WACO (February 21, 2014) State District Judge Matt Johnson Friday rejected a motion to drop capital murder charges against a Waco-area man who’s awaiting retrial in the fiery deaths of his two adopted sons more than 25 years ago.
Defense attorney Walter "Skip" Reaves, filed a writ of habeas corpus last week asking the judge to dismiss the capital murder charges against Ed Graf, saying a re-trial amounted to subjecting Graf to double jeopardy.
Reaves also argues that because files in the 26-year-old case are missing, it is impossible for the district attorney to provide discovery to the defense regarding evidence before going to trial, although Johnson did not rule on that question.
Johnson dismissed the main issue, left Graf's bond at $1.5 million and said the trial would begin on May 19.
Johnson did, however, order a special grand jury to be impaneled to consider a new indictment in the case after prosecutors said a previous grand jury was tainted because Reaves sent grand jurors a letter.
Reaves responded that defense attorneys often send such letters.
Graf was convicted of capital murder in the Aug. 26, 1986 deaths of his sons Jason, 8 and Joby, 9, who died in a fire in a shed behind the family's Hewitt home.
He has served 25 years of a life term.
The Texas Court of Appeals threw out his capital murder conviction in March 2013, citing faulty arson science.
The court agreed that modern forensic techniques could prove he didn't start the fire in a shed in the backyard of the family's home in Hewitt that killed the two boys.
In August 2013 Johnson ordered the new trial.
Graf was scheduled to go on trial on Feb. 3, but the trial was reset for May 19 during a closed-door meeting between Johnson, prosecutors and defense attorneys.
Johnson also issued a gag order, barring prosecutors and defense attorneys from discussing the case.