Around six a.m. on December 4th, 2000, Rob Will and a Houston cop son, Michael Allen Rosario, were stripping hubcaps in North Houston, went to Harris County, deputies rolled up and they gave chase to a nearby apartment complex. Deputy Hill followed. Robb and Deputy Kelly chased Rosario just around the time that Deputy Hill radioed in that he had Rob in custody. Deputy Kelly lost sight of Rosario and then about a minute later, Deputy Kelly heard gunshots coming from a little over 100 yards away.

Michael Allen Rosario had shot and killed Deputy Hill, and Rosario also shot Rob Wells left hand and freedom from his cuffs. Rob and Rosario separately fled the scene. Rob boosted a car only to be pulled over and arrested peacefully about an hour northwest of Houston. Meanwhile, Michael Allen Rosario fled to Rob's girlfriend's apartment, where he is said to have had blood on his clothing and washed up in the sink. At trial, the prosecution muddied the details about how much time Rozario had had to return to the scene and murder Deputy Hill, which would have made Rod the only possible culprit at the scene, despite the physical evidence to the contrary.

Rob was convicted of capital murder and sentenced to death. One of Rob's appellate attorneys, Sami Khaleel, tells me now about the evidence that they've uncovered, as well as the progress in Rob's fight for freedom. This is wrongful conviction with Jason Pflaum. Let me tell you about a podcast that I'm addicted to, it's called Labyrinths and it is hosted by two of my favorite human beings. Might I call her my little sister, Amanda Knox, and her partner, Christopher Robinson.

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Welcome back to Wrongful Conviction with Jason Pflum, that's me. I'm your host, and today we're going to discuss a case that has been a passion of mine for a long time, the case of Robert Jean. Well, we'll be joined by his highly esteemed appellate attorney, Sammy Khaleel. But first, let me take you back to death row in Texas, the Polunsky Unit, where I had a chance to speak with Rob in person. Hey, Rob, thanks for sharing your story with us.

Thank you. So let's go back to way before all of this happened. Tell us about you as a child.

Oh, man. Kind of a quiet type of child who like to relax.

And how was it growing up? I mean, how was your home life? Oh, I kind of grew up around town. I mean, you know, my dad was murdered. I mean, he'd been in and out of prison before his murder. Yeah, I was really just good.

So just before all of this happened, what were you doing with your life?

I was going in my seven year college for child psychology and I was taking care of my son. That was one of my main focus is to take care of my son and his Half-Brother. One of the reasons I went to school college for child psychology, because I was like, OK, I grew up in an evangelical Christian zone and tax and household. You didn't talk about problems. You didn't talk about emotion. You didn't talk about issues. I mean, we just never had anyone to talk to.

Like even after my dad was murdered, I didn't talk to anyone at all about it. And, you know, do you kind of realize how bad it is? And I wanted to get a degree in child psychology, OK? I could help children who didn't have anyone to talk to. And I always told myself I'm going to be there for my son.

And how old was your son when this tragedy happened?

He was less than a year old. I was very active, although, I mean, I took care of him, change his diapers, pay them. I manage our society a lot, don't. I took care of his half brother, who was four or five.

So you were going to school being a good dad, but you were also involved with some not so great people. I mean, in fact, you were scaring up some extra cash by stripping hubcaps in North Houston with the son of a Houston cop named Michael Allen Rosario on the morning that Harris County Deputy Barry Hill was murdered.

OK, I was doing stupid stuff hanging on, idiot people even on and commit this murder. No, I'm responsible for engaging in activity that I should've known clearly the bad things. Then I'd be taken away from my son.

Today we have with us Sammy Callil, Sammy is a former assistant federal public defender and he's also a member of the Federal Bar Association, the National Association of Criminal Defense Lawyers, the Harris County Criminal Lawyers Association. He's also a fellow of the Texas Bar Foundation and a board member of the Texas Defender Service. And of course, for quite some time now, he's been a part of the legal team, including Jay Nuart and Karen Otto from Arnold and Porter and two local Houston attorneys, Chad Flores and out of Darnell.

And they're all working together to have the truth come out and free Rob. Well, so, Sammy, welcome to wrongful conviction. Thank you, Jason. And you and I have had the opportunity to spend some time together. Of course, we were on Dr. Phil's show together talking about this very case. And, of course, it starts with Rob Will's unbelievably tragic childhood, where he was abused terribly. His father was murdered when he was 10, right?

