Sharon Keller
Sharon Faye Keller was the Presiding Judge of the Texas Court of Criminal Appeals. She is a Republican.
Education and early career
Born in Texas, Keller graduated from Rice University in Houston in 1975 with a major in philosophy and obtained her Juris Doctor in 1978 from Southern Methodist University School of Law.According to Texas Monthly, when Keller was asked in a preelection interview if she was bound to follow the law, even if it meant an unjust result. "Absolutely... Who is going to determine what justice is? Me? I think justice is achieved by following the law", she replied. "She's extremely religious... he believes strongly that God is on her side", said one colleague. "Her commitment to her religion was enormous", stated another friend.
She is chairman of the Texas Task Force on Indigent Defense. She serves on the executive board of the Capitol Area Council of the Boy Scouts of America.
In 2000, Keller was challenged in the Republican primary election for the presiding judge slot of the Court of Criminal Appeals by sitting Judge Tom Price of Dallas. Keller prevailed, 122,958 to Price's 101,514 votes. Price continued serving on the court until his retirement in 2015.
Notable cases
Cesar Fierro case
In 1996, Keller wrote her first major opinion, which denied a new trial to Cesar Fierro, who had confessed to murdering an El Paso cab driver, Nicholas Castanon. It had been revealed after trial that the Ciudad Juárez police had threatened to torture the defendant's mother and stepfather unless he confessed. A detective, Al Medrano, was aware that the confession had been coerced but denied it at trial. However, he later filed an affidavit admitting his perjury. The prosecutor and the trial judge agreed that Fierro deserved a new trial; however Keller and the CCA disagreed.A laborer born in Ciudad Juárez, Mexico, and reared on both sides of the border, Fierro was arrested when Gerardo Olague, a 16-year-old, implicated him five months after Castanon's slaying. Olague testified that Castanon had agreed to give him and Fierro a ride to Ciudad Juárez, and Fierro shot and killed Castanon on the way there. Fierro was in an El Paso jail when police questioned him about the Castanon murder. He later alleged that during the questioning local police coerced his confession by threatening to harm his parents, who they said were being held hostage in Mexico by Juárez detectives. Fierro said in a recent interview from Death Row in Livingston: "He told me if I signed, then they'd let them go, and if not, they were going to torture them." At Fierro's trial, Ciudad Juárez and El Paso police denied any wrongdoing.
In the opinion, Keller accepted the trial court's conclusion of law that "there was a strong likelihood that the defendant's confession had been coerced by the actions of the Juárez police and by the knowledge and acquiescence of those actions by Detective Medrano." Although she acknowledged that Fierro's "due process rights were violated", she concluded that "the error was harmless" and denied the motion for a new trial. She indicated that the "knowing use of perjured testimony" is trial error and that applicant had to prove harm by a preponderance of evidence. In addition to the confession, the State also had the testimony of Olague. The opinion held that it was more probable that the outcome of the trial would have been the same without the confession.
Judges Clinton, Maloney, Charlie Baird, and Morris Overstreet all dissented. Overstreet called a confession the "most powerful piece of evidence" a prosecutor can offer. He said it was "totally inconceivable" that Fierro's confession had not convinced the jurors of his guilt. Maloney and Overstreet felt that the burden should have been on the State to show that the "perjured testimony" was harmless. Regardless, they felt Fierro had proved harm by a preponderance of evidence. They pointed out that the prosecutor had testified that had he known the confession was coerced, he would have joined a motion to suppress it which he felt would have been granted. Without the confession, he would then not have proceeded with the prosecution unless he could have corroborated Olague's testimony because he felt Olague was "not the most credible witness". The dissenters believed this demonstrated that the prosecutor considered the confession to be critical. Further, in the Supreme Court case the majority cited to support its claim that the perjured testimony was subject to a harmless error analysis, "the Supreme Court recognized that some trial errors may be so egregious as to entitle an applicant to relief even if the error could not be shown to affect the jury's verdict".
Roy Criner case
Origins
In the evening of September 27, 1986, Roy Criner, a logger from New Caney, Texas, allegedly told his boss and two friends, that he had picked up a hitchhiker, driven her to Pitts' logging facility, threatened to kill her with a screwdriver, raped her, and thrown her out of the truck. Their testimony was not uniform. Ringo later testified that Criner did not specify when the events with the girl took place, while Hooker thought Criner said Friday night; Ringo testified that Criner did not say explicitly that he raped and killed her, while Hooker attributed the rape claim to him, and that Criner had picked the hitchhiker up at a store in New Caney.Earlier that evening, ninth grader Deanna Ogg stopped at a store in New Caney to buy cigarettes and told the cashier that "she was going to a party." Approximately fifteen minutes before Criner told Pitts tale version of the evening's events, Ogg's body was found near the logging facility; she had been raped, beaten, and stabbed. The medical examiner concluded that the wounds could have been made with a screwdriver, "among other things". Five days later, having interviewed Pitts, Hooker, and Ringo, and having found a screwdriver in Criner's truck, the police arrested Criner for the murder. The murder charge was dropped for lack of evidence, however, and aggravated sexual assault was substituted.
