The StandDown Texas Project

Thoughts on the the Texas Legislature

Today is the 133rd day of the 140-day legisltive session.  Sine Die - aka, adjournment - is Monday, May 27.  You can view the various deadlines that limit legislative activity as the days peel off the calendar.

Andrew Cohen writes about the passage of a major criminal discovery law, "In Texas, a Bold Step Toward Justice," for the Brennan Center.  He recently joined the Center as a Fellow.

It is altogether fitting that Texas, a state where some of the worst of these transgressions have taken place, is confronting part of its unconstitutional past the same week America commemorates the 50th anniversary of the Brady ruling, which came down unanimously from the high court on May 13, 1963. The Morton Act, which now awaits Gov. Rick Perry’s signature after passage in both houses of the Texas legislature, is a bold, progressive step that creates an “open-file” discovery rule requiring prosecutors to share more information more quickly with defense attorneys.

The new law means prosecutors now have an affirmative duty under state law to comply with Brady by making sure defendants and their lawyers can see and copy all police reports and witness statements. Prosecutors will be able to protect the identity of witnesses — which always has been a sticking point in these measures — but will have to provide defense counsel with a list of the disclosed evidence. In other words, Texas now has taken a significant step toward giving its criminal defendants, whose life or liberty are on the line, many of the same discovery protections routinely afforded litigants in state court civil cases, where neither life nor liberty are at stake.

It’s about time. Morton spent 25 years in prison for the murder of his wife before a DNA test exonerated him just a few years ago. The behavior of his prosecutor, Ken Anderson, was so egregious that Anderson himself now faces criminal charges of tampering with evidence. Michael Toney also spent nearly 25 years in a Texas prison because his prosecutors suppressed evidence about the credibility of the only witnesses to testify directly against him. Anthony Graves was relatively lucky — he spent just 18 years behind bars for a crime he did not commit.

The Morton Act will require prosecutors to play more fairly in criminal trials. And a related measure, Senate Bill 825, also passed by the Texas House this week, addresses what will happen when they don’t. This measure will give aggrieved criminal defendants more time to challenge prosecutorial errors once they are discovered. And, critically, it will publicly reprimand prosecutors who cheat. I’d like to see harsher sanctions in these cases — more teeth to the measure — but if the new law is faithfully observed by state court judges no longer will the legal community in a particular jurisdiction be able to close ranks around district attorneys who violate the law.

Cohen's essay was written before Governor Perry signed the measure into law.

The Austin Chronicle posts, "Junking Junk Science?"  It's by Jordan Smith.

It appears the third time filed is the charm for a bill that allows defendants to challenge their criminal convictions based on the state's use at trial of junk or outdated science – but will it actually cure the problem it seeks to address?

The Texas House Thursday morning unanimously passed Senate Bill 344, by Sen. John Whitmire, D-Houston, queueing up the bill for Gov. Rick Perry's signature, but whether it will have any bite to it is unclear.

As passed, the measure tells the Court of Criminal Appeals how to consider scientific evidence challenged in writs of habeas corpus – an issue that, aside from those cases involving DNA, remains a source of some uncertainty and tension – including in cases that involve pure junk, like dog scent-lineups, or cases that involve more evolved scientific understanding, as with the now discredited trifecta of "symptoms" once considered the hallmark of so-called "shaken baby syndrome."

As the law had to be changed in order to allow the CCA to consider appeals specifically citing DNA evidence, so too SB 344 amends habeas law to allow the court to grant relief where sufficient facts demonstrate that relevant, and admissible, scientific evidence contradicts that which the state used to convict, or that was unavailable at the time the defendant was convicted. The bill also prohibits the court from denying relief based on the fact that a defendant either confessed to the crime or took a plea deal.

Earlier coverage of the 83rd Regular Session of the Texas Legislature begins at the link.

Hearings at the Texas Legislature

The Texas Tribune posts, "House Panel Hears Testimony on 'Michael Morton Act'," by Brandi Grissom.

Just more than a week after the arrest of Ken Anderson, the former prosecutor who oversaw the wrongful conviction of Michael Morton in 1987, a House committee on Monday considered legislation that would require prosecutors to turn over evidence to defense lawyers in criminal cases.

Senate Bill 1611, dubbed the "Michael Morton Act" by state Sens. Rodney Ellis, D-Houston, and Robert Duncan, R-Lubbock, was approved unanimously April 11 by the Senate. Currently, prosecutors aren't required by state law to provide evidence to defense lawyers unless ordered to by the court. Among the charges Anderson faces is failing to comply with a judge's order regarding turning over evidence.

Morton told members of the House Judiciary and Civil Jurisprudence Committee on Monday that the bill would prevent wrongful convictions like the one he suffered.

"If it could happen to me, it could happen to you," said Morton, who spent nearly 25 years behind bars. The measure was left pending in the committee.

And:

"We want to improve fairness and consistency,” said state Rep. Senfronia Thompson, D-Houston, who is sponsoring the bill in the House. The measure, she said, is the first major reform to the Texas discovery system since 1965.

Many Texas prosecutors now have some form of open file policy, but the procedures vary by county and sometimes within a district attorney's office. In a February report based on a survey of more than 40 prosecutors' offices, Texas Appleseed and Texas Defender Service, both justice advocacy organizations, found that "lack of uniformity in discovery policies in Texas makes access to justice dependent, in part, on where a defendant is charged."

Under SB 1611, prosecutors would be required to turn over evidence both before trial and after it begins. A record would be kept of the exchange of evidence. 

Legislators have proposed opening the discovery process in previous legislative sessions, but the high-profile Morton case and his promotion of reform to prevent wrongful convictions gave the effort momentum this year.

"Exonerated Man Tells Legislature: Repeal Death Penalty," is Chris Tomlinson's AP filing, via KXAS-TV.

A man who spent 18 years on death row before a court exonerated him begged the Texas Legislature on Monday to repeal the death penalty.

Anthony Graves made his appeal to the House Criminal Jurisprudence Committee, which was considering a bill to stop executions in Texas.

"You tried to execute me twice for a crime that I knew nothing about," Graves told lawmakers. "You not only put me on death row, you put my family on death row, you put my children on death row ... and my children grew up without me."

Graves spent 18 years in prison before he was cleared by DNA evidence. The state gave him two execution dates before he was finally cleared and on Monday he pleaded with the lawmakers to end the death penalty.

"There are innocent men, mentally challenged men, insane men on death row, and you want to execute them," he added. "As long as we continue with this death penalty, as long as we don't get serious about it, you're going to continue to execute innocent people and you are going to call it justice."

Rep. Jessica Farrar, D-Houston, authored the bill, but she acknowledged it had little chance of passing.

"Every time we bring this up we get a bit closer to seeing this become a reality in Texas," Farrar said. "In the past six years, six states have done away with the death penalty."

Earlier coverage of the criminal discovery and death penalty repeal bills, at the links.  Related posts are in the Texas Legislature category index.

Gideon Webcast - Starting Soon

American Bar Association Section of Litigation is about to present a live streaming webcast, "The 50th Anniversary of Gideon v. Wainwright."  Here's the info:

A program commemorating the 50th anniversary of the landmark decision, Gideon v. Wainwright will be live streamed on January 18, 2013. This decision recognized a constitutional right to the appointment of counsel for indigent criminal defendants charged with felonies. Mr. Gideon was in prison when he submitted his handwritten petition to the U.S. Supreme Court requesting counsel.

Speakers include:
--  Professor Bruce Jacob, Dean Emeritus and Professor of Law at Stetson University College of Law
--  Anthony Graves, Motivational Speaker and Legal Consultant
--  Carlos J. Martinez, Miami-Dade Public Defender
Moderating will be JoAnne A. Epps, Dean of Temple Beasley School of Law.

Experience this event on your mobile device by downloading the UStream App. Follow the directions below to download the app to your iPad, iPhone, Kindle Fire and other Android devices. Upon downloading the app, simply search the name of the event.

Don’t just watch. Participate! During this event, online participants are encouraged to submit any questions they may have. Some questions will be addressed during the event while others will be provided to the panelist during a 10-15 minute Q&A period at the end of the event. We will attempt to address as many questions as possible during the allotted time period.

Coverage of the Senate Hearing on Solitary Confinement

"Senators Start a Review of Solitary Confinement," is the  New York Times report by Erica Goode.

Solitary confinement “is inhumane and by its design it is driving men insane,” a former inmate who spent 18 years in prison in Texas, a decade of that time in isolation on death row before being exonerated, told a Senate panel in a hearing on Tuesday.

“I lived behind a steel door that had two small slits in it, the space replaced with iron and wire, which was dirty and filthy,” said Anthony Graves, whose conviction for involvement in multiple murders was overturned in 2006. “I had no television, no telephone and most importantly, I had no physical contact with another human being.”

The hearing, held before the Subcommittee on the Constitution, Civil Rights and Human Rights, represents the first time lawmakers on Capitol Hill have taken up the issue of solitary confinement, a form of imprisonment that many human rights advocates believe violates the Eighth Amendment’s prohibition of “cruel and unusual punishment” and that has drawn increasing scrutiny in recent months in the United States and internationally.

The practice, which is widespread in American prisons, has also been the target of a growing number of lawsuits, including a class-action suit filed on Monday on behalf of mentally ill inmates held in solitary at ADX, the federal super-maximum-security prison in Florence, Colo.

Last month, civil rights lawyers representing prisoners held for more than 10 years in isolation at Pelican Bay State Prison in California filed suit in federal court, arguing that solitary confinement is unconstitutional.

Senator Richard J. Durbin of Illinois, the assistant majority leader, began the hearing — which he said had the support of both Democratic and Republican committee members — by noting that more prisoners are held in isolation in the United States than in any other democracy and that about half of all prison suicides occur among inmates in solitary confinement.

