Even in his freshly laundered prison whites, Roy Criner has a darkness about him that casts a long shadow in the visitor's room at the Darrington Unit. A hulking man whose brow seems eternally furrowed in an expression of confusion, Criner certainly looks capable of committing the rape he was convicted of in 1990, or worse.
His track record only bolsters that notion. Twice arrested for assaulting police officers, he had a reputation in his Montgomery County hometown of New Caney as a hot-headed bruiser who would fight at the slightest provocation. Since he's been in prison, he's engaged several inmates in battle and done time in solitary as a result. "I have to control my temper," Criner admits glumly.
Criner's present circumstance is in keeping with the rest of his life. A slow learner with an I.Q. hovering around 70, he was lumped with Down syndrome students in grade school and had to endure the chronic taunts of his classmates. His high school football team lost every game; his parents split up on homecoming night. He still mourns the death of his girlfriend, who was murdered the day after New Year's. A loner and misfit serving a life sentence, the 33-year-old Criner has been discarded by society, forgotten except by a handful of family members and his attorney.
About the only thing Roy Criner has going for him is that he may well be innocent. But if you're dealt a losing hand in life, even the trump cards can turn out to be worthless.
On July 9, 1997, the objective findings of modern science gave Criner reason to dream again of life outside prison. That day, the results of a DNA test proved without doubt that it was not his semen found inside Deanna Ogg's body in 1986.
Six months later, state District Judge Michael Mayes recommended that, in the wake of the DNA evidence, the man convicted of sexually assaulting Ogg should get a new trial. Criner thought that maybe, just maybe, his ordeal was nearing its end.
On the other hand, after more than ten years bouncing between freedom and prison, of seeing his sentence overturned only to be reinstated, Criner knew that good news often has a rotten aftertaste. And in May, the Texas Court of Criminal Appeals ruled 53 that, DNA test or no DNA test, Criner would not get another chance to make his case before a jury.
The split reflects a broader division of opinion about the case of Roy Wayne Criner, whose conviction has been fraught with problems from the beginning. The DNA evidence is but the latest revelation that casts serious doubt on the verdict.
When he was arrested a month after the crime, Criner faced more than a rape charge -- Ogg, a 16-year-old New Caney High School student, had been bludgeoned and stabbed to death, and a grand jury indicted him for capital murder as well as aggravated sexual assault. But the murder count was eventually dropped because of insufficient evidence, and Criner wasn't brought to trial on the rape charge until four years later because investigators needed more time to scour the landscape for additional evidence. They never found any.
At trial, prosecutor David Walker hammered on a crucial piece of evidence that helped convict the defendant: a screwdriver recovered from the truck Criner was allegedly driving when he committed the crime (according to the coroner, the stab wounds inflicted on the victim were consistent with screwdriver punctures). But the screwdriver was never presented in court, because it had inexplicably vanished during the investigation. Walker now says that an examination of the screwdriver showed no link to the killing, though the defense was never informed of this.
In fact, not a shred of evidence has ever tied Criner directly to the victim, even though prosecutors had plenty to work with. Investigators gathered various blood and tissue samples and other items at the scene where her body was found. They dusted and swabbed the truck from bumper to bumper, drew Criner's fluids and combed through his personal effects. No matching fingerprints, no hairs in the wrong place, no connection of any kind.
Aside from the references to the screwdriver, the most damaging testimony came from three witnesses who testified that Criner had told them a story about picking up a young female hitchhiker and coercing her into having oral sex with him. But the three versions of the story differed from each other, and none of them bore more than a passing resemblance to the actual crime.
Moreover, a Houston Press examination of police files, court records and other documents as well as more than two dozen interviews disclosed a number of disturbing facts about the case, facts that were either withheld from the defense or never presented to the court on Criner's behalf by his lawyers. Two key pieces of evidence collected at the crime scene, for example, point toward an assailant other than Criner, yet the police and prosecution conveniently ignored them.
And other potential suspects identified in police reports, including several with no apparent alibi, were never thoroughly investigated. Yet Walker says that "the total absence of another perpetrator" helps convince him that Criner is guilty despite the DNA evidence.
None of that matters to Montgomery County District Attorney Mike McDougal. "Mr. Criner's guilty, and Mr. Criner's in prison, and that's where he's gonna stay," McDougal says.
