‘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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