The Contrarian

Ed Graf’s fate now lies with a Waco jury.

Testimony in Graf’s controversial re-trial concluded on Friday, and attorneys presented their closing arguments this morning. The six men and six women of the jury will now decide if they believe that Graf murdered his 8- and 9-year-old stepsons by starting a 1986 fire in a shed behind his house; or if Graf was wrongly convicted and spent decades in prison for what was actually an accidental fire.

Graf was originally convicted in 1988 and spent 25 years in prison. His conviction was overturned last year after advancements in the field of fire science disproved the physical evidence that convicted him. Yet McLennan County prosecutors chose to re-try him. (You can read the Observer’s 2009 investigation of Graf’s case here, our piece about the flaws in the evidence here, and my dispatches from earlier in the trial here and here.) Graf’s is the first case to reach re-trial since Texas began reviewing flawed arson cases following the Cameron Todd Willingham controversy.

As I noted at the beginning of the trial, prosecutors faced a difficult mission, trying to convict Graf with largely circumstantial evidence. Prosecutors couldn’t use any of the discredited arson evidence from the original trial. In fact, most of the physical evidence—analyzed using modern techniques and a modern understanding of fire—points to an accidental fire.

Science may not have been on their side, but prosecutors put on quite a case. They dredged up much of the circumstantial evidence from the first trial, the most damaging of which was the $50,000 insurance policy Graf took out on the boys the month before the fire, and a comment Graf allegedly made to a co-worker that his marriage would be better without the boys. The defense countered that the insurance coverage was a universal policy that’s commonly used as a good investment for kids and that Graf’s remark was simply an innocent complaint about his home life.

But the most stunning testimony came from a jailhouse informant.

Fernando Herrera, an inmate at the McLennan County jail who said he got to know Graf over the past few months, was likely the most controversial of the more than 30 prosecution witnesses. Herrera testified, as Tommy Witherspoon, the Waco Tribune-Herald’s long-time courthouse correspondent reported, that Graf confessed the crime to him in detail. He testified that Graf admitted to burning the children alive for the insurance money. Graf admitted, according to Herrera, that he had been struggling financially. Graf’s supposed confession went into surprising detail, including how he used ropes to tie the boys up and how he requested one casket at the funeral. He also supposedly told Herrera in jail that he had locked the boys in the shed, then opened the door just before neighbors saw what he was doing.

(Whether the door was open or closed is a key point. The door only locked from the outside, and Graf was the only adult in the house. So if the door was closed and locked, that would point toward Graf’s guilt. But witness testimony is mixed—some firefighters swear the door was closed and neighbors  swear the door was open. The fire scientists say the door had to be open or the fire would have died out from lack of oxygen.)

Herrera’s supposed confession just happens to match much of the prosecution’s theory of the case. In Herrera’s version, Graf locked the boys in the shed, then opened the door just in time to supply the fire with needed oxygen.

Defense lawyers sought to discredit Herrera, pointing out that he has at least six known aliases and more than a dozen convictions. They also noted that Herrera had asked for preferential treatment in jail multiple times before contacting prosecutors about the Graf case. Still, Herrera claimed prosecutors weren’t giving him anything in exchange for his testimony.

Defense attorneys also noted how unbelievable it seems that Graf would spend 25 years in prison, then, after his conviction was overturned, confess to a random jail inmate just before his retrial. Moreover, jailhouse informants don’t have the best track record, as the Innocence Project reports.

The defense team built its case on the scientific evidence. Doug Carpenter, a nationally renowned fire expert, was the key witness. He testified that the high carbon monoxide levels in the boys’ bodies point to an accidental fire (gasoline/arson fires typically result in low carbon monoxide levels. More on that here.) The defense also offered evidence that the boys had played with matches on several occasions and theorized that the boys had started the accidental fire themselves.

In his closing argument, prosecutor Michael Jarrett told the jury to ignore the scientific testimony and to go with their “heart,” as Witherspoon reported on Twitter.