Ironically, a blood test provided the final nail in Criner's coffin. When he went to trial, sophisticated DNA-testing techniques were still in the developmental stage and not widely available. Prosecutor Walker seized on a possible match between the semen sample and Criner's blood type, which showed that Criner -- as well as more than half of the country's white male population -- could have raped Ogg. "Is there any scientific evidence that in any way supports [the state's contention]?" Walker asked the jury. "Yes, there is."
That evidence now having evaporated, the state has hastened to explain away the test results by concocting a new theory: Criner still committed the rape, but either failed to ejaculate or wore a condom. As for the semen, the victim slept around indiscriminately and probably had consensual sex with someone within hours of the crime. "Had she been pure and virginal, yes, [the DNA test] would have been more definitive," says Walker, who is now an assistant county attorney.
District Attorney McDougal presented this revisionist theory to the court in arguing to stymie Criner's bid for a new trial. But even McDougal is hedging his bets these days: Since Criner's DNA test came back negative, an investigator from his office has been collecting blood samples from other possible suspects and testing for a match with the semen. Why? Maybe Criner had somebody with him when the crime occurred, McDougal says, offering yet another new twist in the ever-evolving hypothesis. And while he won't flat-out say the case has been reopened, Peggy Frankhauser of the Montgomery County Sheriff's Department allows that the homicide investigation is ongoing. "For Mr. Criner it is a closed case," Frankhauser says. "For other suspects it is not."
None of this came up at trial, of course, because the prosecution's case was simple: Roy Criner raped and killed Deanna Ogg by himself, and even though the evidence is entirely circumstantial, there's enough of a thread to convict him.
That thread may be unraveling eight years later, but it won't help Criner, whose appeals are close to exhausted. The wheels of justice have turned, and even though some judges may have found in Criner's favor, McDougal says, "He hasn't been successful where it counts."
Where it counts, at least legally, is the Texas Court of Criminal Appeals. In denying Criner a new trial, the majority held that the DNA evidence did not refute the testimony of the three witnesses, who recounted in court Criner's vague tale of a hitchhiker and a blowjob. "[Criner]'s admissions are simply too compelling," Judge Sharon Keller wrote in her opinion.
Perhaps Keller should have spoken with Jeff Pitts, Criner's former boss -- and one of the three witnesses -- before issuing her edict. Pitts, who was with Criner at a logging camp deep in the Montgomery County woods for all but a few hours the day of the murder, says that Criner was actually stacking logs during the time he was supposed to have driven into town and committed the crime. Though no one ever asked him during the trial, he's adamant that it would have been physically impossible for Criner to have done it. "There's no possible way," Pitts says. "I'd stake my life on it."
At about 7:15 p.m. on the evening of September 27, 1986, two teenagers were riding their four-wheelers down an old Montgomery County logging road. One of their headlight beams swept across an object in some nearby brush. Driving a little closer, the youths saw the legs, arms and back of a body, covered with blood; terrified, they raced away and flagged down a passing car.
Within an hour, investigators were swarming over the scene, about 500 yards down the logging trail off Old Houston Road, almost midway between Conroe and New Caney. Working carefully around the nude, battered corpse of a young woman lying face down in the dirt, officers collected and cataloged various bits of evidence scattered among the weeds: several articles of clothing, a cigarette butt, a blue wallet, a red makeup case, a pill bottle, a hair brush. From a school lunch card and other items, they identified the victim as Deanna Lynn Ogg.
Ogg had been living in the Holly Ridge subdivision, a rundown trailer park on the fringes of Porter. The family had moved there from Pasadena several months earlier, though Ogg, who had run away from home more than once and had a strong rebellious streak, had stayed behind for a few weeks until her relatives convinced her to join them. "She had a boyfriend, and she wanted to be with him," explains Cherylann Flutka, Ogg's best friend of seven years. "She didn't want to leave her friends, either."
Despite her reluctance to relocate, Ogg had adjusted well to her new surroundings, quickly establishing a social network at school and in the neighborhood. An outgoing person with a tendency to excess, she'd been as avid a partier as any of her peers, though she'd never run afoul of the law.
Now law enforcement was focusing on her final hours. The investigation of Ogg's murder, coordinated by Montgomery County Sheriff's detective Sherman Sauls, soon determined that her body had been discovered less than three hours after she had last been seen alive.
Several potential suspects emerged immediately. A neighbor recalled a gray pickup truck pulling into Ogg's driveway about the time of her disappearance -- the same truck the neighbor had seen Ogg exit two days earlier, accompanied by a couple of unidentified men. Acquaintances of the victim told investigators that her family had a history of abuse and violence, and that Ogg had periodically taken refuge in their homes.
