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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