"[Roy Criner] did not meet his burden to prove that he is actually innocent of this offense. At best, he established that he might be innocent. We can't give new trials to everyone who establishes, after conviction, that they might be innocent. We would have no finality in the criminal justice system, and finality is important. When witnesses testify, and when jurors return a verdict, they need to know that they can't come back later and change their minds. . . DNA evidence in this case did not prove that he didn't commit the offense. That's the standard we use, and he didn't prove it. At best, he made some people think that he might be innocent. But he didn't prove it."
FRONTLINE: INTERVIEW WITH JUDGE SHARON KILLER; (THE INFAMOUS INTERVIEW); Wikipedia informs us that, "Frontline is a public affairs television program of varying length produced at WGBH in Boston, Massachusetts, and distributed through the Public Broadcasting Service network in the United States. The program is highly respected for producing in-depth documentaries about various subjects, leading to numerous awards. Some programs are made by independent filmmakers and broadcast as part of the Frontline series. Since the series debut, there have been more than 500 films broadcast."
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PUBLISHER'S NOTE:
Michael Hall referred to the Judge Sharon Keller's infamous "Frontline" interview as follows in an article which ran in Texas Monthly in August, 2000, under the heading, "The Judgment of Sharon Keller."
"In 1998 Keller wrote her most controversial decision. Back in 1986, a sixteen-year-old girl had been raped and murdered in New Caney. Four years later a man named Roy Criner was convicted of aggravated sexual assault and sentenced to 99 years. The only evidence was the testimony of three friends of his, who said that Criner had bragged about having rough sex with a girl who had been hitchhiking. In 1997, after several failed appeals, he took two DNA tests, both of which showed that it was not his semen in the girl. His attorneys moved for a new trial, which the trial judge recommended.
Keller said no. Her opinion reversed the trial court, arguing, “The new evidence does not establish innocence.” In other words, the process had been fair—Criner had been convicted by a jury and had already had his appeals. She granted an interview to the PBS show Frontline and embarrassed herself and the court, calling the victim “promiscuous” and saying Criner hadn’t established his innocence—even with DNA, which she treated as if it were a technicality. “Finality [of judgments] is important,” she said. After further DNA testing excluded Criner, Bush pardoned him."
The entire Texas Monthly article can be found at:
http://www.texasmonthly.com/2009-08-01/feature2-2.php
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BACKGROUND: Justice Sharon Keller has attained notoriety for allegations that she allowed convicted murderer and rapist Michael Richard to be executed on September 25, 2007 - notwithstanding his attempt to file a stay of execution - because the court clerk's office closes at 5. Keller is of particular interest blog because of the opinion she wrote for the majority in the Roy Criner case. Wikipedia informs us that: "Sharon Faye Keller (born in Dallas, Texas, 1953) is the Presiding Judge of the Texas Court of Criminal Appeals, which is the highest court for all criminal matters in the State of Texas. Because of her position, she has been involved in many high-profile and controversial cases, and has thus received widespread news coverage......In 1998, Keller she wrote the majority opinion in a 5-3 (one judge abstaining) decision that denied a new trial to Roy Criner. Criner had been convicted of sexual assault in 1990, but newly-available DNA testing had shown that the semen found in the victim was not his......Judge Tom Price, who ran for the Chief Judge seat, in a primary election, said that Keller's Criner opinion had made the court a "national laughingstock." Judge Mansfield, who had sided with the majority in denying Criner a hearing, told the Chicago Tribune that, after watching the Frontline documentary, reviewing briefs and considering the case at some length, he voted "the wrong way" and would change his vote if he could. "Judges, like anyone else, can make mistakes ... I hope I get a chance to fix it." He stated that he hoped Criner's lawyers filed a new appeal as he felt Criner deserved a get a new trial......Following the (appeal court's) refusal to order a new trial, the cigarette butt found at the scene (and not adduced at trial) was subjected to DNA testing.The DNA on the cigarette was not a match for Criner, but it was a match for the semen found in Ogg. Ogg's DNA was also found on the cigarette, indicating that she shared a cigarette with the person who had sex with her (and who presumably killed her). These results convinced the district attorney, local sheriff and the trial judge that Criner was not guilty. The Texas Board of Pardons and Paroles recommended he be pardoned and, citing "credible new evidence [that] raises substantial doubt about [Criner's] guilt," then-Governor George W. Bush pardoned him in 2000.
The thorough, unabridged Wikipedia article on Keller can be found at:
http://en.wikipedia.org/wiki/Sharon_Keller
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Interview with Judge Sharon Keller, Texas Court of Criminal Appeals. She wrote the majority opinion in the Roy Criner case, ruling that new tests which showed DNA evidence in the rape and murder case was not Criner's didn't warrant granting Criner a new trial.
What harm would there be in giving Roy Criner another trial?
A lot of things must be considered before giving someone another trial. Finality of judgements is important. . . At best, DNA evidence establishes that someone else had sex with this girl, who was promiscuous. That is simply not enough to overcome the compelling nature of his confessions to his friends that he picked up a girl and raped her. He said he raped a girl. The only question at trial was whether the victim in this case was the person that he raped. The DNA test is not proof that he is innocent. It's negative evidence, instead of positive evidence. A jury has determined that he's guilty. When you look at new evidence, you look at it to see whether it would have made a difference in their verdict. If it would, he gets a new trial. If it wouldn't, then he doesn't.
But you're not the jury.
