Witnesses have testified that another man confessed to Deputy Hill’s murder. But in a January ruling, U.S. District Court Judge Keith Ellison lamented that even though he was concerned Will could be innocent, he had to deny his motion for a new trial.The federal case mentioned is Martinez v. Ryan, which has been heard at oral argument (see the transcript [pdf]) but not yet decided. See SCOTUSBlog's page on the case, where the "plain English" description of the case reads: "Ordinarily, criminal defendants have a constitutional right to have a lawyer appointed to represent them at their trial and during their direct appeal, but not during any subsequent post-conviction proceedings. When a state system only allows prisoners to argue that their lawyers were inadequate during post-conviction proceedings, does the defendant have a right to appointed counsel during that proceeding?"
“The questions raised during post-judgment factual development about Will’s actual innocence create disturbing uncertainties,” he wrote. “Federal law does not recognize actual innocence as a mechanism to overturn an otherwise valid conviction.”
Will’s best chance for a new trial may lie with an Arizona case that the U.S. Supreme Court is soon expected to rule on. States across the country are anxiously awaiting the ruling, which could establish that defendants have a constitutional right to adequate appellate lawyers. For some states, that could require major spending on court-appointed lawyers for thousands of convicts.
Texas Attorney General Greg Abbott signed on to an amicus brief (pdf) opposing the right to counsel in such cases, while the Innocence Network, of which my employers at the Innocence Project of Texas are a member, issued an amicus brief (pdf) on the other side.
Setting aside the legal merits of the case, IMO there's a strong policy argument for providing counsel for more post-conviction writ claims. Quite honestly, habeas litigation is such a mess, with so many badly crafted pro se filings clogging the docket, it might relieve the courts and make the system a lot cleaner if counsel were appointed to do one serious habeas claim instead of a bunch of petty ones that the prisoner either writes up on their own or barters for some untrained writ writer to prepare. The Court of Criminal Appeals get thousands of habeas claims each year, and state laws limiting so-called "subsequent writs" (intended to reduce post-conviction litigation) mean that, if pro se litigants don't get it right the first time, often they don't get another chance later if and when an attorney tries to take a more serious shot.
In Will's case, it seems like he really did have ineffective counsel. Wrote Grissom: "In Will’s first appeal, his state-appointed lawyer, Leslie Ribnik, filed a 29-page boilerplate court document that had little application to Will’s case. Ribnik defended his work, but in 2006, the Texas Court of Criminal Appeals removed him from the list of approved death penalty defense lawyers."
Providing indigent counsel for habeas writs - particularly those alleging ineffective counsel in their original proceedings, but really in most cases - would make the habeas process more of a truth seeking endeavor. In the current process, as in Will's case, too often procedure trumps substance, focusing on the bureaucratic exercise of seeking out errors by non-lawyers as an excuse to dismiss writs as rapidly as possible, if only in order to make a dent in the ever-expanding pile.
Like the pardon power, 21st century habeas corpus has been largely denuded of its ability to fulfill the function the Founding Fathers envisioned for it in the 18th. When a federal judge can write in a capital case, truthfully, that “Federal law does not recognize actual innocence as a mechanism to overturn an otherwise valid conviction,” then we've reached the point where mass incarceration - indeed in Will's case even capital punishment - rests primarily on procedural justifications, no longer moral ones.