Ogg's uncle Mike McCoy reported to Sauls that he'd talked to his niece on the phone the afternoon of her death. Ogg had told McCoy her parents were away and she was about to head from her home in Porter to his place near New Caney, some six miles away. From there, he stated, Ogg was to have accompanied him and various family members to a dance at a local club, something they'd done together before. But she never showed up.
Piecing together statements from various Holly Ridge residents, police determined that Ogg had last left home at approximately 5:30. A neighbor told investigators she saw Ogg briefly visit a nearby resident, construction worker Mark Spurlock, at about that time. Spurlock said he was home, asleep, and didn't recall any such visit. He later took a lie-detector test; the results, according to a police report, showed "deceptions."
Within a couple of minutes, Ogg stopped at a convenience store at the subdivision entrance, where she bought a pack of Marlboro Lights. Ogg was in good spirits, the clerk later recalled. She told the clerk she was headed for a party in Conroe with some friends.
That wasn't the only reference to such a bash. A friend of Ogg's gave police a letter the victim had written the day before the killing, in which she stated that she hoped to go to a party that weekend "because there are these fine guys that are gonna be there. Their names are Randy, Bobby and I forget the other guy's name."
Ogg was referring to three of her newest friends: brothers Bobby and Billy Nobles and Randy Deshayes, who lived together in Holly Ridge. All three had a history of encounters with the criminal-justice system; Bobby Nobles and Deshayes were on probation for a burglary earlier that year. And though police apparently were never aware of it, Nobles was scheduled to go before a judge in early October to have his probation revoked for several offenses, including throwing a brick through a woman's car window.
Ogg had been with at least two of the three a couple of days before her disappearance, when she'd called Cherylann Flutka and another friend, Michelle Tatum, in Pasadena. Flutka and Tatum were going to spend the weekend out of town, and Ogg said she wanted to go with them. But Tatum's mother, who was driving, rejected the idea. Oddly, Ogg persisted in a pleading way, both friends remember. "It was like she was scared or something," says Tatum.
Suddenly, a man grabbed the phone from Ogg and said, "You'll feel pretty bad if something bad happens to her, won't you?" Ogg took back the receiver and dismissed the comment as a joke, but her friends were unconvinced. "She seemed uneasy," Flutka says. "She had a catch in her voice. It just wasn't her."
Flutka now says she doesn't know who was on the other end of the line, but Tatum's mother, Peggy Almand, recalls that both women identified Deshayes and Billy Nobles as present with Ogg when the call was made. "Billy and Randy," she says emphatically. "Those were the ones that were making the comments."
According to the rather sketchy police reports, investigator Sauls contacted the three men Ogg had mentioned in her letter -- two of them the same ones identified by Almand as being in on the mysterious phone call. All of them denied seeing Ogg the day she died. Three days after the killing, Deshayes and Bobby Nobles agreed to meet the detective for questioning at his office in Conroe.
In the middle of that interview, Sauls got a call from deputy Hoot Gibson, who worked in the Porter area. A man named Mike Ringo had approached Gibson with some information about "a blond-haired young girl being beaten up, raped and possibly killed," Sauls wrote in his report.
Ringo told Sauls that around 10 p.m. on the night of the murder, he was hanging out at the house of his friend Terry Hooker when an acquaintance, Roy Criner, arrived in a maroon double-axle pickup truck. Criner worked as a logger, and having just finished a long day's work in the woods, was covered with grease and sweat.
Criner, Ringo said, told them he'd picked up a hitchhiker on North Park Drive between Porter and Kingwood. The hitchhiker, a young woman, was drunk. Criner said he took her behind a school, thinking he would have sex with her; when she started crying, he grabbed her hair and jerked her down in the seat.
At that point in Criner's narrative, Ringo said, he backed out of earshot. The next thing he heard Criner say was "I'm gonna kill you." Criner then said he drove the woman to Channelview and made her get out of the truck. End of conversation.
Terry Hooker recounted his version of events to Sauls: Criner told a story of picking up a drunk hitchhiker late Friday night on FM 1485 in New Caney. He drove behind a school, pulled out a screwdriver and threatened to kill her if she resisted. Then he took her in the pickup to land owned by Jeff Pitts, who was Criner's boss and operator of the logging outfit. Criner allegedly told Hooker that he forced her to have oral sex there. Afterward, he drove her to Humble and kicked her out.