That’s the essence of the case: Will the jury go with their heads or their hearts, with the scientific evidence or with their suspicions?

In many ways, the prosecutors’ case felt very familiar. They vilified the defendant, emphasized circumstantial evidence and offered fantastic testimony from a jailhouse snitch. Quite a few Texans have been wrongly convicted with this formula.

The difference this time is that the defense had modern fire science on its side. The jury will decide if the scientific testimony is enough to outweigh the considerable circumstantial evidence and the informant.

In that sense, the Graf case feels very much like a contrast between the old method that Texas prosecutors have used to convict people for years and the new approach to criminal cases based on more reliable, scientific evidence.

For Graf, 62, the stakes are high. If he’s found not guilty, he’ll be free for the first time in 26 years. If he’s convicted of capital murder, he may well die in prison.

Michael Jarrett has no easy task. The McLennan County assistant district attorney is trying to convince a Waco jury this week to convict Ed Graf of murdering his two stepsons. Graf stands accused of setting the fire in a shed behind his house that killed the 8- and 9-year-old boys in 1986. The tricky part is that Jarrett must prove Graf’s guilt without the benefit of physical evidence. In fact, the scientific evidence in the case, according to several leading national experts, points to an accidental fire.

Making Jarrett’s assignment even more difficult, he can’t disclose to the jury why Graf is just now standing trial for events that transpired 28 years ago. He can’t tell the jury that Graf was originally convicted in 1988, that he served 25 years of a life sentence in prison and that the Texas Court of Criminal Appeals overturned the conviction last year, ruling that the forensic evidence of arson was faulty and unreliable. The judge has ruled that any knowledge of the previous proceedings could bias the jury. So Jarrett can’t reveal to the jury the very reason for this week’s bizarre re-trial.

As Jarrett rose from his creaky, swiveling wooden chair to give his opening statement on Tuesday morning, a packed courtroom waited to hear how exactly he planned to pull this off.

Jarrett’s solution was to fall back on good storytelling. He may not have much forensic evidence to present, but he has a wealth of circumstantial evidence that casts suspicion on Graf, and Jarrett will make use of every bit of it.

Jarrett began telling the story of a “family torn apart by greed.” The greed belonged to Ed Graf, he said, standing before the 12 jurors. He had married Clare in the mid-1980s and adopted her two sons, Joby and Jason. For Clare, a single mother working two jobs, Graf seemed a “knight in shining armor.” But she soon learned that Graf was a prickly accountant, a man who liked things done his way, a man who could be controlling of her and her sons.

Jarrett started in on motive—money. Graf had been caught embezzling $75,000 from the bank at which he worked, and in fall 1985, he had to pay the debt back. He needed money. So he took out $50,000 life insurance policies on the boys, in July 1986, a month before the fire. After their deaths, he sought to collect on the policy.

Jarrett then said that testimony would show that Graf had forced the boys, in the weeks before the fire, to move storage bins filled with their keepsakes into the shed. “This man,” Jarrett said motioning toward Graf, seated at the defense table, “required his victims to build their own death chamber.”

It was a stunning line, the emotional climax to Jarrett’s effective opening statement. Jarrett conceded to the jury that, “You’re not going to hear anyone say they saw Ed Graf strike a match,” his admission that the prosecution’s case lacks scientific evidence. But, he said, as with his daughter stealing cookies from the cookie jar, Ed Graf could cover up the proof but couldn’t hide all the crumbs. Of course, that same circumstantial evidence was raised at Graf’s 1988 trial.

Jarrett ended with the one new piece of evidence he had: The jury, he said, would hear testimony from jailhouse witnesses about how Graf talked about the boys recently. They will reveal that Graf told them “Those little bastards got exactly what they deserved.”

That would seem a devastating bit of testimony, if it’s true. Jailhouse witnesses are notoriously unreliable.

In their opening statement, Graf’s defense attorneys had no narrative to tell. They didn’t have to. They went straight for scientific fact.