That's right. He was in and out of trouble as a kid. This happened when he was twenty one. He was arrested in December of two thousand and has been on death row essentially for the last two decades. What we know happened, Rob and Rocky, Michael Allen, Rosario's nickname, were stripping down like the hubcaps of a parked vehicle in an apartment complex in North Houston, six a.m. December four, sun barely rising and a patrol vehicle arrives at the scene.

Deputy Michael Kelly was in that patrol vehicle and also the deputy there. When they arrived, Rob and Rosario run behind several units of the apartment complex. There's kind of like a grassy alleyway they are. Chase Deputy Hill follows Rob. Deputy Kelly follows Rosario. Now Rob takes a hard left through an opening between two apartment units. Rocky does the same thing, but at the next open and they both proceed in the same direction. On either side of this apartment, they both cross the street.

About twenty seconds later, the dispatch tapes show that Deputy Hill had Rob in custody. He radios into the dispatch center saying, I have one in custody. It's undisputed that that person in custody is wrong. Meanwhile, Rosario continues down a concrete kind of overgrown driveway in this field that's on the other side of the street that they both crossed. And Deputy Kelly, he admitted that he lost sight of Rosario at some point after Rosario entered the concrete driveway.

And we believe after Rob was placed in custody by deputies, that Michael Allen Rosario reached the end of that overgrown driveway, took a left and proceeded back to the area where Rob was handcuffed and in custody, murdered Deputy El Friede rob of the handcuffs and they both fled.

And we know that Rob was shot in the process in his left hand. There's no question about that. Rob's third and fourth knuckle, maybe the fourth and fifth knuckle of his left hand, was essentially blown off.

Immediately after the tragic, senseless murder of Deputy Hill, Rosario went to Rob's girlfriend's home, where he washed his clothes. He'd later removed names and numbers from his address book. I mean, come on. He went on to confess to no less than five separate people who later all every one of them signed a sworn affidavit.

And it gets worse from there. When Rosario's family was asked to produce the clothes he had been wearing on the morning of the crime, the clothes have been washed, bleached and neatly folded.

These are not the actions we typically would associate with someone who was innocent. So back to the morning of the murder, Rob Broussard, a car to get away. Now, obviously, that's illegal and he doesn't dispute that, but it doesn't make him a murderer. In fact, he was pulled over about an hour northwest of Houston in Brenham, Texas. He was compliant and peaceful toward the arresting officers. The prosecutors had created this narrative like, you know, look how we acted afterwards.

But they don't even want to talk about the actual physical evidence. In my case, I think it's very important. How did you act afterward? Well, I ran away. I mean, I saw someone get killed. Yeah, I'm running away.

So you're pulled over and arrested. They treat your wounded left hand. They bag your hands and gloves to be tested for gunshot residue. What was going through your mind?

I was pretty much in a state of trauma. Right. You know, very, very disturbing. I didn't get. His statement to police, you know, I kept trying to get me to talk about what happened and who was with me, and I just didn't give any statement. How long were you in jail before trial? About a year and a month.

I mean, Rob, you knew you hadn't killed Deputy Hill, but at the time, did you really think everything was going to work itself out?

You want to think that the system is righteous, the system is honorable. Those people in positions of power are going to do the right thing. I mean, I didn't understand anything about the system as a whole. I wasn't familiar with criminal justice reform movement at the time. I didn't understand problems. They didn't turn over some of the physical evidence. In my case. They waited a year and month until the day before trial. And just take a look at the physical evidence.

I mean, just like some of the things are so, so ridiculous, it's just obvious and self evident.

So let's talk about the physical evidence available at trial. None of Deputy Hill's blood was found on Robb or his clothing, the same clothing from the scene that he was arrested in. When Rob was arrested, his wounded left hand was treated and his gloves and hands were back to be tested for gunshot residue. Now, as per Josh Steuben's junk science episode about gunshot residue, which I strongly recommend, one cannot conclude that the presence of antimony or barium or other elements associated with gunshot residue directly mean that a gun was fired or not.

It just means that those elements are present. But the source really cannot be determined. It could be cigarette ash and certain mechanical equipment, even dried urine as well as gunshots. Of course, those things and others can all be a potential source of some of these elements. However, if none of those elements are found at all in a suspect's hands or gloves, it can be said with certainty that a gun had not been fired by that person's hand.

