Can Texas Convict a Man of Murder With No Evidence That Murder Was Committed?

The state that executed a man based on faulty arson evidence revisits another controversial case.

In this photo made Monday, March 11, 2013, inmate Ed Graf sits in an visiting room after an interview at the Alfred Hughes State Prison in Gatesville, Texas. Despite his pleas of innocence, Graf was given life in prison 25 years ago for killing his two stepsons by locking them in a backyard shed and setting it on fire based on expert testimony and conclusions that have now largely been disavowed by the state fire marshal. A state district judge has recommended a new trial and the state Court of Criminal Appeals is considering whether to grant the request for Graf. This photo can only be used with the Dave Mann piece that originally ran in the 10/4/2014 issue of National Journal magazine. 
AP Photo/LM Otero
Dave Mann
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Dave Mann
Oct. 3, 2014, 1 a.m.

For all the dis­mal stor­ies to come out of Texas’s justice sys­tem in re­cent years — de­fense at­tor­neys fall­ing asleep dur­ing death-pen­alty tri­als, thou­sands of rape kits left un­tested for years while per­pet­rat­ors went free, and the na­tion’s highest num­ber (48) of wrongly con­victed people who’ve been re­leased on DNA evid­ence — the most dis­turb­ing may have come a few years ago when cred­ible evid­ence emerged that the state had ex­ecuted an in­no­cent man. Camer­on Todd Will­ing­ham, a Cor­sic­ana res­id­ent con­victed of start­ing a house fire in 1991 in which his three young daugh­ters died, was giv­en a leth­al in­jec­tion in Feb­ru­ary 2004, even after ar­son ex­perts had de­bunked nearly all of the phys­ic­al evid­ence in the case. When Dav­id Grann pub­lished a 9,000-word ex­posé in The New York­er in 2009, it cre­ated a na­tion­al out­cry. But Gov. Rick Perry stood by the ex­e­cu­tion, call­ing Will­ing­ham a “mon­ster” and scut­tling a state in­vest­ig­a­tion.

By re­fus­ing to in­vest­ig­ate the Will­ing­ham case, Texas was turn­ing its back on re­volu­tion­ary ad­vances in the field of fire sci­ence over re­cent dec­ades. Meth­ods tra­di­tion­ally used to in­vest­ig­ate ar­son and win con­vic­tions turned out to be, in the words of lead­ing ar­son ex­pert Ger­ald Hurst, little more than “old wives’ tales.” For in­stance, burn pat­terns long thought to show that gas­ol­ine had been used to in­ten­tion­ally ig­nite a fire are now known to be false in­dic­at­ors. But as The Texas Ob­serv­er re­por­ted in 2009, nearly 800 Tex­ans re­mained in pris­on on ar­son con­vic­tions based in part on such evid­ence. One of them was Ed Graf, a Waco ac­count­ant serving a life sen­tence for a fire that killed his two stepsons in 1986. His con­vic­tion, ac­cord­ing to Hurst and oth­er fire sci­ent­ists, res­ted on even shaki­er evid­ence than Will­ing­ham’s. Even so, it seemed un­likely that Graf or the many oth­ers con­victed on flawed ar­son evid­ence would ever have a second chance to clear their names.

But on Oct. 6, Graf will be the first con­victed ar­son­ist in Texas to be re­tried — and could soon be­come the first to be freed from pris­on fol­low­ing the Will­ing­ham scan­dal. The re­tri­al is the res­ult of a sea change that began in 2011, when the Texas Le­gis­lature re­moved the Perry-ap­poin­ted head of the state’s Forensic Sci­ence Com­mis­sion — the man who stalled the Will­ing­ham in­vest­ig­a­tion — and the com­mis­sion is­sued a re­port that termed the evid­ence lead­ing to the ex­e­cu­tion out­dated and un­re­li­able. The fol­low­ing year, a new state fire mar­shal, Chris Con­nealy, asked six ar­son ex­perts, along with the Lub­bock-based In­no­cence Pro­ject, to reex­am­ine his of­fice’s old ar­son cases. The state that had once stood by an al­most cer­tainly wrong­ful ex­e­cu­tion was be­com­ing the na­tion’s un­likely lead­er in pur­su­ing justice for wrongly con­victed ar­son­ists. The forensic sci­ent­ists found evid­ence of wrong­ful con­vic­tions in five cases, in­clud­ing Graf’s, and found two oth­ers in­con­clus­ive for lack of evid­ence.

