Why is the DA so secretive?

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The murder of Caitlyn Reed has DA’s staff denying public information

Waco – The final moments of Caitlyn Reed’s life must have been filled with terror. Her alleged attacker had beaten her with a cane, threatened to rape and beat her again in a telephone message, and even attacked the ambulance in which she was transported to get medical attention.

She went to her father’s house and “borrowed” a Springfield XD .40 caliber semiautomatic pistol to defend herself. Her attacker came to her home, took it away from her, and gave it back to her father, the owner of the weapon.

Ms. Reed made a second trip to her father’s house to get the pistol. She had it when on April 5, he returned to her home on Tokio Loop Road near West.

Following whatever happened next, he phoned McLennan County Sheriff’s officers and said he had found her dead, an apparent victim of suicide.

They didn’t buy his story. They accused him of taking the firearm away from her, and shooting her with it. They arrested him for murder because the physical scene, the location of the gun, her body at repose in death, did not match what he told them.

It’s hardly an isolated incident, when it comes to official offense reports authored by investigators looking into the couple’s rocky relationship.

The record contains numerous references to earlier violent confrontations, terrifying rides through the country with an enraged lover threatening to harm her in violent ways. There is a reference in one report to the time she tried to throw the keys to his vehicle out the door so she could lock it when he went outside to retrieve them.

David Wayne Zahirniak has a conviction record for violent acts that dates back to a mysterious case of the assault of a juvenile corrections officer. That offense was later prosecuted as “official oppression.”

Law men and prosecutors have retreated behind a line of tight-lipped resistance when it comes to obtaining information about his past. For instance, in what capacity did he serve as a public servant at the time of his arrest for the assault case so categorized as official oppression?

According to the penal code, one must hold some such employment in order to be convicted of the offense.

No one seems to know.

The records are simply unavailable because the murder of Caitlyn Reed – a young mother of two small children – is under investigation.

He drew a sentence of a year in County Jail and a $4,000 fine; the sentence was suspended, and he was placed on probation. In the following year, prosecutors moved to revoke his probation, recommended 270 days in jail, suspension of a six-month pans of the sentence, and that he be released to allow credit for 90 days time served.

All this seems to be typical of his checkered past as a criminal defendant in the District Courts of McLennan County. It appears that on a cloudy day, David Zahirniak walks between the raindrops.

In April, 2008, when charged with three counts of aggravated sexual assault, Zahirniak remained in jail for more than 90 days without prosecution. He gained his release on a writ of habeas corpus when his attorney applied under the delay in prosecution provision of the Texas Code of Criminal Procedure, the provision which guarantees a speedy trial.

A June, 2009, conviction for less than a gram of methamphetamine netted Zahirniak a sentence for a State Jail Felony.

In April of 2014, after he assaulted Caitllyn Reed with the cane, law men charged him with aggravated assault, and he bonded out. Only days later, he went back to her house, where he is alleged to have murdered her with the gun belonging to her father.

In the end, the State of Texas expected her to defend herself with a borrowed pistol.

The firearms law men wear on their hips are for their personal protection. They have no legal obligation to protect the citizens they serve. Look it up. The case law books are filled with numerous examples of holdings of many Courts in many states after women who repeatedly begged for their lives met a violent death at the hands of a paramour.

Men of the law are much, much more protective of the official record, though those records technically belong to we the people, according to the Texas Open Records Act.

Since the first week of this month, the staff of the Criminal District Attorney of McLennan County has defied a ruling by the Open Records Division of the Attorney General’s Office that holds they must turn over all materials requested by former police officer R.S. Gates.

The conflict started when in May, Gates requested Assistant District Attorney Mark Parker, Chief of Intake and Grand Jury, to grant access to information about the murder case, and also access to information about previous criminal litigation against Zahirniak.

