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On the Outside

Criner and the system try to adjust to a mistaken conviction

By Bob Burtman 

Roy Criner hasn't had much time to himself since he walked out of prison on August 15 after serving ten years for a rape he didn't commit (see "Home Again," by Bob Burtman, August 24). A shy and retiring sort who feels most comfortable in the solitude of the Montgomery County woods, Criner has been steadily besieged by international television and newspaper reporters.

PBS's Frontline, which brought his case to national prominence, filmed a celebration barbecue for his friends and family. A German television crew flew in for an interview several weeks ago. Recently, the Houston Chronicle published a lengthy takeout on the Criner saga in its Texas Magazine.

And in his oddest appearance, Criner went on the Debra Duncan Show with A.B. Butler, another ex-inmate wrongly convicted of rape. In the front row of the live studio audience sat Montgomery County District Attorney Mike McDougal, whose resistance kept Criner in prison for three years even after DNA tests exonerated him. As McDougal defended himself and the system, Criner's anger grew visible; in response to a question about why he'd been suspected in the first place, he spat, "For a blow job!" at the D.A. -- startling everyone, including Duncan.

Now Criner has entered a time warp. After taking a few months to readjust, he's back working as a logger for Jeff Pitts, the same job he held when Deanna Ogg was raped and murdered in 1986 and Criner was fingered as the perp. Pitts gave trial testimony that helped put him away, but later told the Houston Press that Criner couldn't possibly have killed the victim. After repeatedly apologizing for his role, Pitts rehired him.

Some other things haven't changed, either. David Walker, who prosecuted Criner, still thinks he was involved in the crime, as does McDougal. "We may not be able to prove it, but that doesn't mean he didn't do it," Walker told the Chronicle.

Equally unapologetic has been Sharon Keller, the Texas Court of Criminal Appeals judge whose now-infamous opinion rejecting the DNA evidence drew international scorn. She rarely gives interviews after her oft-quoted chilling remarks on Frontline -- if the DNA test had come back positive, she said, it would have meant something, but the negative result proved nothing. Keller has stated that news accounts left out key information that justified her ruling.

At least Ogg's relatives, who at first didn't want to believe in Criner's innocence, now have accepted the evidence and communicated their regrets to his family. They hold out hope that the killer will be caught, but the list of likely suspects who haven't been DNA-tested has narrowed considerably. Montgomery County Constable Travis Bishop is still tracking down leads and sending DNA samples to the state crime lab, but cooperation has been limited. "It's a difficult deal," Bishop says. "Everybody in this neck of the woods is afraid of everybody, and nobody's talking."

Fallout from the Criner case continues to ripple through criminal justice circles. The state legislature is considering a couple of bills to allow inmates proclaiming their innocence to get DNA tests. Mike Charlton, Criner's appellate attorney who was instrumental in his release, recently testified at a legislative hearing on the matter. During that hearing, Charlton says, a Williamson County prosecutor expressed concern about the prospect of convictions being overturned by DNA evidence. "He said, "The finality of judgment is more important than innocence,' " Charlton recalls.

Charlton doesn't think that view will prevail. "We have a chance of quite a few things passing that will benefit people like Roy," he says. "What form they'll take, I don't know."

Changes may be afoot even in the hard-line Court of Criminal Appeals, at least when DNA evidence is involved. Despite getting panned by every major newspaper in Texas, Keller was elected the court's presiding judge in November.

But other judges on the court have expressed regret about the Criner decision, and even Keller voted to overturn the conviction of Carlos Lavernia this month. DNA evidence proved he didn't commit the rape for which he'd served 16 years in prison. Austin attorney Bill Allison, who represented Lavernia, believes the Criner saga played into the court's decision. "I'm not sure if it was the Criner case itself," Allison says, "or Judge Keller's interview on Frontline."