"Solitary confinement 'is driving men insane,' exonerated convict testifies," is Jamie Goldberg's report for the Los Angeles Times and Tribune News Service.

For most of his 12 years on death row, Anthony Graves lived in what he called an 8-by-12 "cage." To see outside he would stand on top of his rolled-up plastic mattress and look through a small window at the top of the concrete wall in the back of his cell. He spent 22, sometimes 24, hours a day in this room.

"Solitary confinement does one thing: It breaks a man's will to live and he ends up deteriorating. He's never the same person again," said Graves, who served over 18 years in a Texas prison before being exonerated of all crimes in 2010.

Speaking at what was described as the first congressional hearing about solitary confinement, Graves told a Senate Judiciary Committee subcommittee that the practice was "inhumane and by its design is driving men insane."

Psychological studies indicate that approximately a third of prisoners in solitary confinement suffer from mental illness and 50% of prison suicides occur in solitary confinement, said Craig Haney, a psychology professor at UC Santa Cruz.

This month, the Center for Constitutional Rights sued the state of California for its practice of isolating prison inmates suspected of having gang affiliations. The lawsuit focuses on 300 inmates who have been held at Pelican Bay State Prison's Security Housing Unit for more than a decade.

Charles Samuels, director of the Federal Bureau of Prisons, told the committee that inmates were only placed in solitary confinement to protect the safety of the prison population. The bureau attempts to limit time spent in solitary confinement, which is not supposed to be used for seriously mentally ill inmates, he said.

"Sen. Richard Durbin urges revamping prison solitary confinement," by Annika McGinnis for McClatchy News.  It's via the Charlotte Observer.

Sen. Lindsey Graham, R-S.C., repeatedly asked the director of the Federal Bureau of Prisons, Charles Samuels, whether he thought there were any negative effects to such treatment. Samuels said it wasn’t the “preferred option,” and cited a 2010 Colorado Department of Corrections study that he said had found no negative effects from solitary confinement.

Haney, who helped lead the Stanford Prison Experiment in 1971, which demonstrated the psychological impact of confinement on prisoners and guards, said that living in what he called extreme, inhumane and “zoolike” conditions often caused serious mental illness and was a danger to public safety.

About 95 percent of prisoners in solitary confinement ultimately are released back to society; Haney charged that the system lacks meaningful transitional services and formerly isolated prisoners are more prone to violence after they’re released.

Prison officials are supposed to monitor prisoners’ mental health and move them to psychiatric wards if they exhibit signs of illness. Samuels said the system had an extensive network of such officials and an intensive psychological screening process before prisoners were placed in solitary confinement. He said that only the most dangerous prisoners, who posed a threat to other inmates or guards, were placed in solitary confinement and that the number was very small.

Christopher B. Epps, the commissioner of the Mississippi Department of Corrections, said his efforts to revamp that state’s prisons had reduced the number of segregated inmates by 75 percent.

Durbin’s legislation, which has yet to be introduced, would cut the number of prisoners in solitary confinement, improve mental health screenings and give prisoners greater opportunities to challenge decisions.

Texas exoneree Anthony Graves has posted, "An Innocent Man’s Tortured Days on Texas’s Death Row," at the ACLU.  Here's the beginning of this must-read:

On November 1, 1994, I heard the gavel fall and the judge announce, “Anthony Graves, I hereby sentence you to death by lethal injection.” The jury had already convicted me of murdering six people and burning down their house down to cover up the crime. I was completely innocent: they had the wrong guy. I was scared of dying for a crime I did not commit, but I believed in my innocence and hoped someone, somewhere would make it right.

What I didn’t know then was that this wrongful death sentence was only part of the torture I would experience for the next 18-and-a-half years. I didn’t know that I would be forced to live in an 8x12 cage. I didn’t know I would have to use a steel toilet, connected to my steel sink, in plain view of the male and female corrections officers would walk the runs in front of my cell. I didn’t know that for years on end I would have no physical contact with a single human being.

I didn’t know that guards would feed me like a dog, through a slot in my door. Instead of providing basic nutrients, the food sometimes contained rat feces, broken glass, or the sweat of the inmate who cooked it. This diet caused me health problems that continue today. The prison gave me no phone to call my loved ones, no television to keep up with the world and local events, and no real medical care. I lived behind a steel door, with filthy mesh-covered windows looking out to the run; my only window to the outside world was a tiny one on the top of the back wall of my cell. With its peeling, old, and dull paint, my cage was the image of an abandoned one-room project apartment. If I had known when I was sentenced all I would have to go through before I would win my freedom, I don’t know if even my faith in my own innocence would have been enough to sustain me.

Earlier coverage of the U.S. Senate hearing begins at the link.  Related posts are in the incarceration index.

CBS News '48 Hours" to Revisit Anthony Graves' Exoneration

This Saturday's edition of CBS News "48 Hours" will revisit the wrongful conviction and exoneration of Anthony Graves.  A preview of this updated telling of "Grave Injustice," is available from CBS News.  The program is scheduled to air at 10:00 pm (EDT), 9:00 pm (CDT); check local listings for your CBS affilliate.

You can also view CBS News' press release, announcing the program.

“If it hadn't been for 48 Hours Mystery, I don't think I would be getting my compensation,” said Anthony Graves following the announcement that he would be awarded restitution after nearly 20 years of wrongful incarceration.

On April 23, 2011, 48 HOURS MYSTERY correspondent Richard Schlesinger reported the story, “Grave Injustice,” of Anthony Graves, a Texas man who walked free in October 2010 when it was proven that he had been wrongfully convicted in 1994 on six counts of capital murder. Formerly known as Inmate #999127, Graves was on death row when a group of journalism students from the University of St. Thomas in Houston began looking at his case. After four years of investigating, they uncovered the truth: Anthony Graves was an innocent man.  

Despite gaining his freedom and good name back, Graves did not receive complete justice. According to a 2009 Texas law, those exonerated can receive $80,000 for every year they were imprisoned; however, because two words – “actual innocence” – were missing from Graves’ prison release papers, Texas refused to compensate him.

“They (48 HOURS MYSTERY) laid out my case for the whole world to see and as a result it made Texas do the right thing. I owe it all to 48 Hours, for first taking an interest in my case, seeing the injustice for what it was, and then showing the rest of the world,” said Graves.

Earlier coverage of Anthony Graves' wrongful conviction and exoneration begins at the link.  All coverage is in the Anthony Graves index.  Additional coverage of Texas compensation for those wrongfully incarcerated is also available.

The Morton Exoneration & Prosecutorial Misconduct

"Justice and Prosecutorial Misconduct," is the New York Times editorial from the December 29th issue.

Prosecutors have enormous power in determining who is subjected to criminal punishment because they have broad discretion in deciding criminal charges. The Brady rule, established by the Supreme Court in 1963, is supposed to be an important check on that power. It requires prosecutors to disclose evidence favorable to the defendant. But their failure to comply is rarely discovered, and, even then, prosecutors are almost never punished.

The Supreme Court, in an outrageous decision earlier this year, further weakened the ability of wronged defendants to make prosecutors’ offices liable by giving them nearly absolute immunity against civil suits. Justice Clarence Thomas justified the ruling, noting that an “attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension, and disbarment.” But bar associations hardly ever punish this behavior; judges seldom discipline prosecutors for such violations; and criminal sanctions are rarely imposed against prosecutors.

This is why the Morton inquiry is crucial. The Innocence Project report found that Mr. Anderson willfully failed to disclose police notes that another man committed the murder, concealed from the trial judge that he did not provide the full police report and advised his successor as prosecutor “to oppose all of Mr. Morton’s postconviction motions for DNA testing.” If a court confirms these findings, it must hold Mr. Anderson accountable — or it will send a message to prosecutors in Texas and elsewhere that the criminal justice system is incapable of deterring or punishing this conduct.

There are, however, a small but growing number of prosecutors’ offices around the country that have systems to prevent the gross miscarriage of justice that Mr. Morton suffered. Like the New York County District Attorney’s Office, they allow open records so defendants can have a copy of almost anything in the case file, and they support having courts audit their compliance with Brady.

"Let Anderson's record be heard by a court," is the Austin American-Statesman editorial of December 27.

Michael Morton ends 2011 an innocent man. Meanwhile, District Judge Ken Anderson ends the year under a cloud of suspicion about his conduct prosecuting Morton for the murder of his wife almost 25 years ago.

Last week, District Judge Sid Harle formally dismissed the murder charge against Morton. Morton, wrongly imprisoned in 1987 and not released until October, was always actually innocent of beating to death his wife, Christine, in their Williamson County home in 1986. Now the state concurs; Morton is innocent.

With Morton's innocence legally declared, Harle now should convene a special court of inquiry to investigate allegations by Morton's lawyers that Anderson, who was Williamson County's district attorney when he prosecuted Morton, concealed evidence that might have exonerated Morton of the charge that he killed his wife.

Anderson denies the allegations. In our view, let a court of inquiry consider Anderson's denials.

"Inquiry warranted in Morton case," is the Dallas Morning News editorial of December 23.

One thing is now cleared up for good in the Michael Morton murder case in Williamson County. He was proclaimed officially, unequivocally innocent this week.

One thing is far from being cleared up — whether the man who put him in prison for nearly 25 years, Ken Anderson, is a scheming, unethical district attorney. If there’s an explanation for why the defense never saw critical exculpatory evidence investigators collected before trial, for why the evidence stayed hidden for nearly all of the quarter-century that Morton was imprisoned, the state of Texas hasn’t gotten a straight answer. And it needs to.

Anderson, now a judge, should be held to account, just as Morton once had to defend himself against a far thinner dossier of evidence.