He declined, saying, “All such material was gathered by law enforcement and came into this office’s possession for consideration of criminal prosecution. As such it is information held by this office that deals with the detection, investigation, and prosecution of crime. This information is excepted from the disclosure requirement …”

He added, “Because these (previous) cases, if any, necessarily involve pending or reasonably anticipated litigation and our prosecution files are also our work product, which is protected under the Open Records Act, I must claim these statutory exemptions and cannot honor your request for production or inspection of our prosecution file.”

In the opinion of the Assistant Attorney General, his conduct in fielding the request nullifies all that. In the first round of the conflict, Parker denied that any of the records in question are subject to disclosure under the Open Records Act. Not true, according to the AG.

The act of requesting information requires a governmental agency to seek the opinion of the AG’s office within 10 days. Once a requestor files a written complaint with the AG, that “triggers” certain deadlines, none of which the DA’s office has met.

Said Gates, “Government officials make it a shell game. If you ask for a pencil, they come back and say can’t have a pen. They came back with a list of excepted information you didn’t even ask for.”

According to Rahat Huq, the Assistant AG who wrote the opinion, the DA’s office must withold information regarding the names of the children whom Zahirniak assaulted, information regarding the motor vehicle numbers involved, criminal history details that are excepted under the various provisions of the act, and e-mail addresses attached to various correspondence relating to the case.

The remaining information must be released.”

So far, no such information has been released. In a follow-up call to Mr. Reyna made today, The Legendary requested only the information as to which government agency employed Zahirniak at the time of the 2007 assault for which he was sentenced to official oppression.

His assistant took a message. We received no reply.

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Star Wars Stealth Attacks

Tony Calhoun

Tony, Calhoun, singer-songwriter, bass man in The Mojo Assassins


WACO – Tony Calhoun wears an ascot that conceals a shield against beams of radiation he says are aimed at his throat. It’s similar to the kind x-ray technicians wear. He wears a quarter inserted in his left ear.


For the past decade and a half – ever since the Patriot Act took effect by a near-unanimous act of Congress – he has had the feeling he is bombarded with microwaves, tingling radioactive waves that burn his skin, irritate his throat and leave scars on his back and face.

“They shoot me through my ear,” he says. “It burns my throat…It feels hot; it feels like someone has a blow dryer on my back.

“They didn’t expect my father to live as long as he did.”

He’s not alone. His brother just died. In fact, Calhoun had just come from an appointment at the funeral home where he helped his family finalize arrangements when he sat down for this interview. His father died recently at the age of 86. They, too, complained about the same type of attacks he suspects are directed against himself.

An infantry veteran of 6 years active duty, he led Army bands and once served as a guard for the notorious Nazi war criminal Rudolph Hess, who died at 93 years of age in 1987 of suicide while serving a life sentence in Spandau Royal Prison, Berlin.

The first attack came late one night as he drove home to Waco from a gig in Whitney. The Patriot Act had just been passed at the height of the build-up to an emotional war following 9/11. An aircraft – a hovering helicopter, burned his arm by shooting a burst of energy through the window of his car.

Does he think this is experimental warfare?

Yes, but why go on so long with it, he asks. They call it “slow kill,” he replies. “Look it up. Slow kill, targeted individual.”

The only respite from being what is known as a “Targeted Individual,” he insists, is through a spiritual approach such as that taken by devotees of a program known as “FREEDOM FCHS.” (Freedom from covert harassment and surveillance)

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‘Rusty’s Rangers’ busted

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Zastava Model PAP M92 PV, 7.62 x 39 mm Yugoslavian import model AK-47 clone from Century International Arms (CIA)


Brownsville – Southmost, Texas – They call it “no man’s land,” and it’s walled off from the rest of America by an 18-foot picket fence made of square rusted iron tubing  with spiked tops sunk into deep-seated concrete footers.

A middle-class residential neighborhood and an international airport backs up to the isolated farm land, much of which has been converted to “wildlife sanctuaries” along this narrow strip of river bottom where citrus, cotton, grain and produce fields once thrived.

When on August 29 the young man in camouflage fatigues stepped out of the brush that lines the litter-strewn trafficking corridor, a well-worn groove along this meandering stretch of the Rio Grande, the Border Patrol Agent thought he pointed the foreshortened assault rifle with the pistol grip at him.

