Judge Charles Baird, Texas Court of Criminal Appeals. In the Roy Criner rape/murder case, Baird felt new DNA test results in the case might change the original guilty verdict, and thus warranted giving Criner a new trial. However, the majority of the judges disagreed and Criner's appeal was denied.

DNA evidence. . . Mr. Criner's lawyer sent a sample of the semen taken from the victim's vagina and rectum to a nationally known and recognized DNA lab called Cell Mark. Cell Mark analyzed the semen along with blood drawn from Mr. Criner, and said that Mr. Criner did not place the semen in the victim's vagina and rectum. Then the state insisted on doing an independent DNA analysis. Their analysis proved the same thing: that Mr. Criner was not the person who deposited that semen. That's important, because it shows that Mr. Criner didn't commit the offense--at least, [he] didn't commit it under the theory the prosecution advanced at the trial. . .

So Criner was released?

That evidence was brought to the trial court, where the judge recommended that Mr. Criner receive a new trial. That recommendation went to the Court of Criminal Appeals, where I served. In spite of the trial judge's recommendation, the Court of Criminal Appeals declined to give Mr. Criner a new trial.

Is that usual?

That is very unusual. Typically, an appellate court will follow the trial judge's recommendation. But the judges on the Court of Criminal Appeals voted 5-4 not to follow that recommendation.

Why?

The majority opinion said that the DNA evidence did not necessarily mean that Mr. Criner had not committed this offense, that it simply meant that he did not deposit the semen. . .Judge Sharon Keller of the Court of Criminal Appeals wrote the majority opinion, saying that this new DNA evidence was not compelling enough, because perhaps Criner wore a condom, or did not ejaculate when he sexually assaulted the victim. That was their rationale.

Does that rationale make sense?

It does not make sense to me at all. When the state prosecuted Mr. Criner, they theorized that Mr. Criner did not wear a condom, that he did ejaculate, and that his semen was recovered from the victim. . . What they have done, and I think improperly so, is to create or invent reasons that explain away the DNA evidence. But those reasons were never presented to a jury, and that's the basis of the entire judicial system-- you put those facts before 12 individual citizens, and let them decide if that evidence is reliable and believable, or not.

Judge Keller says any reasonable juror would still convict Criner.

Judge Keller just totally discounted the DNA evidence. She said that all the other evidence at the trial was overwhelming. I disagree with her. That evidence is not overwhelming at all, especially when considered in light of this new DNA evidence. . . When appellate judges read a cold statement of facts typed by the court reporter, it's very difficult to tell what a jury found believable or not. As an appellate court judge, you're really just assuming or speculating, and we should not be doing that when we have the lives and liberty of individuals at stake. . .

Is it strange for courts to ignore DNA results?

Both the defense and the state agreed to have this type of evidence checked and sent off to different labs. Both labs agree that the DNA results show that Mr. Criner did not deposit this semen. So it is very extraordinary that an appellate court would ignore that finding.

Why do you think they ignored it?

The victim was a 16-year-old who was sexually assaulted and died on her way to her grandmother's house. On appeal, Judge Keller's opinion said that perhaps the victim had been promiscuous. There was no evidence whatsoever of this. That came totally out of the blue, as far as I was concerned. It was never offered by the state, or argued at trial, or even put forward by Mr. Criner at trial. . . The state's theory of prosecution against Mr. Criner was that she was simply going from her home to her grandmother's home, she was abducted along the way, and raped and kidnapped. That's all that needed to be known about this young lady in this tragic circumstance. But Judge Keller made a point of saying that perhaps this young lady was promiscuous, perhaps she had, in fact, had sex with somebody else on this same date. That was Judge Keller's rationale for how the semen could be recovered in the victim's body. But the state's theory of prosecution at trial was just the opposite. The state said that this young lady had not had sex with anybody else whatsoever, and that it was Mr. Criner's semen that was found in the victim. . .

What does this case say about DNA evidence?

DNA is very important and compelling. It's been recognized in Texas for many years. The great thing about DNA evidence is that it is so reliable. It proves guilt, and it also establishes innocence. That's what is so effective about DNA. The problem in this case is that the DNA evidence was used conclusively by both the defense theory and by the state's experts to prove that Mr. Criner did not deposit the semen. But that finding was ignored by a majority of the judges on the Court of Criminal Appeals. . . To me, this case doesn't comment on DNA evidence's credibility or reliability. What this case says to me, more than anything else, is that perhaps the method of judicial review is not as credible or as reliable as we would like it to be. If both the state and the defense agree to have scientific evidence, you'd expect the state's appellate judges to rely upon it. But in Mr. Criner's case, they did not.

Is this a dangerous ruling for the court to make?

Appellate court judges should give a great deal of weight and deference to the jury's decision. The whole system of justice is based upon the jury and its decision. Judges should not tamper with that decision, unless the evidence reflects that the jury's decision was clearly wrong. Compelling DNA evidence tells that the wrong person has been convicted and confined, and therefore is losing his or her liberty. The other thing it tells you is that the real criminal is out on the streets, possibly harming more people, and that person needs to be found and punished. . .

Why not give Criner another trial?

Typically, the burden of proof is on the state to prove beyond a reasonable doubt that the individual charged with the crime is guilty. It's different after the case has been tried, and the appeal is finished. When an individual brings a writ of habeas corpus and says, "I'm innocent," then the burden is on him to prove his innocence, and it takes compelling evidence. Mr. Criner brought in compelling DNA showing that he did not deposit the semen found in the victim. He met that burden of showing that there was newly discovered evidence, which, if believed by a jury, would establish his innocence. . . If the state thinks they have another theory of prosecution that they can prove beyond a reasonable doubt, then let them do that. Let Mr. Criner bring in this compelling DNA evidence. That's certainly what the trial judge wanted, and that's what I sought. But I didn't succeed. . .

Where does that leave Roy Criner?

In Texas, the Court of Criminal Appeals is the court of last say. That means that whatever they said is the final word for Mr. Criner. . . I feel the system has broken down, and Mr. Criner is the victim of that breakdown. . . The most Mr. Criner can hope for is either a pardon by the governor, or a federal judge finding the DNA evidence compelling and awarding Mr. Criner a new trial. . .

Does the criminal justice system owe anything more to him?

Justice has not been done in the Criner case. Compelling evidence has been ignored, and it's very unfortunate for Mr. Criner. . . The courts have promoted finality over the substance of the claims. It's better that they be final, than that they be decided right. And of course I think that's wrong, when an individual's life or liberty hangs in the balance. . . Today, if you can't get relief when you have DNA evidence that shows you're innocent, then you're just not going to get relief from the appellate courts. And that's a shame.