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

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?

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.