He didn’t have to think about it. Reflexes got the better of him, and he slapped the trigger five times, spraying rounds all around the dim outline of John Frederick Foerster, where he stood in the gathering dusky gloom of a late summer evening.  Also known as “Jesus” in the tough, masculine world of an irregular “armed citizen militia group patrolling the border of the United States and Mexico,” Foerster’s trademark of long, curly hair that flows over his collar and down his back earned him his ironic “call sign” over the course of three months spent in operations with the small unit that kept busy repelling smugglers of drugs, cash, and human beings as invited guests of Rusty Monsees, who owns a 21-acre tract of “no man’s land” in this semi-rural setting.

None of the bullets found their mark. The Bureau of Alcohol Tobacco Firearms and Explosives (BATFE) report does not name the agent who fired, but further notes that Supervisory Agent Danny Cantu confiscated five weapons in all from the three men detained for investigation by Cameron County Sheriff’s Officers, FBI and BATFE agents.

Cantu had earlier given his nominal permission for the irregular squad of “rangers” to string along with his men in order to drive a throng of illegal immigrants up the levee and into a waiting net of Border Patrolmen, the other side of an informal pincers formation. At the point when Jesus stepped out of the woods, he was listening to and watching a coyote as he whistled and gestured for his group of baliseros to move out and away from the area  – and into the trap.

The agents took possession of a Zastava PAP M92 7.62 x 39 mm “pistol,” a Llama Government Model 1911 .45 caliber ACP pistol, a Winchester Model 70 .243 caliber bolt action sniper rifle,  a Springfield Model XDS .45 caliber pistol, and a Centurion 39 Sporter, 7.62 x 39 mm rifle.

The law men detained the trio for five hours, arrested Jesus on suspicion of being a felon in unlawful possession of a firearm, and kept the guns, along with other gear including communications equipment and night vision goggles the group claims they surrendered at the time, and for which they say they got no receipt.

Further investigation showed that Jesus is “a person who has been previously convicted of felony; (sic) which prohibits him from possessing a firearm,” according to the author of the federal complaint and supporting affidavit, Anthony M. Rotunno, Special Agent of the ATF.

A Court sentenced Jesus on August 2, 1999 to 2 years confinement and 5 years of supervised release in the 138th Judicial District Court of Cameron County for the burglary of a building, granted a 5-year suspended sentence, and later sentenced him to serve 16 months imprisonment when the Court revoked his probation for violating the  terms and conditions of probation.

At the time of his August 29 arrest, he admitted he had borrowed the Zastava pistol from Kevin (KC) Lyndel Massey, a 48-year-old electrical contractor from Quinlan, Texas, who is “a person who has been previously convicted of a felony, burglary of a habitation, and sentenced to 5 years confinement” by the 265th District Court at Dallas in 1988. He served penitentiary time when he Court revoked his probation later on an identical 1985 burglary conviction. Massey admitted he owned the Zastava, the .45 caliber Springfield Armory pistol, and the “Centurion” AK-47 clone he was carrying. In the words of Agent Rotunno, the previous conviction “prohibits him from possessing a firearm.”

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Centurion Model 39 7.62 x 39mm, manufactured in the U.S. by Century International Arms (CIA)

A third party, Edward Varner, who was carrying the Model 70 Winchester, has not been charged with a crime.

The statute Rotunno cited in the complaint is Title 18 U.S. Code 922 (g)(1), which indeed prohibits possession of a firearm by one who has been convicted of a felony. It would be an understatement to say that though many offenders, nine out of ten of them men, are sentenced to long stretches in the federal correctional system each year, many more are released with a warning. It’s a murky area of the law. What’s clear are the type of offenders who wind up doing time for the offense.

According to U.S. District Court records, the jurisdictions which sentence the “highest proportion” of defendants out of their overall case load are located in the Northern District of North Carolina and Alabama, the Western District of Tennessee and Missouri, and the Southern District of Georgia. You got it. Men from the hills and hollers of Dixie do the time. Others seem to somehow slide on through.