“We’re going to bring you scientific fact,” said Michelle Tuegel, one of three attorneys arguing Graf’s defense. “We’re going to bring you 2014 science in this case, not 1986 science.”

She then briefly explained that the field of fire investigation had advanced considerably since 1986. And she described why fire scientists now believe the fire was likely accidental, perhaps started by the boys, how the high levels of carbon monoxide found in the bodies indicate that the fire was an accident.

The defense team also showed that the circumstantial evidence, while compelling, is circumstantial for a reason—because there are alternate explanations. The defense attorneys pointed out that Ed Graf didn’t need money in summer 1986. He’d paid back his entire $75,000 debt, and secured another well-paying job. They also explained that Graf purchased life insurance policies that are known as universal plans, which can accrue money and are considered good investments for kids. In fact, Graf’s father had purchased such a policy for him, and he’d used it to pay for tuition at Baylor University. They also described Graf as an active parent who took the boys to amusement parks and the beach, and attended their sporting events.

Tuegel told the jury the case was about three tragedies—the death of the boys, a grieving mother and a man wrongly accused of murder. “You’re the only ones who stand between Ed Graf and a fourth tragedy,” she said.

After opening statements, Jarrett and his co-counsel spent the rest of Tuesday presenting their case. They brought forward seven witnesses. Among the most effective was Kathy Green, Graf’s former co-worker at the bank. She testified he once told her that he and Clare would be better off if “the boys weren’t around.”

T.J. Clinch, now 37, was a close of friend of Joby and Jason. He tearfully recounted on the stand that he played nearly every day with the boys. He admitted they had once started a small fire in his backyard, but immediately put it out. They did it just once, he said. “They did not like to play with matches,” he testified of Joby and Jason. At the 1988 trial, witnesses testified to other incidents when Joby and Jason played with fire, and the defense will likely offer that evidence later this week. But Clinch wouldn’t indulge the theory that the boys started the fire. “They wouldn’t have been playing in that shed.”

Del Gerdes, Clare’s sister in law, then took the stand and testified that Graf showed no emotion after the fire. “Not one time did that man say, ‘What could I have done?’” she said. Under cross-examination from Tuegel, Gerdes became angry. When asked if people show grief differently and if Graf could have been mourning in his own way, Gerdes shouted back at the attorney that 99 percent of people would at least shed a tear. “That man,” she screamed while pointing at Graf, “didn’t do that. All he did was act like a brick wall.”

The day ended with more testimony from Graf’s former in-laws, who discussed at length his cheapness and curt demeanor. By the end of the day, the prosecution had proven that Graf was a miserly, and not particularly pleasant, individual. But does that mean he’s capable of murdering his two stepsons?

The prosecution continued to build its case on Wednesday morning. The trial is expected to last at least the rest of the week, and perhaps run into next week.

Ed Graf is once again on trial for a crime that many experts say he likely didn’t commit.

Jury selection for Graf’s re-trial on capital murder charges began this morning in a Waco courtroom. Graf was convicted in 1988 of starting a fire in a shed that killed his 8- and 9-year-old stepsons. He served 25 years of a life sentence before his conviction was overturned last year. Graf has maintained his innocence, and much of the physical evidence in the case supports his claims. Three nationally known fire scientists and the State Fire Marshal’s Office’s expert panel have examined the forensic evidence against Graf and concluded there’s no proof that Graf committed arson. And yet he’s once again on trial for his life.

In 2009, the Observer was the first media outlet to examine the flaws in Graf’s conviction, part of a series on faulty arson cases. Since Graf was convicted a quarter century ago, the field of fire investigation has advanced considerably. Many of the indicators investigators once used to distinguish an intentionally set fire from an accidental one—and to convict hundreds of people of arson, including Graf—have been disproven. Similarly, nearly all the forensic evidence that convicted Graf of arson in 1988, such as burn patterns in the wooden shed, has now been debunked.