It appears to be the state's theory was the state's theory at the time of trial that Rob had this firearm before the murder, somehow after being handcuffed, during the process of being handcuffed, shot himself, handcuffed, injured himself and somehow miraculously freed himself of these handcuffs. The problem with that theory is that no gunshot residue was ever found on Rob's right hand at all.

So without gunshot residue on the right hand glove or his right hand, the one he would have needed to shoot his own left hand, obviously, it can be said with certainty that he had not fired the gun at all. Deputy Hill had not even holstered his gun, let alone fired it. So someone else was at that crime scene firing a gun. The ballistics evidence showed that Deputy Hill had been shot as close as eight inches away. Had Rob shot Deputy Hill from that range, Rob would have been covered in Deputy Hill's blood.

This was not the case. Rob did not have a speck of Deputy Hill's blood. So obviously someone did shoot Deputy Hill. But all evidence points away from Rob and towards Rozario, who by eyewitness accounts had washed blood off of his clothing and Rob's girlfriend sinc. So how in the world did the prosecution pin this on Rob?

What else did they present? The dispatch records are critical. The state said that we're sorry. Based on its analysis of the dispatch records only had about eight seconds to cover about three hundred feet. One hundred yards, call it almost a football field. The state's position was that Rosario is not an Olympic athlete, that he can't cover that distance about three hundred feet in eight seconds. But in fact, a careful review and analysis of the testimony at trial matched with the dispatch records that were presented at trial, show that Rosario had at least anywhere from forty four seconds to a minute.

Twenty six seconds in between to reach the scene of the crime. So that was not articulated well at trial. And what's critical is that Deputy Kelly in the state suggested that Rosario went right, went to E at the end of that driveway, although Deputy Kelly has since walked back those initial intimations and at trial admitted that he didn't know that he lost sight of where Rosario actually went. But what was not presented at trial was this critical bloodhound dog tracking evidence that traced the scent of Michael Rowland Rosario shortly after the murder of this concrete driveway and instead of to the right.

Which was the state's theory e the bloodhound tracked hard west to the left directly to the crimes that was not presented to the jury. Right.

And so since these and so many more critical pieces of evidence, some of which were hidden by the prosecution, others simply not investigated by Robbs counsel at trial, since this evidence was not presented to the jury and since Rozario couldn't possibly have made that distance in eight seconds, we know that no human being could. Then, despite all other evidence making Robbs guilt impossible under this false narrative, Rob was the only one the state was placing at the crime scene.

And we know in a case like this, someone had to answer. Someone had to pay for Deputy Hill's murder. And that point was really driven home by what is known as the wall of blue. Can you talk about that?

Sure, absolutely. The Harris County Sheriff's Office put out a bulletin for Harris County sheriff's deputies to appear in uniform at Robbs trial, not to offer evidence, but to appear as spectators. So imagine if you are such a juror sitting to pass judgment on a person whom the district attorney's office believes killed a police officer to have a wall of blue in the trial room. It sends an unmistakable message that we know who pulled the trigger had nothing to do with evidence, everything to do with creating an atmosphere of prejudice and intimidation.

So there you are in the courtroom, still healing from being shot in the hand, a gunshot wound that the lack of gunshot residue proves conclusively that you could not have inflicted one yourself. The prosecution muddied the water around how much time Rosario had to get back to the crime scene and shoot Deputy Hill from behind, along with a mountain of exculpatory evidence that was either unknown, uninvestigated or most importantly, hidden at the time of trial. Plus, the wall of blue, you were sentenced to death.

Can you tell us about that moment?

I mean, it was sentence, pronouncement of death. Thinking back, it's just you feel like you're out of time, out of space. And this isn't real. It's like this. This can't be happening. This you know, this is not real.

So you've been locked up since December 4th of 2000 and eventually you were sent to death row. What have you been doing all this time to occupy your time and keep your mind sane?

Oh, man. I do a lot of reading, yoga and meditation, work on art.

And I encourage our audience to check out some of Rob's work. We did a show in New York with some of his artwork to support his legal battle. Just follow the link in the episode description to check it out. Free Rob Will. Doug, is the website Free Rob? Will Doug. Now, Rob, when you got here, your son was just barely two years old. Have you at least gotten to see him?

