Still, Behlen thinks Criner's case is strong enough to attract attention from a wide audience. "It's platinum," she says. "It speaks for itself."
Behlen and Charlton refuse to charge for their work, but to defray some of the costs, they've set up a defense fund (checks may be sent to Free Roy Criner c/o Texas Defender Services, 412 Main Street, Suite 150, Houston TX 77002). Behlen has set up an e-mail account for people who want to communicate with Criner (roycriner@hotmail.com -- Behlen will forward the letters to the inmate). And a Web site (freeroycriner.com) should be up and running soon, courtesy of Cowboyz.com, a Portland, Oregon, Web development firm.
Phillippe Diederich
On the defensive: Mike McDougal has been twisting the facts in Criner's case.
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In addition to rustling up continued media attention and marshaling the aid of the hundreds of people nationwide who have offered to help, Behlen hopes to leverage some action on the political front. Several local politicians have privately expressed interest in Criner's case, and people in the legal system throughout the country have weighed in as well. "I think the situation is an embarrassment to the state of Texas," she says. "My hope is that if pressure is brought on the courts, then people like Roy will be dealt a more fair hand."
In particular, one state official has reason to take notice of the scrutiny of Criner's case: George W. Bush. He's at least marginally aware of the issue. At a campaign stop last month, New Hampshire resident Carolyn Disco asked candidate Bush to look into the matter, and he said he would. Others have written Bush in Texas to ask that justice be done.
And in his column last month, Clarence Page addressed Bush directly. "One prominent governor, George W. Bush, could make a particularly meaningful contribution by looking into the Roy Criner case," Page wrote. "True, Bush has a lot on his mind these days. But he does call himself a 'compassionate conservative.' "
"Talk is cheap," Page concluded. "Actions speak."
Bush may ultimately have a role to play in the Criner saga. Charlton has a couple more opportunities in court to win his client a new trial. The first is with the Court of Criminal Appeals and Judge Keller. While that would seem to be a long shot at best, given the court's track record, Charlton will present new evidence that could sway a majority. In addition to the information about the screwdriver that was withheld from the defense, Charlton hopes to have new DNA evidence from the cigarette butt and the hair found in the victim's hand.
The backlash from the Frontline broadcast may also play a role with the Court of Criminal Appeals. Keller is running for chief justice, and her opponents are well aware of the negative impression her comments created. So is the court's general counsel, Rick Wetzel, who watched the documentary. Asked if jury foreman Joel Albrecht's refutation of Keller had made an impression, he responded quickly: "Sure it did. Of course."
If the state appeal fails, Charlton will try the federal courts. But first he'll have to overcome a major obstacle: The statute of limitations on federal appeals was legislatively limited in 1997 to one year after the law took effect -- regardless of new evidence that shows innocence. The deadline has expired. Thus far, to Charlton's knowledge, no one has cleared that hurdle, though several cases are pending.
That may well leave only one avenue for relief: the Texas Board of Pardons and Paroles. But to get a pardon, Criner probably needs the support of the one person who has stated categorically he won't do it -- D.A. Mike McDougal.
If McDougal indeed refuses to sign off on a pardon, that would leave Texas in a chilling position. On the one hand, convicted rapist A.B. Butler gets out of prison with the support of his local D.A. after a DNA test comes back negative; on the other, Criner stays locked up because his D.A. won't budge.
Asked what kind of system allows such disparate treatment of the same circumstances, Rick Wetzel verbally shrugs. "I don't know how to answer that," he says. "I think that's simply a dynamic of having different prosecutors elected in different parts of the state."
E-mail Bob Burtman at bob.burtman@houstonpress.com.
