's conviction. 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.” Will v. Thaler, No H-07-CV-1000, Docket Entry No. 88 at 19-20 (S.D. Tex. Jan 17, 2012).
The petition now before the Court renews a theme that has persisted since early days: that Michael Rosario was the one who shot the victim, Harris County Sheriff's Deputy Barrett Hill. Unlike previous legal arguments, however, this theory is now embedded in a constitutional challenge involving the suppression of evidence. In this petition, Will contends that the State violated his due process rights under Brady v Maryland, 373 U.S. 83 (1963), by not disclosing two documents which implicate Rosario as the true killer.
The merits of Will's Brady claim are not before the Court in the current procedural posture. 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. The Court will also address the pending motions in this case.
Judicial opinions have repeatedly told the story of Deputy Hill's murder.[1] With robust factual discussions already provided elsewhere, the Court now gives only a concise summary of the crime which led to Will's capital conviction. In doing so, the Court recognizes that, while “the record is not devoid of evidence supporting Will's conviction,” it also “reflects anything but a slam dunk.” In re Will, 970 F.3d 536, 546 (5th Cir. 2020). The jury considering the charges against Will certainly had sufficient evidence to find him guilty beyond a reasonable doubt, but time has proven that the “evidence establishing Will's guilt is assailable.” Id. at 546.
At around 6:30 a.m. on December 4, 2000, police received a report of men breaking into a vehicle at an apartment complex. When Deputy Hill and his training officer, Deputy Warren Kelly, responded to the call, they found two men standing outside. The men appeared to be removing parts from vehicles. As Deputy Kelly pulled the police cruiser up to them, the men ran in different directions. Deputy Hill chased one man now known to be Will. Deputy Kelly called for backup as he chased the other man-now known to be Michael Alan Rosario-in the opposite direction. A few moments later, Deputy Hill lay dying from gunshot wounds.
No one witnessed the murder of Deputy Hill. Since his death, both the State and the attorneys representing Will have examined the minutia of the moments surrounding the event, finding clues as to who fired the killing shots. As time has progressed, so have the challenges Will has made to the timeline of events propounded by the State at trial. Tracing the history of those challenges leads to the claim in Will's most-recent habeas petition.
The Fifth Circuit recently placed the trial evidence into two categories: evidence which supported Will's guilt and that which raised reasonable doubt. Will, 970 F.3d at 544-46.[2] This Court will likewise consider first the evidence of guilt before turning to the evidence supporting the defense.
Strong evidence pointed to Will as the killer. The two police officers chased the men in opposite directions. Not long after giving chase, Deputy Hill announced over the radio: “I've got one, in custody.” A minute later, the suspect (Rosario) that Deputy Kelly had been chasing disappeared around a tree. When Deputy Kelly lost sight of Rosario, he was running in the direction away from Deputy Hill. Deputy Kelly then radioed that he “lost him on the bayou[.]”
Eight seconds later, gunshots sounded over the radio. Deputy Kelly heard between five and seven gunshots. The police radio broadcasted gasping sounds. Soon after hearing the gunshots, Deputy Kelly saw Will run from the area.
Deputy Kelly tried to find his partner. When other units arrived, they joined in the search. It took about half an hour to find Deputy Hill's body. A medical examiner testified at trial that Deputy Hill's injuries was consistent with gunshots fired from above. The police found handcuffs on the ground but the keys still on Deputy Hill's body. Will's blood was on Deputy Hill's right boot.
Respondent has summarized how the State wove that narrative into a case for Will's guilt:
The prosecution's theory at trial was that Hill had Will on the ground, and in a moment of vulnerability when Hill went to get his handcuffs, Will fired his gun at Hill from the ground. Having accidentally shot his left hand in the process, Will's blood dripped onto Hill's boot, as Will towered over Hill's body on the ground to fire the three final (and fatal) shots.
The prosecution supported this theory with testimony describing events after the murder. A woman named Cassandra Simmons testified that a man stole her car at gunpoint soon after the shooting. Ms. Simmons identified that man as Will. She testified at trial that Will had said: “I just shot a policeman.”
When police eventually apprehended Will in Ms. Simmons' car (with different license plates) several hours later, he had the murder weapon in his waistband. The police found gunshot residue on Will's left hand and on a glove in the car. He had a wound on his left hand from the same gun that had killed Deputy Kelly. Will's clothing appeared to have been stained by bleach.
But, as noted by the Fifth Circuit, not all the evidence pointed toward Will's guilt. The circumstances of the murder raised serious questions that do not have easy answers. Deputy Kelly had lost sight of Rosario before the shooting. No one could account for Rosario's actions for a brief period afterwards. Deputy Kelly was initially wrong about which direction he saw Rosario running. Police found Rosario's jacket and pants around 700 feet to the east of Deputy Hill's body.
Before shots rang out, Deputy Hill had reported that he had “the tall one . . . in custody”-apparently meaning that Will was handcuffed or otherwise under police control. All along, the defense has argued that it would have been difficult for Will to have shot Deputy Hill while “in custody.”
Circumstantial evidence which pointed to Will's guilt was not unassailable. Ms. Simmons reported that Will claimed to have shot a policeman, but she did not tell the prosecution that story until thirteen months after the murder. No forensic evidence concretely established how Deputy Hill had been shot. The medical examiner could not say with certainty how Deputy Hill had been shot or how many shots were fired. Forensic evidence was possibly consistent with Deputy Hill being shot from behind while handcuffing Will. All the gunshots were fired from more than two feet away.
A police photographer could not remember if the handcuffs were open or closed when he approached the scene. Will's blood on Deputy Hill's boot was not conclusive evidence of guilt-it could have landed there when Will was shot in the hand. The police could not find any of Deputy Hill's blood on Will. Evidence about bleach was not irrefutable, particularly because the police never tested Will's clothes for chemicals.
Weaknesses in the State's case were not lost on Will's trial attorneys. In addition to pointing out many deficiencies in the evidence, Will's trial attorneys crafted a defense that pinned the murder on Rosario. Will's trial arguments for innocence focused on the evidentiary blackout period from when Deputy Kelly lost sight of Rosario to when gunshots rang out. Will argued that this time-which he then gauged to be eighty-seven seconds-was sufficient for Rosario to have committed the murder. Tr. Vol. 26 at 11819.[3] Will interpreted available evidence in a manner which would place Rosario in proximity to the killing. Will argued that he could not have shot Deputy Hill if restrained and in custody. Will has also challenged forensic evidence including the gunshot residue found on one of his hands and the blood found on various items.[4] Will tried to undercut Ms. Simmons' testimony because she did not tell the police officers about Will's statements until soon before trial. Tr. Vol. 25 at 205-07; Tr. Vol. 26 at 73-76, 91-104. Importantly, Will argued that Rosario's statements and actions after the murder showed evidence of his guilt. For example, Rosario's girlfriend said he was nervous soon after the murder. Rosario told her “not to say anything to the cops about him because they could trace it back to what him and [Will] have done.” Tr. Vol. 25 at 180-6, 193, 199.
“As the centerpiece of Will's defense, Harris County...
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