Oh, well, I didn't have a lot contact with him because some of my relatives didn't let me have a lot of direct contact with him. So I'd write him and hope that it would get to him. Some of them did, but we didn't have a lot of contact until he got older. He came to see me after he turned 18 and I was just like, wow, man, you know, he's like six foot.

I was I was 12 years. I was 13. I stand up. He's like, right here. I'm like, oh, wow. OK, wow.

That's you know, he's almost as tall as me. And it's just I was a man, you know. I mean, he's he's he's a man. A kind of emotional talking about this. You know, you say me first time I home my son, I was just in tears. And that's when I burst into tears. I actually just became grandpa. Kind of most was questioning it.

Well, it was just if you get to see him, you know, I have kids myself and the thought of not being able to be physically with them.

There have been times where for some years when I first got here very, very, very hard. And people care about out there that I know I could be a positive influence in her life was out there and worrying about that can be disturbing, to say the least, to start. But really, I mean, I went through a period where I did a lot of study in religion and psychology and psychoanalysis and yoga and mind body health. I mean, I spent weeks and weeks and weeks doing these things like, you know, spend four or five months on one yoga pose, really internalizing the meaning.

And one of the things to be mindful teaches you is like, OK, analyze events, perspective. This is not happening to me. This happened in a larger context is one reason why I always feel compelled to engage in somewhat chrom just form activity because, OK, it's not about just me. It's like I feel compelled to speak out about that and to work on criminal justice reform, you know what I mean?

Yeah. You've gotten a paralegal degree while in here and you've been leading and participating in nonviolent protests. Can you talk about that and how you began down this path?

Well, it came about from very in-depth study, particularly the history of resistance to British imperialism in India. And there's a there's a book, what is it, one hundred years of nonviolent struggle. It's showed me what is possible. And I thought, well, OK, there are guys who do you guys here who aren't law parties who the state will tell you they've never killed anybody, but they're still there's so much bias against criminal defendants in prisoners, especially people on death row.

Well, let's do something different. The idea was to take the theories that were practiced in India and during the civil rights movement here and engage in nonviolent direct action protest to bring some of the issues that criminal justice reform movement is pushing on the outside to the forefront, right from the lens of this environment and also to better conditions here.

So, for example, in the record. Right.

And they come and they handcuff us and take us out and myself and others say, no, we're not coming up. I say, why? I say, well, for numerous reasons. One, you have innocent people here, too. You have many of you people here. You're trying to execute three. We're highly oppressive conditions. And of course, they say, well, we got some food to eat and they bring a SWAT team, I guess you want in there and rescue us.

And also, I mean, do we fear staff members? Yeah, there were a lot of prisoners here, but yeah, they react with violence to nonviolence.

Yeah, I've seen those videos. It's hard to believe that you actually live that.

Oh yeah. They hit me with this. Gas is for racketball. It's for like 20, 20, 30 people you're not using. So they hit me with it and that's why I'm here. I start convulsing, you know. Yeah. I went on for an hour of gas and I almost died, actually. But hey, we're sitting here talking about right now, right? Yes, we are.

And I guess your perspective about death might be a little different from inside here. Do you think about it a lot that you know what?

Yeah, I've made myself I mean, I made myself you got to know more Iraq. But the interesting thing, in various religious schools and Mistick schools, they have sacred rights of like faith. This right. I mean, with Freemason's, they have a symbolic death. It's momentum war. Remember mortality. Right. And I mean, you could wallow in fear and just be let that break. You just seem to go insane. Or you say, all right, what does that mean?

Understanding death. And the conclusion I've come to is like live life, man life. You know what I mean? This is is beauty everywhere. Everywhere, like some chain. John, come to listen to some John Coltrane, how can you be sad listening to John Coltrane?

It's like a mystic sorcerer, you know what I mean? And again, his perspective, a lot of yoga and meditation and well, that sounds like a good formula for survival anywhere, including on the outside.

Do you allow yourself hope for being on the outside again one day?

Oh, man. I've been locked up almost twenty years. I mean, I have faith the right thing will be done. Someone is going to make this right.

