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When Roy Criner became a free man in August after spending 10 years in prison for a rape he didn’t commit, his exoneration was due in large part to the perseverance of Houston criminal-defense lawyer Michael B. Charlton. Freeing Criner had been a priority for Charlton since he agreed to take the case pro bono in 1997. He stuck with it despite a setback in 1998, when the Texas Court of Criminal Appeals denied Criner a new trial. “A lesser lawyer could have given up easily and said, �There’s nothing here,’ ” says Stanley Schneider, a close friend of Charlton’s and a member of Schneider & McKinney in Houston. But, Schneider adds, “Mike has shown a great deal of determination throughout his career.” Jim Marcus, executive director of the Texas Defender Service, for which Charlton serves as the chairman, says, “Mike is an all too rare attorney who has doggedly pursued justice in that case regardless of whether he got paid or it made him popular.” Charlton’s perseverance also struck a chord with Michael McDougal, the Montgomery County district attorney who eventually joined in the effort to free Criner. “I was impressed with his staying power,” McDougal says. His determination and success at winning Criner’s freedom based on the results of two different DNA tests led Texas Lawyer to name Charlton the lawyer who had the greatest impact in 2000. The case involved the 1986 rape and murder of 16-year-old Deanna Ogg, who was bludgeoned and stabbed to death. Criner initially was charged with capital murder but was convicted of aggravated sexual assault and sentenced to 99 years. Charlton says a friend who had been an investigator for Criner’s defense counsel at trial asked him to consider taking the case. “When I looked at the case the first time, I thought it had a lot of holes in it,” he says. Criner, a logger, was accused of the crime based on statements he made to three acquaintances about having sex with a young hitchhiker, Charlton says. In addition, he says, forensic evidence had linked Criner by blood type to the semen found inside the victim’s body. Charlton says he was convinced of Criner’s innocence after talking to the imprisoned man about seeking DNA testing of the semen. “I told him DNA could sink him. He really looked us right in the eyes and said, �It’s not mine. Go ahead and do it,’ ” the lawyer recalls. The DNA test showed that the semen was not Criner’s, and Judge Michael Mayes of the 140th District Court ruled in January 1998 that Criner was entitled to a new trial. Charlton says he had thought that all he’d have to do was file for a writ and Criner would be free. But the Court of Criminal Appeals, in a 6-3 ruling, overruled the lower court. CCA Judge Sharon Keller, who wrote the majority opinion, said on PBS’ “Frontline” that Ogg could have had sex with someone besides Criner before she was murdered. Charlton says he was “stunned and dismayed” when the court refused to grant Criner a new trial, but the decision made him more determined to stick with the case. “I just stayed mad for three years,” he says. But in the middle of his fight for Criner’s freedom, Charlton faced a tragedy in his own life. His wife, Karen Lerner, also a lawyer in Houston, died in November 1998 after battling cancer for several years. Charlton says it was difficult to keep working on the case during that period, but he believes his wife would have wanted him to finish what he’d started. “It was something she frankly would have insisted that I do,” he says. The work was grueling. Although he wasn’t being paid, Charlton says he and two investigators usually worked on Criner’s case about 10 hours a week. “Some weeks, that’s all we worked on,” he says. SET THINGS RIGHT The next break in the case came when Bob Burtman, a reporter with the Houston Press, found a picture of the crime scene that showed a cigarette butt near the body. Charlton says he wasn’t all that certain the cigarette butt would make a difference but included it with other evidence that the Montgomery County DA’s office had given permission to be sent for testing. “We sent that cigarette butt off as a last resort,” he says. Charlton says he had been more interested in the strands of hair found in the victim’s hand, but the hair turned out to belong to Ogg. The hair and other biological evidence was sent to an independent laboratory in California, which Charlton says just happened to test the cigarette butt. The California lab, and later the laboratory at the Department of Public Safety, found the DNA of two people on the cigarette, that of Ogg and of the person whose semen had been found in her body. “That frankly was just a shot in the dark, just a lucky break,” Charlton says. It was the evidence that convinced McDougal, who previously had opposed a new trial for Criner, to ask that Criner be freed. “When we did the test on the cigarette butt and it turned out it wasn’t Criner’s and did match the semen donor, that’s why we did what we did,” McDougal says. Based on the DNA evidence, the Texas Board of Pardons and Paroles recommended that Criner be pardoned. Gov. George W. Bush quickly acted on the board’s recommendation, freeing Criner on Aug. 15. Schneider says Criner’s case was a major one for Texas because it showed the attitude of the criminal appeals court toward the issue of innocence and the need to be constantly on watch to protect the innocent. “Hopefully, the court will be mindful of it [Criner's case] in the future,” he says. Marcus says the case also impacted the CCA elections this year. While Keller, a Republican, was elected as the court’s presiding judge, the tenor of newspaper editorials changed because of what happened to Criner, and major newspapers in the state endorsed her Democratic opponent, he says. “It [the case] made people realize that toughness at the stake of everything else is not what we want,” Marcus says. Keller declines to be interviewed for this article. Charlton says he got interested in cases like Criner’s after a stint in the law office of Melvyn Bruder, the Dallas lawyer who got Randal Dale Adams — the inmate made famous in the movie “Thin Blue Line” — off death row. Adams spent 12 years in prison after being convicted of killing a Dallas police office. A second-year student at Texas Tech School of Law at the time, Charlton, now 50, says all he got to do on Adams’ case was “carry the brief case” but that watching someone work to free an innocent man made a lasting impression. “I decided that was exactly how I want to be in my own practice,” he says. Charlton says Criner’s case was such an obvious miscarriage of justice that it offered him an opportunity to be the kind of lawyer he wants to be. Notes Charlton, “Sometimes, you do get a chance to set things right.”

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