Sauls didn't seem especially concerned that the two statements differed in the details. After taking Hooker's statement, he ordered detectives to impound the truck, which belonged to Pitts. A screwdriver was found stuck in the truck's air-conditioning vent. Pitts later told deputies that Criner had related a similar story to him about having sex with a hitchhiker he'd threatened with a screwdriver.
An autopsy by the medical examiner's office determined that Ogg's death was caused by a fractured skull from a blunt instrument and 11 stab wounds to the neck -- wounds that might have been made by a screwdriver.
On October 24, a capital murder warrant was issued against Criner, as well as a search warrant to obtain samples of his semen, pubic hair, blood, skin and saliva. Two days later, he was arrested and locked in the Montgomery County jail.
As for the Nobles brothers and Randy Deshayes, they were apparently forgotten -- Sauls's police report that begins with their interview says nothing at all about the conversation, as though they had ceased to exist after Ringo showed up. Though Sauls now says that the investigation of their whereabouts the day of the crime would surely be reflected in the record, no police report or other document ever mentions them again, nor is it clear if they ever came up with an alibi.
No matter. The state had its man.
It took four years to bring Roy Criner to trial. When he finally had his day in court, he was no longer a murder defendant. By then, the charge had been downgraded to aggravated sexual assault -- since Criner had never told anyone he'd killed his alleged hitchhiker, prosecutors couldn't find even a remote link to Ogg's murder.
Even the sexual assault allegations were shaky, which accounts for the lengthy delay between the arrest and the trial. "We didn't feel the evidence was overwhelming, and we were hoping for additional evidence to come out," says David Walker, the lead prosecutor.
None did, so Walker went with what he had. The day of the crime, Criner was working in a remote logging area with Pitts and Richard Criner, Roy's brother. At some point between three and four in the afternoon, Pitts and Richard Criner took off to get a bulldozer part. When they returned at about 7:30, Roy Criner was still there. According to the state's theory, however, Criner took a dual-axle pickup and left the area shortly after Pitts did.
The prosecution contended he drove the eight or so miles to the Holly Ridge subdivision and spotted Deanna Ogg, who solicited a ride and got in the vehicle. Criner then raped Ogg, stabbed her with the screwdriver, bludgeoned her to death with an unknown object and dumped her body just off a logging trail eight miles from her home. From there, he returned to work just ahead of his brother and Pitts, who arrived shortly thereafter with the bulldozer part.
In essence, the state's case centered on the three stories about the hitchhiker, the screwdriver and a blood sample that, though inconclusive, at least kept Criner in the ballpark as a suspect. Blending those elements with such relevant facts as Criner's great physical strength, which suggested he could have pulled off the crime, Walker tried to drive reasonable doubt from the minds of the jurors. In his closing argument at the end of the two-week trial, the prosecutor made 15 points that generally cast Criner as Ogg's assailant.
Still, he realized his case had a few holes. "I will tell you quite frankly and quite up front," Walker intoned to the jury, "[that] just like a jigsaw puzzle, there are pieces missing."
Criner's court-appointed defense was led by Wesley Hocker, a respected attorney who was winding down his criminal practice to focus on civil litigation. Though not especially anxious to take the case, Hocker did so as a favor to his friend, Judge John Martin, who probably wanted someone of good repute to handle what had started as a high-profile murder case. He was assisted by Robert Morrow, who did much of the legwork for the trial.
Hocker picked at the state's case like a crow feeding on roadkill. When Walker presented an assistant medical examiner who said the wounds on the victim's neck were consistent with screwdriver punctures, he forced an admission that the screwdriver theory came rather late in the investigation and was likely the product of suggestion rather than the M.E.'s conclusion -- in fact, the witness acknowledged, any number of instruments could have caused the wounds. And noting dryly that the screwdriver had somehow been lost in the shuffle, Hocker pointed out that those who claimed to have actually seen the alleged murder weapon couldn't even agree on whether it had a Phillips head or a flat head.
The attorney also shot more than a few holes in the testimony of the state's three star witnesses: Ringo, Hooker and Pitts. Not only did he spotlight the inconsistencies between them, he showed that their stories had changed over time. Perhaps not surprisingly, the later versions dovetailed with the crime significantly better than the originals.
For example, in his initial statements to police and when he appeared before a grand jury a few weeks after the crime, Pitts testified that Criner had been unable to describe the hitchhiker because the incident occurred well after dark. But in a written statement taken two months later and again in trial testimony, Pitts claimed Criner had tagged her as a blond. Grilled on the shifting particulars, the witness insisted that both stories were somehow true, though he acknowledged that his memory of events had faded with time.