So, Sami, how long have you been representing the federal judge here in Texas appointed me in January of 2012 to take over this case, Judge Ellerson described a case containing what he called disturbing uncertainties. And at that time, the federal judge expressed what he called his deeply felt concerns about the substantial evidence of actual innocence on the part of wrong will errors of grave proportions at the initial trial. So that's the situation I found myself walking into when this federal judge asked me to take over Robbs case and look from the very beginning, all the way through the appellate process, what actually has happened.

Can you tell us about the ridiculous state habeas appeal, which is, of course, the round of appeal before you were appointed by Judge Elhassan? Tell us what this appellate attorney did and how damaging it was.

I will. Rob was appointed a lawyer who essentially cut and pasted a brief that he had filed in a different death penalty case into ROPS three. So this lawyer should have done what any reasonably confident state habeas lawyer would do, go back out and reinvestigate the case, look at witnesses that should have been called evidence that wasn't produced. Carefully analyze what's in the state's file. Do the analysis of the timeline that we have now, and then look at the forensic evidence.

Look at Michael Allen. We're sorry to go through the police records, his statements. You would have uncovered multiple lies we're sorry you made to the police, including denying that he'd ever been there, that he even knew that he had handled the gun just before the murder. Rosario's behavior postmark was deeply suspicious in points to consciousness of guilt. For example, he did go back to this apartment the morning of the murder. He told a witness by the name of Natasha Alium that as he was washing his clothes in the kitchen sink of the apartment, he made a statement that the blood just came on.

The DA's office moved the trial court to block that statement from Natasha Alien from coming into evidence for the jury's consideration. That is the evidence that Judge Ellison in the third round of appeals has now pointed to as evidence that should have been presented. That's just one example of Rosario's suspicious behavior after the murder. These are all issues that should have been investigated that we have uncovered since twenty twelve.

So let's just quickly recap some of those issues in evidence that we've already mentioned. No gunshot residue on the glove or hand that Rob would have needed to shoot himself in Deputy Hill. None of Deputy Hill's blood or DNA on Robb, which should have been the case since Deputy Hill was shot at close range. The analysis of the dispatch transcripts and sworn testimony that shows that Rozario had plenty of time to return to the scene and murder Deputy Hill, the bloodhound, tracking evidence that also supports Rob's version of events.

A slew of witnesses who have signed affidavits claiming that Rozario admitted to the murder, as well as the statement from Natasha and claiming that Rosario talked about how the blood just came out of the pants as he was washing them in her kitchen sink. Then there's all of Rosario's lies to the police, which include denying, having been there at all, denying even knowing Rob well and last but not least, denying, having ever touched the gun, only to admit having handled the gun just before the murder.

I mean, this should be more than enough, but there's even more.

We've uncovered a new witness, David Cruz, who says that Michael Allen Rosario confessed to the murder, but that he was going to blame Rob. Well, and we've uncovered the smoking gun. We've discovered police records that show that Michael Allen Rosario approached the Texas syndicate gang and David Cruz to have Rob, well, the only eyewitness to his crime killed after the murder. There's nothing more suspicious than trying to have someone killed post crime. The state of Texas knew about this document.

The district attorney's office knew about this document, but they inexplicably concealed it from Rob's defense team. In fact, pretrial days before the beginning of jury selection, Deputy Strickland, who authored this document, represented to the court under oath that he had no information relating to Rothwell's case.

I mean, why would the authorities. Seeming to protect an individual who, by all appearances, seems to have been the actual murderer of a police officer, Michael Allen Rosario is someone who has been in trouble with the law since a very young age. And seemingly he has been protected. Rosario, before the crime and also after he and Rob were arrested, appeared to believe that his dad was a shield from prosecution. He made statements to jailers, in particular Deputy Patricia Fanni, that he was essentially invincible.

That, too, is another police record or jail record that was never disclosed to Rob's defense team.

Yeah, this is not some fly by night person. This is an actual police official who is prepared to come forward with this very damning evidence.

And what we have been fighting for is a new trial to present all of the evidence that we have uncovered over the last eight years. I understand there's been some progress on that front.

There has been some movement on that front. After a long struggle on August 5th of twenty twenty, the United States Court of Appeals for the 5th Circuit sent the case back to Judge Ellis so he could further explore this key exculpatory evidence that was withheld from Rob's trial lawyers. In fact, they quote him at length in certain parts of their opinion that there are disturbing uncertainties, a total absence of eyewitness testimony or strongly probative forensic evidence and considerable evidence supporting Will's innocence.

