Modern Forensics vs. Good Old-Fashioned Texas Justice: The Trials of Ed Graf

From: Slate.com

By Jeremy Stahl

Ed Graf was a bad employee. While working at Community Bank in Texas in the 1980s, he allegedly embezzled from his employer, eventually paying the bank more than $75,000 to avoid prosecution. Ed Graf was a bad husband. His ex-wife, Clare, would call him “the most possessive person I’ve ever known.” Clare’s best friend, Carol Schafer, said her husband, Earl, saw Graf having sex with another woman the night of Graf’s bachelor party. Ed Graf was, according to Clare and her family, a bad father. Two of Clare’s family members accused him of beating his adopted stepsons, Joby and Jason, with a board and belt.

In 1988, a Texas jury found that Ed Graf was also a murderer. Prosecutors argued that two years earlier, on Aug. 26, 1986, Graf had knocked out Joby, 9, and Jason, 8, and placed the boys in the back of their family shed. Graf had then spread gasoline, locked the shed, and set the boys ablaze. The two inseparable, athletic, blond-haired brothers died of smoke inhalation and severe burns in the backyard of their home. The address was 505 Angel Fire Drive.

On the day of the fire, Graf broke the news to his wife, telling Clare that both boys had been lost in the blaze. But Graf had been informed that the body of one child had been found, not both. It was one of many pieces of circumstantial evidence that prosecutors would pile up to present Graf as a calculating, greedy, and callous monster who murdered the children in a desperate attempt to keep his troubled marriage together.

Other small clues seemed to point to Graf’s guilt. Multiple witnesses say they saw a gasoline container on the porch, not far from the kids’ bikes. Graf also acted strangely after the fire. He suggested the boys be buried in one coffin, according to multiple witnesses. He didn’t offer his wife consolation, or apologize that they died in his care. A few weeks after the fire, Graf returned about $50 worth of Joby and Jason’s new school clothes that he had previously insisted they keep the tags on. There was more of what others saw as signs of foreknowledge. The normally meticulous Graf, who was said to keep lists for everything, neglected to buy the boys’ cereal or fill Jason’s Dimetapp prescription the week of their deaths.

In addition to the circumstantial evidence, prosecutors were able to present motive. Weeks before the fire, Graf had taken out $100,000 worth of combined life insurance on the boys if they were to die in an accident. The policies had been mailed out the day before the fire.

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. He was convicted, based on similarly faulty scientific evidence and the testimony of a jailhouse informant who later recanted and said he was bribed, of murdering his three children by setting their home on fire two days before Christmas in 1991. Willingham was executed 11 years ago. Only after Willingham’s death was it revealed publicly that the forensic evidence used to convict him was bunk. In 2009, the New Yorker’s David Grann wrote a groundbreaking article describing Texas’ flawed case against Willingham. The story sparked a national uproar over forensic science and the death penalty.

Then Texas did something surprising. While the state has not budged in its use of the death penalty—just last year topping 500 executions since the state brought back capital punishment in 1982—it has reinvented itself as a leader in arson science and investigation. A new fire marshal, Chris Connealy, revamped the state’s training and investigative standards. He also set up a panel comprised of some of the top fire scientists in the country to reconsider old cases that had been improperly handled by the original investigators.

Graf’s case was one of the first up for review, and it was determined that the original investigators had made critical mistakes. The Texas Court of Criminal Appeals agreed, overturning the original conviction.

Graf’s successful appeal proved that Texas was serious about correcting past forensic errors, but his story was far from over. Prosecutors in Waco were not convinced of his innocence. They felt that they had enough evidence to reconvict. Just because the forensic science was flawed didn’t change the fact that, in the eyes of prosecutors, Ed Graf was a bad employee, a bad husband, and a bad father—a man capable of murdering his adopted children.

So there was a new trial, and Graf became the first man in Texas to be retried for an arson murder that had been overturned thanks to advances in fire science. His new trial set up a clash between modern forensics and the old way of pursuing criminal justice in Texas, a state where prosecutors have often gone to questionable lengths to win convictions against high profile murder defendants—including multiple men later proved innocent.

Prosecutors in Graf’s retrial spared no effort to win a second conviction in a strange and dramatic retrial last October. The trial’s surreal and unforeseeable conclusion would have a profound impact not just on the fate of Ed Graf, but on the lives of other prisoners who in the wake of the Willingham case held out new hope that their convictions might be overturned and their innocence acknowledged…

Continue reading on Slate.com at Chapter 2 New Memories

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