By Craig Malisow
By Jeff Balke
By Angelica Leicht
By Jeff Balke
By Sean Pendergast
By Sean Pendergast
By Jeff Balke
By Ben DuBose
"If we follow the law," says Baird, "then we've got to give this guy a new trial."
Baird isn't surprised by Keller's ruling, however. Under her watch, the court has consistently sided with the state's position, regardless of the particulars. And while former courts have also had a conservative bent, he says, the judges always vigorously argued the fine points of cases like Criner's. Not anymore. "There's no intellectual debate or discussion about these important legal issues," Baird says.
Reading Keller's opinion, it seems obvious why the judge would want to avoid debate. To boost her claim that the DNA wouldn't have made any difference to the jury, she stated as fact a number of important details that were disputed at trial and never resolved, or even discredited: The victim was on her way to her grandmother's house. Criner said his hitchhiker was blond, and that he raped her. His description of the hitchhiker matched the murder victim.
Defending this, Keller sounds eerily like Jeff Pitts explaining the conflicts in his statements: It's all true. "What's in the opinion is in the record," she says. "If there was conflicting testimony, that doesn't affect the fact that what I wrote in my opinion is accurate."
Keller denies that she's predisposed to supporting the state's claims. "My only predisposition is the one that the law requires as far as who has the burden of proof," she says. That burden falls on the defendant.
Baird won't argue that point, but he says the court has taken it far beyond what the law demands. "What the majority has done in this case is place an impossible burden on any defendant," he says.
The opinion also angered Ray Bass, the attorney who orchestrated Criner's first appeal. "It seems to me we're more interested in protecting the statistics of the D.A.'s office than having a fair outcome on this thing," he says. "And that's frightening."
"It's a sad commentary on our system," Bass continues. "What precious concept are we trying to protect by saying another jury ought not to take a look at this?"
Bass says it's clear why the state wants so desperately to avoid a new trial. "They would lose," he says flatly. "There's no question that this would change the outcome of the trial."
Even some of Deanna Ogg's family members, who had hoped the whole matter had been laid to rest, are wondering about the latest developments. Though they still want to believe that the right man is serving time for her death, the DNA evidence has thrown them for a loop. "They ought to pull in everybody [who knew Ogg] and say 'DNA test on everyone,' " says James Ogg, Deanna's brother. "They will find the person."
District Attorney McDougal has been doing exactly that. Jeff Pitts volunteered a blood sample last May that tested negative. So did a sample from Mark Spurlock, the neighbor whose lie-detector test was iffy. And someone in the D.A.'s office apparently asked Billy Nobles, who was linked by witnesses to Ogg and is currently in prison in Amarillo, to donate some blood, though the state police lab has not yet received it.
McDougal denies that he's looking for the real perpetrator, or even an accomplice, perhaps because that would poke a giant hole in the state's original contention that Criner did the deed by himself. "I wouldn't say we're doing that," he says. "We're just trying to go back and do stuff that should have been done before, basically."
Unless McDougal somehow locates a match and extracts a confession, however, Criner will remain the guilty party by default. Armed with additional evidence, Mike Charlton may make another run at the Court of Criminal Appeals, or he may try to move the case into federal court. But he knows that the odds of success diminish with each appeal.
Eight years removed from the verdict, David Walker waxes philosophical about the case. A dapper man who is contemplating a future run for Montgomery County district attorney, he's troubled by the habit of some lawyers to try to reopen cases years later by presenting what they consider to be new evidence. "These after-the-fact claims of innocence, not all, but many of them, are illegitimate," he says. "If the right kind of argument is made, it can really look like there's been some injustice when in fact it's nothing but the passage of time."
Walker says that despite the DNA evidence, the factors that helped convince him of Criner's guilt remain operative. For one, he says, the defendant never took the stand on his own behalf. "Common sense tells me that if I was accused of a horrible crime, I would shout my innocence day and night," he says. "Had he taken that attitude then, he might not be in prison today."
Robert Morrow finds both the premise and the conclusion hard to swallow. No attorney in his right mind would have thrown a man with Criner's limitations to the wolves, especially when the defense believed the state hadn't proven its case. "That is just preposterous," Morrow says.