The conflict didn't faze Walker. "Deanna was blond," he told the jury, emphasizing one of his central points. "[Criner] said he picked up a blond girl."
Though Hocker moved aggressively to impeach the testimony of the prosecution's witnesses, he brought little to the table himself. Son Cross, the elderly caretaker of a hunting camp on the same property as the logging operation, told the jury that he remembered Pitts and Richard Criner leaving the site that afternoon; Roy Criner, however, never left, or Cross would have seen him. Walker parried by casting doubt on Cross's ability to remember a particular Saturday four years earlier.
Besides Cross, however, the defense offered nothing to support the contention that Criner had never left the logging area. No one contacted Pitts or Cross prior to trial. Hocker hired a private investigator, Jim Cooper, who retraced the route and concluded that Criner simply didn't have enough time to do everything the state alleged even if he'd somehow planned the crime in advance. But Cooper never took the stand.
Morrow, who is still associated with Hocker and spoke on his behalf, says that if the defense seemed to take a minimalist approach, they had good reason -- the state had failed to prove its case, they thought, and introducing additional elements might have only confused the jury. "We didn't believe the evidence was sufficient [to convict] as a matter of law," he says.
Jeff Pitts doesn't look like one of the richest men in Montgomery County. Aside from a huge state-of-the-art television console and other electronic gadgets in his living room, his modest brick ranch house looks like any country home: chickens scrabbling in the yard, dogs and several kids underfoot. Pitts himself works long hands-on hours at his job, sometimes seven days a week. He sports a number of scars accumulated in logging mishaps over the years and enjoys telling the story of driving to the hospital one afternoon clutching his severed finger, which was sewn back on his hand.
In addition to a profitable logging business, Pitts and his family own vast tracts of prime county real estate, dating back several generations, that are worth millions. Among their holdings is a 15,000-acre stretch of woods adjoining the San Jacinto River north of Kingwood, crisscrossed by rough logging roads and dotted with sand and gravel operations. In the heart of the tract is a hunting camp consisting of a couple of primitive buildings; the family leases hunting rights on the property during the season.
Pitts bounces a four-wheel-drive pickup along a rutted path past the camp to the edge of the land, close to the river. Though the turf is bone dry from the summer drought, the drive from the nearest blacktop still takes more than half an hour. He stops at a pleasant spot near some power lines -- the very place, he says, where he and the Criner brothers were clear-cutting the day Deanna Ogg was murdered.
At the time, Pitts remembers, conditions in the area were quite different. Heavy rains combined with the relentless churning and grinding of heavy 18-wheelers had left parts of the route virtually impassable. "This road is probably 80 percent better than it was," Pitts says.
With the practiced ease of someone who has told the same tale dozens of times, Pitts recounts the events of Saturday, September 27. The three men started work felling trees in mid-morning. The day progressed, Pitts says, pretty much as described during the trial -- a hydraulic hose on a bulldozer ruptured, and he and Richard Criner headed off to buy a replacement, returning three or four hours later. When they got back, Roy was there.
Pitts immediately noticed something different -- instead of several dozen trees scattered helter-skelter on the ground, as they'd been when he left, a fresh pile of neatly stacked logs sat ready to be loaded on trucks and hauled away. While waiting for his boss to return with the new hose, Criner had apparently used a type of heavy tractor known as a skidder to move and bunch the logs.
Given the conditions of the roads, and given that the large mound would have taken several hours to construct, Pitts says it's absurd to think Criner could have had enough time to go home and shower, let alone abduct, rape, murder and dump a human being. "I've been doing this my whole life, and there's no possible way I could have put that much timber up and gone in and done something like that," he says. "You don't just put a damn big pile together and run out and murder somebody. You just can't do it."
Moreover, Pitts says, he repeatedly informed investigators of his opinion, yet no mention of this appears in any police report or other document. "We told them son-of-a-bitches that there was no way Roy Criner coulda done it," he says.
The "we" includes Pitts's wife, Tonya, who was present during at least two interviews with investigators and confirms her husband's story. Any details that supported the state's murder theory or otherwise reflected badly on Criner made it in the record, Tonya Pitts says. But if a statement was positive, she says, "They didn't write it down. They didn't want to hear anything good; only the bad."
The Pittses aren't the first to claim that statements favorable to Criner's case disappeared into the void. Son Cross, the hunting camp caretaker whose testimony that Criner never left camp was dismissed by the prosecution as unreliable, said at trial that he'd told investigators the same story -- two weeks after the murder, when his memory of the weekend in question would have been quite sharp.