When the case came to trial in 1990, prosecutors relied primarily on testimony by Pitts, Hooker, and Ringo about Criner's statements to them. Other evidence—including a cigarette butt found at the scene, and, to the "amaze" of the appellate court, the screwdriver itself—was not introduced. Prosecutor David Walker "failed to tell the jury, or the defense, that the screwdriver had been examined and tested , though no written record of any test existed," and District Attorney Mike McDougal claimed it was never tested. In sum, the state had 27 pieces of forensic evidence, none of which connected Criner to the crime. Criner's defense lawyers told the Houston Press and Frontline that they believed the evidence against their client "was so shaky that a jury would never convict" so they put on no defense witnesses and did not adequately cross-examine Pitts, who told Frontline that there was no way Criner had time to commit the murder. Nevertheless, Criner was convicted and sentenced to 99 years.
On appeal, Criner claimed the evidence was insufficient to convict him of rape and insufficient to prove that he was responsible for the aggravating element, i.e. the head injury to Ogg. A majority of the intermediate appellate court agreed with his second claim and thus did not rule on his first one. A majority of the Texas Court of Criminal Appeals reversed, and the conviction became final.
The new DNA evidence
In 1997, the semen found in Ogg was subjected to newly-available DNA testing; it was not Criner's. Criner filed a habeas corpus petition for a new trial, advancing two arguments: an "actual innocence" claim based on the new DNA evidence, and a Brady claim. The following year, the district court declined to make factual findings on the actual innocence claim, but recommended Criner receive a new trial on the basis of the Brady claim.On May 16, 1998, the court in a 5–3 decision, overturned the district court's recommendation without written comment "ecause there is overwhelming, direct evidence that establishes that sexually assaulted the victim in this case..."
After Baird filed a dissent, Keller issued a written opinion on behalf of the majority. The court dismissed the Brady claim, and focused on the "actual innocence" claim." The majority felt that the DNA evidence was irrelevant: "Evidence that the victim had sexual relations with someone other than simply is not evidence that is innocent." The opinion states that "here was testimony that the victim had had many boyfriends and that she 'loved sex.'" However, the opinion does not dispute Baird's assertion that the state did not put on evidence of Ogg's promiscuity at trial. Mike McDougal, the district attorney, denies that his office ever "impugned the reputation of Ogg" and claims not to know where Keller got information about the victim's purported promiscuity. However, the motion he filed in opposing a new trial for Criner, included an affidavit from D.A. investigator John Stephenson that stated he had reviewed "the offense reports in the case," and "One report reflects that the deceased had lots of boyfriends and was very sexually active."
The court agreed with arguments made by the state during the habeas hearing that the absence of Criner's semen could be explained by use of a condom or coitus interruptus and that the state could "produce evidence that the victim had had sexual relations with men other than the applicant", and concluded that "he DNA evidence shows merely that the victim had sex with someone other than at a time relatively near her death. It does not and cannot exclude the possibility that she also had sex with ."
After the case was decided, Keller, Baird, Joel Albrecht, the foreman of the trial jury, were among those interviewed by Frontline. Keller emphasized the importance of the finality of judgments, and said that Criner had not unquestionably established he was innocent, the applicable standard according to her. She reiterated that the "DNA evidence establishes that someone else had sex with this girl, who was promiscuous." She added: "DNA evidence means different things in different contexts. It's like fingerprint evidence. If someone's fingerprints are at the scene of a crime, that means the person was there at some time or another. But if his fingerprints aren't there, it doesn't prove that he's innocent of a crime committed at that scene, especially if he's told people that he committed the crime." She also stated that an appellate court "look at to see whether it would have made a difference in their verdict. If it would, he gets a new trial. If it wouldn't, then he doesn't." The Frontline interviewer responded "But you are not the jury."
Albrecht disagreed with Keller's majority opinion and stated: "I don't understand how the court could say what we would do. It would be impossible. I personally think if the DNA came forth stating that it was negative, that the verdict would not have been guilty."
Baird disputed that Criner had "confessed" to the crime. Further he pointed out that the state did not introduce any evidence at trial to establish Ogg's promiscuity. He accused the state of reversing itself, because it had originally argued that Ogg had not had sex with anybody besides Criner. Further, he pointed out that neither "failure to ejaculate" nor "use of a condom" arguments were presented to the jury at trial which the state does not dispute. He emphasized that juries were the heart of the judicial system.
In 2009, Texas Monthly said of this interview that Keller appeared to have considered the DNA evidence "a technicality". The Dallas News said she "offered a clumsy, embarrassing rationale of her decision on national television." Tom Price, who ran for Chief Judge in a primary election, said that Keller's Criner opinion had made the court a "national laughingstock." Judge Mansfield, who had sided with the majority in denying Criner a hearing, told the Chicago Tribune that, after watching the Frontline documentary, reviewing briefs and considering the case at some length, he voted "the wrong way" and would change his vote if he could. "Judges, like anyone else, can make mistakes... I hope I get a chance to fix it." He stated that he hoped Criner's lawyers filed a new appeal as he felt Criner deserved a new trial.
Following the CCA's refusal to order a new trial, the cigarette butt found at the scene was subjected to DNA testing. The DNA on the cigarette was not a match for Criner, but it was a match for the semen found in Ogg. Ogg's DNA was also found on the cigarette, indicating that she shared a cigarette with the person who had sex with her. These results convinced the district attorney, local sheriff and the trial judge that Criner was not guilty. The Texas Board of Pardons and Paroles recommended he be pardoned and, citing "credible new evidence raises substantial doubt about guilt", then-Governor George W. Bush pardoned him in 2000.