Exactly 98.2 percent sentenced in 2012 were male, more than half of them black, 27 percent white, 18.8 percent Hispanic, and 2.9 percent were described as “other.” Their average age was 33 – old enough to know better, mature enough to be at the peak of their powers.

About 10 percent are sentenced to an average of 180 months under the provisions of the Armed Career Criminal Act. The remainder are sentenced solely under the provisions of the Subsection 922 (g)(1)  to an average sentence of 46 months. All are found to have been in possession of a firearm “which has traveled in interstate or foreign commerce.”

On-line sales literature by Century International Arms (CIA) of Delray Beach, Florida, emphasizes that much of the outfit’s trade is concentrated in “LAW/EXPORT.”

“We buy and sell large quantities of police and security items including small arms and ammunition, bolt action, full and semi-automatic rifles, body armor, handguns of all types and calibers… These transactions can be cash purchases or barter for equipment you require. We are licensed…We sell to hunters, collectors, target shooters, law enforcement and military agencies in North America and export to companies that can provide an import permit and receive permission from department of state to export goods...”

We’re talking end user certification, envoys, embassies, red tape, and diplomatic folderol, here. There’s a reason why the Kalashnikov is often called the “tractor” of brush fire warfare. A competent workman with a vise and a ball peen hammer can fabricate a receiver from a die-stamped piece of mild sheet steel in a matter of minutes. From there, it’s a small matter of assembly from non-regulated parts kits, and you’ve got yourself an assault rifle.

Then there is the nature of the offense itself, a question for which the U.S. Supreme Court refused to grant the government certiorari in  United States v. Ramos, 961 F.2d 1003, 1009 (1st Cir.), cert. denied, ___U.S.___, 113 S. Ct. 364 (1992).

According to a well-worn horn book in a restatement of the law, “In accordance with 18 U.S.C. § 921(a)(20), a conviction does not necessarily disqualify an individual from possessing firearms if the person convicted ‘has had civil rights restored.’ In § 922(g)(1) cases based upon a State felony conviction, courts have uniformly looked to the law of the State where the conviction was obtained to determine whether the defendant’s civil rights have been restored and whether such action has nullified the conviction’s incidental prohibition on firearms possession. With respect to Federal felony convictions, the Supreme Court declared in Beecham v. United States, 511 U.S. 368 (1994), that only Federal law can nullify the effect of the conviction through expungement, pardon, or restoration of civil rights. This is so, the Court ruled, even though there is no Federal procedure for restoring the civil rights of Federal felons.”

Contrasted with the statement elsewhere contained in the holding, the pattern emerges that certain folks automatically have their civil rights restored, while others do not.

“The Criminal Division takes the position that where State law contains any provision purporting to restore civil rights — either upon application by the defendant or automatically upon the completion of a sentence — it should be given effect. It is not necessary that the State issue an individualized certificate reflecting the judgment of State officials regarding an individual defendant. The Ramos case should be limited to its unique facts and not extended in attempts to nullify the effect of other State schemes for civil rights restoration. A State restoration document that is absolute on its face should disqualify the affected State felon from prosecution under §  922(g)(1) unless the facts of the case strongly support a finding that the felon had actual notice of his/her continuing State firearms disability despite the terms of the restoration document.”
Agents arrested Kevin Massey, the commanding officer of Rusty’s Rangers, on Monday, October 20 for an alleged violation that took place on August 29. Earlier in the month of October, the moon of the drying grass, a certain confrontation between Border Patrol Agents who told he and his men that their presence is “not helping” took place. One wonders if that was “actual notice of his/her continuing State firearms disability” at work – or not.
No doubt, it’s a matter for the courts to decide, once the federal agents who speed up and down the gravel roads on top of the river levees, their headlights extinguished, throughout the long nights along the ox bows of the Rio Bravo, have made up their minds.
No one has heard them stutter, so far. 
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Graf’s defense backfired


Admitted arson murderer Ed Graf’s defense team succeeded in creating a reasonable doubt in the minds of two jurors who refused to convict him for capital murder for setting the 1986 gasoline blaze that killed his two step sons Jason, 8, and Joby, 9, in a storage shed in order to receive a $100,000 life insurance benefit.