Those investigators, Sherman Sauls and Texas Ranger Stan Oldham, who was assisting the sheriff's department with the murder probe, denied that Cross had given Criner an alibi when they interviewed him. As for the charge that the interviews with Pitts were selectively edited, Oldham has his doubts, though he can't recall the specifics. "Someone would have written that in his report had [the Pittses] been stating that each time," he conjectures.
But Oldham, now the police chief in Llano, concedes that the reports are generally spotty or filled with gaps, including his own. "This is a shitty report, it really is," he says of his collected entries. "I guess what I'll do is keep this record out and give it to my guys here at the police department and tell them if they ever write a report like this, they're fired."
Sauls refused to discuss the fine points of the case without first reviewing his records. (No longer with the force, Sauls works as a security guard. According to David Walker, he was fired for sexual harassment, though Sauls blames racial discrimination for his departure and has filed suit against the county.)
Various other police reports have simply turned up missing. At trial, Sauls noted a discussion he had with the medical examiner about the source of the victim's wounds, but when challenged could not provide the report he admitted should have been written to document the conversation. Three other reports referenced in the record, including two by another deputy who was later expelled, are nowhere to be found. And former prosecutor Walker says today that an examination of the phantom screwdriver allegedly found in Criner's truck turned up nothing. But that, too, was apparently never documented.
It's not clear if those reports might have pointed toward Criner's innocence. But one piece of evidence withheld from the defense most certainly would have -- the cigarette butt found at the scene of the crime.
During the trial, both Walker and Sauls declaimed any knowledge of the butt's exact whereabouts. Asked by Hocker why he didn't introduce the butt as evidence, Walker answered that he had no reason to believe it was especially important. "I didn't think it was anything that was beneficial necessarily to me or unbeneficial either way," he said.
The Press requested a look at the evidence but was rebuffed by the district attorney. A photograph of the crime scene in the files, however, clearly shows a lengthy butt lying three feet from Ogg's body. The filter was brown. According to her friends, the victim smoked Marlboro Lights, the same brand she bought at the convenience store just before her murder. Marlboro Lights have a white filter.
Roy Criner didn't smoke.
Walker can't explain the cigarette butt, or the pubic hair found in the victim's panties that matched neither her nor Criner. As for the screwdriver, which he calls "a critical piece of evidence," he has no idea what happened to it. "That's certainly an embarrassing aspect of the case," he says.
On the other hand, Walker says, not having the screwdriver is a relatively minor point. "When you have something that can't be forensically connected to the crime, then it's no different from any other screwdriver," he says. "Its absence is a bigger embarrassment to me, and a bigger detriment to the state's case than its absence is [a detriment] to the defense."
Those blithe comments overlook a distinct possibility: Unless it had been meticulously wiped clean, the screwdriver would likely have had traces of grease or other buildup from regular use. In that case, the negative test result Walker recalls would have eliminated it as the weapon that helped put Criner behind bars, since any blood or flesh would have stuck to the shaft and been detected.
The absence of any forensic connection between Criner and the crime is also more than an inconvenience. The police dusted the truck so heavily that it took weeks to clean off the talcum, but they discovered not one fingerprint, drop of blood, clothing fiber or hair of Ogg's, though there was no shortage of other people's microscopic leavings to be found. A murder that brutal would surely have left something in the vehicle, says Jim Cooper, the investigator and attorney who assisted the defense at trial. "Unless you steam-clean it," he says, "there's gonna be trace evidence, and they didn't find any trace evidence in the truck."
As with the screwdriver and truck, however, the defense failed to fully capitalize on the many flaws in the state's case. Testimony established that the weather had been exceptionally wet, for example, but no one thought to ask how Criner could have driven 500 yards down the logging road to the spot where Ogg's body was found without leaving the distinctive tire tracks of his dual-axle pickup. A photograph taken at the scene clearly shows a set of standard vehicle tracks in the dirt, though (again) no police report makes note of this significant fact, and Hocker never raised the issue. "As a lawyer, looking back in hindsight, I see a lot of things that should have been done," Cooper says.
Even without any knowledge of the disturbing information that has since emerged, the Ninth Court of Appeals in Beaumont ruled that the evidence to convict Criner was insufficient to sustain the verdict. Sixteen months after the trial, Roy Criner was set free.
But his luck didn't hold. In December 1992, the Court of Criminal Appeals rejected the appellate ruling, stating in essence that the Beaumont Court had substituted its judgment for the jury's. For the third time, prison walls surrounded him. Under current state policy, he'll probably not be up for release until a couple of decades into the next century.
