POST: "The trials of Ed Graf," by Jeremy Stahl, published by Slate on August 16, 2015.
GIST: "The real motive, prosecutors argued, was to get the boys—a source of
regular bickering between Graf and his wife—out of their lives. His wife
testified that shortly before the fire, she had threatened to leave him
over his strict discipline of Joby and Jason, sons from a previous
marriage, and to take their newborn third son, Edward III, with her. The case was still largely circumstantial, though. The thing that
likely clinched Graf’s conviction was the scientific testimony of a pair
of forensic examiners. Joseph Porter, an investigator with the State
Fire Marshal’s Office, testified that, based on his analysis of photos
of the remains of the scene, the door of the shed must have been locked
from the outside at the time of the fire, which would indicate foul
play. He also said there were obvious charring patterns on the floor of
the shed left by an accelerant. “The fire was definitely incendiary,”
Porter declared. The prosecution’s other expert, a top fire investigator
from New York known for his report on the
Osage Avenue fire,
a notorious fire set by Philadelphia officials that destroyed a
primarily black neighborhood, was brought in to testify that there was
“no doubt” that this was arson. If the fire was intentionally set, then Graf was the only suspect
with means, motives, and opportunity. Even if there was no direct
evidence connecting him to the crime, the circumstantial evidence and
the word of two arson experts was enough. The jury deliberated for four
hours before pronouncing him guilty of capital murder. The jurors then had to decide the punishment. The district attorney,
Vic Feazell, said that the “facts of the case cry out” for the death
penalty—two boys burned alive, murdered by a trusted parent.
Defense attorney Charles McDonald gave an impassioned plea that the
jurors had convicted an innocent man and would make the injustice
irreversible if they chose execution over life in prison. “I’m asking
for this man’s life because if you did make a mistake there’s going to
be some folks, somewhere down the line, it may be years … but maybe the
mistake can be corrected,” McDonald argued. “If you take this man’s
life, there ain’t no way to ever correct it.” The jurors must have found this argument compelling, because they spared Ed Graf’s life. Twenty-five years later, the Texas Court of Criminal Appeals decided
that a mistake had, in fact, been made. The investigators who testified
the fire was arson used what in the years since has been discredited as
junk science. A state review panel set up to examine bad forensic
science in arson cases said that the evidence did not point to an
incendiary fire. A top fire scientist in the field went one step
further: The way the boys had died, from carbon monoxide inhalation
rather than burns, proved the fire couldn’t have been set by Graf
spreading an accelerant, and was thus likely accidental. The defense’s
theory was that the boys, who multiple witnesses said had a history of
playing with matches and cigarettes, had set the fire themselves,
attempted to put it out, and been quickly overcome by carbon monoxide
poisoning. The reason Ed Graf’s case was reviewed a quarter of a century after
he barely escaped the death chamber was because of one man: Cameron Todd
Willingham..........Whether Graf’s plea damages the good work of Chris Connealy’s review
panels remains to be seen, but the prosecution’s successful attempts to
present a case in direct contradiction to scientific evidence does
appear like it could have the negative impact that Carpenter had told me
he fears. Certainly Graf, when he looked at his options, didn’t have
faith that the jury would favor science over circumstance—and he was
right to be skeptical. Perhaps the most disturbing thing about the judicial proceedings in
these cases is how close Graf came to being sentenced to death, and how
Cameron Todd Willingham’s unjust killing by the state has remained
unacknowledged. (Not everybody feels that way. “I felt from the
beginning, as many others did, he should’ve gotten the death penalty,”
Bradburn told me. “He should not be breathing right now.” After the
Willingham controversy erupted following the publication of Grann’s
story, meanwhile, his ex-wife Stacy Kuykendall said he confessed to her,
which
contradicted previous statements to reporters.)
Every last bit of evidence used against Willingham has fallen apart,
but there have been no repercussions for the execution of a man who was
almost certainly innocent. The most extreme punishment Willingham
prosecutor John Jackson currently faces is disbarment for his alleged
role in concocting a false confession. (Request for comment to Jackson’s
office went unreturned, but he has previously denied the accusation
that he helped fabricate a confession.)
Despite this, and despite polls that show Texas continues to support
the death penalty, national Innocence Project co-founder Barry Scheck
believes the state is evolving on the issue. “I think that Texas has
changed now. They included the option of life without parole so jurors
know about it, and death sentences in Texas have begun to go down,”
Scheck told me last year. “I think it’s disturbing to people in Texas,
as it is across the country, that the risk of executing innocent people
is real. It’s demonstrable in Texas, it’s not just Todd Willingham.” Texas is already making great strides on correcting bad forensic
science, led by the Forensic Science Commission, the State Fire
Marshal’s Office, and the state’s Innocence Project. “The reality is,
science is as factual and real as you can get,” Vilbas said when we
first spoke during the fire marshal’s training sessions. “Science is
gonna advance, whether a DA, or a defense attorney, or a politician
wants to face it or not. … At some point, you’re gonna have to face the
facts that you’ve got cases based on bad science. You’re either gonna do
something about it or not, and we’re going about it in a way that we’re
able to get the stakeholders involved to actually look at it and go
‘yeah, that’s not good, let’s do what we’re supposed to do.’”