A request for a special court of inquiry in the Anderson matter is now before a state district judge, in a damning, 144-page report filed Monday by Morton’s attorneys. That special proceeding should be held to get direct answers from Anderson and weigh whether he should face charges.

"Stop the prosecutorial misconduct," is the title of an OpEd by Houston criminal defense attorney Robert Fickman in the Houston Chronicle of December 31.

It is past time for us to draw another line in the sand. Too many innocent men and women have had their liberty stolen by some puffed-up bureaucrat with a law degree. It's time to fight back and demand accountability.

What has become of the men who prosecuted Graves and Morton? What is their punishment for apparently fabricating and withholding evidence?

Have they been sent to jail, disbarred or hounded from our midst? No. Nothing has happened to them.

There is no punishment for them. Their lives go on unfettered. There is no accounting for their apparent raw inhumanity. None.

This needs to change. When a prosecutor willfully withholds exculpatory evidence in a murder case, he must be held to answer. When a prosecutor willfully fabricates evidence in a murder case, he must be held to account. Prosecutors who willfully falsify evidence to rob innocent men of their liberty must be held to answer under the law.

The next time the state Legislature meets we must demand accountability. The Legislature must enact stiff laws to punish those prosecutors who willfully break the law to rob men of their liberty. Nothing less is acceptable.

"Special holiday for lawyer John Raley, innocent client," is Patricia Kilday Hart's December 26th Houston Chronicle column.

Christmas, that celebration of miracles, new life and truth, can find expression in unlikely settings.

This year, for Houston attorney John Raley and his family, it arrived six days early in a nondescript Georgetown courtroom, when a state district judge stepped down from his imposing dais to declare the innocence of Michael Morton, a man who spent 25 years in prison wrongly accused of the murder of his wife, Christine.

And:

Raley's involvement in the case began when a mutual acquaintance in Houston's legal community suggested to Innocence Project attorney Nina Morrison that she solicit his help as a volunteer.

Morrison now laughs when she recalls the naiveté that Raley, a civil litigator with expertise in medical malpractice, brought to the criminal court arena: "He said, 'Of course the prosecutors will want to do DNA testing. Who wouldn't want to do DNA testing?' "

Morrison, jaded from years of fighting injustices that occur all too often in the criminal court system, knew better. Prosecutors do not like to admit mistakes.

Brandi Grissom wrote, "Murder Cases Put 'Junk Science' in the Spotlight," for the December 26 Texas edition of the New York Times.  It's also available at the Texas Tribune.  Here's an extended excerpt from this must-read:

Undigested bits of mushrooms and tomatoes from Christine Morton’s last meal — a celebratory birthday dinner she had with her husband — were still in her stomach when the medical examiner performed his autopsy in 1986.

Those remnants, the prosecutor told the jury during Michael Morton’s trial, “scientifically proved” that Mr. Morton had beaten his wife to death.

Twenty-five years later, DNA science revealed that someone else had actually killed Mrs. Morton and that her husband’s murder conviction and more than two decades in prison were a tragic mistake. His exoneration based on DNA evidence is the 45th in Texas.

Before he dismissed the wrongful murder charges against Mr. Morton last week, Judge Sid Harle recounted the faults the case exposed in the Texas justice system. Among them: the use of so-called junk science in the courtroom.

“The courts and the sitting judges need to be ever mindful about their role as gatekeeper in regard to the admission of science,” Mr. Harle said. “Your case illustrates the best and the worst of what can happen.”

Despite scientific advancements like DNA testing, the use of unreliable scientific techniques in the criminal justice system persists. While some judges say they work to ensure only reliable scientific evidence is presented to juries, criminal justice advocates say that more must be done to root out an array of pseudoscientific practices that can have life-or-death consequences.

“What passes for science in courtrooms is not always, in fact, science,” said Kathryn Kase, interim executive director of the Texas Defender Service, which represents death row inmates.

In recent weeks, the Texas Court of Criminal Appeals has agreed to review cases that indicate it may also see a need to address the types of evidence that meet scientific standards.

In November, the state’s highest criminal court agreed to review the case of Megan Winfrey, who is serving a life sentence for murder. She was convicted largely on the testimony of a sheriff’s deputy who said his bloodhounds “alerted” to her scent on the murder victim’s clothing. The court has previously ruled that dog-scent evidence, used to convict Ms. Winfrey’s father for the same murder, was insufficient without corroborating evidence. The court acquitted her father on appeal.

This month, the court also agreed to review the cases of two men awaiting execution. Both men, convicted of murder, were sentenced to death after a psychologist who was an expert witness in several death penalty cases told jurors that they were mentally competent to face execution.

Earlier coverage of Michael Morton's exoneration begins at the link.

The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; more via Oyez.  Related posts are in the prosecutorial misconduct index. 

There is also more in the junk science index.

Cheering on the Death Machine

That's the title of an editorial in today's New York Times.

Even supporters of the death penalty used to consider execution a solemn state responsibility, not an occasion for celebration. But the crowd of Republicans who gathered at the Reagan Library last week to watch their presidential candidates debate actually applauded and cheered when a moderator noted that Texas had executed 234 inmates under Gov. Rick Perry, by far the most under any governor in modern times.

Then came Mr. Perry’s blithe denial that he had ever struggled with a single one of those state killings. Texas has a “thoughtful, a very clear process,” he said, which ensures everyone a fair hearing, so there is no need to lose sleep over the possibility of executing an innocent person.

It may not trouble Mr. Perry, but any clear-eyed observer would be shocked at the grim momentum of his state’s death machine, which stops for no suggestion of error. The clearest and best-known illustration of that was the 2004 execution of Cameron Todd Willingham for the home fire that killed his three children, despite egregious flaws in the forensic science that helped convict him. In the face of serious questions, Mr. Perry refused to grant a reprieve for Mr. Willingham, and years later replaced the members of a state forensic commission that was about to hold hearings on the execution.

And:

Mr. Perry is well known for being extremely parsimonious with his clemency authority. His attitude about death may make sense in the hard-edged Republican primaries, but other voters should have serious doubts about a man who seems to have none.

"Perry’s odd ease with death penalty," is the editorial from the Sunday Dallas Morning News.

Two things seemed creepily out of whack last week when the subject of the Texas death penalty came up during the GOP presidential debate at the Ronald Reagan Presidential Library.

First was the crowd’s reaction at the mention of this state’s leading execution statistic, a record 234 of them under Gov. Rick Perry. The audience actually applauded the body count tallied in Huntsville over the last 11 years.

That bizarre outburst set the stage for the governor’s defense of his record, and, with the crowd behind him, it probably was a politically effective media moment for the governor.

Yet the justice system Perry depicted is not the system that comes into focus when taking a hard look at the facts. His is a black-and-white rendition: bad crime, fair trial, thorough review, last words on a gurney.

The reality of Texas justice is not so sound-bite simple. The fight for fairness and truth can be an agonizing and often futile one.

And:

Perry was right about one thing: The public is generally comfortable with the death penalty. But consider that a mere theoretical statement. Dig deeper into uncomfortable truths and, we think, the public will see hard realities that are impossible to defend.

University of Houston Law prof David Dow posts, "Rick Perry's Lethal Overconfidence," available at MSNBC.

Jaws dropped when the governor of Texas, running for president, said on national television he was “100 percent sure” everyone who had been executed on his watch was guilty. The governor was George W. Bush, appearing on NBC's Meet the Press, during his first presidential run. Six months before Bush's election, Texas executed Gary Graham, who continued to protest his innocence even as the lethal injection was killing him and whose objections were almost certainly true. Then, just before Bush moved to the White House, Texas executed Claude Jones. Last year, new DNA testing on a hair found at the crime scene cast doubt on Jones's guilt.
Bing even more:

Rick Perry likes to say that while President Bush went to Yale, he went to Texas A&M, which I guess is meant to imply that Bush is smarter than he is. But when it comes to their confidence in Texas's executions, the two are equally idiotic. Asked at Wednesday night's presidential debate if he ever worried that Texas had executed an innocent person on his watch, Perry answered, “I've never struggled with that at all.”

Certainty is cheap if one achieves it by ignoring the actual facts, and indeed, Governor Perry's answer to the death-penalty question asked of him Wednesday night reflected a staggering inattentiveness to the facts. As the founder of the Texas Innocence Project, I've had a couple of dozen clients executed during Perry's tenure as Governor. There are some I think could well have been innocent-- Frances Newton, for example, who supposedly killed her husband and two children without getting even a spot of blood or speck of gunpowder in herself; or Charles Nealy, who did not remotely match the description of the person who killed the convenience store clerk. But, there was no DNA in either case, and so I am left being unsure.

In his New York Times Opinionator blog, Peter Catapano posts, "They Messed With Texas," with a roundup of blog commentary.

For some — in this case, opponents of the death penalty — this was sort of a double whiplash moment, a gasp within a gasp that may have been more confusing than mobilizing. Because which was more disturbing (or heartening, depending on your political view)? Perry’s unbowed defense of the “thoughtful” trial process in Texas and the clear expression of his untroubled mind in the face of possible moral doubt and complexity (i.e., Have I facilitated the death of an innocent human?)? Or the audience applause that bracketed the exchange, the rousing audience cheers for an aggressively applied death penalty? In California, mind you, not Texas.

Let’s look at the applause, the “execution cheer,” if you will. Because any number of analysts might have expected Perry to say what he said, but the cheer was a surprise — a welcome sort for some, but unwelcome for others.

Earlier commentary on Rick Perry and capital punishment in Texas begins at the link.

