By Jeff Balke
By Ben DuBose
By Ben DuBose
By Sean Pendergast
By Sean Pendergast
By Calvin TerBeek
By Jeff Balke
By Jeff Balke
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."
Bishop immediately hired private investigator Craig Lawson, a former lieutenant in the constable's office, and assigned him to the case full-time. Lawson sat down with the Verrons and Jackie Criner, Roy's mother. "They had the case laid out on the table," he says. He was quickly convinced of Criner's innocence.
Lawson found a cold trail. Though the D.A.'s office allegedly had been investigating the case for a year and a half, no new leads had developed -- because almost nothing had been done. "It was a totally closed case when I started working on it," Lawson says.
Assistant D.A. Gail McConnell, who has been in charge of the case, says her office just didn't have the means to pursue such investigations. "It was a matter of resources," she says. "We don't have an investigator assigned to handle [appeal] cases, or cases where we've already gotten a conviction."
Within a few days, Lawson located one promising piece of evidence -- in the D.A.'s office. Last September an inmate wrote McDougal a letter saying he had knowledge of the Ogg murder. Fellow inmate Billy Nobles, he wrote, had implicated himself and given details of the crime that could have been known only by someone with direct involvement. McConnell and a detective had tried to question the inmate who wrote the letter, but had been rebuffed, and the letter had been stuffed in a file. Lawson and Bishop had more success: They obtained a lengthy statement from the snitch that elaborated on the letter. But the evidence was circumstantial, Nobles denied any involvement (he was released from prison this year and now lives with the victim's brother), and a DNA test found no match with the semen.
Still, Lawson's digging was paying off. He found others who seemed to have knowledge of the crime, many of whom acted extremely nervous. He obtained saliva and blood samples and ran them to Austin for testing at the state crime lab. In one instance, a possible suspect refused to cooperate and demanded a lawyer. Minutes later he spit on the ground; Lawson scooped it up as a DNA sample and left.
Meanwhile, a tiny brown piece of evidence was jetting across the country and back, looking for an analysis. A cigarette butt found alongside Ogg's body had been identified by the Press as potentially crucial, because Criner didn't smoke and the victim smoked a different brand (in fact, she purchased a pack of her brand shortly before the murder). No one had looked at the butt for years or even mentioned it since it was collected the day after the crime. In response to defense requests, McDougal had the butt tested for DNA at the Department of Public Safety's Houston crime lab in May 1999. The test used up all the filter paper, the richest potential source of DNA. According to the lab report, "An insufficient amount of nuclear DNA could be extracted for analysis."
But earlier this year, attorney Scheck arranged to have the remains of the butt tested at Forensic Science Associates in California, one of the world's most sophisticated DNA labs. The result: Two people smoked the cigarette. Neither was Roy Criner.
The lab did not have the DNA from the semen found in Ogg, however, and could not make the final connection: If the cigarette butt and semen matched, that would essentially prove that the rape occurred where her body had been found, and would blow the state's theory of consensual sex beforehand out of the water.
That was left to DPS serologist Jody Williams in Austin. She applied a more exacting analysis on the cigarette butt material and came up with the same result: Two people had smoked that cigarette. Williams also identified them: Ogg and the person whose semen was found in the victim's body.
Williams took her analysis a step further. She examined the panties Ogg had been wearing, and based on DNA evidence in the material determined that the semen could have been deposited only after the panties had been removed. There was no consensual sex before the crime. The state's case against Criner had evaporated.
On Friday, July 28, state District Court Judge Michael Mayes read a prepared statement to a Montgomery County courtroom packed with members of the Criner family and the media. "This court feels the pain and anger from both sides of this case," Mayes began, acknowledging the victim's family as well as the assemblage.
"Justice is not a static, unmoving and unliving thing," the judge continued. He offered an abridged history of the legal twists and turns in the case. Mayes was the judge who had recommended a new trial when the first DNA test excluded Criner. After the latest evidence, he said, he could only conclude that Criner was innocent, and he would sign a request for a pardon. The recommendation now awaits the Board of Pardons and Paroles, which might take up to 90 days to make a decision (though sources indicate the ruling could come much sooner), after which Bush would have to make the pardon official.
