HOUSTON (CN) - Texas prosecutors illegally withheld evidence that exonerates a man who has been on death row for 13 years for the murder of a sheriff's officer, he claims in a federal habeas petition.
A Harris County jury convicted Robert Gene Will II, 37, of capital murder in January 2002 for the shooting of sheriff's Officer Barrett Hill. The trial court sentenced him to death.
Will, whose execution date has not yet been set, exhausted his state habeas claims on Nov. 25, prompting him to file the federal claim on Nov. 27. A grant of habeas relief requires those detaining an inmate to justify the detention in court.
According to the case record, Officer Hill and another officer responded to a report that several men were breaking into cars at a Houston apartment complex around 6 a.m. on Dec. 4, 2000.
In the parking lot, they encountered Will and his childhood friend, Michael Rosario, both of whom ran into a wooded field.
Relying solely on circumstantial evidence, Harris County prosecutors persuaded a jury that Will fatally shot Hill 10 times as the officer tried to detain him in the field.
Prosecutors said the autopsy showed Hill suffered a gunshot to his wrist consistent with Will firing up at him from the ground.
The Harris County District Attorney's Office produced documents in September 2012 that prove Rosario is the killer, according to Will's petition .
"The first was a Harris County Sheriff's Office document dated December 5, 2000, which reveals that the county jail was holding Michael Rosario in 'administrative separation' because Rosario had solicited inmate David Cruz and the Texas Syndicate prison gang to 'make [a] hit on co-def. Robt. Will,'" the petition states. (Brackets and abbreviations in petition.)
Will claims Rosario wanted to kill the only witness to his crime.
Will's defense team got Cruz to back up that police document with a sworn affidavit in 2013 in which Cruz stated, "Rosario not only solicited Mr. Will's murder from the Texas Syndicate but also confessed to shooting Deputy Hill during a trip back from court with Cruz," according to the habeas petition.
Will claims the District Attorney's Office also produced a report from Harris County sheriff's Officer Patricia Schifani, wherein she claims that as she escorted Rosario back to jail from court three days after the murder, Rosario looked at the "mourning badge cover" she was wearing in honor of Deputy Hill.
According to the report, Rosario stated: "'Do you know why you are wearing that? ... I am part of the reason you are wearing it, do you know who I am?' Rosario then 'pointed to his armband caution text which indicated '*PROTECTION*' and said, 'I'm high-profile! Do you know who my father is?'"
Will's attorneys claim Rosario boasted to Cruz and Schifani that "he believed he was untouchable because his father was a police officer" with the Houston Police Department.
Will claims prosecutors violated his rights established by Brady v. Maryland, a 1963 case in which the U.S. Supreme Court held that prosecutors' withholding of exculpatory evidence, whether deliberately or not, violates due process.
The case is before U.S. District Judge Keith Ellison, who denied Will's habeas petition in 2010, but stated in an order denying Will's motion for a new trial that he had misgivings about the prosecution's "total absence of eyewitness testimony or strongly probative forensic evidence."
Will appealed to the Fifth Circuit, which remanded to Ellison for reconsideration in light of the Supreme Court ruling in Martinez v. Ryan , in which a 7-2 majority of the high court expanded federal habeas review of ineffective counsel claims, in 2012.
Will's case was delayed again in August 2013 when Ellison granted his motion to stay pending the outcome of his third state habeas petition.
Despite the new evidence, which Will cited in his third state petition, the Texas Court of Criminal Appeals denied his claim two days before he filed his federal habeas case.
A Harris County District Attorney's Office spokesman said the federal petition is just a rehash of Will's state claims.
"On November, 25, 2015, the CCA denied relief on Robert Gene Will's habeas claims of actual innocence, prosecutorial misconduct/Brady for withholding exculpatory evidence, and ineffective assistance of counsel. On November 27, 2015, habeas counsel again urged those claims in a habeas petition filed in federal district court. We have no other comment," Jeff McShan said in an email.
Based on the new evidence, Will asked Ellison for a hearing on the merits and relief from his conviction and sentence, alleging violations of the Fifth, Sixth, Eighth and 14th Amendments.
He is represented by Jason Ewart with Arnold & Porter in Washington, D.C. and Samy Khalil with Quinn Emanuel Urquhart & Sullivan in Houston.
Khalil did not respond to an email and phone message seeking comment Tuesday.
Texas has executed 12 inmates this year, more than any other state.
Follow @cam_langford
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