The panel deadlocked on the question 10 to 2 on the first vote, according to published reports, and remained so throughout their deliberations.

The accused murderer’s fortunes changed dramatically early in the trial when the boys’ mother testified on cross examination as to the family’s financial affairs when he bought the double indemnity life insurance policy on her children.

State 54th District Court Judge Matt Johnson reversed his pre-trial ruling and allowed damning testimony about Graf’s $75,000 embezzlement of Community State Bank on the record.

Prosecutors Michael Jarrett and Hilary Laborde convinced him defense attorney Mark Dyer’s cross examination of Graf’s ex-wife and mother of the victims Clare Bradburn left a false impression of Graf’s financial affairs. Her testimony “opened the door,” they said.

The ruling only served to make more credible the testimony of an admitted “jailhouse snitch.”

In his testimony, the criminal who sealed Graf’s fate offered key elements of the case that eventually led the desperate child murderer to suddenly plead guilty to murder, the same degree of crime jurors eventually agreed upon unanimously.

He painted a picture of a dreary 3-month sojourn in an eight-man tank at the McLennan County Jail during which he defended Graf from the wrath of fellow inmates who obviously despised the convicted capital murderer. After serving 25 years in prison for capital murder, Graf won a new trial through an appeal based on a claim of faulty evidence of arson used to obtain his 1988 conviction for the crime. His belated post-trial confession and guilty plea precludes any new appeal of his sentence of two concurrent 60-year terms. He is eligible for parole. 

Fernando Herrerra, 38, who has been previously convicted of burglary of a habitation and assault of a police officer, testified that he,

  • kept Graf from being beaten in jail;

  • that Graf admitted he set the fire with cotton balls soaked in gasoline;

  • told the jury Graf closed the shed door until smoke overcame them, then opened it;

  • said Graf bragged that the evidence didn’t fit, so jurors would have to acquit;

  • assured the attorney he had been offered no deal on pending charges to testify;

  • said he has been convicted of crimes 14 times previously, and used dozens of aliases;

  • admitted under defense cross examination he’d been “hearing voices” at night;

  • testified he has in the past worked as a confidential informant for police.

Testimony about the defendant’s savage beatings of the children paled in comparison. The contempt of his ex-wife for his fussy personality and difficult ways became a diminished refrain in the chorus of more than 30 prosecution witnesses who testified against him.

The impact of Dyer’s sarcastic question regarding Herrera’s use of aliases throughout his career of crime fell on deaf ears. He had asked the snitch, “Who are you today?”

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‘Instruct’ the witness

Mark Dyer

Defense Attorney Mark Dyer’s vigorous objections derailed testimony by the prosecution’s star witness, the former Mrs. Ed Graf

WACO – District Judge Matt Johnson sent jurors to lunch when a lawyer for accused capital murderer Ed Graf  made vigorous and incessant objections to hearsay testimony about the defendant’s state of mind.

Graf is standing trial for the second time for the alleged murder for renumeration by arson of his two stepsons, Jason, 8, and Joby, 9, in a fire that engulfed a back yard tool shed in the flames of a gasoline explosion. Convicted of capital murder, he served 25 years in the penitentiary before Walter Reaves, a lawyer for the Innocence Project, won a new trial for him in an appeal that objected to testimony based on “junk science,” since discredited. All such former testimony about the fire and its cause has been suppressed. No previous testimony may be allowed, and expert witnesses have no physical evidence to investigate because the debris of the fire was buried in a landfill within days after the fire, which occurred on August 26, 1986.