An Anthony Graves Update

Texas' most recent death row exoneree, Anthony Graves, is interviewed by Brandi Grissom of the Texas Tribune.  You can watch streaming video at the link.  Here's an excerpt from the introduction:

The state of Texas incarcerated him for nearly two decades — and nearly executed him twice — for murders he didn't commit. And now, the state is balking at giving him the $1.4 million he's owed for all the years he spent wrongfully imprisoned.

Despite it all, Anthony Graves is remarkably positive. He's just happy to be off death row, and elated to be working to bring hope to his friends who are still there. Last week, Graves sat down with the Tribune at his downtown Austin office at the Texas Defender Service, a nonprofit organization that works with death row inmates.

Graves was convicted in 1994 of killing five family members in Somerville before lighting the house ablaze. The other young man convicted in the slayings, Robert Carter (who was executed in 2000), eventually admitted he was the lone killer, but it took another decade before the Burleson County district attorney dropped the charges against Graves and released him from custody. He has been free since October.

Getting used to a world that has changed dramatically since he was a part of it has been surreal and at times scary, Graves said. But he said he's just happy to have the opportunity now to make choices in his life and help others who are in the same situation he faced.

The Tribune interview came a day after Graves' first return visit to death row. This time, he talked with his friends — who are also now his clients — on the free side of the plexiglass, wearing a suit and investigating their cases. For him, it was the fruition of 18 years of death row dreams.

The exonerated 45-year-old talked about life on death row, about the scariness of the free world and the work he said is now his life's mission: abolishing the death penalty.

Earlier coverage of Anthony Graves' exoneration and battle for compensation begins at the link.  All coverage is in the Anthony Graves index.

48 Hours on Anthony Graves' Exoneration

"Students help free wrongfully convicted man," is the title of the CBS News program, "48 Hours Mystery" segemtn on Anthony Graves.  Richard Schlesinger reports; the segment is produced by Lourdes Aguiar, Jenna Jackson and Jennifer Simpson Ashmawy.  In addition to the video, you can also read the transcript of the report.

Here's the beginning:

Before the early morning hours of Aug. 18, 1992, the police in Somerville, Texas found six bodies in the burned rubble of what used to be the Davis home.

"This was such a horrific event in that town and continues to be an event that really haunts the people of Somerville..." Texas Monthly reporter Pam Colloff told "48 Hours Mystery." "This was a family that almost everyone in town knew, liked, respected."

The victims: A grandmother, her daughter, and four grandchildren who were staying with them.

Colloff is still moved by the fact that the family never had a chance.

"There was Bobbie Davis, the grandmother to the four children who was bludgeoned and then stabbed to death," Colloff explained. "There was 16-year-old Nicole, her daughter, who was a high school student and athlete, who was bludgeoned and shot. And then there were the four grandchildren. They were 9-year-old Denitra, 6-year-old Brittany, 5-year-old Lea'Erin and 4-year-old Jason."

Glenda Rutledge is Lea'Erin and Brittany's mother.

"And my daughters, "Rutledge sighed, "were exotically beautiful. Beautiful...They were my legacy..." she continued in tears. "I was so looking forward to the chance to get it right... You know, to raise strong, sure, confident, successful women. You know, I wanted to do that so bad."

Rutledge's ex-husband, Keith Davis, lost almost his entire family that night.

"I mean these were little babies, and - and my mother, who... you know, who we adored, who was the center of our life," he said.

He was convinced it was a random crime.

"I just couldn't imagine someone from that area harming anyone in my family, 'cause we had never...we didn't have any enemies, we hadn't been in any trouble," said Davis.

Roy Rueter lived and worked not from the murders. Five days after the crimes, he remembers hearing there was a break in the case.

"I could hear the radio and the news would always come up..." he recalled. "And - it was early in the morning and they came up and they said, you know, arrest had been made...and they said uh - Anthony Charles Graves, age 27."

Anthony Graves was one of Rueter's best friends. Graves had worked for him for a while at his machine shop and the two became so close that Graves had even been in Rueter's wedding party.

"And it just it just freaked me out," he told "48 Hours Mystery" correspondent Richard Schlesinger. "But my immediate thing was, yeah, right. No way. And what - you know, what - what could possibly be going on here, you know?"

"You didn't believe it?" Schlesinger asked Rueter.

"Well of course not. Absolutely not."

Rueter knew Anthony Graves as a gentle man, a father of three. He was now hearing his friend was a murderer - of women and children.

"In my heart, my convictions were that's impossible," he said. "Anthony would never do that. Anthony would never - hurt or raise a hand to a woman. And especially not a child, especially the way he loved his children."

And when Graves was arrested, he seemed equally stunned.

Earlier coverage begins with a preview of the 48 Hours report.  All coverage is in the Anthony Graves index.

Anthony Graves Exoneration Profiled by CBS 48 Hours

The CBS News program "48 Hours," will feature Anthony Graves' exoneration this Saturday, April 23.  The program normally airs at10:00 pm, EDT/9:00 pm, CDT.  check your local TV listings for the time in your market.

You can preview the episode, "Grave Injustice," at the link.

Convicted of murder and sentenced to death ... 16 years later, students help set Anthony Graves free. Richard Schlesinger reports.

Earlier coverage of Anthony Graves case and his exoneration begins at the link.  All coverage is in the Anthony Graves index.

In The Nation

The Nation's current issue features the monthly column, Ten Things.  This month it's, "Ten Things to Abolish the Death Penalty," conceived by Walter Mosley, with research by Rae Gomes.  As in all things death penalty, it's Texas heavy.  Here's an extended excerpt from this must read:

On March 9th, Illinois became the fourth US state in the past five years to abandon the death penalty, a significant shift in the country's growing rejection of capital punishment. After weeks of deliberation, Republican Governor Pat Quinn not only signed a bill into law that kills the death penalty in the state, he also commuted the sentences of all 15 men on death row—men who would have still faced execution even with the new law in place. In 2003, then-Illinois Governor George Ryan famously emptied death row, citing grave concerns about innocent people facing execution as well as "the fairness of the death penalty system as a whole.” Last week, Quinn echoed his predecessor.

For Nathson Fields, one of countless men who were wrongfully convicted after being tortured under corrupt Chicago police commander Jon Burge, the victory was especially sweet. "I spent eleven-and-a-half years on death row for a crime I did not commit. Illinois tossing out the death penalty will affect other states. This will send the message that it can be done. It should be done.”

What can we do to build on the success in Illinois? We can get involved by joining abolitionist groups, signing petitions and contacting our elected officials. But, as Gov. Quinn did, we must also listen to those who have grappled with this system firsthand: former prisoners, death row lawyers, prisoners' family members, activists and victims of violent crime. Margaret Summers of the National Coalition to Abolish the Death Penalty and Liliana Segura of the Campaign to End the Death Penalty asked ten such experts to share their thoughts, on cases that stand out, on strategies that work and on what Americans should know about the death penalty today.

1 Anthony Graves, exonerated from Texas’s death row in 2010.

I know how easy it was for them to take my freedom and set out to kill me. I feel that if it was that easy, I’m sure there have been many mistakes in the past, that many men and women on death row are innocent. It’s not an infallible system. Anyone can be sentenced to death for a crime they didn’t commit. That alone is a reason that the death penalty should be abolished. Read Graves's here and go to Witness to Innocence.

2 Bryan Stevenson, Executive Director, Equal Justice Initiative.

Nearly 135 years after Congress enacted the 1875 Civil Rights Act to eliminate racially discriminatory jury selection, the practice continues, especially in death penalty cases where hundreds of death row prisoners have been convicted or condemned by juries where people of color were illegally excluded. This racial bias has undermined the credibility of capital punishment and contributed to the marginalization of African Americans and other racial minorities from full representation when the most critical issues in our communities are decided. Read about Racial Discrimination in jury selection.

3 Martina Correia, activist, sister of Troy Davis, who is currently on Georgia's death row.

We must target the doctors who assist in state sanctioned killings and ban the sale or availability of drugs used in executions. We should launch a campaign of death row family members and members of groups like Murder Victims' Families for Reconciliation to challenge the US at the United Nations, calling executions a human rights violation, a morally corrupt and selective process of exterminating people without resources. Go to Physicians for Human Rights.

4 David Dow, Texas death penalty lawyer, author of  Autobiography of an Execution.

Learn about the Michael Richard case. He was mentally disabled. On the morning of his execution, in 2007, the Supreme Court agreed to hear a case on the constitutionality of lethal injection. Lawyers in my office scrambled to file a petition for Richard raising the issue, but he was executed because we did not finish by the time the court closed at 5. The court would not stay open late for us. I think if we had been able to get the petition filed, he would still be alive today.

5 Natalie Skinner, daughter of Hank Skinner, who is currently on Texas's death row.

If people would take the time to learn about the people on death row, they would be surprised to find out that many are parents with children who love them very much. Their relationships with their families don't just stop when they are sentenced to die. At the end of the day, the death penalty hurts more people than it helps by continuing the very cycle of violence it was put in place to break.

Read the rest at the link.

Texas Supreme Court Clarifies Tim Cole Compensation Act

The Texas Supreme Court ruling in In RE: Billy James Smith is in Adobe .pdf format.  The Court ruled Friday.

"Court orders state to pay exonerated inmates $2.7 million," is the title of the Austin American-Statesman coverage by Chuck Lindell.

The Texas Supreme Court on Friday ordered the state to pay $2.7 million to three wrongly convicted Texans who spent, in total, 52 years in prison for crimes they did not commit.

Wrongly convicted Texans may collect $80,000 for every year in prison, but Comptroller Susan Combs' office ruled that the three men were ineligible for full compensation because they had been on parole for prior crimes when they were imprisoned.

But a unanimous Supreme Court said Combs' office was too restrictive in applying the law, enacted in 1965 and updated in 2009 to compensate exonerated convicts for the emotional, physical and economic toll of prison.