His eyes darting nervously about, barely able to meet the gaze of his visitors, Roy Criner looks less like a cold-blooded killer than a hunted animal. Not surprising, since he believes the state wants to kill him. After his successful appeal was overturned, Criner went briefly on the lam to avoid what he says was an effort to do him in. "I'm lucky to be alive," he says.
Criner can be forgiven a certain amount of paranoia. When the warrant was issued for his arrest, law-enforcement officials had him placed immediately on the state's Ten Most Wanted list, even though he hadn't even been notified by his lawyer of his new status. When police later approached Criner at a friend's house in Livingston where he'd holed up to escape the heat, he fled into the woods. Calling Criner a "self-proclaimed survivalist," police then painted a picture for the media of a dangerous fugitive armed to the teeth with crossbows and battle axes.
His friends and relatives say it was all a crock. "He never lived in the woods for a day in his life," says Jackie Criner, his mother. "That's just some more bullshit."
When he emerged from hiding -- the next day -- he called another friend, who picked him up and brought him to Houston. At the time, recalls his mother, "Roy didn't have a water gun [on him], much less a bow or an ax. The child didn't have nothin' except maybe a can of Skoal with him."
It wasn't the first time the authorities had stretched the truth to inflate Criner's menace. When he was first arrested for the murder of Deanna Ogg in 1986, police described Criner as an acquaintance of the victim, though the two had never met and had no friends in common. In order to more easily obtain a search warrant, Sherman Sauls told a judge that Criner was in custody in the Montgomery County jail, a lie he later admitted on the witness stand.
And to explain the evolving statements of Jeff Pitts, prosecutor David Walker portrayed Criner during the trial as a predator who would extract revenge if given the chance. "Roy Criner has intimidated and threatened every witness that has testified, not only with his presence today, but four years ago," he told the judge. "They are all scared to death of him. Specifically, Jeffrey Pitts."
Nonsense, says Pitts. Not only did Criner never threaten him, but he'd hire him back if he ever gets out of prison. "Roy was one of the best damn hands you could have," he says.
Pitts has another explanation for his conflicting statements: During a series of interviews, Sauls, Walker and other investigators were constantly attempting to lead him with information that incriminated Criner; if he said something they didn't like, they'd threaten him with perjury. "I don't have respect for none of the 'laws,' " he says, referring to the police.
Walker dismisses Pitts's comments as an effort to avoid responsibility for helping convict his former employee, and he says his own perception of Criner remains unchanged. "He is a beast," Walker says.
As evidence, Walker cites Criner's clashes with cops and the stories of his brute physical strength, such as the time he put all the other jail inmates to shame with his weightlifting prowess. Plus, he notes, Criner had a reputation for getting into fistfights. "It was almost as if it was recreation for him," Walker says.
But those who know Criner paint a more complex picture, one of a lonely, brooding soul with strong, if narrow, moral convictions. He did have a short fuse, they say, but it only lit under certain circumstances. "I seen him get pissed off, but not at anyone that didn't deserve it," says Tonya Pitts. And while he may have been prone to take a swing at a man if goaded or pushed, she and others say he was unfailingly deferential and polite to women. "He would never even cuss in front of me," Pitts says.
Chuck Adams, an old friend of Criner's who is now an Army sergeant in Michigan, recalls Roy's temper but says he never held a grudge. "He and I have come to blows," Adams says. "But then we'd go hunting afterwards."
Adams remembers something else about his old friend. "Roy would make up shit," he says. Stories about running guns in Mexico and evading bandits. Stories about drag racing. Stories about sex. "A few times he bragged about scoring with chicks," Adams says. "I know for a fact he didn't, because I'd seen him at Dairy Queen."
The last time Adams saw Criner was in 1989, the year before he went to trial. "Did you do it?" Adams asked; "Yeah, man," Criner answered with a laugh, and they changed the subject. Adams, whose sister was murdered and who consequently doesn't take such matters lightly, blew it off as typical Criner. "Roy always wanted to be macho," he says. "You could tell he was full of shit."
Adams doesn't believe Criner could have killed or raped Deanna Ogg; to do so in the allotted time frame, everything would have had to have fallen into place like clockwork. "Roy isn't clockwork material," he says.
Instead, after reading the trial transcript, he thinks his friend was railroaded. "Roy was convicted when he went into that courtroom," he says. "You cannot put somebody in jail on the evidence they got."