Graf’s story is in many ways a text­book ex­ample of how ar­son in­vest­ig­a­tions can go awry. It began on a hot Tues­day af­ter­noon in Au­gust 1986, when he left work early and picked up his 8- and 9-year-old stepsons, Joby and Jason, from day care. About 10 minutes after Graf and the kids got home, neigh­bors saw smoke pour­ing from the wooden shed be­hind the house. Flames ripped through the win­dow­less struc­ture in minutes. The boys were found dead in­side.

The in­vest­ig­a­tion was flawed from the be­gin­ning. Fire­fight­ers bull­dozed the shed on the day of the tragedy; in­vest­ig­at­ors had to ex­am­ine the rem­nants in the town dump. But they non­ethe­less claimed to know how the fire star­ted, the­or­iz­ing that Graf had drugged the boys, dragged them in­to the shed, poured gas­ol­ine on the floor, ig­nited it, and locked the door. While there was also cir­cum­stan­tial evid­ence that made many in Waco be­lieve that Graf, nev­er a pop­u­lar man, was guilty — in­clud­ing a $50,000 in­sur­ance policy he’d taken out on the boys two months earli­er — it was the forensic evid­ence that sealed his fate.

In 2006, Graf’s In­no­cence Pro­ject at­tor­ney con­tac­ted Hurst, who has worked to ex­on­er­ate dozens of people across the coun­try wrongly con­victed of ar­son. He saw right away, he says, that the evid­ence against Graf was bad. The burn pat­terns that in­vest­ig­at­ors thought in­dic­ated gas­ol­ine had been poured on the floor of the shed in fact showed no such thing. Graf could not have locked the boys in, Hurst found, be­cause the door of the win­dow­less shed had to have been open — oth­er­wise, the fire would have died out from lack of oxy­gen. Moreover, autop­sies showed no evid­ence of drugs in the boys’ bod­ies. Hurst couldn’t say for sure how the fire star­ted, but he the­or­izes that the kids star­ted it them­selves and it got out of con­trol.

Doug Car­penter, an­oth­er na­tion­ally re­cog­nized fire ex­pert, stud­ied the evid­ence closely and agreed with Hurst’s as­sess­ment. He also found one more piece of vi­tal evid­ence: Tox­ic­o­logy re­ports showed that the boys had died from car­bon-monox­ide pois­on­ing. That in­dic­ates they passed out and con­tin­ued to breathe in the fire’s tox­ic fumes, evid­ence that likely rules out the pres­ence of gas­ol­ine in the shed. That’s be­cause, as Car­penter test­i­fied in a 2013 hear­ing chal­len­ging Graf’s con­vic­tion, vic­tims in gas­ol­ine fires typ­ic­ally die of heat ex­pos­ure from the fast-mov­ing flames; they stop breath­ing and have low levels of car­bon monox­ide in their blood.

In March 2013, the Texas Court of Crim­in­al Ap­peals over­turned Graf’s con­vic­tion. He ex­pec­ted to be re­leased. But then Waco pro­sec­utors an­nounced they would retry him for murder. This time, they will have to rely purely on cir­cum­stan­tial evid­ence — the in­sur­ance policy Graf tried to cash in, the fact that he’d in­sisted that the boys keep tags on their re­cently pur­chased school clothes and then re­turned the clothes after the fire, and fam­ily mem­bers’ claims that Graf, who’d stud­ied ar­son cases as an in­sur­ance-claims ad­juster, had men­tioned to them that the ori­gins of fires are dif­fi­cult to pin­point.

“With Graf, you’ve got a case where the man isn’t very pop­u­lar,” Hurst says. “People don’t like Graf.” That, he says, led many to sus­pect him right away. But Graf’s at­tor­ney has poin­ted out that the in­sur­ance policy Graf bought ac­tu­ally covered his en­tire fam­ily, and that, as a tight­fis­ted sort, it wasn’t sur­pris­ing that he kept tags on his kids’ clothes in case they didn’t fit or the boys didn’t wear them. And just be­cause someone works in in­sur­ance and knows something about ar­son doesn’t make him cap­able of killing his two stepchil­dren. “OK, you want to retry him,” Hurst says, “but what’s your basis?” If there was no ar­son, there was no crime.

Can pro­sec­utors con­vict a man of murder without any phys­ic­al evid­ence that murder was com­mit­ted? If they do, pro­sec­utors in oth­er Texas counties — and in oth­er parts of the coun­try as well — may be em­boldened to retry more people whose con­vic­tions res­ted on faulty ar­son in­vest­ig­a­tions. If they don’t, it will be a sig­ni­fic­ant vic­tory for in­no­cence ad­voc­ates — and for those whose con­vic­tions rest on now-dis­cred­ited sci­ence.

Dave Mann is ed­it­or of The Texas Ob­serv­er.

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