Walter Reaves, an associate of the Innocence Project, won Graf a new trial based on an appeal in which he objected to the arson evidence used in his 1986 trial

A willowy ash blonde, his former wife, the mother of the two boys, took the witness stand to answer questions about a failed marriage that started with a whirlwind courtship that included luxury trips, such as a ski excursion to Lake Tahoe. She explained that Graf, a stoop-shouldered Teuton with close-cropped iron gray hair, furnished ski togs, insulated boots, thermal gloves and warm winter clothing because she could not afford to buy them.

“I couldn’t afford to make that trip,” she recalled.

“He brought them by the store, I think,” she remembered, recalling long hours spent between 5 and 9 p.m. at an area jewelry store before her new suitor began to help her pay her bills. Did they fit? “Surprisingly, they did,” she replied.

Graf, who was forced to make restitution of $75,000 to Community State Band and Trust after he was fired from his job as cashier,  is accused of setting fire to the shed in order to collect $100,000 in double indemnity death benefits on life insurance he obtained on the boys. Jurors will have an alternative sentence of endangerment of a child for letting them have lighters or matches, not keeping them from the danger of flammable liquids, and arranging their certain death by trapping them in the burning shed. If the jurors convict him of a lesser charge, he may receive credit for time served behind bars for the previous capital murder conviction that was overturned.

Though he dropped by the credit union to make payments on her car and she was able to quit a second job, it all ended poorly the night before their marriage on a honeymoon trip to the Grand Cayman Islands.

The former Clare Graf, a kindergarten teacher estranged from the boys’ biological father, said she grabbed her purse and tried to leave their room when the former bank cashier turned State Farm Insurance adjustor asked her, “What are you doing?”

“I’m not going to start this marriage with a lie,” she said she told him.

She had previously testified in fits and starts between objections about Graf’s habit of making lists of things to do, her friends’ attitudes about his personality, and how his thinking influenced his behavior.

Defense attorney Mark Dyer made numerous objections based partly on rules of criminal evidence and partly on Judge Johnson’s rulings on a pre-trial motion seeking to limit the areas of questioning prosecutors may explore.

In a pre-trial hearing held on Tuesday, October 7, lead prosecutor Michael Jarret was overheard arguing with defense attorneys, saying, “In this day and age, just how important are pre-marital relations?” At that point, attorneys caucused at the side bar, then adjourned to the judge’s chambers. The same thing happened on Monday, October 13, when an assistant prosecutor asked  questions about her friends’ attitudes about Graf.

“As our marriage moved along, my friends grew more distant…It was because Ed always had some excuse. Ed didn’t want me to hang out with them.” In those days, “hanging out” took place on party boats and barges on Lake Waco, where she met Graf through mutual friends.

Asked to describe his personality, she said, “He’s very rigid – extremely organized…Just taking care of business all the time. A list maker.”

What kind of things went on the list? “Things like getting gas for the car, going to the bank. He just really functions off that list.”

“Did you ever make fun of the list?” She answered, “Yes.”

Did you ever make a list? “Rarely. I might make a grocery list.” Asked to describe her personality, she said “I love kids…I’m very friendly. Laid back.”

Another objection came when she said, “Sometimes, there was really no reason to be upset.” Jurors have heard opening statements and previous testimony about Graf’s anger with his stepsons, his remarks that when they died in the fire, “They got what they had coming,” and that “We’d be better off without them.”

The judge finally sent the jurors to lunch and admonished the former Mrs. Graf, saying “I want you to carefully follow the instructions of the attorneys.” He explained to her, as he had in the pre-trial hearing, that failure to follow instructions could lead to a motion for a mistrial.

When testimony resumes, she is to speak only in terms of the fact that they argued, or that their personalities clashed.

The judge’s admonishment led to the spectacle of Jarret telling his star complaining witness, “I’ve instructed you a number of times.”

In the pre-trial hearing, Judge Johnson warned attorneys that if they fail to instruct their witnesses as to his rulings and that causes a mistrial, “I’m going to be looking at you.”

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54th Dist.

