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"You wanted to laugh and cry at the same time," says Michael Charlton, Criner's attorney, about Keller's reasoning. "It made no sense, and you felt like everything you understood about your own profession was turned upside down."
So Criner, characterized by his attorney as nearly retarded, remained in prison, wondering if he'd languish behind bars his entire life. His mother, Jackie, tried as best she could to understand from her son's lawyers why he couldn't so much as get a new trial, but often she'd simply leave the room and weep. Her son's lawyers had evidence that refuted the prosecution's main argument against her son, and they couldn't receive a new trial.
The PBS program Frontline also covered the case and landed a memorable interview with Keller. On national television, the judge referred to the 16-year-old victim as a "promiscuous girl," allowing for the possibility that someone else's semen could have been inside her other than the rapist's. To Keller, the DNA test simply didn't mean a thing.
"The evidence didn't show that he did not have sex with this woman," she told Frontline. "It can't. Just like the absence of fingerprints right here doesn't show that I didn't touch that chair. It can't show that he didn't do that."
Later in the program, Frontline asked Keller, "How do you prove you're innocent?"
"I don't know. I don't know," she replied.
Following Keller's appearance on Frontline, Charlton made 50 copies of the judge's interview and mailed it to the main papers in the state. At the time, Keller was running to become the presiding judge of the court against fellow Judge Tom Price, who accused her of turning the Court of Criminal Appeals into a national joke after the Frontline interview. Keller would go on to defeat Price, but Charlton kept his client in the news, which he realized was his best bet for setting him free.
"The slogan we adopted at the time was, If you have an innocence case, lawyers can't help you, " Charlton says. "Only journalists can."
Of course, it doesn't hurt to have Barry Scheck on your side either. The former O.J. Simpson lawyer, who has spent a good part of his career exposing wrongful convictions, joined the Criner defense team shortly after the first DNA test seemed to exonerate him. Scheck asked for an inventory of everything that was found at the original crime scene, including a cigarette butt left near the victim. When the DNA from the cigarette did not match Criner's, and a new round of publicity about his case ensued, Bush pardoned him.
Many attorneys talk about landmark cases they won like old men reliving the night they led their high school team to the conference title. They become excited and giddy, choreographing each scene of their legal triumph as though they've reveled in it every day since. But when Charlton reflects on Criner's case, he turns disconsolate and detached. He may have helped free an innocent man from a 99-year prison sentence, but there is no trace of glee in his voice, only a sense of frustration that probably hasn't ebbed in seven years.
"It's not an exaggeration to say that I had a crisis of faith in the legal system and it's one I never got over," Charlton says. "I have no faith in the legal system. I'm very, very cynical about the legal system even though I make a good living in it. As far as I'm concerned, I might as well be a highly paid plumber."
To some of Keller's detractors, the judge honed a one-sided and arbitrary disposition during her six-year stint as a prosecutor at the Dallas County District Attorney's Office. There was a time when the office that former chief prosecutor Henry Wade built was considered a training ground for bright young lawyers, some of whom would go on to become highly paid defense attorneys and well-respected judges. But over the last year, the legacy of Wade and his office has been badly tarnished as Dallas County has been forced to release more than a dozen innocent prisoners, nearly all of whom were wrongfully convicted during his tenure
Critics of Wade and his like-minded successors—among them John Vance, who hired Keller—say that for more than a generation, the District Attorney's Office has been overly aggressive, if not flat-out reckless in performing its duties. The ethical obligation that prosecutors have to seek justice was a mere academic notion—what mattered most was dispatching shackled defendants to jail, even if it took shaky eyewitness accounts to gain a conviction. Keller's growing legion of naysayers see her as a judge who never seems to consider that prosecutors sometimes badly err—as they did with Roy Criner—and they blame that on Keller's old employer.
"Certainly the culture of the Dallas County District Attorney's Office shaped her, formed her and gave her to us," says Jim Harrington, director of the Texas Civil Rights Project. "The Richard case really reflects her attitude that she's not really a jurist; she's more interested in moving people on to convictions and to the death penalty."
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