Being on parole did not disqualify the men from full compensation, the opinion by Justice David Medina said.

And:

Two other exonerated men joined (Ronald) Taylor in turning to the Supreme Court for help — 20-year prisoner Billy James Smith, whose compensation was cut by almost $67,000, and 18-year inmate Gregory Wallis, who lost almost $145,000.

All three men were imprisoned on rape-related charges and exonerated after DNA testing.

In addition to the withheld payments, the three inmates will receive a matching annuity that earns 5 percent annual interest and pays out monthly for as long as they live — totaling almost $2.7 million in added compensation.

Friday's court decision clarified a state law that bars wrongly convicted prisoners from collecting money if they also served a concurrent sentence for another crime. The policy is meant to save Texas from paying for prison time that would have been served anyway.

Lawyers for Combs argued that serving a sentence on parole is no different, legally, from serving that sentence in prison. Therefore, they said, until the earlier sentences were discharged, the three inmates served concurrent terms that limited their state compensation.

For Smith, the overlap was a mere 10 months. Taylor's earlier sentence, however, was not discharged until three months before he was released on the mistaken conviction — wiping out 14 years of compensation.

In its ruling, the Supreme Court said the comptroller's reading of the law was not "unreasonable or implausible."

But, the court noted, the law was intended to limit compensation for concurrently served jail time. The exonerated men, however, had been free on parole and would not have gone to prison except for their wrongful convictions, the court ruled.

Erin Mulvaney writes, "Texas owes wrongly convicted man $66,000 despite technicalities, court says," for the Dallas Morning News.

The Texas Supreme Court ruled Friday that the state must pay more money to a wrongfully convicted man who was denied part of his compensation because of a technicality.

Billy James Smith of Fort Worth spent 19 years in prison on an aggravated sexual assault conviction in Dallas County. A 2006 DNA test proved he did not commit the crime.

Smith received about $1.5 million from the state, but Comptroller Susan Combs, who handles compensation requests, denied him $66,000 because the first 10 months of his sentence overlapped with a parole violation from a robbery conviction from 1970.

Smith argued to the Supreme Court that the parole violation was only a result of the wrongful arrest and conviction, so he should be paid the full amount.

Combs contended that the state’s wrongful conviction law clearly states that a person “is not entitled to compensation … for any part of a sentence in prison during which the person was also serving a concurrent sentence.”

But Smith’s lawyers said the intent of the law was to remedy wrongful convictions, and the court ultimately agreed.

“When statutory language is susceptible to more than one reasonable interpretation, we look beyond its language for clues to the Legislature’s intended meaning,” wrote Justice David Medina in the court’s unanimous opinion on the case.

The Fort Worth Star-Telegram reports, "Court boosts compensation for wrongly convicted man," by Aman Batheja.

In 2009, the Texas Legislature passed the Tim Cole Act, named after a Fort Worth man who was convicted of rape and died in prison before DNA evidence cleared him. The bill increased the lump sum compensation for a wrongly imprisoned person to $80,000 per year in prison, up from $50,000.

When Smith applied for compensation under the act, the State Comptroller decided he was not eligible for compensation for the first ten months of his wrongful imprisonment because that time was due to violation of his parole from an earlier car theft and armed robbery. Last year, Smith's lawyer appealed to the Texas Supreme Court, arguing that Smith deserved to be compensated for those ten months because the parole violation stemmed from the wrongful conviction.

The Justices appeared to see some merit in both sides of the argument.

"Neither the Comptroller's nor Smith's reading of the statute is unreasonable or implausible," Justice David Medina wrote for the court

The Court ultimately ruled against the Comptroller's interpretation of the law. A key issue was the famed Tulia drug busts that led to the state throwing out convictions on several people. In those cases, the state ultimately compensated people whose probation had been revoked due to the bad convictions.

The Comptroller's office argued that Smith's parole issue is not the same as probation but the Justices disagreed.

"...It seems unlikely that the Legislature intended to compensate wrongfully-imprisoned probationers, and not parolees, given the similarity in their circumstances," Medina wrote.

Since his release, Smith has been an advocate for reforming the state's justice system to avoid further wrongful convictions.

"No amount of money can give me back what I lost. That is something I'll never get back -- something has been taken from my insides," Smith told the Star-Telegram in 2007. "There is nothing I can do to them that can give me back the freedom I lost."

Related posts are in the wrongful incarceration index.  Exoneree Anthony Graves has sued the state over the Comptroller's refusal to compensate him for his wrongful conviction.

More From Lisa Falkenberg on Charles Sebasta

Her latest Houston Chronicle column is, "Graves' prosecutor just won't go away."

You might think the unscrupulous former prosecutor who sent Anthony Graves to prison for 18 years, 12 on death row, for murders he didn't commit would lick his wounds, slink quietly off into the sunset, and, now in his golden years, pray daily for forgiveness.

But Charles Sebesta Jr. isn't apologizing for the unethical tactics he's accused of using to convict Graves. He knows the statutes of limitations on any alleged crimes he committed in prosecuting the case have long run out. He's maintained in newspaper ads and on his website that he did nothing wrong.

And he isn't going away.

In fact, the disgraced former Burleson County district attorney has been traveling the state, and the nation, he says, advising law enforcement organizations and teaching courses to peace officers.

The negative publicity over a case that even Gov. Rick Perry has called a "great miscarriage of justice" hasn't cost Sebesta a single client, he claims: "I've got as much as I can do."

Kelly Siegler, the special prosecutor in the case who has accused Sebesta of, among other things, manipulating witnesses, fabricating evidence and misrepresenting facts to the jury in the Graves case, called his current teaching role "disgusting."

"The last person you want telling your guys what to do at 3 o'clock in the morning is Charles Sebesta," Siegler said.

Not only is Sebesta teaching, but he's been passing himself off as a state-certified instructor and the staff "training coordinator" for the Sheriff's Association of Texas. The title appears on Sebesta's online bio, and, before I began asking questions, on the association's website. Sebesta told me this week he's the coordinator who "signs the papers."

When I called the sheriff's association, Executive Director Steve Westbrook said Sebesta was not the coordinator and wasn't even on staff. Westbrook said Sebesta was just a contractor who, for a decade or so, has taught two, maybe three courses a month across the state.

"He may call himself the training coordinator, but he's not," Westbrook said.

And:

It's not surprising that Sebesta's story doesn't mesh with the others. He seems to have always had trouble with the facts. When the evidence against Graves wasn't there, he apparently made it up.

When he was told over and over again by different parties that Graves was innocent, he continued not only to prosecute but to seek death.

Sebesta has no business instructing anybody on the law. Even a class on civil process would require him to give guidance on good judgement and ethical standards, two things Sebesta doesn't seem to know the meaning of.

There may be only one course Charles Sebesta is truly qualified to teach: How to steal 18 years of an innocent man's life and get away with it.

Earlier coverage of Anthony Graves' case begins at the link.

Anthony Graves' Quest for Compensation

"State comptroller very inconsistent on compensation," is the title of Lisa Falkenberg's Houston Chronicle column.  It appeared in Thursday's edition.

How the state comptroller could deny Anthony Graves' compensation, seemingly on a technicality, for the 18 years he spent wrongly imprisoned has outraged some and baffled nearly everybody.

After all, Texas' compensation law seems tailor-made for a guy like Graves, who was finally freed after nearly two decades behind bars including 12 years on death row, when it became clear he was innocent in the savage Somerville murders of a grandmother and five children.

A federal appeals court overturned his case, and years later Kelly Siegler, the special prosecutor who was supposed to retry it, boldly acknowledged there wasn't one shred of evidence linking Graves to the crime.

Recently, Comptroller Susan Combs argued that Graves shouldn't be compensated because the order clearing him didn't use the term "actual innocence." The statute requires an applicant to have either "a full pardon on the basis of innocence for the crime for which the person was sentenced" or have "been granted relief on the basis of actual innocence. …"

At first, I was hesitant to jump on the bandwagon of those attacking Combs' decision. She is not an attorney or a detective. If the paperwork doesn't say "innocent," it's not her job to go out and conduct her own investigation. And broadly interpreting the statute could open the floodgates for baseless compensation claims.

But, it turns out the comptroller's office has been widely inconsistent through the years in the way it has applied the versions of the compensation law, resulting in payments to some people whose cases were far less clear-cut or worthy of compensation than Graves'.

Then-Comptroller Carole Keeton Strayhorn agreed several years ago to compensate 19 out of 21 of the folks who were caught up in the infamous 1999 Tulia drug bust, even though they'd received only general pardons, not pardons based on innocence, according to their Plainview attorney, Brent Hamilton.

The group included one person who served concurrent prison sentences when his probation was revoked on an unrelated drug charge. Strayhorn went so far as to seek an opinion from Texas Attorney General Greg Abbott in 2007 on whether the man qualified for compensation. The AG said he did.

And:

It should be clear, though, to all involved, that Anthony Graves deserves compensation for the hell he's been through at the hands of a reckless former Burleson County prosecutor and incompetent law enforcement.

Whether the solution is found in the comptroller's office, or the courts, or with state Sen. Rodney Ellis writing new legislation to tweak the law or perhaps expand the governor's pardoning authority, we must do right by Graves this time.

Gov. Rick Perry last week called Graves' false imprisonment a "great miscarriage of justice," and it was clear that Perry would help if he could.

Earlier coverage of the Anthony Graves' compensation claim for wrongful incarceration begins at the link.

Texas Governor Goes to Bat for Exonerated Man

That's the title of the editorial in today's Austin American-Statesman.

All Texans should be proud of Gov. Rick Perry's promise to do whatever he can to help steer our state away from piling injustice upon injustice in the sad case of Anthony Graves, who spent 18 years in prison for murders he did not commit.