Fire: a ‘tragic accident’

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Attorney Walter Reaves of the Innocence Project won Ed Graf a new trial on an appeal that characterized evidence of arson used 25 years ago as “junk science”

Waco – Prosecutors opened their arguments against Ed Graf in a re-trial of a capital murder for a 1986 renumeration-by-arson case on a weaker note than was presented 25 years ago.

The 62-year-old former State Farm insurance adjustor and local bank cashier has served 25 years in prison for a conviction appellate judges determined was obtained through the use of faulty evidence based on fire science which experts have proven to be false and outmoded.

The expert testimony offered by arson investigators in that trial is to be suppressed in this trial. Assistant District Attorney Michael Jarret told jurors, “What you will hear is evidence surrounding the circumstances surrounding this fire.”

Most of the evidence he made reference to in his opening remarks is circumstantial, but hardly excludes all other explanations for the roaring gasoline explosion that set a storage shed ablaze in the back yard of the home where the family lived in Hewitt on August 26, 1986.

Michelle Tuegel, who is one of a trio of attorneys led by Walter Reaves in Graf’s defense, said “We expect the scientific evidence will show the fire was caused by a tragic accident…We’re going to bring you 2014 science in this case, not 1986 science.”

The prosecution is seeking a conviction for capital murder and a sentence of life with possibility of parole. They will prove that Graf intended to cause the death of his two adopted sons, Jason, 8, and Joby, 9, by failing to keep the boys from having access to a storage area for flammables, failing to supervise them properly, closing the doors to the shed so they could not escape the flames, and that after he obtained a total of $100,000 in double indemnity life insurance benefits on the two youngsters, “What this man did was to require his victims to build their own death chamber.”

He reminded jurors that Graf owed Community State Bank and Trust a sum of $75,000, restitution for a circumstance which he told them existed prior to his being let go by the bank. Jurors know only that a bank executive took the witness stand to testify from bank records that there was a $75,000 discrepancy in his accounts. A Mr. Howington, executive vice president of the bank, told jurors that Graf paid back the entire amount after he left his employment there. He said that he cashed in his 401K pension plan funds and other savings to make the restitution.

A woman who worked as Graf’s secretary testified that they became close friends during his employment, and that one day over cocktails, Graf, who was having trouble with his wife over disciplining his adopted sons, told her “We would be better off without them.”

An executive of State Farm Insurance testified that during orientation as a new employee, Graf took out $10,000 term life insurance on each boy through that company, but had obtained $25,000 universal life insurance policies on each of the boys that paid double indemnity in case of a violent or accidental death through Lutheran Brotherhood Life Insurance, as well as $100,000 term life policies on himself and his wife as well as a $100,000 death and dismemberment policy through his new employer, State Farm.

The prosecutor promised he will elicit testimony from other witnesses who knew of how Graf was reluctant to buy new school clothing for the boys, and that he insisted that all the tags be left on new shirts and jeans in case there was a need to return them. He also promised he would take the testimony of a witness who says Graf told him “Those little bastards got what was coming to them.”

Ms. Tuegel told jurors the defense will show them that the universal life insurance policies may be used to finance educational benefits, that Graf financed his education at Baylor University through the use of such a policy, and that he obtained the insurance benefits for his adopted sons for that purpose.

The defense will elicit expert testimony about the true nature of fire.

“We know a lot more about fire,” she said, emphasizing that autopsies showed the boys had 75 percent carbon monoxide saturation in their lungs, which proves they were alive at the time of the fire. Autopsies also showed that neither had any injuries, nor were they incapacitated, tied up, or restrained in any way, and post mortem examinations showed neither of them had any evidence of gasoline or accelerant on their bodies or their clothing.

A mattress that burned in the shed is known to be made of a material that smolders and emits a toxic smoke filled with deadly fumes, something that was not known when expert testimony was taken at the original trial.

She had earlier told jurors that most of the evidence was generated through investigators’ interviews with “a mother who was driven mad by grief.”

When the prosecution made strenuous objections, the attorneys consulted with the judge in chambers.

All witnesses who testify are heavily instructed, according to 54th State District Court Judge Matt Johnson’s  order following pre-trial motions hearings that stipulate any references to allegations of extra-marital affairs or an alleged embezzlement of bank funds must be made out of the presence of the jurors.

