Hard Time

The evidence points away from Roy Criner's guilt in a savage crime. But the state still has what counts most -- a conviction.

Chuck Adams, an old friend of Criner's who is now an Army sergeant in Michigan, recalls Roy's temper but says he never held a grudge. "He and I have come to blows," Adams says. "But then we'd go hunting afterwards."

Adams remembers something else about his old friend. "Roy would make up shit," he says. Stories about running guns in Mexico and evading bandits. Stories about drag racing. Stories about sex. "A few times he bragged about scoring with chicks," Adams says. "I know for a fact he didn't, because I'd seen him at Dairy Queen."

The last time Adams saw Criner was in 1989, the year before he went to trial. "Did you do it?" Adams asked; "Yeah, man," Criner answered with a laugh, and they changed the subject. Adams, whose sister was murdered and who consequently doesn't take such matters lightly, blew it off as typical Criner. "Roy always wanted to be macho," he says. "You could tell he was full of shit."

Adams doesn't believe Criner could have killed or raped Deanna Ogg; to do so in the allotted time frame, everything would have had to have fallen into place like clockwork. "Roy isn't clockwork material," he says.

Instead, after reading the trial transcript, he thinks his friend was railroaded. "Roy was convicted when he went into that courtroom," he says. "You cannot put somebody in jail on the evidence they got."

"He just got caught up in the system," says Adams, "and he couldn't get out."

After two decades of defending people charged with capital murder, Mike Charlton is used to things not going his way. Many of his clients are found guilty -- primarily because they are guilty. "I've done it for 20 years, and I've had hundreds of cases," says Charlton in a soft West Texas drawl. "There have been maybe five or six where I just knew my client was innocent. Roy's one of them."

The lawyer, who gets a few bucks here and there from Criner's family but is primarily working pro bono, got involved in the case about a year ago after he was approached by Jim Cooper, the investigator who had worked on the case in 1990. "Cooper knows how to push my buttons," Charlton says. "He came to me and told me he thought the guy was innocent."

Charlton wasted little time suggesting a DNA test; Criner readily agreed. So did Montgomery County D.A. Mike McDougal, who was confident that the results would match Criner's DNA with the semen samples still preserved in the evidence vault. "They were absolutely convinced it was gonna show that Roy was guilty," he says.

But it didn't, and McDougal had the state Department of Public Safety lab run a second check. That, too, came back negative.

Charlton had every reason to expect that his client would soon be joining him for a victory beer. After all, McDougal had told the Houston Chronicle after the second test that "Assuming [Charlton] files a writ, I'm assuming we'll dismiss the charge."

But law enforcement has been selective in its acceptance of DNA technology, embracing it when the evidence helps secure a conviction, but challenging it if it undermines the prosecution's case (see "DNA Delivers the Verdict," page 21). Charlton did indeed file a writ in district court, but the D.A. challenged it. "In light of the confessions and the statements [Criner] made, the DNA is not relevant at all," McDougal says. "That's our position."

District Judge Mike Mayes saw it Charlton's way. The DNA evidence tipped the balance, Mayes stated in his opinion, and given all the facts in the case, "it is more likely than not that ... Applicant would not have been convicted of the offense of aggravated sexual assault." Criner, the judge concluded, should get a new trial.

But for the second time, the Court of Criminal Appeals struck Criner a knockout punch. Rejecting Mayes's recommendation, the 53 decision ruled that the DNA evidence merely proved that the sperm inside the victim had not been deposited by Criner. The victim was promiscuous, wrote Chief Judge Keller, parroting the state's updated version of events, and Criner could have been wearing a condom when he committed the crime or perhaps failed to ejaculate. Besides, she wrote, "There is overwhelming, direct evidence that establishes that applicant sexually assaulted the victim in this case."

Judge Charlie Baird, who often finds himself on the short end of the court's split decisions, says the court's ruling is more than out of line. Not only is the evidence considerably less than overwhelming, he says, but the decision completely ignored the conclusions of the district judge, which historically have weighed heavily in the court's review. "It has been the role of the appellate court to give great deference to the trial judge," Baird says. "The court did not do that. It did not give him any deference at all."

More troubling, says Baird, is the simple fact that the decision not only overrules precedent, it ignores the law. The state's new thesis of promiscuity and condoms, he says, was immaterial. "That was never the theory of prosecution at trial," Baird says. "The question is, what did they prove at trial?"

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