WACO (May 7, 2013)—Once convicted Hewitt child killer Ed Graf was back in the McLennan County Jail Tuesday after a state appeals court ordered the district court to review his 1988 conviction for capital murder in the 1986 fiery deaths of his two adopted sons.
Graf was returned to the McLennan County Jail Monday afternoon due to an April 22 order from the Texas Court of Criminal Appeals that vacated his conviction based upon an appeal that said expert testimony during his trial was based upon what was later determined to be bad science.
In its decision, the high court said: “Relief is granted. The judgment in Cause No. 87-1041-C in the 54th District Court of McLennan County is set aside, and applicant is remanded to the custody of the Sheriff of McLennan County to answer the charges as set out in the indictment.
“The trial court shall issue any necessary bench warrant within 10 days after the mandate of this Court issues.”
Graf now will appear in 54th District Court, the same court where he was convicted of killing his adopted sons Joby, then 9, and Jason, then 8, who died in a backyard shed that was consumed by fire on August 26, 1986.
District Judge Matt Johnson told News 10 Tuesday morning he will hear the issue if it is set for re-trial.
Johnson also said Graf’s lawyer has asked about bond which would allow Graf to be released from custody pending a new trial, but a check with 54th District Court’s coordinator’s office revealed no request for a bond hearing has yet been set.
Graf’s lawyer, Walter “Skip” Reaves, said Tuesday he expects Graf to prevail in a bond hearing.
“We filed two requests to set bond,” Reaves said Tuesday.
“I mean, obviously he was out (on bond) before (the first) trial and stayed out until he was convicted so we don’t see any reason he shouldn’t be out now,” Reaves said.
“We don’t see any reason why he shouldn’t be out now,” Reaves said.
“He’s spent 25 years in prison for something he didn’t do, the least he can do is get out while (prosecutors) make a decision on what they are going to do,” Reaves said.
Prosecutors, on the other hand, would just as soon Graf stay locked up.
“If (Graf) is not granted bond he will be in jail until the indictment is basically called into court,” District Attorney Abel Reyna said Tuesday.
“(With) the complexities in this case, I would expect Judge Johnson would set it on some type of special docket and we would calendar it accordingly,” Reyna said.
Graf, now 60, has maintained all along he did not set the fire and in March, based upon new evidence presented by arson experts, the trial court agreed there was enough evidence to warrant granting his appeal and forcing the court to re-visit the case.
McLennan County District Attorney Abel Reyna has not said if he will re-try the case.
"We've put a team of prosecutors on it which includes myself and we will then investigate and re-investigate, look at the evidence as it stands on the existence of the evidence currently and then we'll make the determination whether or not to retry Mr. Graf and how to proceed accordingly," Reyna said in March.
Former district attorney Vic Feazell, who prosecuted Graf, has said all along that there was ample evidence in the case to convict Graf without consideration of the scientific evidence of arson and that had that evidence not been presented, the jury would have found Graf guilty anyway.
But in the order published by the appeals court in Austin, judges said "False expert testimony at applicant's trial violated his due process rights.”
"We not only have new science that proved it wasn't arson we have science that proves there's really no other explanation for what happened other than it was just a fire that got accidentally set," Graf's attorney, Walter "Skip' Reaves has said.
In January, saying the scientific evidence presented in the original trial was flawed, retired State District Judge George Allen recommended a new trial for Graf.
Allen presided over the original trial in 1988 in which Graf was convicted of capital murder after a McLennan County jury found that he set fire to the shed after locking the boys inside.
The recommendation, which went to the appeals court, came after experts testified earlier that the scientific evidence in Graf's trial was based on a hypothesis that studies have since discredited.
Investigators and experts for the prosecution told the jury in 1988 that certain patterns found on the floor of the shed could only mean the fire was set with an accelerant.
But recent findings by arson experts may indicate other causes, and Reaves thinks they could lead to a different verdict.
Combustion science expert Douglas James Carpenter of Baltimore testified during a hearing on Jan. 11 in Waco that he thinks the fire started accidentally and he said the doors of the shed had to be open based on the carbon monoxide levels in the lungs of the two boys, not closed as prosecutors maintained during Graf's original trial.
A second witness, arson expert Robert Paul Bieber of San Jose, Calif., testified that he presented Graf's case to 33 top arson investigators who concluded that the findings of the original investigation were unreliable.
Graf's conviction is among between 25 and 50 nationwide involved in a study conducted by New York-based John Jay College, which says that because arson investigations prior to 2005 were flawed, many people convicted of arson murder prior to 2005 could have been wrongly convicted.