In some cases, testimony from the previous record must be read into the record because the original witnesses are now deceased. Their former testimony is subject to the same rule.

“I’m charging the attorneys with instructing the witnesses,” Judge Johnson said during the hearing prior to the reading of the indictment and opening statements.  “If they violate the rule, it could lead to a mistrial and I’m not interested in that…If they violate that, I’ll be looking at you (the attorneys).

Testimony by witnesses for the prosecution will resume Wednesday morning, October 8.

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Choked by old school tie

Waco – McLennan County District Attorney Abel Reyna is a Baylor man hanged by his old school tie following a gossipy, contentious hearing over the prosecution of a couple employed in positions of high responsibility at the nation’s largest religious university.

Screen Shot 2014-10-04 at 12.45.26 PM Jennifer Jarvis

When patrol officers found the lady of the house to be a wee bit drunky-poo behind the wheel, they handcuffed her and let her husband get home on his own power because they had impounded the family car.

Though he, too, was intoxicated, they did not arrest him, and left to his own devices, the old boy got on his motorcycle and headed for the County Jail on Highway Six, where officers promptly arrested him for operating a motor vehicle under the influence of alcohol.

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Louis Jarvis

C’est la guerre. As they say in the rooms of the 12-step programs: Alcohol is a drug, and as we all know, there is a war on drugs. Oh, yes.

Defense attorney Guy Cox, who is defending Baylor President Ken Starr’s executive secretary, Jennifer Jarvis, and her husband Louis Jarvis, who has charge of the physical plant at the sprawling campus, mounted a legal challenge to the competency and qualifications of Special Prosecutor Brittany Lannen.

He threw snake eyes and crapped out when visiting retired County Court-at-Law Judge Mike Gasaway ruled he had failed to meet the standard of proof in his  chief allegation, that Ms. Lannen withheld key exculpatory evidence when she didn’t turn over more than 100 pages of material gathered by Child Protective Services investigators in an unrelated  prosecution of a serial sex offender named Jose Antonio Guerrero-Yanez. In that case, which Ms. Lannen prosecuted, the accused drew a 70-year sentence for his improper sexual attentions to a pair of little girls

The point seems to be moot. When the accused won a re-trial on appeal, the judge wound up sentencing him to 4 consecutive life terms, plus 40 years.

The special prosecutor was able to convince the judge that she never had the material, or was unaware of its existence, or both.

But the matter didn’t end there. Ms. Lannen put her former employer’s law associate on the witness stand and elicited his testimony that as far as his records show, Reyna never represented either of the Jarvises during the association in a private defense law practice. Ouch.

Reyna’s luck just kept getting worse.

His former administrative assistant testified that she, too, had no knowledge of his ever having represented the pair. To finalize matters, it was revealed in evidence and testimony that the candidate for Special Prosecutor Mr. Cox advocated had agreed to not seek prosecution of the Baylor employees on similar grounds, an arrangement Ms. Lannen had no intention of honoring.

It is never a pleasant experience gaining admission to the Criminal Courts, and according to Legendary Reporter R.S. Gates, this was a case doubly troubling, for there was no public docket of the hearing to be found on the internet. When he finally got inside the doors of the Courthouse after clearing the metal detector by placing his hands on a table and leaning over to elevate each boot – one at time, a ritual reminiscent of getting a paddling in the principal’s office – he learned by asking someone after making the rounds of each court that the hearing would take place in the “administrative courtroom” located in the basement of the Courthouse Annex.

To reach that location, one must take the elevator to the third floor, cross the rotunda, take a corridor to a catwalk that connects the two buildings, locate the elevator, and descend four floors.

Once he found the hearing, he noted that many judges and lawyers, as well as print and broadcast reporters, had gathered for the spectacle of watching the people’s law office – the DA’s office – caught in a frustrating series of little white falsehoods.

One may get a sense of his skepticism by listening to the audio:

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