Cry for Justice

It doesn't matter that other courts and D.A.'s have cleared wrongly convicted inmates. Roy Criner's case is in Montgomery County, Texas.

By Bob Burtman

published: February 17, 2000

Jackie Criner feels good about the recent flood of attention her imprisoned son, Roy, has received. She appreciates the pointed editorial by syndicated columnist Clarence Page about Roy's case, as well as the piece in Texas Lawyer that ripped the state's contentions in the case as "pretzel logic." She cherishes the dozens of letters and phone calls she's gotten from people across the country expressing outrage at Roy's situation. Most of all, she's grateful for the PBS Frontline documentary that brought renewed interest in her son's plight. "I feel lucky they showed the program on Roy," she says. The national outcry has spawned several new developments. A public relations executive is helping organize a free-Criner campaign to keep the profile high. A Web company has agreed to put up an Internet site about the case. Noted DNA attorney Barry Scheck has arranged for a California lab to analyze crime-scene evidence that was never tested. And Texas Defender Services of Houston will serve as the nonprofit sponsor of a defense fund for Criner.

But none of that can overcome the basic premise that rules Jackie Criner's life: Roy is still in prison for a crime he didn't commit. "I'm very tired, and I'm disgusted," she says, "but I'm not going to stop until justice is done."

The story of Roy Criner was first reported in the Houston Press ["Hard Time," by Bob Burtman, September 10, 1998]. At the time, DNA evidence had apparently cleared him of guilt in a brutal Montgomery County rape-murder 12 years earlier. But the state refused to let him go, saying the DNA results didn't prove that Criner hadn't committed the crime. He could have been wearing a condom, said Court of Criminal Appeals Judge Sharon Keller, who rejected calls for a new trial. Or maybe he simply failed to ejaculate. The semen in the victim probably came from consensual sex with someone else, Keller contended. After all, everyone knew she slept around.

Since then, Criner's case has been on hold in the system. Montgomery County District Attorney Mike McDougal has steadfastly opposed a new trial for Criner and has vowed to retry him if the courts should eventually order it. Criner's attorney, Mike Charlton, is about to file another appeal with Keller's court, but after hearing her chilling rationale repeated on Frontline, he holds little hope of relief from that quarter. If the appeal is rejected, Charlton will move the case into federal court, which could take months. "I just feel like we're nowhere with this," says Jacques Verron. His wife, Brenda, is Criner's aunt. "Every time I think we're making some headway, we go back two steps."

Meanwhile, other inmates across the country have been released from prison after DNA evidence exonerated them of their alleged crimes. On January 7, A.B. Butler gained his freedom in Texas after serving 16 years for a 1983 rape in Tyler. When DNA testing proved that Butler hadn't committed the crime, Smith County D.A. Jack Skeen supported a motion to let him out and joined Butler's attorney in requesting a full pardon from the governor. Butler had been sentenced to 99 years -- the same as Criner. "It shows you that there's no uniform means for treating a claim of innocence," says Charlton. "You have to depend on the goodwill of the district attorney's office, which is not a fair system of justice."

If the state's unwillingness to accept DNA evidence were the only miscarriage of justice in Criner's case, it would be bad enough. But the case has been marked by police and prosecutorial mistakes -- possibly malfeasance -- from the start.

At 7:15 p.m. on September 27, 1986, two boys riding their four-wheelers found Deanna Ogg's mutilated body on a dirt logging trail in Montgomery County. Police investigators collected evidence and interviewed various family members and other witnesses who had intersected with Ogg in her final hours. They determined that Ogg had left her trailer-park home on the edge of Porter about 5:30 that afternoon, stopping briefly to buy a pack of smokes at a nearby convenience store. She had told the clerk she was going to a party with some friends. An hour and 45 minutes later, she was dead.

Three days after the killing, a detective interviewed Porter resident Mike Ringo. At about ten on the night of the murder, Ringo said, Criner pulled up at a friend's house in a dual-axle pickup he used while logging in rural Montgomery County. According to Ringo, Criner told a story about picking up a drunken hitchhiker between Porter and Kingwood. Ringo quoted Criner as saying he forced her to have sex after threatening her with a screwdriver, then drove her to Channelview and made her get out of the truck. Ringo's friend Terry Hooker, who was also there, told the detective a similar story, though the details differed slightly: Criner made the girl have oral sex with him, then dropped her off in Humble.

