Written By: Billy Sinclair
Has an innocent man ever been executed in America post Furman v. Georgia?
There is no clear cut, absolute evidence that such has occurred; no posthumous exoneration. But common sense, human experience, and the very nature of the American criminal justice system inevitably leads most of us to believe innocent person(s) have been put to death, especially in the State of Texas. The Death Penalty Information Center reports that since 1973, a total of 140 death row inmates have been exonerated. From 1973 through 1999, there was an average of 3 death row exonerations per year, and that number increased to 5 between 2000 and 2011.
If 140 innocent condemned inmates were rescued from the death penalty, how many were not so lucky? One, half-dozen, a dozen? The number is really not important. We know in our hearts that innocent persons have been railroaded to death row and put to death. That is the fatal flaw inherent in the death penalty.
But many people in this country, particularly in Texas, are not really concerned about the prospect of an innocent person having been executed. Collateral damage in the “war on violent crime,” they believe. And, more to the point, they have heard too many condemned inmates protesting their innocence till their last breath when the evidence of guilt against them was overwhelming.
Take Keith Thurmond, for example. He was executed on March 7 in the Texas death chamber. Thurmond had been convicted of killing his estranged wife and boyfriend in a “fit of anger” after losing custody of his 8-year-old son, reported the Houston Chronicle. With tear-filled eyes, Thurmond stared at his former wife’s relatives and claimed, “I swear to God I didn’t kill her.” He insisted his that wife, who was shot seven times, was “slain by another man.” He didn’t mention anything about the boyfriend who was beaten before he was fatally shot.
But, as the Chronicle reported, the evidence of guilt was compelling. After sheriff’s deputies served him at his Magnolia mobile home with court orders transferring custody of his son to his wife, Thurmond became enraged. He put on a black karate outfit, picked up a pistol and a sword, and despite being advised by a friend to let the court handle the custody dispute, Thurmond walked across the street and brutally murdered his wife and her lover. Then he fled back across the street to the mobile home he shared with a brother and cried out: “I messed up, I messed up!”
Thurmond had real “anger” issues when it came to women. He had a history of physically abusing his wife. And while in jail he was disciplined for threatening a female deputy, saying: “I can snap her neck. What are they going to do, kill me twice?” He exhibited some of that anger in the death chamber when he told his wife’s relatives: “It makes me sick for you to look at me like that.” He then told the authorities, “go ahead and finish it off.” The last words he spoke after the lethal cocktail was administered: “You can taste it.”
Thurmond was not innocent. He killed his wife and boyfriend. I guess he protested his innocence as a final act of any rebellion.
Then there’s the case of Texas death row inmate Rob Will whose claim of innocence was featured earlier this month—four days after Thurmond’s execution—in the Texas Tribune. Here are the indisputable facts in the Will case. Will and Michael Rosario, both of whom had criminal histories, were stealing parts from a vehicle near a Houston bayou in the early morning hours of December 4, 2000. After two sheriff’s deputies, Barrett Hill and Warren Kelly, arrived at the scene, Will and Rosario bolted in different directions. Hill gave pursuit after Will while Kelly took off after Rosario. Shortly thereafter Hill radioed he had Will in custody after which Kelly radioed that he had lost Rosario. The Tribune reported that eight seconds after Hill’s radio report, “the radio recorded gunfire, gasping sounds and more gunfire.” Hill’s body was found a half-hour later along with seven spent shell casings. He had been shot in the head and face.
Will was convicted of capital murder in 2002 and sentenced to death. While no one witnessed Will shoot Hill and there was no physical evidence that connected him to the deputy’s killing, Deputy Kelly saw Will fleeing into a nearby apartment complex moments after Deputy Hill was shot. Will ran up to a parked vehicle in which a woman was sleeping, put a pistol to her neck, and told he had “just shot a policeman” before stealing her car. Will was apprehended 90 miles from Houston near Brenham. He was bleeding and in possession of a pistol.
Will’s claim of innocence rest on the theory that once Rosario eluded Deputy Kelly, he circled back where he found Deputy Hill arresting Will. Rosario reportedly shot Hill and freed Will.
There’s some evidence to support this theory. Will’s former girlfriend last year testified that Rosario showed up at her apartment with blood on his pants and shoes. He reportedly told her he had shot Deputy Hill and tried to shoot the handcuffs off Will. Three other witnesses have also come forward to say that Rosario, the son of a Houston police officer, confessed to them that he, not Will, killed Deputy Hill. Will also claims that Rosario killed Deputy Hill.
Rosario was never charged with anything connected to Deputy Hill’s murder. He was charged with stealing parts from the vehicle. Prosecutors dismiss Will’s claim of innocence, saying the new witnesses are not “credible” And Rosario didn’t have time to circle back and kill the deputy. The attorney who represented Rosario on the car parts theft case and who conceded Rosario is “no saint,” has said that never once indicated did Rosario any involvement in the Deputy Hill killing.
This past January a federal district court judge said that while he had serious concerns about Will’s claim of innocence, his hands were tied by a longstanding rule that a claim of innocence, standing alone, is not a basis for habeas corpus relief; and, thus, he could not address the issue.
I don’t know if Will is guilty or not of killing Deputy Barrett Hill. But I do have four problems with his claim of innocence. First, it defies everyday logic and experience that a petty criminal like Rosario, who had eluded Deputy Kelly, would circle back and kill a police officer to free his car parts theft cohort. Second, the former girlfriend did not immediately report Rosario’s behavior and confession to the police in 2000; and, more to the point, why would Rosario even go to Will’s girlfriend and confess to killing a cop when Will himself did not go to her. Third, Rosario’s “confession” to a former cellmate could be the result of one or two things, or both: 1) Rosario was bragging to another petty thief in jail in order to build up his “creds” as someone not to be “messed with” or 2) being the son of a police officer, he wanted other inmates to know that he “hated cops” as much as they did because he killed one. And, finally, only 8 seconds passed after Deputy Hill radioed he had Will in custody before the gunfire broke out. Because Rosario and Will ran in different directions, how did Rosario know where Will and Hill were? How did he circle back so quickly?
That said, there are some troubling aspects about the Will case. The pistol Will was carrying when arrested was not the weapon that killed Deputy Hill. And why didn’t the police conduct a gun residue test to determine if Will had recently fired a gun? And why didn’t the State indict Rosario under the “law of parties” – both Will and Rosario were involved in the crime to which Hill/Kelly responded to. It made no difference which one of them fired the fatal shot that killed Deputy Hill. Both were equally culpable in deputy’s death under the “law of parties. And why didn’t the State call Rosario as a witness against Will? They could have questioned him about his role in the car parts theft, forcing him to admit he had nothing to do with Deputy Hill’s death. That would have indirectly pointed a finger of guilt as Will.
Thurmond’s case is easy to call. Will’s case, on the other hand, is not so easy, A combination of bad prosecution and incompetent police work cast serious doubts about his guilt—just as the federal judge observed.