For the second time this week, a judge rejected a prosecutor’s motion to postpone the capital murder retrial of Edward E. Graf Jr. and said he thinks his reasons for the most-recent motion to delay are “tenuous at best.”
Judge Matt Johnson of Waco’s 54th State District Court on Thursday denied prosecutor Michael Jarrett’s request to postpone the trial and said jury selection will begin Monday morning.
In denying the motion, the judge noted that the case already has been postponed twice and instructed Jarrett not to file another motion to delay it without sufficient cause.
Graf, 62, was convicted of capital murder and sentenced to life in prison in the 1986 deaths of his adopted stepsons, Jason, 8, and Joby, 9.
The boys died in a fire in a shed behind Graf’s former Hewitt residence.
He spent more than 25 years in prison before the Texas Court of Criminal Appeals in 2013 awarded him a new trial, ruling the arson science used to convict him was flawed.
As he did the day before, Jarrett relied in part on the testimony of Bernadette Feazell, ex-wife of former McLennan County District Attorney Vic Feazell, on which to base his motion for continuance.
After brief argument, the judge cut Jarrett off and said he had heard enough. He reminded Jarrett that Monday’s trial date was the third priority setting in Graf’s case in which Jarrett said he was ready to go to trial. Johnson added that he found Bernadette Feazell’s testimony at Wednesday’s hearing “wholly without credibility.”
Bernadette Feazell testified her husband brought home nine boxes of files from the Graf case and later donated them to Lacy Rose Conger at a judge’s request.
Vic Feazell, who also testified Wednesday, called his ex-wife’s account “the silliest thing I ever heard” and said he left the original files from the Graf case in the district attorney’s office when he resigned in 1988.
Jarrett argued that Wednesday’s hearing raised more questions than answers. He asked for more time to investigate Bernadette Feazell’s claims to ensure that Graf gets a fair trial and to prevent a possible point of appeal if he is convicted again.
“You continue to assert that you are concerned about Mr. Graf getting a fair trial,” the judge told Jarrett. “He has lawyers for that, and I can assure you that I am as concerned or more concerned than anyone about seeing that those who appear before this court are provided a fair trial.”
Walter M. Reaves Jr., who represents Graf with Michelle Tuegel and Mark Dyer, filed a motion in April seeking to have the charges dismissed because officials discovered that the district attorney’s office file in the Graf case was missing.
Reaves since has been able to re-create the file from other sources and told the judge Thursday that the defense opposed the motion to delay the trial.
“We are ready to go to trial,” Reaves said. “There is nothing out there and nothing will be developed in the next 30 days that hasn’t already been developed.”