Graves is entitled to as much as $1.4 million in state compensation, but State Comptroller Susan Combs' office, citing what appear to be technicalities, is refusing to make the payment. Perry is on the case, and we support his efforts to get the payment made, though it would not come close to compensating Graves for the suffering he has endured.

And:

Last October, District Attorney Bill Parham declared Graves innocent; the charges were dropped; and Graves sought the compensation to which he is entitled.

But Combs is denying compensation to Graves because he has no piece of paper declaring his "actual innocence," the key phrase that triggers compensation in such cases.

The Feb. 2 letter from Leonard Higgins in the comptroller's judiciary section to Graves' attorney Nicole Casarez is chilling.

"The claim for compensation you submitted on behalf of Mr. Graves did not include a pardon or court order that met the requirements" of state law concerning compensation, Higgins wrote.

No pardon was included because no pardon was granted. No pardon was granted because, as a result of the federal appeals court action and the local prosecutors' decision not to retry the case, there was nothing for which to be pardoned.

But there does remain a wrong that needs to be righted. We will choose to believe that Combs' decision was based on a well-intentioned reading of a law in need of correction. Whatever it was based on, it is a decision that is an embarrassment to Texas.

This cannot be the final word on this case. That's why we were so pleased when Perry on Wednesday branded the Graves case a "great miscarriage of justice" and vowed to do whatever he can to help Graves get the money to which he is entitled.

Perry, in Galveston for an unrelated event, told the Houston Chronicle he would intervene on Graves' behalf through legislative action or "directly with the comptroller's office."

He said his goal is to "get this individual the appropriate reimbursement for years that he has spent incarcerated for something that he did not do."

Earlier coverage begins with the post, "Lisa Falkenberg on the Graves Judicial Connections."  You can also look back at coverage of Anthony Graves' exoneration.   All coverage is in the Anthony Graves index.

Lisa Falkenberg on the Graves Judicial Connections

Her column in today's Houston Chronicle is, "Maybe judge is just dad's girl."  It's must-read, shing a light on small town connections.  Here are extended excerpt:

Maybe it has nothing to do with the judge being a Republican. Maybe it has nothing to do with the political climate at all.

Maybe there's another reason the prosecutor in Anthony Graves' case felt he couldn't get the judge to sign an order ensuring Graves be compensated for the 18 years he spent behind bars for a crime he didn't commit.

Maybe it's because the judge, Reva Towslee-Corbett, is her father's daughter.

Graves, whose capital murder conviction was overturned by a federal appeals court in 2006, recently was denied compensation for his wrongful conviction by the state comptroller's office. Comptroller Susan Combs denied the claim because the judge's order didn't contain the magic words "actual innocence," which she claims the statute requires.

Whether the comptroller is justified in her claim or just trying not to open a Pandora's Box is another column.

But it's been a mystery to many following the case as to why Bill Parnham, the current district attorney for Burleson and Washington counties who has steadfastly supported the case for Graves' innocence, didn't try to get the judge to amend her order with the magic words.

A fact left out of most news coverage on the Graves' case is that the judge, Towslee-Corbett, is the daughter of the judge who heard the original trial that led to Graves' conviction.

Not only that. There also had always been rumors that that the elder judge, Harold Towslee, was once law partners with Charles Sebesta, the reckless prosecutor accused of botching the case with false testimony and manufactured evidence.

The elder Towslee confirmed to me over the phone Wednesday that he and Sebesta practiced law together "a long time ago, maybe the early 1970s."

I asked if his relationship with Sebesta at all influenced his decisions during the trial.

"I'm not going to talk about that, ma'am," the judge said. "You'll have to write your story from some other sources."

And:

Towslee-Corbett didn't return my call for comment, and a spokeswoman said it's been her policy not to talk to reporters.

In a small town, certain connections are expected, but Graves' counsel considered Towslee-Corbett's history with the original judge, as well as the prosecutor, a serious conflict.

As one of Graves' attorneys, Jeff Blackburn, put it: "She grew up practically getting bounced on the knee of Charles Sebesta."

The judge's bias was evident in other decisions. Before she eventually allowed the charges against Graves to be dropped, she was going to allow tainted testimony to be admitted in the new trial. And the day before Graves was to be released from jail after the federal court had tossed out his case, Towslee-Corbett inexplicably set his bond at $1 million to keep him behind bars longer.

So, perhaps all this explains why Parnham may not have felt comfortable asking the judge to amend her order to help Graves get compensation.

Perhaps the DA knew what her answer would be.

And if that's the case, if there's a judge whose rationale is found to be irrational, or who is basing decisions on emotions and personal relationships, we shouldn't let those factors prevent someone like Graves from getting just compensation.

Earlier coverage begins with the preceding post.

Gov. Perry Enters Fray Over Anthony Graves' Compensation

Today's Houston Chronicle reports, "Perry pledges to help Graves get compensation," by Harvey Rice.

Gov. Rick Perry said that Anthony Graves' capital-murder conviction was a "great miscarriage of justice" and pledged to assist in the effort to win the state compensation denied to Graves by the Texas Comptroller's Office.

Perry said he would help Graves, who spent 18 years behind bars before charges were dropped in October, either through legislative action or "directly with the comptroller's office."

In a Houston appearance Tuesday to discuss the importance of small business to the economy, Perry said he would support efforts to "get this individual the appropriate reimbursement for years that he has spent incarcerated for something that he did not do."

Governor's office spokeswoman Lucy Nashed said Perry could not pardon Graves because a federal appeals court had thrown out the original conviction, and a governor could only pardon a convicted criminal.

The governor's office has been consulting with Graves' attorneys, Nashed said.

"We understand that Anthony Graves is innocent, and have been in contact with his lawyers, who are pursuing every available option to ensure that he is granted the restitution he deserves," she said.

Graves attorney Jeff Blackburn of Amarillo said the governor's statement that Graves is innocent gives a moral boost to the effort to win compensation for him.

"That statement in and of itself from the chief executive of this state is going to go a long way toward getting what (Graves) deserves," Blackburn said.

Blackburn said attorneys are looking at several alternatives but likely would have to sue the comptroller's office in federal court.

The comptroller's office last week notified Graves' attorney Nicole Casarez that it had rejected his petition for compensation because the court order dismissing the capital murder charges did not contain the words "actual innocence." The law provides for $80,000 for each year of wrongful imprisonment.

Blackburn, who said he helped write the compensation law, accused the comptroller's office of misinterpreting the statute and its intent.

The AP report is, "Texas gov. discusses exonerated man's conviction," via Forbes.

Gov. Rick Perry says the capital murder conviction of a man exonerated after 18 years in prison was a "great miscarriage of justice" and that he recognizes the man's attorneys are trying to win him compensation.

And:

"We see that there has been a miscarriage of justice. His attorneys are pursuing every avenue to obtain compensation," Perry spokeswoman Lucy Nashed told The Associated Press on Wednesday night.

"Parham ‘surprised’ Graves was denied," is in today's Brenham Banner-Press.

District Attorney William Parham said he was “somewhat surprised” by the Texas Comptroller’s denial of Anthony Graves’ request that he be paid for the more than 18 years he spent behind bars.

“I’m really kind of surprised that they turned it down,” Parham said Tuesday. “I guess now it’s up to his lawyers.”

Graves’ attorneys were told last week by the comptroller’s office that his request had been denied because the words “actual innocence” weren’t on a court order freeing him from jail.

Graves’ attorneys asked that the release order be amended to include that phrase, but Parham declined that request.

Parham said Tuesday that he felt his involvement in the case ended with Graves’ release.

“I did my part and dismissed the case. After that, my job’s done,” he said.

The Austin American-Statesman's Jason Embrey posts, "Another disagreement between Perry and Combs."

Governor supports state payment to man who was released after 18 years, Straus talks about the speaker’s race and there could be a sonogram vote in the Senate today.

Gov. Rick Perry has received plenty of attention over the last week for telling the Washington Examiner that he disagrees with Comptroller’s Susan Combs efforts to collect sales taxes from Amazon.com.

In the next post, I'll link to Lisa Falkenberg's must-read Chronicle column on the matter.

Earlier coverage of the Comptroller's denial of Graves' compensation for wrongful incarceration begins at the link. 

You can also look back at coverage of Anthony Graves' exoneration.   All coverage is in the Anthony Graves index.

State Comptroller Rejects Compensation Claim for Anthony Graves

Today's Houston Chronicle reports, "State rejects compensation for wrongly convicted man."  It's written by Harvey Rice

The Texas Comptroller’s Office has denied compensation to Anthony Graves, who spent 18 years on death row before a special prosecutor determined he was innocent and authorities dropped capital murder charges against him.

The state determined that Graves, 45, who could have received as much as $1.4 million had he been deemed eligible, should receive nothing because the words "actual innocence" didn’t appear in the document ordering his release, according to a letter the office sent to Graves’ attorney, Nicole Casarez.

Graves said he will continue to press for compensation.

"Nothing has ever been easy for me on this road to justice," Graves said. "I haven’t given up on it and I hope justice will prevail and I’ll be compensated."

Casarez said she was informed of the refusal Friday after phoning the comptroller’s office to find out why she hadn’t received a response even though the 45-day limit to act on Graves’ request had lapsed.

A letter e-mailed to Casarez from the comptroller’s office said the order dismissing the charges must say explicitly that Graves is innocent. Casarez said the office should have taken her client’s unique circumstances into consideration.

And:

Kelly Siegler, the special prosecutor who recommended dropping the charges against Graves, said that the words "actual innocence" are not commonly used in the courtroom. She said the compensation law likely was designed for cases involving innocence proven through DNA, not a case thrown out by prosecutors after a reexamination of the evidence.

"Who would have envisioned this kind of situation happening?" Siegler said.