That was enough for the detective, who had the truck impounded. Jeff Pitts, who employed Criner and owned the truck, later related a third version of the story to officers, though the screwdriver and hitchhiker elements were the same.

Two days later Criner was arrested and charged with capital murder.

Prosecutors later switched the indictment to a sexual assault charge because they lacked sufficient evidence to prove the murder case. Not that they had much to work with either way -- the state had 27 pieces of forensic evidence, none of which connected Criner to the crime. It took four years to bring the case to trial while the district attorney scoured the county for additional evidence, but none was found.

In the end, the D.A. focused on three things: the stories, a screwdriver allegedly recovered during the search of the truck (though the screwdriver had disappeared in the interim and never resurfaced) and a blood test that showed the semen in the victim could have come from Criner, though DNA testing hadn't advanced enough to prove a match. "Is there any scientific evidence that in any way supports [the state's contention]?" prosecutor David Walker asked the jury during closing arguments. "Yes, there is."

Walker failed to tell the jury, or the defense, that the screwdriver had been examined and tested, though no written record of any test existed. The results, he told the Press, showed no tie with the crime.

Other key evidence pointing away from Criner was never tested or introduced at trial. A cigarette butt found at the scene (not the brand smoked by the victim, and Criner didn't smoke) lay untouched in the files until recently. A hair found in the victim's hand as well as a pubic hair found in her panties were compared with Criner's and determined not to be his, yet they were never compared with other possible suspects. A tire track photographed at the scene came from a single-axle vehicle, but no mention of it was ever made during the investigation or trial.

Criner's court-appointed attorneys didn't mount much of a defense. They didn't direct many questions at Jeff Pitts, for example, who had been with Criner the day of the murder. If they had, Pitts would have told them that Criner couldn't possibly have committed the crime, that he'd been logging all day and didn't have time to leave the site, kill Ogg and come back in the timetable used by prosecutors.

The defense lawyers now say they believed the evidence against Criner was so shaky that a jury would never convict their client. The jury proved them wrong.

Even before the DNA test proved conclusively that the semen wasn't Criner's -- and without knowledge of the screwdriver test or other exculpatory evidence -- the state court of appeals based in Beaumont overturned the conviction and freed Criner in 1991. But the Texas Court of Criminal Appeals overturned that ruling a year later, and Criner was jailed again.

In 1997 conservative Montgomery County Judge Michael Mayes reviewed the DNA evidence and recommended a new trial. But the Court of Criminal Appeals rejected the judge's findings. "There is overwhelming, direct evidence that establishes that [Criner] sexually assaulted the victim in this case," Judge Keller wrote in her opinion. As for the DNA evidence, Keller told Frontline, "If [the test] had come back positive, it would have been important." But since it was negative, she said, it didn't mean anything: "You're not taking into account the fact that [Ogg] was a promiscuous girl."

Regardless, she told Frontline, the DNA information wouldn't have made any difference to the jury. The documentary then cut to Joel Albrecht, the foreman of that jury. "I don't understand how the court could say what we would do," he said. "I personally think if the DNA came forth stating that it was negative, the verdict would not have been 'guilty.' "

For Criner, the spurt of publicity has been a mixed blessing. He appreciates the support from the outside, but he has been depressed ever since he watched Frontline and heard McDougal and Keller virtually condemn him to serve out his sentence. It hasn't really dawned on Criner that his case is in the national spotlight. "I don't think he really comprehends the fact that he is making news across the country," says his mother, Jackie.

Criner spends his days at the Darrington Unit in Rosharon, working on the paint crew, jogging and lifting weights -- he's ranked third in the state in his weight class, according to Jackie. Mostly he endures the dull, grinding routine of prison, broken only by occasional visits from family members. He doesn't want to get too optimistic, but he remains hopeful that he'll somehow get a reprieve. "All he wants to do is come home," Jackie says. "He tells me, 'Mama, they know I didn't do it.' Even the inmates down there tell him he's gonna go home."

Mike McDougal must be feeling the heat. At the very least, he's taking great pains to absolve himself of responsibility for Roy Criner. McDougal is personally answering angry letters from people who saw him on Frontline. They heard him make statements such as, "I can't afford to put the taxpayers of this county in the position of giving everybody a retrial that may come up with some kind of, uh, something that may indicate they may not be guilty when a jury has already said, 'Yes, you're guilty.' " He's even calling radio talk shows during discussions of the case to defend his position.