The board could still reject the recommendation, which was also signed by D.A. McDougal and Sheriff Guy Williams. But that's unlikely, given the public outcry that would inevitably follow, and the implications for the Bush campaign.
Nevertheless, Mayes declined to set a bond that would release Criner, now 35, even though judges in two other Texas cases did just that following similar recommendations. He'd reconsider the bond request, he said -- after he returns from a two-week "business trip."
Jackie Criner shed only a few tears. She has seen her son wrongly convicted, then released by an appeals court a year later, then jailed again when the appeal was overturned. She has felt the joy of vindication when the first DNA test came back, then the crushing blow when the Court of Criminal Appeals said it wasn't enough. She has lost hope and regained it a thousand times. What's a few more weeks to wait, no matter how pointless the delay?
"I am the happiest lady walking the face of the earth right now," she says. "Thank God that Montgomery County has finally come to their senses."
"It's been a very hard road," she continues, as though ten years of relentless banging on doors to get justice for her son can be summarized in a simple sentence. She resents that the system conspired against Roy from the beginning and continued even after there was ample opportunity to do the right thing. "I'm not going to let this eat the rest of my life up, but no, I will never, ever be able to forgive."
Jackie Criner also believes that Roy would still be looking at a life sentence if it hadn't been for the efforts of the media, his lawyer, Bishop and Lawson. Montgomery County acted, she says, only after public pressure and new evidence made continued resistance untenable. "It ain't out of the goodness of their damn hearts," she says. "It's because they was forced into it."
It's not likely that those responsible for Criner's incarceration will apologize, or even acknowledge error. Montgomery County won't compensate him for stealing ten years of his life. Former prosecutor Walker, who admitted to withholding evidence in the case (though he is now backing away from his earlier statements), is the Republican nominee for county attorney. D.A. McDougal was re-elected in May with no opponent. Sharon Keller is likely to be elected presiding judge of the Court of Criminal Appeals in November. Even now, they won't entirely let go of the idea that they got the right guy. "We still have his [three] statements," says Assistant D.A. McConnell. "I don't know what to do with those statements if they aren't true. You don't know for sure that he didn't 'do' somebody, either."
McConnell feels bad that perhaps Criner, a 35-year-old logger from New Caney, was innocent. But she believes the new DNA evidence had to emerge before the legal standard for recommending a pardon could be met. The fact that it did, she says, speaks on the system's behalf. "This whole process shows that [an injustice] can be found and caught," she says.
Judge Mayes said much the same thing at the pardon hearing. For those who believe the case shows that the system is broken, he admonished: "You are mistaken. It is this system that does now allow this man to receive justice." Charlton disagrees. "If the system were working," he says, "Roy would have been out two years ago."
Were it not for an unusual confluence of circumstances, Charlton says, it's unlikely Criner would ever have gotten another chance. He mentions the Press, Frontline, Scheck, Bishop and especially the family, who never stopped fighting for Criner even when no one else cared. Typically, he neglects to mention himself, though his hours of volunteer work have been a significant element in the case. "If one of those things had been missing, Roy would still be in jail," he says. "When you look at all those factors, that's a good example of why the system didn't work."
Charlton wonders about other inmates who don't have relatives who communicate with them, let alone media or high-powered lawyers working for them. "Nobody's gonna give them the time of day, even though their claims of innocence are just as strong as Roy's," he says. "It's really, really frustrating."
Bishop is equally unsatisfied. There's still a murderer running loose, and he'll continue his investigation. "There's too many leads left that are pursuable," he says. "I think eventually that this case will be solved, if there's any persistence put to it at all."
And like Charlton, the constable remains uncomfortable with the way the system handled Criner -- the shoddy police investigation, the baffling response of the D.A.'s office to new evidence, the implications for others caught in similar nightmares. "How many of these people can afford to hire a private investigator to prove that they're entitled to another shot at the justice system?" he says. "I'm not a crusader, but I can see that it failed this young man, and it's probably failed others in the past and will fail others in the future."
Bishop pauses a moment. "You should never be ashamed of the truth."