And Justice for Some

Over the past ten years, the Texas Court of Criminal Appeals has disregarded exculpatory DNA evidence, threats of torture, bad lawyering, and in some cases, all common sense to uphold convictions in keeping with its tough-on-crime philosophy. Why should toughness steamroll fairness?

by Michael Hall

November 2004

eileen says: Hi Carl, If you register as a user on our site (it’s free! and easy!), you will get access to the archives. Please feel free to contact me, edsmith@texasmonthly.com. (March 11th, 2010 at 3:34pm)

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IT WAS, BY ALL ACCOUNTS, the high court’s low point. A teenage girl named Deanna Ogg had been raped, bludgeoned, and stabbed to death on a late September afternoon in 1986 near the tiny town of New Caney, north of Houston. Roy Criner, a 21-year-old logger, was arrested after three friends said that, within hours of the time of Ogg’s death, Criner had bragged about picking up a hitchhiker, threatening her with a screwdriver, and forcing her to have sex. No other evidence tied him to the crime, but Criner was convicted and given 99 years for aggravated sexual assault. In 1997 newly available DNA tests showed that the sperm found in Ogg was not Criner’s. To be certain, the Montgomery County district attorney did a second test in the state’s lab and got the same results. Criner’s attorneys moved for a new trial, and in January 1998 the trial court agreed he deserved it.

Four months later, the Texas Court of Criminal Appeals, the highest criminal court in the state, went against law, science, and, it seemed, all common sense when it wrote, “The new evidence does not establish innocence,” and overruled the trial court. Sharon Keller, who had been on the CCA only a little more than three years but was rapidly becoming the court’s philosophical leader, cited the incriminating statements to the three friends as “overwhelming, direct evidence” of Criner’s guilt. New evidence ofinnocence, she argued, had to be so clear and convincing that no reasonable jury would have convicted Criner had it known about it. DNA, she said, was not enough. Keller noted that perhaps Criner had worn a condom or failed to ejaculate. There was also testimony, she wrote, that the victim had said that she “loved sex,” so perhaps she had had sex with someone and then met her demise at the hands of the logger. These theories had not been alleged at trial, nor was there evidence that Ogg had had sex with anyone else within 48 hours of her death, and court watchers wondered why an appellate judge was posing alternate theories that the prosecutor could have offered years before at trial. It seemed that Keller and the court really wanted to keep Criner in prison.

In 2000 the PBS show Frontline aired an episode called “The Case for Innocence,” featuring Criner’s story. Keller was interviewed, and she defended the CCA’s opinion and characterized the victim as “a promiscuous girl.” When asked about the possibility that Criner was innocent, Keller said, “I suppose that that is a possibility. But he certainly hasn’t established it.” When asked how a person could establish it, Keller replied, “I don’t know. I don’t know.” She appeared to be lost in her own circular reasoning. All Criner was asking for was a new trial, but that, said Keller, was out of the question. It was the last in-depth interview she would give to the media.

Later that year more DNA tests were done, this time on saliva from a cigarette butt found at the crime scene. The DNA matched that of the sperm, and a month later the DA and the county sheriff joined the trial judge in calling for a pardon for Criner. The state Board of Pardons and Paroles, which almost always denies such requests, voted 18–0 to grant one, and in August Governor George W. Bush, in the heat of a presidential campaign, relented. Roy Criner was freed.