"I’m willing to testify to the fact that we believe he’s innocent," she said. "I’ve signed an affidavit. I’m not sure what we are supposed to do to make it happen."

In December, lawyers in the case discussed asking state District Judge Reva Towslee-Corbett, who signed the order freeing Graves, to change the wording of the order. This never happened, however, for reasons that could not be determined Monday.

Casarez said a civil suit seeking compensation was one of several options that would be discussed with attorneys who specialize in that particular type of law.

The Comptroller of Public Accounts' letter rejecting the claim is at the link.

"Ex-Death Row inmate's claim for compensation is rejected," is Michael Graczyk's filing for AP, via the Fort Worth Star-Telegram.

R.J. DeSilva, a spokesman for the comptroller's office, said either a pardon from Gov. Rick Perry or a court order needs to be submitted with Graves' compensation claim to comply with the law.

"Neither of those documents was sent in with the Graves application, so it could not be approved," he said.

DeSilva said Graves' lawyers have until next week to remedy the situation.

"State won't compensate exoneree Anthony Graves," is Colleen McCain Nelson's post at the Dallas Morning News Death Penalty Blog.

Of course, the money can't make up for the 18 years that Graves lost. But it could help him rebuild his life now. The comptroller, it appears, is following the letter of the law. But this appears to be an unfortunate loophole that could mean that Graves comes out on the losing end yet again.

Earlier coverage is at the link; also, coverage of Anthony Graves' exoneration.   All coverage is in the Anthony Graves index. 

More on the issue of compensation for those wrongly incarcerated begins with the post, "Texas Lawyer Sued by State Bar Over Dealings With Exonerees."

Graves Ex-Prosecutor Underscores Death Penalty Distrust

That's the title of a Dallas Morning News editorial looking at issues raised by Anthony Graves' exoneration last year.  It appeared in the Saturday edition.

It’s natural to be defensive when one’s professional stature and integrity are on the line. A humiliating reversal sometimes brings out the worst in people, as appears to be the case for Charles Sebesta, the former Burleson County district attorney who prosecuted the highly flawed murder case of Anthony Graves.

Sebesta won a conviction that sent Graves to death row as an accomplice to the hideous murders of six in a Somerville house in 1992. Graves spent 18 years in prison, always maintaining his innocence, while Sebesta unceasingly insisted that Graves was guilty and had to die.

Graves today is a free man after receiving exoneration in October. Sebesta, meanwhile, has taken out an ad in the Burleson County Tribune and created a website to restate his claims of Graves’ guilt. His arguments are stunningly incoherent; they betray the desperation of a man who simply cannot bring himself to admit: I was wrong.

And:

Sebesta’s obsession with winning his case evidently clouded his judgment, and still does. His behavior is by no means representative of Texas’ justice system, but the fact that the system allowed such blatant error — nearly costing an innocent man his life — is exactly why Texas needs to reconsider its use of the death penalty.

Death is irreversible. Our capital punishment system has been proved imperfect. Charles Sebesta’s conduct in this case places these facts into high relief.

This state’s criminal justice system is too flawed to justify the use of the death penalty.

Related posts are in the editorial index; earlier coverage of Anthony Graves' exoneration, at the link.

Latest Development in the Green Case

Attorneys for John Green have issued a news release, "Unusual Alliance of Former Governors, Legislators, Law Enforcement, Former Judges and Prosecutors, Victims and Exonerees Urge Texas Court of Criminal Appeals to Allow Death Penalty Hearing to Proceed:  Nearly Sixty Prominent Individuals File Amicus Brief Citing Concerns with Wrongful Convictions in Texas Capital Cases." 

The amicus brief filed with the CCA is in Adobe .pdf format.

Here's the text of the news release:

Today, a diverse group of nearly sixty prominent individuals from Texas and across the country, including former governors, legislators, law enforcement, former judges and prosecutors, victims, Innocence Network projects, and death row exonerees, filed an amicus brief calling on the Texas Court of Criminal Appeals (CCA) to allow Harris County District Court to continue hearing evidence in Texas v. Green. The unusual alliance submitted the brief (attached) to bring to the attention of the Court their shared concern over the risk of wrongful convictions in death penalty cases. 
 
Earlier this month, the district court had begun a serious examination of the substantial risk of wrongful conviction in the John Edward Green capital case. Two days into the hearing, on December 7, the CCA agreed to reconsider a motion by the Harris County District Attorneys Office and halted the proceedings.
 
 “Wrongful convictions and the problems that underlie them are widely recognized and documented,” the co-signers of the amicus brief state. “[U]nless Texas addresses the proven causes of wrongful convictions, including eyewitness misidentification, faulty forensics, unreliable informant evidence, among other documented factors, the state runs the grave risk of executing an innocent person.”
 
The signatories include: three former governors, including Gov. Mark White (TX), Gov. Parris Glendening (MD) and Gov. Joe Kernan (IN); former prosecutors and law enforcement, including former Dallas Assistant District Attorney James A. Fry, who prosecuted an innocent man exonerated by DNA testing after 27 years, and former Texas Department of Public Safety Commander J. Patrick O’Burke; crime victims including Michele Mallin, who mistakenly identified Timothy Cole, who was posthumously pardoned this year by Governor Rick Perry; legislators, including Texas State Senator Rodney Ellis; and death row exonerees including Anthony Graves, who was freed from Texas’ death row in October after new evidence proved his innocence.
 
The brief is also co-signed by current and former attorneys general, police chiefs, judges and prosecutors from Texas and states across the country (the complete listing of signatories is in the attached brief).
 
Before the CCA stayed the hearing on December 7, the district court was prepared to hear testimony regarding the cases of Cameron Todd Willingham and Claude Jones, both executed for crimes that new evidence suggests they did not commit.
 
The brief cites a nationwide trend away from the death penalty due to concerns about wrongful convictions. The signatories are concerned that “confidence in the criminal justice system is shaken when problems go unaddressed,” and they urge the CCA to allow the district court hearing to continue.
 
“[We] submit that the critical hearing that had been evaluating the accuracy and fairness of the Texas death penalty be continued. The trial court is the appropriate venue for hearing live testimony and gathering evidence. [We] petition this court to ensure that the public is informed by continuing this hearing and thereby providing information access to the public about the actual operation of the death penalty.”
 
Since 1976, 138 people have been exonerated from death row nationwide. Twelve of them were in Texas. Furthermore, of the first 250 DNA exonerations (in capital and non-capital cases), 40 were in Texas. The Texas v. Green hearing would allow attorneys for Mr. Green to continue to present expert testimony and evidence regarding the substantial risk of wrongful conviction and wrongful execution in his case.

Earlier coverage begins with the post, "Clarence Brandley on the Harris County Hearing."

How Siegler Unmade Case

That's the title of Harvey Rice's report in today's Houston Chronicle.  It's subtitled, "She and a colleague independently concluded that Anthony Graves was no killer."

Veteran prosecutor Kelly Siegler dreaded her meeting with the family of a grandmother and five children savagely slain nearly two decades ago. The news she was bringing them would not be welcome.

"I went by myself to tell them that things weren't going according to plan, that (the original prosecutor) had done some things, that it wasn't looking good," Siegler said, recalling her Oct. 15 meeting at a gathering of the Davis family in Houston. "I drove out there, and I tried to figure out ahead of time how to explain, knowing that for 18 years they thought this man had killed their mother and their babies."

As they pored over evidence and interviewed more than 50 witnesses in the case of Anthony Graves, incarcerated for 18 years before his exoneration and release two months ago, Siegler and investigator Otto Hanak found themselves in unfamiliar territory.

Siegler, who had tried many capital murder cases as a Harris County assistant district attorney, and Hanak, a state trooper and Texas Ranger for 28 years, were deeply embedded in the criminal justice establishment. But each new development in their investigation pointed to the conclusion that they reached independently: Graves was innocent, the victim of a prosecutor who had manufactured evidence, misled jurors and elicited false testimony.

"In all these years I've been in this business, I never thought I would be party to saving someone who was on death row," Hanak said.

Washington-Burleson County District Attorney Bill Parham had hired Siegler in February as a special prosecutor to retry Graves after a federal appeals court overturned his capital murder conviction. The appeals court found that the original prosecutor, former District Attorney Charles Sebesta, had withheld two statements from the defense and had elicited false testimony.

Earlier coverage of the Graves' exoneration begins with today's post, "Life After Death."  More on Siegler's investigation in Pamela Coloff's "Innocence Found," from Texas Monthly.

Life After Death

That's the title of Michael Hall's editorial column Behind the Lines in the January issue of Texas Monthly.  It's subtitled, "Why we need a moratorium on the death penalty in Texas."  Here are excerpts from this must-Read:

It’s time to halt executions in Texas. The flaws in our death penalty system have become too obvious to ignore any longer. Five times in the past seven years we’ve learned about a person wrongly convicted and taken off death row or a person convicted on bogus forensic science—and executed. It’s clear: Until the day comes when we are able to guarantee that our system will never put innocent men and women to death, we can’t continue to use a form of punishment that is irreversible. It’s time for Texas to put a moratorium on capital punishment.

This is a law-and-order state, and most citizens support executing murderers. But what about executing people who haven’t done anything wrong? The new Legislature that convenes this month is the most conservative in history, with 22 freshman lawmakers, many of them tea party–inspired folks who promised their constituents that they were going to Austin to grapple with the tyranny of the government. On the campaign trail, these men and women railed against the ineptitude and interference of government in general, about the way the state tramples on the lives of its citizens. “Don’t tread on me!” they cried. Fine, then. Let’s look at recent history, which has offered some appalling examples of the state’s treading all over its citizens.

