WACO (January 24, 2013)—Saying the scientific evidence presented in the original trial was flawed, retired State District Judge George Allen recommended a new trial Thursday for a suburban Waco man sentenced to prison nearly 25 years ago for the fiery deaths of his two adopted sons in 1986
The recommendation, which goes to the Texas Court of Criminal Appeals, comes after experts testified earlier this month that the scientific evidence in Ed Graf’s trial was based on a hypothesis that studies have since discredited.
Graf, 60, is seeking a new trial based on modern forensic techniques that could prove he didn't start the Aug. 26, 1986 fire that killed his two adopted sons Joby, 9, and Jason, 8, in the backyard of the family’s home in Hewitt.
McLennan County District Attorney Abel Reyna said he agrees that modern fire investigation science called for a new trial.
“We fully expected that the new trial be would be granted,” he said.
“We were very pleased that the judge did not go so far as to claim any type of innocence, like the defense wanted,” he said.
Should the state’s top criminal appeals court agree with the recommendation, it will be up to Reyna to decide whether to retry Graf.
"What will happen is we'll go back and regroup and basically we start from square one,” he said.
“We’ll start looking, re-investigating, building and rebuilding and we'll make a decision from there,” he said.
Graf’s attorney, Walter “Skip” Reaves, said he was hoping for more, but is happy that the judge recommended a new trial.
“The only thing it could be an accidental fire,” he said.
“It certainly wasn't an intentionally set fire and without that I mean I don't think anything else makes much difference,” he said.
"The next thing will be to see him walk out of prison and that'll seal the deal,” he said.
The mother of the two boys, Claire Bradburn, however, said she still believes Graf killed her sons.
"We were aware of this, we were expecting this, simply because of the fire forensics, so we regroup, we regroup and we go again,” she said.
“We will have to be patient and let the DAs office do their job," she said.
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.
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, that says that because arson investigations prior to 2005 were flawed, many people convicted of arson murder prior to 2005 could have been wrongly convicted.
It's high science that has to do with burn patterns and findings of the use of accelerants based upon those patterns.