At a January 2013 hearing, fire scientist Doug Carpenter eviscerated the case against Graf, testifying that, “There is no evidence to be able to formulate a valid hypothesis that this is an incendiary fire.”

In March 2013, the Court of Criminal Appeals, the state’s highest criminal court, agreed and overturned Graf’s conviction. At that point, it was up to McLennan County prosecutors to decide whether to free Graf or attempt to re-try him.

A re-trial seemed unlikely given that nearly all the physical evidence had been undermined and the prosecution’s own expert agreed there was no proof of arson.

In June 2013, the State Fire Marshal Office’s Science Advisory Workgroup—a panel of six experts examining old arson cases in the wake of the Cameron Todd Willingham fiasco—also concluded there was no evidence of arson. The State Fire Marshal’s Office sent McLennan County DA Abel Reyna a letter notifying him that the office had changed its classification of the Graf case from “arson” to “undetermined.” If there was no arson, then no crime was committed, and Graf is, by definition, innocent.

Yet Reyna and the DA’s office plunged ahead with a new trial of Graf, who, having spent 25 years in state prison, remains incarcerated in the county jail.

Prosecutors will have little physical evidence on their side. They will have to rely on the circumstantial evidence in the case, including the life insurance policies Graf took out on the kids that he sought to collect after the fire.

In that sense, the re-trial will test whether prosecutors can win a conviction with circumstantial evidence alone. It will also test just how far Texas has come in dealing with arson cases: Graf is the first disputed case to be re-tried since the Willingham controversy and since the state began its review of older arson convictions.

Given the stakes, the proceedings aren’t off to an encouraging start. The re-trial was delayed twice because prosecutors’ original files have gone missing. At a bizarre hearing last week, former DA Vic Feazell, who prosecuted Graf in 1988, traded accusations with his ex-wife about what happened to the files. Though attorneys on both sides have located copies of the files, the originals are still missing, and it’s unclear if any relevant evidence has disappeared as well.

Meanwhile, the re-trial has garnered national attention. National Public Radio will air a story on the Graf re-trial on “All Things Considered” this afternoon.

Prosecutors may begin presenting their circumstantial case late today or tomorrow morning. I’ll be at the trial this week and will post updates in this space.

For the second consecutive year, a Texas Observer reporter is a finalist for the most prestigious award in magazine journalism.

The American Society of Magazine Editors announced this morning that Observer staff writer Emily DePrang is a finalist for a 2014 National Magazine Award.

Emily is nominated in the reporting category for her two-part series on police brutality in Houston. She’s a finalist along with reporters for The New Yorker, New York Times Magazine, Rolling Stone, Harper’s, Outside and The Atavist. The winner will be announced at a banquet in New York City on May 1.

The National Magazine Awards, or Ellies, are considered the Pulitzer Prizes of the magazine industry. This is the third Ellie nomination in the Observer’s 60-year history, and the second in two years. The Observer’s Melissa del Bosque was a 2013 finalist in the reporting category.

Emily’s stories—“Crimes Unpunished” and “The Horror Every Day”—published in the July and September issues of the Observer, were the result of eight months of reporting. The stories exposed that the Houston Police Department rarely disciplines officers for misconduct and abuse. Over a six-year period, officers who left crime scenes, falsified reports, mauled suspects and shot unarmed citizens were allowed to keep their jobs and are still patrolling the streets of the nation’s fourth-largest city. Emily found that between 2007 and 2012, Houston cops were involved in 550 shootings of people and animals. The department deemed every one of those 550 shootings justified, including the killing of a wheelchair-bound mentally ill double amputee who was armed with only a ballpoint pen.

Emily’s reporting was picked up by CNN, the Houston Chronicle and The Huffington Post, among others.

Congratulations to Emily! This is one of the most prestigious honors in journalism and well-deserved recognition of her work.

And congratulations to our staff and everyone who helps this little magazine in Texas produce some of the best journalism in the country.

