By Craig Malisow
By Jeff Balke
By Angelica Leicht
By Jeff Balke
By Sean Pendergast
By Sean Pendergast
By Jeff Balke
By Ben DuBose
After three years of denial, Montgomery County District Attorney Mike McDougal could no longer ignore the truth: Roy Criner did not rape Deanna Ogg, a crime for which he has served almost ten years in prison. McDougal recommended clemency in a July 28 petition to the Texas Board of Pardons and Paroles, saying the evidence shows that "Mr. Criner in all reasonable probability did not commit aggravated sexual assault."
McDougal's conclusion came more than 36 months after DNA tests proved that it was someone else's semen found in Ogg, who was bludgeoned and stabbed to death in 1986. Such evidence had been enough to release dozens of other wrongly convicted inmates around the country, but Criner remained in prison after the state Court of Criminal Appeals ruled that the tests didn't prove his innocence. He could have been wearing a condom or failed to ejaculate, said appellate Judge Sharon Keller, who rejected a district judge's 1998 recommendation for a new trial. The semen, she said, could have resulted from consensual sex with someone else before the killing, since the victim was known to be promiscuous.
That now-infamous decision touched off a continuing firestorm of public outrage. In 1998, a Houston Press investigation revealed serious flaws in the police investigation, trial and other elements of the case (see "Hard Time," by Bob Burtman, September 10, 1998). PBS Frontline aired a sobering documentary in January about Criner and other troubling DNA cases, which spawned additional media coverage. Viewers sent a barrage of letters to McDougal and Governor George W. Bush demanding justice. Criner's Web site (freeroycriner.com) has logged 23,000 hits. When Charlie Baird, a former Court of Criminal Appeals dissident judge, mentioned Criner's situation during recent testimony before a congressional committee, Senator Orrin Hatch called it "outrageous."
None of that seemed to faze those in a position to grant Criner relief. McDougal insisted that the case was out of his hands and that any further action would have to come from the courts. Besides, he repeated in numerous interviews, the evidence against Criner -- three stories he told friends about picking up a hitchhiker, forcing her to have sex and then dropping her off -- was still strong enough to warrant incarceration. If his victim wasn't Deanna Ogg, he said, "Where is this girl he raped?"
Bush wrote letters to Criner supporters absolving himself of responsibility. "The courts are the proper venue for questions of fact and law to be resolved," he stated in a form letter. "As head of the executive branch of the state government, I play no role in these judicial matters."
On behalf of Keller, Court of Criminal Appeals general counsel Richard Wetzel passed the buck back to Bush. "It is my understanding attorneys for Mr. Criner are now pursuing a pardon recommendation from the Texas Board of Pardons and Paroles," he wrote (inaccurately, in fact) in a letter to a Criner relative. "Ultimately, any pardon decision would be made by Governor Bush rather than the judiciary."
So Criner remained locked up while his attorney, Mike Charlton, looked for a way to penetrate the justice system and get his client another hearing. He compiled pieces of evidence that had not been previously submitted to the courts. This included an admission to the Press by former prosecutor David Walker that he had withheld key information from the defense that would have helped Criner at trial. Charlton met with noted defense lawyer Barry Scheck, founder of the Innocence Project in New York, and discussed the prospects for further DNA testing.
Charlton's plan was to petition the Court of Criminal Appeals, where he had no expectations of success, then move the case into federal court. But the odds there remained long for several reasons, including federal restrictions on the timing of appeals that Criner might not be able to bypass. "It was just a real iffy proposition that we would prevail," Charlton says.
Even if the federal appeals court agreed to review the case, Charlton knew he was looking at months and possibly years before anything would come of it. Then, as the summer heat began to push hope into oblivion, help arrived from the most unlikely quarter, the one most responsible for Criner's plight: law enforcement.
Travis Bishop seems better suited to run his family trucking company than to investigate stale homicides. Lanky and soft-spoken with an easy laugh, Bishop wears his East Texas roots like a badge. But he also wears another badge: that of Montgomery County constable. And he has been investigating the murder of Deanna Ogg, who was a 16-year-old high school sophomore.
Jacques Verron, who is married to Criner's aunt Brenda Verron, asked Bishop in February to help with the case. The constable agreed, but on his terms. "I told Jacques when I got into it that I wasn't on a Roy Criner crusade," Bishop says. "I said, 'I'll help, but I'll help in the manner of trying to solve the crime.' "
Because of politics and protocol, Bishop first had to ask D.A. McDougal to let him work the murder. In particular, he didn't want to compromise any efforts the D.A. or sheriff's department might have been making or step on any toes. McDougal agreed. "Reluctantly," Bishop recalls, "but he said okay."