"He just got caught up in the system," says Adams, "and he couldn't get out."
After two decades of defending people charged with capital murder, Mike Charlton is used to things not going his way. Many of his clients are found guilty -- primarily because they are guilty. "I've done it for 20 years, and I've had hundreds of cases," says Charlton in a soft West Texas drawl. "There have been maybe five or six where I just knew my client was innocent. Roy's one of them."
The lawyer, who gets a few bucks here and there from Criner's family but is primarily working pro bono, got involved in the case about a year ago after he was approached by Jim Cooper, the investigator who had worked on the case in 1990. "Cooper knows how to push my buttons," Charlton says. "He came to me and told me he thought the guy was innocent."
Charlton wasted little time suggesting a DNA test; Criner readily agreed. So did Montgomery County D.A. Mike McDougal, who was confident that the results would match Criner's DNA with the semen samples still preserved in the evidence vault. "They were absolutely convinced it was gonna show that Roy was guilty," he says.
But it didn't, and McDougal had the state Department of Public Safety lab run a second check. That, too, came back negative.
Charlton had every reason to expect that his client would soon be joining him for a victory beer. After all, McDougal had told the Houston Chronicle after the second test that "Assuming [Charlton] files a writ, I'm assuming we'll dismiss the charge."
But law enforcement has been selective in its acceptance of DNA technology, embracing it when the evidence helps secure a conviction, but challenging it if it undermines the prosecution's case (see "DNA Delivers the Verdict," page 21). Charlton did indeed file a writ in district court, but the D.A. challenged it. "In light of the confessions and the statements [Criner] made, the DNA is not relevant at all," McDougal says. "That's our position."
District Judge Mike Mayes saw it Charlton's way. The DNA evidence tipped the balance, Mayes stated in his opinion, and given all the facts in the case, "it is more likely than not that ... Applicant would not have been convicted of the offense of aggravated sexual assault." Criner, the judge concluded, should get a new trial.
But for the second time, the Court of Criminal Appeals struck Criner a knockout punch. Rejecting Mayes's recommendation, the 53 decision ruled that the DNA evidence merely proved that the sperm inside the victim had not been deposited by Criner. The victim was promiscuous, wrote Chief Judge Keller, parroting the state's updated version of events, and Criner could have been wearing a condom when he committed the crime or perhaps failed to ejaculate. Besides, she wrote, "There is overwhelming, direct evidence that establishes that applicant sexually assaulted the victim in this case."
Judge Charlie Baird, who often finds himself on the short end of the court's split decisions, says the court's ruling is more than out of line. Not only is the evidence considerably less than overwhelming, he says, but the decision completely ignored the conclusions of the district judge, which historically have weighed heavily in the court's review. "It has been the role of the appellate court to give great deference to the trial judge," Baird says. "The court did not do that. It did not give him any deference at all."
More troubling, says Baird, is the simple fact that the decision not only overrules precedent, it ignores the law. The state's new thesis of promiscuity and condoms, he says, was immaterial. "That was never the theory of prosecution at trial," Baird says. "The question is, what did they prove at trial?"
"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.
Besides, Morrow says in dismay, Criner has staunchly maintained his innocence from the beginning. In fact, he rejected a plea bargain before trial that, had he taken it, would have put him close to eligibility for release today. He wasn't going to plea for anything," says Morrow.
Walker doesn't buy it. "They perceived him to be responsible for the crime, in my opinion," he says. "Therefore, they didn't put him on the witness stand and allow me to blast him with a cross-examination and cause him, probably, to rear up out of his seat and charge across the courtroom at me, because that's the kind of man he is."
Nevertheless, he does concede that the DNA results have thrown the case a bit out of whack. "Clearly, that's compelling evidence," Walker says. Had the science been available at the time, he says, "We would clearly at that point have been required to proceed with a further investigation. I would have wanted something to overcome that evidence."
"That does not mean that Roy Criner is innocent today, or should be released today," he adds quickly.
The former prosecutor has a lot of faith in the judicial process. Sure, people who are guilty of crimes periodically get off by working the strings to their advantage. And yes, the opposite is true, though he believes it to be a rare occurrence. "I guess the evidence indicates that from time to time an innocent person is wrongly convicted," he says.
When that happens, though, plenty of opportunities for relief remain. "There's a substantial ability for a wrong to be righted," Walker says.
"That's the beauty of the system."
T.R. Coleman assisted with this article.
E-mail Bob Burtman at firstname.lastname@example.org.
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