And Justice for Some
by Jay B. Van Story
May 7, 2005

The Summary of an Article about the Texas Court of Criminal Appeals
from Texas Monthly, November 2004.

Roy Criner was convicted of aggravated sexual assault and sentenced to 99 years. Three friends said he had bragged about picking up the 21 year-old female victim as she hitchhiked and forcing her to have sex back in 1986. No other evidence tied him to the crime. 

A decade later, DNA retesting provided overwhelming evidence that the three "friends" had made up their stories. Criner's attorneys moved for a new trial. In January 1998 the trial court agreed he deserved one. 

Four months later, the Texas Court of Criminal Appeals (CCA) went against law, science, and, it seemed, all common sense when it wrote, "The new evidence does not establish innocence," and overruled the trial court. 

In 2000, the PBS show "Frontline" aired an episode called "The Case for Innocence," featuring Criner's story. When CCA judge Sharon Keller was asked about the possibility that Criner was innocent, she said, "I suppose that that is a possibility. " When asked how a person could establish innocence, Keller replied, "I don't' know. I don't know." She appeared to be lost in her own circular reasoning. It seemed that Keller and the court really wanted to keep Criner in prison. 

Criner was eventually released on a pardon after additional DNA tests provided even stronger evidence of his innocence. It was a stunning rebuff to the CCA. One of Keller's fellow judges, Tom Price, later said that the case (in which he had dissented) had made the court a "national laughing-stock." The Criner case was proof to some people that the court was ruled by a bunch of pro-prosecutor, right-wing ideologues with one goal in mind: keeping inmates behind bars, no matter what. 

The national media, from the Chicago Tribune to Rolling Stone, wrote stories about a runaway criminal justice system in Texas and a gatekeeper high court that did nothing to control it. They ridiculed the court. 

Since 2000, partly in response to the uproar over the Criner decision, the CCA has moderated somewhat. But the past continues to haunt it. Criner, it was clear, had not been the only hard-luck Texan to run up against an inflexible court. Some, like Ernest Willis, had it even worse. 

Willis was convicted in 1987 for setting fire to a house in Iraan, Texas that killed two women. There was no physical evidence. Eight years later new attorneys found evidence of appalling police and prosecutorial misconduct, which they offered at hearings in 1996 and 1998. In 2000 the trial judge 
wrote a 33-page opinion recommending a new trial. The CCA, in 6 pages, denied it. In October 2004 a federal judge ordered the state to either retry Willis or set him free, which they did, finally. 

The state had cheated, the original defense attorney had failed to defend, and as a result, an innocent man had been sentenced to die. Worst of all, the CCA knew all about it. 

Why would a court keep an innocent man on death row? Why would a court look the other way in the face of DNA evidence? Critics, and there are many, say the court is full of heartless, result-oriented hacks. Time and again over the past decade, whenever CCA judges have had a choice between tolerating bad behavior by prosecutors and police or enforcing the due process rights of criminals, they had sided with the state. 

The judges on the CCA are elected politicians and are careful to paint themselves as tough on crime and criminals, whatever the cost. And so they have developed an overriding concern with preventing further hearings, appeals, and new trials. As Keller told the Frontline crew, "Finality of judgments is important." Of course it is; without finality, cases would drag on forever and the system would fall apart. But over and over before the CCA, finality has trumped everything else, especially fairness. 

The court has voted with the state even when the state has cheated. The court has frequently used the rule of "harmless error." Under the rule, if misconduct or a mistake by the police, prosecution, judge, or jury is minor -- if it doesn't affect the ultimate outcome of the case -- the verdict is not touched. Unfortunately, the CCA considers almost any problem with the state's case, however egregious, harmless. 

It's no secret that police and prosecutors are under heavy pressure to win. The cops are allowed to lie some -- in interrogations, for example -- and prosecutors are allowed to exaggerate. But they can't cheat when it comes to evidence, and they can't lie in front of a jury. As the Supreme Court wrote about the role of the prosecutor 69 years ago: "While he may strike hard blows, he is not at liberty to strike foul ones." 

"What this is all about," says Amarillo defense attorney Warren Clark, "is following the rules. Everybody is bound by the system." 

University of Texas law professor Rob Owen says: "If you indulge the state in cheating when guilt is clear, it tempts the state to cheat in cases when guilt is not clear." Adds a federal judge, who spoke on condition of anonymity: "Most people think, 'If a guy did it and didn't get a fair trial and didn't get a good lawyer, what are we arguing about?' What people don't get is that if the government is allowed to overreach and skew the system, it can do it to anyone.

In overturning one of the death sentences that the CCA had affirmed, a federal judge found that the CCA's ruling was "wholly improper" and "lacked judicial integrity." Perhaps the best proof of the court's new pro-state tendency has been its habit of overturning mandates from trial judges for new trials. 

A good lawyer can save a man's life, or at least give him a fair shot. A bad lawyer, or just an inexperienced one, can send a man to death row or prison for the rest of his life. The CCA has sanctioned some really awful lawyering, such as the infamous cases in which it upheld death sentences even though attorneys were known to have fallen asleep during trials. 

In one case, a federal judge ruled that the CCA's appointment of a bad lawyer was "a cynical and reprehensible attempt to expedite petitioner's execution at the expense of all semblance of fairness and integrity." 

The fundamental problem is that the CCA judges -- like all judges in Texas -- are elected politicians in a state prone to hysteria over not looking tough enough on crime. If you want to see what that really means, take a look at Ernest Willis. 

In his last death row interview, on September 22, 2004, he talked about the CCA's denial of his petition back in 2000. "I really don't know how they could do that, especially on a death penalty case. That's showing no respect for human life. If they know a person is innocent -- and from reading all the evidence, I know those judges know I was innocent -- it shows that they just didn't care. All they wanted was to see me executed." 

Two weeks later Willis was given $100, a flannel shirt, a pair of over- sized trousers, and some white running shoes, in which he walked out the front door of the Texas criminal justice system. As the first man to walk away from death row in seven years spoke briefly with reporters, his voice cracked and he dabbed at his eyes, which were ringed with dark circles. 

Willis got a raw deal. A state district judge said so, a federal district judge said so, the attorney general of Texas said so, and the district attorney said so. His only crime was to be in the wrong place at the wrong time. First, it was a burning house in Iraan, Texas. Then it was in front of the Texas Court of Criminal Appeals. 

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