He's had a fair trial with 12 jurors deciding his guilt. . . This DNA test gives negative, not positive, evidence. It would not have made a difference in the jury's verdict. . . Nobody knows for sure. But no state ever says, "I'm not sure. Let's just give him a new trial." Before trial, it's up to the state to prove that he's guilty. Now, it's up to him to prove that he's innocent. That's his burden under the law: Has he unquestionably established that he's innocent?
You think not.
He had an opportunity at the writ hearing to say why he was confessing, and why he was telling people that he had raped a girl if he hadn't. He didn't offer any explanation about who he said he raped, if he raped someone, why he said it if he didn't rape someone, or if he took his victim to her grandmother's house. . . It's not up to me to believe him or not. It's up to the jury to believe. And they believed he did what he said he did. . . He's in jail for 99 years for aggravated sexual assault. That's the charge he was tried on and convicted of. That's what he said he did. . .
Doesn't the DNA evidence raise new questions?
In Texas, the legal test to get relief after your conviction is final-- and after your direct appeal is through--is: "Has he unquestionably established that he is innocent?" That's what the appellate court looks at. "Has he established clear and convincing evidence that no rational juror would have found him guilty?" I think the record shows that he has not. . .
So the DNA evidence didn't sufficiently impress you?
It's important where the burden of proof lies. It's his burden to establish that he is innocent. It's not sufficient to show that he might be innocent. He has to establish unquestionably that he is innocent, and he hasn't done that. DNA evidence means different things in different contexts. It's like fingerprint evidence. If someone's fingerprints are at the scene of a crime, that means the person was there at some time or another. But if his fingerprints aren't there, it doesn't prove that he's innocent of a crime committed at that scene, especially if he's told people that he committed the crime. . .Two days after he confessed to his friends, one friend brought Mr. Criner a newspaper and said, "This is an awful lot of coincidences." At that point, Mr. Criner said, "I didn't rape her. I took her to her grandmother's house in New Caney." The victim was going to her grandmother's trailer house in New Caney, and she didn't get there. She was murdered. If that was not the girl that he picked up and raped, was it a coincidence that some other girl that he picked up hitchhiking was going to her grandmother's trailer house in New Caney? That changed story was supposed to show his innocence. But it made him look guilty. . .
But now this can be weighed against the new DNA evidence.
I don't think the jury's verdict would have been any different, even if they'd had the DNA evidence back then. The state would have explained that the girl was promiscuous, and might have shown that she'd had sex with different people. . . It's important where the burden of proof lies. It's his burden to establish that he is innocent. It's not sufficient to show that he might be innocent. He has to establish unquestionably that he is innocent, and he hasn't done that.
Is the victim's promiscuity the best explanation for the DNA test results?
The state argued that [Criner] could have worn a condom, or he could have failed to ejaculate. They mentioned a rape conviction where the rapist did not ejaculate. Another possibility is a third person. . .
Do you believe in the possibility of the third person?
Nothing in the record would particularly support that. . .
Why would he wear a condom to cover up his action, and then, a few hours later, brag to his friends about having committed the crime?
People who commit offenses do things that are very strange. I don't know whether he was wearing a condom or not. That was just a theory by the state. The fact that this man bragged about beating and raping a girl is very strange, whether he did it or not. It's something that a normal person wouldn't understand. But criminals do things that normal people don't understand. . .
Didn't the DNA test refute the original blood evidence?
The [original serology] evidence showed that the blood group substance found on the victim's body could have been put there by anyone having Type O blood. Something like 44% of the population, or even the victim herself, could have deposited that blood group substance, including Mr. Criner. . . I think it's clear the jury was not relying on this [evidence] when they decided that he committed the offense. . .That's not sufficient to support a conviction.
So it comes down to his statements to his friends?
He had no explanation about why, on the night this girl was murdered, he told three people that he had picked up a girl and raped her. And it was his burden to put on that kind of evidence. The absence of physical evidence that Roy Criner raped this woman doesn't prove his innocence.
Essentially, his confessions were the evidence against him. . . That was essentially what he was convicted on. If a person confesses to a crime, the conviction should be affirmed on appeal if there's corroborating evidence that the crime actually occurred. So, yes, that's sufficient evidence on appeal. . .
How can Roy Criner establish his innocence?
I don't know. . .
Has justice been served in this case?
Justice is served by allowing the criminal justice system to function by the rules that are in place to determine the truth. That is the function of all our rules and standards. I abide by those standards, because they are the surest way to determine the truth. . . As a judge, I look at what the law requires, which is that he unquestionably establish that he is actually innocent. That was my focus in reviewing this case. It's the jury's job to speculate about whether a person is actually innocent or actually guilty. I review the propriety of the conviction by whatever legal standards are in place.
So it was a proper conviction even if it leaves open the question of his actual innocence?
[Roy Criner] did not meet his burden to prove that he is actually innocent of this offense. At best, he established that he might be innocent. We can't give new trials to everyone who establishes, after conviction, that they might be innocent. We would have no finality in the criminal justice system, and finality is important. When witnesses testify, and when jurors return a verdict, they need to know that they can't come back later and change their minds. . . DNA evidence in this case did not prove that he didn't commit the offense. That's the standard we use, and he didn't prove it. At best, he made some people think that he might be innocent. But he didn't prove it.
The interview can be found at:
http://www.pbs.org/wgbh/pages/frontline/shows/case/interviews/keller.html
Harold Levy...hlevy15@gmail.com;
