Two of the nation’s leading fire science experts are scheduled to come to Waco next month for a hearing that will help decide the fate of a Hewitt man who claims he was wrongfully convicted of arson murder.

But the hearing could have implications far beyond Ed Graf’s case, said Jeff Blackburn, chief counsel for the Innocence Project of Texas.He said the state’s criminal justice system is starting to come to terms with the idea that junk science contributed to a number of wrongful convictions in recent decades.

But the state’s highest criminal court has not yet developed a uniform and fair way of handling such injustice, he said.

Ed Graf’s hearing will be held Jan. 11. Graf was found guilty of murdering his stepsons by locking them in a shed and setting it on fire.
Duane A. Laverty / Waco Tribune-Herald

The hearing in Graf’s case, scheduled for Jan. 11, will be the first post-conviction hearing in Texas where attorneys will present evidence to show faulty fire science was used to secure an arson conviction, Blackburn said.

If he and Waco attorney Walter M. Reaves Jr. are able to provide the level of proof they think they can, Graf’s case could well be the one that finally causes the Texas Court of Criminal Appeals to set a precedent that offers appropriate relief to people ensnared by bad science, he said.

“The law in this area is complicated and generally terrible, but the facts of Ed Graf’s case are not,” Blackburn said. “It shows the stark possibilities of the way science can be misused and abused in a courtroom. The guy shouldn’t have been convicted and deserves a new trial.”

Graf was found guilty of murdering his two stepsons by locking them in a backyard storage shed and setting it on fire. Prosecutors said he used gasoline to accelerate the blaze.

Graf’s wife thought he killed the boys — 8-year-old Jason and 9-year-old Joby — and she and others offered circumstantial evidence against him at his 1988 trial. Her family still thinks Graf is guilty, as does former McLennan County District Attorney Vic Feazell, who said earlier this year that the circumstantial evidence was so strong Graf would have been convicted even without any of the seemingly science-based evidence.

Importance of case

But Blackburn’s group believes so strongly in Graf’s innocence and the importance of his case that it helped pay for several experts to newly examine the case. It also is footing the bill to bring two of them to next month’s hearing.

Plus, the group has prioritized the case for review by the State Fire Marshal’s Office, Blackburn said.

Starting next month, the office plans to take a fresh look at past arson cases identified as potentially involving junk science. It agreed to do so after the Texas Forensic Science Commission determined last year that arson evidence used to secure the 2004 execution of Corsicana resident Cameron Todd Willingham was deeply flawed.

Of about 1,000 cases Blackburn’s group has screened so far, Graf’s case is one of only a handful identified as deserving an in-depth look. In all, the innocence group expects to recommend fewer than 10 cases for review, Blackburn said.

The fire marshal’s findings may not have any direct effect on the effort to get Graf out of prison, Blackburn said. But the case could be critical in shaping the way the state approaches arson testimony in the future.

“His is as good a case to start with as any,” said Blackburn, who is now serving as Reaves’ co-counsel in the Graf case. “At the end of this, we will have accomplished something truly historic. I think Texas will become a national leader in getting rid of junk science in arson cases.”

Reaves is optimistic he and Blackburn can make a persuasive case at the upcoming hearing. It already has been well established that fire-investigation methods sanctioned up until the 1990s contained erroneous assumptions.

A key example is a set of physical characteristics of fire scenes that experts used to believe proved a blaze was intentionally set, he said. The scientific community now acknowledges those so-called “arson indicators” are unreliable.

Fire science experts

Evidence presented at the hearing will build on that by presenting information from new analyses of Graf’s case done by some of the nation’s leading fire science experts, Reaves said.

One of the witnesses will be toxicology expert Douglas J. Carpenter, who determined the blaze could have resulted only from an accidental fire. A blaze intentionally set and aided by an accelerant would have quickly produced flames so intense the victims would have died before breathing in that much carbon monoxide, he said.

Graf’s attorneys also plan to put an expert named Paul Bieber on the stand.

He is the director of the Arson Research Project, which is housed at a California law school. It conducted a controlled experiment last year that used high-tech equipment to record the progress of fires set in furnished “burn cells,” both with and without accelerants.

It found visual examination of burn patterns is unreliable to determine whether accelerants were involved.

The hearing will be conducted by retired Judge George Allen, who presided over Waco’s 54th State District Court when Graf was convicted. After hearing the evidence, he will make a recommendation about the case to the Texas Court of Criminal Appeals. The options include a recommendation that Graf remain in prison, be given a new trial or be found not guilty.

The appellate court will make the final decision about Graf’s fate. If it orders a new trial, Reaves said he thinks the case will be dismissed.

“I don’t think they could retry it,” Reaves said. “I don’t think there is any evidence that proves arson.”

The McLennan County District Attorney’s Office had an expert of its own review the case and may call that person as a witness, Reaves said. The office did not respond to the Tribune-Herald ’s request for comment about the hearing.

But soon after Reaves filed a writ of habeas corpus in August to try to get Graf out of prison, McLennan County District Attorney Abel Reyna filed a response that recommended a hearing be held.

“This case presents serious and complex issues involving fire science and forensics,” Reyna wrote in the filing.

Twitter            Facebook

RELATED SEARCHES

• The Ed Graf case: From the fire to today
• Interview: Convicted killer of stepsons in Hewitt fire looking to science for exoneration
• McLennan County DA wants hearing on new questions in Ed Graf arson murder case
• Findings could exonerate man convicted of murdering stepsons in 1988 Hewitt fire