Roy Wayne Criner

The Texas Court of Criminal Appeals saw "overwhelming direct evidence" of Roy Criner's guilt, but that was before DNA proved him innocent

Roy Wayne Criner was convicted and sentenced to 99 years in prison for the rape of a 16-year-old girl who was found beaten and stabbed to death in a secluded area in Montgomery County, Texas, on September 27, 1986.

The victim, Deanna Ogg, died of blunt trauma to her head and stab wounds to her neck. Criner was charged with both rape and murder based entirely on statements he supposedly made to three acquaintances shortly after the body was found. These witnesses claimed that Criner had told them he "had to get rough with" a female hitchhiker with whom he had sex. The statements were vague and included no reference to a murder, and there was no other evidence linking Criner to the crime. As a result, the prosecution dismissed the murder charge before Criner finally was brought to trial four years after the crime before District Judge John C. Martin and a jury.

The evidence

At the trial, the three acquaintance witnesses testified, but on cross examination their accounts were shown to be inconsistent with each other, with the known facts of the crime, and with their prior statements. The only other major prosecution witness was a state forensic serologist, Maurita Howarth, who testified that tests eliminated Criner as the source of loose hairs recovered from the crime scene and that tests on semen samples recovered from the victim were inconclusive. The defense presented seemingly credible alibi witnesses who placed Criner at work at the time of the crime. But the jury found him guilty.

DNA implicates "unindicted co-ejaculator"

In 1997, DNA testing established that Criner definitely was not the source of the semen recovered from the victim. However, the Texas Court of Criminal Appeals refused to grant a new trial. In an unpublished decision in 1998, the court accepted the prosecution argument that there could have been what defense lawyers sometimes jokingly call an "unindicted co-ejaculator." That is, the semen could have come from someone with whom Ogg had consensual sex before Criner raped her — and Criner might have used a condom or failed to ejaculate. Thus, in the eyes of the highest court in Texas, the DNA was insufficient to warrant a new trial, given that there was, in the court's words, "overwhelming direct evidence" of Criner's guilt.

A problem of semantics?

The decision caught the eye of Bob Burtman, a freelance writer. Burtman wondered what the court meant by "overwhelming"— given that the conviction rested entirely on the inconsistent testimony of three witnesses. After a detailed account of the case by Burtman was published in the Houston Press, an alternative news weekly, Judge Michael Mayes ordered additional DNA testing.

The new testing, performed by Forensic Science Associates in Richmond, California, determined that DNA recovered from a Marlboro cigarette filter found at the scene matched that of the man whose semen had been recovered from the victim. Now, to continue to presume Criner guilty, one would have to believe that the man who left his DNA on the cigarette and in the victim's body had been a bystander when Criner committed the rape — an argument that not even the prosecutors in this case were willing to make.

George Bush saw "substantial doubt"

Based on the new evidence, District Court Judge Michael Mayes — saying there was no doubt about Criner's innocence — recommended that Criner be pardoned. After the Texas Board of Pardons and Paroles unanimously concurred with the judge's recommendation, Governor George W. Bush granted the pardon on August 14, 2000, saying "that credible new evidence raises substantial doubt about the guilt of Roy Criner."

— Rob Warden