DNA Evidence Finally to Free Texas Inmate

WASHINGTON —  Texas prosecutors agreed Friday that Roy Criner should be released from prison--eight years after a judge ruled that he had been wrongly convicted of rape and murder and three years after a DNA test showed he was innocent.

“It still may be two or three weeks before Roy is out,” Michael Charlton, Criner’s attorney, said by phone after a court hearing. “Some people are saying this shows the system works, but I fail to see it. The system failed in this case.”

Criner’s case has not become a cause celebre, in part because he was not facing a death sentence. Yet it illustrates not only that someone can be wrongly convicted of a crime but that, once found guilty, it is extraordinarily difficult for an inmate to demonstrate that the verdict was mistaken.

Under the law in this country, a convicted man is presumed guilty and, in essence, must prove his innocence to win his release. And Texas courts demand particularly strong proof. Higher courts are reluctant to examine the evidence again and tend to reverse trial decisions only when they find constitutional violations.

Twice before, the state’s highest court reversed rulings that could have freed Criner.

But on Friday, the district attorney and the local sheriff told a trial judge in Montgomery County, Texas, that they now believe Criner should be pardoned and freed. The judge agreed.

This probably was the key step in winning Criner’s freedom, as the Texas Board of Pardons and Paroles usually grants such releases only when it receives a unanimous recommendation from the prosecutor, police and trial judge. If the board agrees that Criner should be released, the matter goes to Gov. George W. Bush for a final decision.

Under Texas law, the governor can grant pardons only after they are recommended by the state board. A spokeswoman for Bush said the governor would act on the request as soon as he receives and reviews it.

Indeed, Charlton said that Bush’s Republican presidential campaign is aiding his cause now. Prosecutors and state officials do not want to keep alive a criminal case that could embarrass the Texas criminal courts and, by extension, Bush.

“They are very anxious to get this resolved,” Charlton said.

In 1986, Criner, a burly and inarticulate 20-year-old, was working at a logging camp in North Texas when a teenage girl was found murdered in a nearby town.

The victim, 16-year-old Deanna Ogg, had been last seen at a convenience store where she said she was on her way to a party. Her body was found along a country road. She had been raped and stabbed.

No evidence ever linked Criner to the crime--and indeed a guard said that Criner had never left the logging camp--yet he was prosecuted four years later. Criner’s prosecution was based largely on statements to police by several of his co-workers who said that, about the time Ogg’s body was found, Criner had boasted of having had sex with a drunken girl he had picked up. The police also theorized that a screwdriver found in Criner’s pickup was the murder weapon.

But no blood, fingerprints, hair samples or other physical evidence was found placing Criner at the crime scene or suggesting that the victim had been in his truck. And no one saw Criner leave the area where he had been piling logs.

Some evidence even pointed away from Criner’s involvement. The tire tracks at the crime scene, for instance, showed a vehicle with single-wide tires. Criner’s truck had double-wide wheels.

At his trial, Criner’s lawyer put on no defense, believing that the jury would acquit his client because of the lack of evidence.

In his closing argument, the prosecutor focused on a series of comparisons. Criner said he had picked up a hitchhiker. Ogg was a hitchhiker. She was killed with a sharp object. Criner was carrying a sharp object.

The jury found Criner guilty in 1990, and he was sentenced to 99 years in prison.

Two years later, in a rare move, a judicial panel in Beaumont overturned Criner’s conviction on grounds that there was literally no evidence of his guilt. Prosecutors appealed, and the Texas Court of Criminal Appeals reversed the ruling and upheld the conviction.

Criner’s family hired Charlton, a Houston defense lawyer, to review the case. In 1997 he persuaded investigators to run a DNA test on a semen sample found on the victim. The test cleared Criner.

In response, a judge ruled that Criner was entitled to a new trial. But prosecutors appealed again and, in a remarkable ruling, the state’s highest court, in a 6-3 decision, upheld the conviction again. Judge Sharon Keller, writing for the majority, said that the DNA results do not “mean he didn’t have sex with her.” She suggested Criner could have used a condom and that the girl had sex with another person about the same time.

The dissenters ridiculed the notion as preposterous, but the 1998 ruling kept Criner in prison.

But Bob Burtman, an enterprising reporter for the weekly Houston Press, and the PBS program “Frontline” focused renewed attention on the case. The reporter and a new investigator hired by the Criner family noted that a cigarette butt was found at the scene, and a test conducted on the cigarette found DNA from the same person who raped Ogg.

This latest evidence convinced the prosecutor and the police that Criner should be released. Though pleased that his client is close to winning his freedom, Charlton said the outcome has not boosted his confidence in the court system.

“This should have happened a long time ago,” he said. “And it’s only happening now because of what happened outside the system: his family’s effort and because others focused attention on the case.”