Old foes haven't changed stripes: Keller v. Baird 12 years after Roy Criner's pardon

With Texas Court of Criminal Appeals Judge Sharon Keller facing the only contested general election race among her colleagues (she faces Democrat Keith Hampton in a sleepy but potentially significant contest), and former CCA and District Judge Charlie Baird running as a Democratic challenger for Travis County District Attorney (against incumbent Rosemary Lehmberg), Grits was interested to run across this pair of old interviews of the two former colleagues with PBS Frontline regarding the Roy Criner case, which was essentially Texas' first DNA exoneration, though he was freed by executive pardon rather than the courts. Here's what the two judges had to say about the case back then.

• Charlie Baird
• Sharon Keller

Criner's liberation opened the door for the dozens of DNA exonerations the state has witnessed since, but because Governor Bush pardoned Criner, the case didn't change much about the court's jurisprudence. Sharon Keller won the debate on the court, even if she lost it in the court of public opinion. She convinced a majority of CCA judges to side with her against Charlie Baird, but the following year the Legislature created the state's DNA testing statute in rebuke (Ch. 64 of the Code of Criminal Procedure). When the courts upheld prosecutorial objections to DNA testing, the Legislature came back in 2011, at the recommendation of the Timothy Cole Advisory Panel on Wrongful Convictions and removed most grounds for opposing testing when the evidence could be probative.

What stands out most to me looking at these interviews more than a decade hence is how little Judge Keller has changed her views on innocence and post-conviction writs, and what a tremendous influence her thinking has had on the court. Criner's pardon didn't change the court's ruling, and Judge Keller's arguments back then against exonerating Criner based on DNA were essentially similar to the arguments a more recent 5-4 majority used to keep from granting habeas writs when a conviction was based on junk science. Judge Keller told Frontline:

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?

This is the same argument as in Ex Parte Robbins, where a 5-4 majority including Keller declared that testimony by a medical examiner had "not been proven false" even though the medical examiner (ME) herself and numerous other experts concurred that her trial testimony had presented wrong conclusions unsupported by science to the jury. The district judge had recommended granting a habeas writ, finding that the recanting ME's "opinions were the sole bases of the State's case as to cause and manner of death, without which the State would not have obtained a conviction."

But using the same logic as they did to deny Roy Criner, Keller and Co.denied habeas relief even in the face of a complete lack of inculpatory evidence. The court's own precedents say a conviction may only be overturned if "no reasonable juror" would support it after considering the new evidence. In Robbins' case, the recanted testimony was the "sole" basis for the conviction, but the court ruled its falsity insufficient to overturn the conviction. I can't imagine what "reasonable juror" they're envisioning, but such is the Kellerite logic dominating the majority on today's Court of Criminal Appeals.

You see the same misshapen logic deployed in other arenas dominated by prosecutors, as with the Todd Willingham case at the Forensic Science Commission. The trial testimony about fire and arson was all hokum, it was the only directly inculpatory evidence presented to the jury, but Williamson County DA John Bradley insisted that just because there's no evidence of arson doesn't mean it couldn't have happened. Problem is, the jury wasn't told it "could" have happened; they were told the "fire doesn't lie." This is the precedential ghost of Roy Criner's case, further evidence that Sharon Keller's consistent if often invisible hand is still guiding the state down the same dark path that left the court humiliated in Criner and a national laughingstock. Rather than learn from the experience, Keller and Co. and the hard-line prosecutors whose interests they represent chose to double down and do everything in their power to prevent future science-based exonerations, culminating in the Willingham fiasco and Ex Parte Robbins.

Judge Baird, by contrast, for his dissent in Criner and his decision to speak out about it upon leaving the court, merits recognition as virtually the father of Texas DNA exonerations. It was his testimony before Congress that brought a national spotlight to the case, leading Republican Sen. Orrin Hatch to call the court's ruling "outrageous." Unlike Judge Keller, Baird acknowledged how it would impact jurors' decision if, instead of pointing to guilt, scientific evidence showed the defendant "didn't commit the offense -- at least, [he] didn't commit it under the theory the prosecution advanced at the trial."

When that happens, Judge Keller and the CCA majority think it appropriate for appellate judges to hypothesize other theories of the crime besides the one presented to jurors and suggest they "could" have found this or that alternative convincing. They could have, one supposes, but the case presented to the jury is the basis for appeals, not imaginary alternatives.

Baird, by contrast said of the Keller court's Criner decision, "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." One could say the same thing about the Willingham case as well as Ex Parte Robbins. To sustain the verdict would require supposition outside the bounds of what was actually argued at trial.

Keller's virulent pro-death penalty rhetoric and rulings on the court ("We close at 5," etc.) get the most attention from all the culture warriors, but IMO it's the string of cases from  Criner to Robbins that represents perhaps her most lasting and harmful achievement. The Texas Court of Criminal Appeals was going to be pro-death penalty no matter who sat on it, but Presiding Judge Sharon Keller (and her colleagues populating the court's extremist wing) are responsible for this odd, anti-science bent to Texas' innocence/habeas jurisprudence.