I’ll concede here at the beginning that I’ve never worked on a political campaign. Nor do I have any experience in media relations, publicity, political communication or whatever else flacks do. I don’t know the nuances of trying to defuse controversy with a speech. But I have covered many political campaigns in Texas the past decade, so I know what it looks like when a campaign handles the press well.

And the Wendy Davis operation is about the worst at media relations that I’ve ever seen. Her team’s mismanagement of the press is damaging her candidacy.

The foul-ups began as soon as Davis entered the race, and hired a young and relatively inexperienced communications team that had spent little to no time working as reporters. At first, the mistakes were minor, even funny. For instance, Davis’ press staff directed a Texas Tribune reporter to the wrong place for an event and gave a Texas Observer reporter the wrong address to their own campaign headquarters. I’m sure that was annoying for the misdirected reporters, but nothing that would affect the campaign.

As the weeks went by, though, Davis’ team often treated the press with suspicion, asking repeatedly what a story would say before granting access to staffers, refusing to confirm basic campaign scheduling details and shielding Davis from in-person interviews with some major outlets.

That won’t win you any friends in the press and won’t earn much favorable coverage. Still, these are the kind of errors that only journalists care about, the stuff of endless reporter gripe sessions.

In November, when Davis swung through the Rio Grande Valley, the mishandling of the press started to become a real liability. The campaign invited reporters to attend volunteer phone-banks. That’s not the most compelling political theater, but reporters in the Valley showed up for a rare chance to query Davis in person. At the event in McAllen, as the Monitor’s Sandra Sanchez would later report in a piece titled “Wendy Davis Is Not Ready for Prime Time”:

“It was embarrassing to watch as a campaign staffer prematurely announced Davis’ arrival and urged everyone to stand up and chant, which they did for several minutes until it was obvious that Davis wasn’t there. ‘I thought she was here,’ a worker mused into the microphone to the quizzical and confused glances from the crowd of 60 or so.”

When Davis did arrive, she met with reporters for 10 minutes. Sanchez asked the candidate about her statement, at an earlier event in the Valley, that Davis was “pro-life.” This was a predictable question given the campaign’s reluctance to even say the word “abortion.” Sanchez documents what happened next: “[Davis] looked at me and shook her head. But before she could articulate, her new press aide Rebecca Acuña jumped in and said ‘that comment was taken out of context.’”

You almost never see a flack jump in front of their boss like that. Makes the politician look weak. Acuña then called Sanchez later that night and asked her to change a headline on the Monitor’s website.

We might blame these screw-ups on the follies common to a recently formed campaign. But it’s gotten only worse.

In the past two weeks, the campaign’s response to the controversy over the details of Davis’ bio (aka, Trailer-gate) has been slow and weak. On Tuesday night—a mere 11 days after The Dallas Morning News story that raised questions about her bio was published—Davis gave what her campaign termed a major speech to “set the record straight” at a fundraiser in Austin.

That quote—“set the record straight”—comes from the media advisory about the speech the Davis campaign distributed on Tuesday afternoon. A media advisory is like an invitation. By sending one out, you’re inviting (or in some cases begging) the press to cover your event.

But when reporters arrived at the Four Seasons ballroom, they were turned away. As The Dallas Morning News’ Wayne Slater and the San Antonio Express-News’ David Saleh Rauf reported, event organizers said the room was too full and there wasn’t space for the press. Why wouldn’t they make room for media at an event that featured Cecile Richards, head of Planned Parenthood, and Davis’ response to a controversy attracting national media attention?

Of course, there was room for some media—The Texas Tribune was allowed in to livestream and cover the speech. That, according to a well-reported piece by the Statesman’s Jonathan Tilove, was the result of intrepid work by Tribune reporter Jay Root. Good on him for getting a scoop. But that doesn’t explain why the campaign and event organizers would grant exclusive access to a major campaign speech to one media outlet.

It turned out the Davis campaign’s media advisory actually stated that the event was closed to the press but helpfully provided the link to the Trib’s livestream. This is not unlike someone sending you an invitation that says you’re not invited to a party, but, hey, you can watch it on Skype.

