Richard D. Friedman rdfrdman at UMICH.EDU
Thu Aug 17 12:50:22 PDT 2000

In response to Jeffrey Renz, my understanding is that, unusual as it seems,
Gov. Bush did not have power to commute or pardon unless the Board so

Here are some comments in reply to others:

        Suppose the prosecution presented what, taken in itself, appeared to be
overwhelming evidence of guilt – a confession, an identification by the
victim, clear evidence putting the two in the same place at the same
time.  But then the defense comes up with proof that (a) the defendant
didn’t leave semen traces on the victim, and (b) someone else did.  This
would not render a conviction unsupportable, even if some speculation were
necessary to account for the defense evidence consistent with guilt.  The
fact is that some rapists do not leave semen – either because they don’t
ejaculate or because they wear a condom in an attempt to prevent the
creation of evidence.  And sometimes it happens that a woman who has
consensual sex with one man is raped soon after by another.  (It’s a major
advance in rape prosecutions over the last few decades that juries are no
longer encouraged to think “She had consensual sex freely with new
acquaintances, she couldn’t have been raped here.”)  So a jury putting all
the evidence together might say, yes, we’re confident based on the strong
evidence that he raped her, and this must be a case in which the rapist
didn’t leave semen but someone else did.  Now, based on what I’ve read I
don’t think that the evidence against Criner was so strong as to support
that conclusion beyond a reasonable doubt, but there’s nothing bizarre
about the method of analysis – any more than if there were overwhelming
evidence that the defendant committed burglary alone but someone else’s
fingerprints were found at the scene and not the defendant’s, and the jury
concluded, “Well, the other person must have been there for some other
purpose, and probably the defendant wore rubber gloves.”

        As for the new trial motion, it was already clear at the first trial that
there was evidence that some other man had had sexual contact with the
victim, so the point that the majority of the court might have emphasized
(I haven’t seen the decision on denial of a new trial) was that the new
evidence, DNA analysis of semen, didn’t add much.  It did add the fact that
the defendant didn’t leave semen, but given the possible explanations for
that I don’t think this court would be alone in determining that not to be
new-trial-worthy.  The fact is that courts are very tough about new trials,
because they’re constantly afraid of opening up cases, and yes, they
certainly do hold the defendant accountable for decisions made by his
lawyer.  In this case, I don’t know why the first DNA test wasn’t done earlier.

        As for the shrug about leaving an innocent person in prison, of course I
agree that this is the result our criminal justice system strives most
mightily to avoid, because it is so terrible.  But we know that on occasion
it happens, and it’s hard to know when it’s happening.

        I suspect that this is a case that shouldn’t have been prosecuted in the
first place, the conviction shouldn’t have been upheld, and that given the
weakness of the evidence at trial the first DNA test should have been
enough to warrant a new trial motion.  But I don’t think it’s as egregious
as it’s being portrayed, and in particular the fact that the semen matched
someone else is not dispositive.

Rich Friedman

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