And then the Fifth Circuit goes on to say that there were disturbing uncertainties of Will's culpability even before the introduction of the withheld evidence.

Now, with the new evidence in and the uncertainties are even more disturbing, in addition to all of that, the Fifth Circuit stated that Rob Will has now demonstrated that it is reasonably likely that after hearing the new evidence alongside the old evidence, every reasonable juror would have some level of reasonable doubt. Absolutely, and this is some ridiculous game or anything. I want people to really, really realize this, not take the time to look at the evidence because it's about me, but it's about my family and it's about the criminal justice system as a whole.

You know, there are law professors who like academic commentators who say, well, we probably executed four or five innocent people in Texas. That's not OK.

It's not OK. It is not OK. It is not OK at all.

Well, Rob, you're definitely preaching to the choir here. I can't even count the number of times I said this while arguing against people who believe in the death penalty. I mean, how many innocent people is it OK to execute, like, you know, any other innocent guys that are in there with you right now? Well, I'll tell you this.

When I first got here, I thought I was only one. Right. But then, like, oh, wow. Another guy exonerated. Wow. Another exoneration. This is like, just ridiculous, you know what I mean? I mean, one of the things is, like, I read so much and I study so much, I think I always kind of been like that. But it's a compulsion to understand society and understand the system and understand more of the intricacies of life.

And also, I feel for the disproportionate to really let people understand the system and understand how it truly works. And one of the reasons why I'm fighting hard is because I have a vision of doing work. Anthony Graves has done since he's been released anything really good. Do you want to write here five, six years ago? And he is like a shining example of what for an incarcerated, especially those who are exonerated, it should be.

Well, Rob, even if you're not out yet, you have already shown yourself to be that shining example through your artwork, through your spirit, through what you've been able to accomplish from behind bars, not only in the realm of criminal justice and prison reform, but also in just the man that you have become against all odds. So thank you so much for talking to me today. Thank you. We're not here for any reason other than to try to have the truth come out, not just for Rob and for his family, but also for the family of the murdered officer and for his memory.

It was a senseless crime that never should have happened. But Rob didn't do it and he shouldn't be in prison for it. We're going to need all the support we can get from anyone and everyone who can lend their voice to this issue. So if you haven't done so already, please check out the Rolling Stone article about this case and go to free. Rob will dig to learn more. You can also sign a petition for a new trial for Rob at Change, Dawg.

All of these action steps will be linked in the episode by. So just scroll down, learn more and get involved. And Sammy, we have a feature, this show that has come to be my favorite part of the show and I think a lot of the audience shares my feelings on it. It's a segment we call closing arguments and basically it's just where I get to once again, thank you for being here and then turn my microphone off and just kick back, close my eyes and listen to you with any closing thoughts that you want to share.

Well, Jason, thank you again. Thank you for your commitment to criminal justice reform, your interest in the death penalty, reforming, hopefully one day abolishing the death penalty. And thank you in particular for your interest in Robb's case, Dr. Phil.. He deserves a lot of credit. These are not easy cases. We have a slain police officer and people don't want to be associated with that. But what we need is for the truth to come out.

All we're asking, if you're going to seek the death penalty against someone, let's make it a fair fight. Don't hide evidence. Don't conceal evidence. Live up to your obligations. You have to under the Constitution, under the Supreme Court's nineteen sixty three case, Brady versus Maryland turn over, disclose to the defense favorable evidence. Why, if you don't. Innocent people like Ron and on death row. So we need another trial where the jury hears the whole story, not just half of the story.

We need another trial where the DA's office lives up to its constitutional ethical obligations to turn over favorable evidence before the trial, not 13, 14 years afterwards, when the appellate process is so restrictive in terms of what judge can do.

We need to get a new trial. That's fair. That's just where the DA's office plays by the rules where they don't hide. We can see that. Thank you, Rob.

I think that people need to understand that I truly am innocent. In my case, yes. It's about me and my family, but it's also about the criminal justice system as a whole. And everybody needs to to realize the truth of the evidence in my case and also understand it should be a microscope which to examine the intricacies of the criminal justice system.

And I hope people will feel compelled to get involved in criminal justice reform.

Oh, everybody. Go, go, go.

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