If you would find that offensive, then you can understand why some reporters, Rauf especially, were angry and have been ripping the Davis campaign and the Democratic Party this week on Twitter.

While it’s not smart to enrage most of the Capitol press corps, there’s a bigger issue. The Davis campaign almost certainly robbed the speech of wider media exposure by barring TV stations and major daily newspaper reporters.

Then there’s the questionable decision to hold Davis’ big “set the record straight” speech, after not responding very forcefully for 11 days, the same night as the State of the Union.

That’s all too bad, because Davis gave a great speech. It was heartfelt and impassioned. You can watch it on YouTube. It’s been viewed 801 times.

The gubernatorial campaign has just started, of course, and there’s plenty of time for the Davis staffers to become more media savvy. But so far their handling of the press is doing a disservice to their candidate.

You’ve got to credit Ted Cruz: The man’s been in elected office less than a year, and he’s already a household name across the country.

With his Ivy League smarts, smarmy condescension and uncompromising ideology, he annoys liberals more than any national politician since perhaps George W. Bush. All of which has made him a hero on the right. He’s making poor Rick Perry seem like old news.

Love him or hate him, Cruz deserves respect for his meteoric rise in national politics. I mean, how many other freshman senators can you name? (Elizabeth Warren doesn’t count.) Up to this point, Cruz’s goal has been clear enough: publicity. He’s been manipulating the media, the grassroots and even his fellow senators to make a name for himself (crusty dolts like John McCain and Barbara Boxer have been especially useful.) At this, he’s proved wildly successful.

But now what? Cruz has made himself known as the tea party standard bearer, the man taking on Obamacare, the wacko bird from Texas. But where is all this leading? What’s his long game? What does Ted Cruz want?

1. He wants to be president.

This goes without saying. Deep down, all politicians in Washington want to be president, don’t they?

But realistically, Cruz isn’t acting like a man with his eye on the White House. He’s alienated Senate colleagues, and made a lot of partisan noise without accomplishing anything of substance. That’s not the profile of a winning presidential candidate. A senator who really wants to be president puts his or her head down, makes allies and passes some legislation with his or her name on it to highlight in a future national campaign. Obama and Hillary both followed that route. Surely Cruz knows this. And yet he’s pursued a scorched-earth approach that won’t look good in a general election.

2. He wants to win the GOP presidential nomination.

Cruz’s tactics may not play well with November voters, but he’s got a shot at the Republican nomination. It’s way too early to start forecasting 2016, but Cruz has certainly put himself in the conversation (he’s polling ahead of Perry among some GOP primary voters).

So maybe Cruz wants to go all Barry Goldwater: win the nomination and get crushed in the general election to further the cause of conservatism.

3. He wants to lead the tea party.

Perhaps he simply wants to be the new face of the tea party—Jim DeMint with charisma. The right-wing grassroots constantly grouse about how their elected leaders betray “conservative values” once in office. Perhaps Cruz is the man who will give national voice to right-wing populism—he used the word “elite” often in his 21-hour pseudo-filibuster—against the corporate leadership of the GOP.

Based on Cruz’s bio, you wouldn’t think him a populist. His establishment credentials are impeccable: Princeton and Harvard, corporate attorney, wife who works at Goldman Sachs. How can a man who, in law school, wouldn’t stoop to study with anyone from “minor Ivies like Penn and Brown” be considered a true populist? The mind reels.

4. There is no plan.

Perhaps there is no long game. Perhaps he’s stumbling forward taking advantage of whatever publicity opportunity arises, any chance to raise his profile and his issues. This seems the likeliest scenario. It certainly fits the facts.

But if Cruz doesn’t have a long game, he probably needs one. Cruz is dominating the national conversation right now. But the “Mr. Smith Goes to Washington” shtick is fleeting, and the backlash —from Democrats and, especially, fellow Republicans—has already begun.