Countdown to Wrongful Conviction Day: Friday, October 2, 2105; 7 days. For information: http://www.aidwyc.org/wcd-2015/
STORY: "The Trials of Ed Graf," by Jeremy Stahl, published by Slate on September 23, 2015.
SUB-HEADING: "In 1988, he was convicted of killing his stepsons—based on arson science we now know is bunk. A quarter of a century later, Texas granted him a new trial, one that pitted modern forensics against old-fashioned Texas justice."
GIST: "The fact that the state had actually executed someone on the basis of unreliable arson science—the very reason that these training conferences were taking place—was the subtext of the entire two-day seminar. During his remarks, Connealy only hinted at why they were there, talking about “rebuilding the reputation” of the State Fire Marshal’s Office and using the “Forensic Science Commission report”—that is, the Willingham report—to accomplish this. “We got some negative publicity,” is how another speaker, investigator Tommy Sing, put it to the assembled crowd. “I can tell you looking at the Graf case, there’s no forensic evidence to support the conclusion that the fire was intentional,” Sing told me between conference sessions. “Not then, not now.” Sing, a 40-year veteran firefighter and investigator, had investigated the case at the appellate stage for the McLennan County prosecutor’s office. Still, he was sure to offer the caveat that this was a forensic science point of view and not a “criminal investigation point of view.” In all of his 2,000-plus criminal investigations, though, Sing had never had a prosecutor charge someone with a crime in an undetermined fire. As for Willingham, Sing seemed to acknowledge that the execution was a travesty of justice without saying he was innocent. “We can’t go back and change anything that’s already happened—we can’t change Willingham,” Sing told me. “But today,” he continued, taking a deep sigh, “today I’m glad it’s in the forefront. Because it’s getting better training for my investigators.” ........More than six hours into deliberations, the jury was still deadlocked, to the surprise of many, and they recessed for the evening. The jury deliberated for five more hours the next day without returning a verdict. Then something shocking happened. Eleven hours into deadlocked deliberations, when it seemed very possible that the trial would end in a hung jury, Ed Graf pleaded guilty to murdering his two adopted sons. The plea made no sense. It appeared that Graf was admitting guilt in exchange for virtually nothing. He was already serving a life sentence with the eligibility for parole, and he confessed in exchange for two 60-year sentences to run concurrently with credit given for time served during the past 2½ decades. But Graf, 62, was left with more than 30 years to go on his sentence, which essentially made it a life sentence. As Abel Reyna noted in announcing the verdict to the jury, the parole board was not going to look kindly on a twice-convicted double child-murderer who had falsely protested his innocence for so long. Family members of the victims were ready to feverishly contest any request for parole, including Graf’s own son, who had testified against his biological father at trial, despite having been a baby at the time of his brothers’ deaths. Prosecutors also promised to contest parole at each attempt. Reyna reportedly said he expected the first such opportunity to come one year or more after the trial and said he would fight it tooth and nail.
So it appeared that Graf had confessed to murder, forfeited his right to proclaim his innocence on the basis of scientific evidence, forfeited his right to a new trial in the case of a hung jury, and forfeited his right to appeal any guilty verdict that could possibly be overturned—all in exchange for nothing. Had the scientific evidence been wrong? Was he guilty after all? Had his conscience finally got the better of him? On the last question, it appears that the answer is no. Ed Graf was released on parole eight days after his guilty plea. What Graf and his attorneys knew—and the district attorney apparently did not—is that there is a loophole in Texas’ parole law for capital crimes that took place prior to 1987. In such cases, parole must be granted automatically when an inmate’s time served and his credited time for good behavior add up to his sentence. After his first trial, Graf had been sentenced to life, meaning he would not be able to take advantage of this loophole—no sum of years can add up to a life sentence. But his new plea deal put a number on his sentence—60 years—and Graf had more than enough time served and time credited for good behavior to go free on parole immediately, and automatically—no matter what the district attorney did or said. (Even though the plea deal was struck in 2014, it was the resolution of a 1986 incident, and thus still governed by the laws as they were written at the time. The loophole that freed Graf has since been closed.) Graf’s lawyer Walter Reaves told me the defense attorneys had never planned on taking a plea—Graf had always publicly maintained his innocence and his lawyers believed they either would be able to prove it, or they wouldn’t have to because prosecutors would drop the charges. But by the end of the trial Graf seemed resigned to the idea that the best he was going to do was get a hung jury and another difficult trial, or worse, a guilty verdict and another lengthy appeal from prison. In the midst of jury deliberations, he broached the possibility of a deal with his lawyers, who were taken aback. “It was extremely surprising to us,” Reaves said. “I think Ed had given it a lot of thought, and I think he had his mind made up by the time he even talked to us about it.” Graf seems to have realized that if he didn’t take a deal he would likely lose the possibility of exploiting the mandatory release loophole.
What made Graf’s release even more surreal was that the jury had reached a guilty verdict on murder just as the plea deal was being entered, one that would likely have negated his opportunity for mandatory release by sentencing him again to life. By the middle of the morning, one of the not-guilty jurors had begun to slip. By the afternoon’s vote, there was only one person standing in the way of Graf’s return to prison. The 12 jurors went for one final vote, with the one remaining holdout going last. “I could tell that she really didn’t want to say murder, but she did,” the juror Patricia told me. The bailiff took the verdict, and was waiting outside the door of the courtroom to hand it to the judge as the plea deal was being entered. The possibility of the guilty verdict was obviously a motivating factor in pushing Graf to accept the plea, but the fact that the two things happened simultaneously is astonishing. By confessing to murdering his two sons, Ed Graf became a free man. Epilogue: I don’t know if Ed Graf is an innocent man wrongfully convicted. But the fact that he confessed in order to escape jail does not mean that he was necessarily guilty. “His feeling was—I think—it was a desperation, and I think he saw, all of a sudden we had new witnesses that were saying new things, that didn't say things in 1988,” his lawyer Mark Dyer said, “and he just thought ‘it's gonna be more of the same if I got another trial.’ ”. Ultimately, the implications of the Ed Graf case are that even if the sort of comprehensive forensic reviews that Chris Connealy has established in Texas are adopted nationwide, it might not matter to people who have been convicted on the basis of bad fire science. Both the Graf and Willingham cases demonstrate the flaws in a system that entrusts our district attorneys with overwhelming power; that allows inmates to testify against each other even when they have every incentive to lie; and a system in which dry forensics from experts can’t compete with emotional memories from eyewitnesses. The best science is still no match for a judicial system bent on delivering convictions at almost any cost. Ed Graf denied himself any claim of innocence and right to appeal by pleading guilty. I don’t think he ever received a fair trial for his alleged crime. He never will."
The entire story can be found at:
Toronto Star, my previous employer for more than twenty incredible
years, has put considerable effort into exposing the harm caused by Dr.
Charles Smith and his protectors - and into pushing for reform of
Ontario's forensic pediatric pathology system. The Star has a "topic"
section which focuses on recent stories related to Dr. Charles Smith. It
can be found at:
The entire story can be found at: