Federal Judge Expresses Frustration at Procedural Constraints in Possible Innocence Case

In a case high­light­ing con­gres­sion­al lim­i­ta­tions on the fed­er­al judi­cia­ry’s abil­i­ty to redress mis­car­riages of jus­tice, a Texas fed­er­al judge has denied relief to a death-row pris­on­er who the court believes was denied a fair tri­al and may well be innocent. 

U.S. District Judge Keith P. Ellison (pic­tured) wrote on September 26, 2018, that he ​“would almost cer­tain­ly have grant­ed” a new tri­al to Robert Will, but the ​“con­straints” imposed by 1990’s‑era amend­ments to fed­er­al habeas cor­pus law left the court ​“pow­er­less to address” what he called ​“the trou­bling pos­si­bil­i­ty of [Will’s] actu­al inno­cence.” Ellison’s rul­ing urged the U.S. Court of Appeals for the Fifth Circuit to address Will’s claims, say­ing that his deci­sion was a ​“tech­ni­cal rul­ing” that should not ​“obscure the extra­or­di­nar­i­ly sig­nif­i­cant issues that the Court of Appeals – unlike this Court – can properly consider.” 

In a tri­al in a Houston court­room packed with uni­formed police offi­cers, Will was con­vict­ed and sen­tenced to death for the December 1999 mur­der of Harris County Sheriff’s Deputy Barrett Hill. Investigators found no gun­shot residue on Will and a foot­print at the crime scene didn’t match his; Will claims that he was hand­cuffed when Deputy Hill was shot. 

Five wit­ness­es lat­er came for­ward with infor­ma­tion that Will’s co-defen­dant had con­fessed to the crime, and addi­tion­al evi­dence came to light dur­ing the habeas cor­pus pro­ceed­ings that raised ques­tions about a pros­e­cu­tion wit­ness. However, Will’s state post-con­vic­tion lawyer, whose con­duct Ellison said ​“appears to have been severe­ly com­pro­mised by seri­ous health con­di­tions,” failed to inves­ti­gate and raise those issues. 

Will’s case is also one of numer­ous Harris County death-penal­ty cas­es in which state judges adopt­ed word for word the fact-find­ings pro­posed by the pros­e­cu­tion.

Ellison said that, but for the lim­its on habeas review, he ​“would almost cer­tain­ly have grant­ed relief” on Will’s claim that ​“the pres­ence of numer­ous uni­formed law enforce­ment offi­cers at his tri­al cre­at­ed an uncon­sti­tu­tion­al­ly coer­cive envi­ron­ment for the jury.” Ellison added: ​“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. … The Court very much wish­es it could take up all of these issues with­out the con­straints of habeas review. With few­er con­straints, the Court of Appeals can per­haps give these issues the time and atten­tion that they mer­it. Nevertheless, this Court lacks juris­dic­tion to explore the trou­bling con­cerns that plague Will’s capital conviction.” 

Patrick McCann, for­mer pres­i­dent of the Harris County Criminal Lawyers Association, said that Will’s case demon­strates that “[e]verything in the state pro­ce­dure is inad­e­quate and has been inad­e­quate for the last three decades.” He called the require­ment that fed­er­al judges defer to state court deci­sions ​“an absolute joke.” 

Ellison’s com­ments echo those of retired Ninth Circuit Judge Alex Kozinski who wrote in 2015 that Congress’s amend­ments to the habeas cor­pus law ​“abrupt­ly dis­man­tled” fed­er­al judi­cial review as a ​“safe­ty-valve” against injus­tice and ​“pret­ty much shut out the fed­er­al courts from grant­i­ng habeas relief in most cas­es, even when they believe that an egre­gious mis­car­riage of jus­tice has occurred.” Instead, he wrote, fed­er­al courts ​“now reg­u­lar­ly have to stand by in impo­tent silence, even though it may appear to us that an inno­cent per­son has been convicted.”