It was a stunning rebuff to the CCA. One of Keller’s fellow judges, Tom Price, later said that the case (in which he had dissented) had made the court a “national laughingstock.” The Criner case was proof to some people that the court was ruled by a bunch of pro-prosecutor, right-wing ideologues with one goal in mind: keeping inmates behind bars, no matter what. The court, which handles thousands of petitions each year, mostly dealing with everyday criminals but also with death row inmates and their appeals, had been growing increasingly conservative since 1994. That year, on the heels of Bush’s successful run for governor, Republicans, including Keller, swept into statewide office. Six years later the national media, from the Chicago Tribune to Rolling Stone, were flocking to Bush’s home state to analyze Texas’s impressive death penalty machine. Most were trying to find evidence that the presidential nominee had executed an innocent man, and they inevitably wrote stories about a runaway criminal justice system and a gatekeeper high court that did nothing to control it. They ridiculed the court for Criner. The CCA, the national media reported, was a powerful group of nine conservative Republicans. Though they were public officials, elected in staggered six-year terms, theirs was a “stealth court,” shrouded in secrecy, whose sometimes outrageous decisions often came with no explanation. The court handled only criminal appeals (the Texas Supreme Court took care of civil matters), and the judges were mostly ex-prosecutors whose main goal seemed to be to satisfy the state’s appetite for execution; the court reversed only 3 percent of the death penalty convictions that came before it, less than any other state high court. It even had a group of staff lawyers called the Death Squad who worked on nothing but death penalty cases.

Since 2000, partly in response to the uproar over Criner, the CCA has moderated somewhat. But the past continues to haunt it. In the first half of this year, federal courts second-guessed a dozen Texas cases, ten of which had been acted on by the CCA after the 1994 election. The federal courts stayed two executions, set aside two death sentences, ordered three new trials, and mandated further hearings and other action in the rest. Criner, it was clear, had not been the only hard-luck Texan to run up against an inflexible court. Some, like Ernest Willis, had it even worse. Willis (whose story is told in detail in “Death Isn’t Fair” in the December 2002 Texas Monthly) had been convicted in 1987 for setting fire to a house in Iraan that killed two women. There was no physical evidence—no gasoline on his clothes, no witnesses, no fingerprints. Eight years later new attorneys found evidence of appalling misconduct, which they offered at hearings in 1996 and 1998: Willis had been drugged with powerful antipsychotic medicine for months before his trial, turning him into a drooling zombie, something the prosecutor made full use of in front of the jury. Moreover, the prosecution withheld a psychological report stating that Willis was not a future danger to society. His court-appointed lawyer did almost nothing for him, dooming him to death row. In 2000 the trial judge wrote a 33-page opinion recommending a new trial. The CCA, in 6 pages, denied it.

In October a federal judge ordered the state to either retry Willis or set him free. The attorney general of Texas declined to appeal, and the Pecos County DA dismissed the murder indictment, saying that the fire was an accident. Willis walked free from death row, the first inmate to do so since 1997. The state cheated, the defense gave up, and as a result, an innocent man was sentenced to die. Worst of all, the CCA knew all about it.

Why would a court keep an innocent man on death row? Why would a court look the other way in the face of DNA evidence? Antagonists—and there are many, most of them defense lawyers whose clients have lost before the CCA—say the court is full of heartless, result-oriented hacks. In fact, the CCA is full of hardworking, responsible, churchgoing men and women. But time and again over the past decade, whenever judges have had a choice between tolerating bad behavior by prosecutors and police or enforcing the due process rights of criminals, they have sided with the state. For some judges it has been a conscious choice, a turning away from the court’s previous technicality-based, defense-oriented decisions. For others it has been merely a reflection of their prosecutorial backgrounds. For all, it is politics: The judges on the CCA are elected politicians and are careful to paint themselves as tough on crime and criminals, whatever the cost. And so they have developed an overriding concern with preventing further hearings, appeals, and new trials. As Keller told the Frontline crew, attempting to explain the Criner judgment but also expressing an underlying rationale for the way the court does business: “Finality of judgments is important.” Of course it is; without finality, cases would drag on forever and the system would fall apart. But over and over before the CCA, finality has trumped everything else, especially fairness.

AN OLD FRIEND OF SHARON KELLER’S remembers hearing about Keller’s comments on Frontline and being dumbfounded: “I didn’t know where that absolute moral conviction came from. She didn’t question herself at all.” The friend reminisced about their youth in the early seventies and said, “She didn’t do anything wilder than anyone else. But I don’t know how she sleeps at night.”

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