However, many of the lines he's dishing out are open to dispute. McDougal denies, for example, that his office has ever impugned the reputation of Ogg. Any contention to the contrary, as he told KPRC radio talk show host Mike Richards, is "an absolute falsehood." As for where Keller got her information about the victim's promiscuity, McDougal isn't sure. "I don't know where she got her stuff she was talking about," he says. "I think there's something, somewhere, from somebody."

That something may be the motion his office filed in opposing a new trial for Criner, which included an affidavit from D.A. investigator John Stephenson that made note of Ogg's proclivities. "I have reviewed the offense reports in this case," Stephenson wrote. "One report reflects that the deceased had lots of boyfriends and was very sexually active."

In addition, McDougal told Richards, his office has little influence on whether Criner gets a new trial. After Judge Mayes made that very recommendation, he said, "I didn't quarrel with that. I said, 'Fine, we'll do that if that's the order.' " But the record shows that the D.A. has opposed a new trial every step of the way, and still does.

Mike Charlton says he has seen the Court of Criminal Appeals ignore a prosecutor's support for a new trial only once in his 20 years of appellate work. "If [McDougal] had said okay, I think the chances are very good that Roy would have gotten a new trial," Charlton says.

Those aren't the only questionable facts in McDougal's repertoire. The D.A. has stated publicly on several occasions that he has had Ogg's DNA sample checked against the state DNA database of sex offenders and other criminals. But the sample is only now being entered into the database by the Department of Public Safety crime lab -- at Charlton's request (crime lab director Ron Urbanovsky did get McDougal's approval before proceeding). Asked why he'd been telling people otherwise, McDougal deflects the blame. "All I've been told by the people that have been doing it is that they did do that," he says vaguely.

He even questions the statement of former prosecutor David Walker, who admitted that the supposed murder weapon had been tested and found clean. "The screwdriver found in Mr. Criner's truck was never tested, period," McDougal wrote in a reply letter to Porter resident Cathy Bate.

That statement is the latest in a continually evolving theory that McDougal has offered in order to explain each new piece of evidence as it came to light. At trial, the state contended that Criner raped and killed Ogg by himself, and that the sperm was his. Now, the state says someone else had sex with her beforehand, that maybe Criner had an accomplice (to explain the cigarette butt and hairs) and that maybe the second tire track was obliterated by the four-wheelers (which even a glance at the photograph demonstrates is an absurd contention).

Bate, who questioned McDougal's actions in the wake of the Frontline broadcast, was not impressed with the response. "I was disappointed," Bate says. "If a DNA [test] can convict you, why can't it get you out? He should be given another trial, period."

Jackie Criner shares Bate's disappointment. "I just can't comprehend how he can sit in that office and still say no," she says. "He could walk out of this a bigger man if he would do the right thing."

McDougal says he'll change his mind only on one of two conditions: if a different perpetrator surfaces, or if the woman (the alleged rape victim) in Criner's story steps forward.

Charlton argues that the state's inability to find the actual killer should not be Criner's problem. And he's convinced that a demand that a rape victim who fits Criner's story step forward means Criner'll be condemned to spend his life in prison. "She doesn't exist," Charlton says. "It was the fiction of a 20-year-old boy who was bragging to his friends. He isn't the first guy who made up a sexual conquest, you know."

But lame as he believes McDougal's conditions are, Charlton says, they make sense, at least in one way. "He's got no other basis to hold him in custody. Everything else had been refuted. Otherwise, he'd have to stand up in public and say he's incarcerating somebody who's innocent."

Even on Sunday morning, Andi Behlen's coordinated, professional attire says she means business. A public relations pro who has been working her political and media connections since 1985, Behlen has counseled numerous business leaders and corporations on campaign strategy. Since seeing Frontline, she has been coordinating an entirely different kind of campaign: to free Roy Criner. "It made me sick to my stomach," Behlen says. "That could have been my brother sitting there -- or your brother. It's the luck of the draw."

She's also familiar with the history of the case and doesn't have unrealistic expectations about Criner's antagonists. "I think they already have dug in their heels," Behlen says. "It would be a miracle if they decided to be white knights at this point."

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.

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.