Court Shouldn't Keep Innocent Men in Jail

By Robert Hinton

Roy Criner recently was pardoned and released from prison after being confined for more than 10 years for a rape and murder he did not commit. DNA technology not available at the time of his trial now shows he didn't rape the victim. When the new evidence was presented, the trial judge recommended a new trial for Mr. Criner. That was more than two years ago. What happened next was shameful.

The Texas Court of Criminal Appeals is our highest court for criminal cases. When a person is unfairly deprived of his liberty or proof comes to light that an innocent person has been wrongfully convicted, the court is expected to work justice. However, in the Criner case, the Court of Criminal Appeals went out of its way to work injustice to both Mr. Criner and the victim.

The Court of Criminal Appeals refused to order a new trial for Mr. Criner. Its members reasoned that maybe Mr. Criner had worn a condom and that maybe the victim had had sex with another man just before being raped and murdered by Mr. Criner. Never mind that it was the semen that led to Mr. Criner's conviction in the first place or that there was no evidence that the victim was promiscuous.

So the Court of Criminal Appeals ignored evidence exonerating Mr. Criner, created new theories never offered at Mr. Criner's trial for the sole purpose of keeping an innocent man in prison and trashed the victim's reputation.

Mr. Criner eventually was released only because the district attorney, sheriff and trial judge all sought his pardon, which Gov. George W. Bush recently granted. Most stunning is that because the Court of Criminal Appeals failed in its duty. Mr. Criner remained in prison a full two year after the evidence clearly showed his innocence.

That isn't an isolated case --- the Court of Criminal Appeals works injustice on a regular basis.

Cesar Fierro allegedly robbed and murdered a taxi driver in El Paso, was convicted of capital murder and given the death penalty. Since he confessed to the crime, it seemed like an open-and-shut case. But then it came to light that Mr. Fierro had confessed only after learning that his parents were being held by police. When confronted, an El Paso police officer perjured himself on the stand and denied the coercion. The prosecutor later told the Court of Criminal Appeals that had he known the facts, he would have agreed to suppress the confession and dismiss the charges. The trial judge, like the judge in Mr. Criner's case, recommended a new trial.

Again, the Court of Criminal Appeals refused, concluding that allowing the coerced confession to be used was harmless! One wonders how the admission of illegally obtained evidence that would have led the prosecutor to dismiss the case, and the trial judge to recommend a new trial, could be harmless. But today, Mr. Fierro sits on death row convicted by a coerced confession that was admitted into evidence by perjured testimony.

Recently, attention has been given to defense lawyers who sleep during trials. In the cases of Calvin Burdine and George McFarland, defense lawyers slept through the trials that condemned the two men to death. In both case, prosecutor's evidence never was challenged and, and a defense never was mounted. Both cases went before the Court of Criminal Appeals, and the court upheld both death sentence. Following the reasoning of the Court of Criminal Appeals, criminal defense attorneys can bring pillows to court and sleep through their trials. The federal courts stepped in and ordered a new trial for Mr. Burdine. Mr. McFarland hasn't been so fortunate, and his date with the executioner grows closer.

Those who are innocent or denied their basic constitutional rights have to go to the governor or the federal courts for justice because the Court of Criminal Appeals isn't doing its job.

Most Texans know little about the Court of Criminal Appeals or those who serve on it. But we all should be deeply ashamed of a court that keeps innocent citizens in jail, that watches as individuals are convicted by coerced confessions and perjured testimony and that lets Texans face execution as their lawyers snooze in court.

When prosecutors, sheriffs and judges must sidestep the court and ask the governor to pardon an innocent man because our highest court won't perform, something is terribly wrong.

In Texas, we elect our judges. If we snooze while our elected judges work injustice on the citizenry, shame on us.

Robert Hinton is president of the Texas Criminal Defense Lawyers Association.