WACO (March 27, 2013)—The Texas Court of Criminal Appeals Wednesday threw out the capital murder conviction of a suburban Waco man who was sentenced to prison nearly 25 years ago for the fiery deaths of his two adopted sons in 1986.
Ed 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 a shed in the backyard of the family’s home in Hewitt.
“False expert testimony at applicant’s trial violated his due process rights,” the appeals court said in its order Wednesday.
"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 said Wednesday.
The order Wednesday directs authorities to return Graf to McLennan County, where it will be up to prosecutors to decide whether to retry him.
McLennan County District Attorney Abel Reyna anticipated Wednesday’s ruling.
"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,” he 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.
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.
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, 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.
It's high science that has to do with burn patterns and findings of the use of accelerants based upon those patterns.