And:

As the Graves case makes clear, we need to pay attention to the conduct of our district attorneys. They’re usually among the most powerful people in any county, and at present there are hardly any criminal or civil penalties for prosecutors who engage in misconduct. We need to create real incentives for our DAs to seek justice instead of convictions. This won’t be easy. Sebesta still claims he did nothing wrong—as did the men who prosecuted Adams, Cook, and Willis. They were the good guys fighting the good fight, and if sometimes they got zealous, well, who can blame them? They’re only human.

Which brings us to the heart of the problem. Can the criminal justice system, a system conceived and operated by humans, ever be completely free of error? The common theme in the cases of Graves, Willis, Cook, and Adams (and Willingham and Jones) is clear: People make mistakes, and so do the institutions they work for. We know this intuitively. We see it every day, when, say, the postman mistakenly delivers our neighbor’s mail or when officials at a football game screw up a call. We can afford these kinds of mistakes. We walk the letter next door. We scream at the TV. But it’s different when we’re dealing with capital punishment. We can afford the mistaken holding penalty. We can’t afford the mistaken death penalty. It’s time to halt executions in Texas.

Earlier coverage of Texas Monthly's call for a moratorium begins with this post.

Hall has written a number of Texas Monthly articles on criminal justice in Texas; noted at:

• More on Scent Lineups, Junk Science, & Science Based Forensics
• Memo to Kay
• The Judgment of Sharon Keller
• The Exonerated
• Death Letters

More on Anthony Graves' exoneration at the link, including links to Pamela Colloff's two articles on the Graves' case, noted in the posts, "Innocence Lost," and, "Innocence Found."  As I've noted before, Michael Hall and I are not related.

Death Sentences Plunge in Texas

That's the title of Allan Turner and Mike Tolson's report in today's Houston Chronicle.  It's subtitled, "Foes cite new law, DNA testing; backers blame judges, delays in executions."

Juries in Texas — the nation's most-active death penalty state — sentenced only eight killers to die this year, the lowest number since 1976 when the U.S. Supreme Court ended its ban on capital punishment. Seventeen killers were put to death in 2010, six fewer than last year for the lowest total since 2001.

So far this year, Harris County, which typically has led the state in assessing death sentences, has condemned two convicted killers.

The figures were released Monday in an end-of-year review of capital punishment by the Austin-based Texas Coalition to Abolish the Death Penalty. The report came just weeks after a poll by Washington, D.C.'s Death Penalty Information Center, an anti-capital punishment group, found that only a third of registered voters in death penalty states thought death is the most appropriate punishment for murder.

"It shows that Texas and the rest of the country are moving away from the death penalty, even in Harris County. It's an astonishing development," said coalition executive director Kristin Houlé.

Houlé attributed the drop to Texas' 2005 life without parole statute and to the high cost to counties of seeking the death sentence.

Also eroding support for capital punishment is DNA testing, which has led to the exoneration of scores of inmates convicted of serious crimes, said Richard Dieter, the Washington, D.C., group's director.

"It's not that (most) people are all or nothing about the death penalty," Dieter said. "They just have this growing sense of uncertainty. It's a slow wearing away of confidence ... a feeling that it is just too risky."

And:

This year, Harris County juries sent Garland Harper, convicted of stabbing his girlfriend and strangling her two daughters, and Mabry Landor, convicted of killing Houston police officer Timothy Abernethy, to death row. Juries in Dallas, Brazos, Nueces, Rusk and Travis counties also sentenced killers to death

Harris County District Attorney's spokeswoman Donna Hawkins said the county has averaged two death sentences annually since life without parole became an option. "While we cannot speak for other jurisdictions," she said, "Harris County has not seen a decline in death sentences.

Life without parole was added as a sentencing option in capital murder cases in late 2005. By then the decline in death sentences already had begun in Texas and elsewhere. During the heyday of capital punishment in Texas in the 1990s, it was not uncommon for Harris County to send four or five murderers to death row. In 1992, it was responsible for 10 of the state's 31 new death-row inmates. In the past three years, however, Harris County has totaled only three death sentences, and in 2009 it did not record one at all.

District Attorney Pat Lykos called the decision to seek a death sentence "the gravest and most profound decision that a district attorney makes."

"We will continue to seek the death penalty in appropriate cases," she said.

Since Texas' resumption of executions in 1982, 464 killers — 115 of them from Harris County — have been put to death. Currently, 105 Harris County killers await execution.

The Fort Worth Star-Telegram reports, "Texas death penalty sentences fall again, California picks up slack."  It's written by Aman Batheja.

Only eight people were condemned to death in Texas this year, the lowest level since the state reintroduced capital punishment in 1976, according to data in a new report from the Texas Coalition to Abolish the Death Penalty.

Texas juries have been opting for the death penalty less often in recent years, in part due to the introduction of life without parole as an option in 2005. Several Texas prosecutors have said they are now less likely to push for the death penalty.

Over the same period that Texas death sentences have fallen, California's rate of condemned has been rising. Last year, the Golden State sent 29 people to its San Quentin death row. Texas sent 9. This year, California juries have picked death 21 times as of Oct. 1.

Earlier coverage of the TCADP report, Texas Death Penalty Developments in 2010: The Year in Review, begins with the preceding post.

TCADP Releases 2010 Annual Report

The Texas Coalition to Abolish the Death Penalty has issued its annual report, Texas Death Penalty Developments in 2010: The Year in Review.  The report is available in Adobe .pdf format at the link.

TCADP has also issed a news release announcing the report, "Only 2% of Texas Counties Imposed Death Sentences This Year, According to New Report from TCADP.  Death sentences, executions drop in 2010 as concerns about reliability and fairness continue to plague Texas death penalty system."

Here's an extended excerpt from the release:

Death sentences in Texas have dropped more than 70% since 2003, reaching a historic low in 2010 according to the Texas Coalition to Abolish the Death Penalty’s (TCADP) new report, Texas Death Penalty Developments in 2010: The Year in Review. TCADP, an Austin-based statewide, grassroots advocacy organization, releases this annual report each December in conjunction with the anniversary of the resumption of executions in Texas in 1982.
 
Juries condemned eight new individuals to death in Texas in 2010, which is the lowest number of new death sentences since the U.S. Supreme Court upheld Texas’ revised death penalty statute in 1976. These new sentences occurred in six counties: Brazos; Dallas; Harris; Nueces; Rusk; and Travis.
 
Recent sentencing trends illustrate the arbitrary and biased imposition of the death penalty. An analysis of data from 2007 to 2010 reveals that only 21 counties – 8% of the 254 counties in Texas – meted out death sentences over the last four years. Out of a total 43 death sentences imposed statewide between 2007 and 2010, Dallas County leads with seven, followed closely by Harris County, with six new sentences.  Bexar and Travis Counties each accounted for three new death sentences since 2007. Nearly three-fourths of all death sentences in Texas over the last four years have been imposed on people of color – 40% African American, 30% Hispanic/Latino, and 2% other.
 
As part of the report, TCADP has produced two interactive maps highlighting new death sentences by county from 2007 to 2010 and from 1976 to 2010. Clicking on each county reveals the total number of sentences, the number executed, the number awaiting execution, and the number exonerated. See below for links to each map.
 
The number of executions also dropped in 2010.  The State of Texas executed 17 people, the lowest number since 2001.  The state remains the nation’s leading executioner, accounting for approximately 37% of U.S. executions in 2010.  The number of executions in Texas this year represents a smaller percentage of the national total than it has in recent years, however.
 
“Texas – along with the rest of the nation – is moving away from the death penalty,” said Kristin Houlé, Executive Director of the Texas Coalition to Abolish the Death Penalty.  “The system is broken beyond repair, and the continued decline in new death sentences shows that jurors and prosecutors in Texas are seeking other ways to address violent crime.”
 
Concerns about wrongful convictions and emerging evidence of wrongful executions dominated headlines this year.  On October 27, 2010 Anthony Graves walked out of the Burleson County Jail after spending 18 years in prison – including 12 years on death row – for a crime he did not commit. Prosecutors dropped all charges against Graves and declared him innocent after conducting their own investigation of the case.  His conviction was based on the testimony of Robert Carter, who was convicted and executed for the same crime in 2000 and who recanted several times, including from the gurney.  Anthony Graves is the 12th person in Texas to be wrongfully convicted and removed from death row and the 138th nationwide.

The ongoing inquiry into the case of Cameron Todd Willingham also underscored the fallibility of the system. Willingham was executed in 2004 for setting a fire to his Corsicana home in 1991 that killed his three young daughters. The Texas Forensic Science Commission admitted “flaws” in the science used to convict him. In January it will hold a special meeting with some of the fire experts who have examined the case since the time of conviction and concluded that there was no evidence to support the finding of arson.
 
In another case of “flawed” science, recent DNA testing of evidence that was used to convict and execute Claude Jones ten years ago this month revealed that the strand of hair belonged to the victim, not to Jones, as a forensic expert testified during his 1990 trial. While the DNA results do not exonerate Jones, they raise serious questions about the reliability of his conviction.
 
Other highlights of Texas Death Penalty Developments in 2010: The Year in Review include the following:
•    In three capital murder trials, juries rejected the death penalty and opted for a sentence of life in prison without the possibility of parole. Over the last three years, juries have rejected the death penalty in a dozen cases (two each in Travis and Bexar Counties).
•    Three inmates scheduled for execution in 2010 received last-minute stays; the execution date of another inmate was withdrawn. On March 24, Henry “Hank” Skinner received a stay from the U.S. Supreme Court shortly after eating his “last meal.” In October, the Court heard arguments to determine whether Skinner can seek access to post-conviction DNA testing through the federal Civil Rights Act.  Texas officials have refused to release key pieces of evidence gathered at the crime scene in 1993 for testing.
•    At least six inmates received reduced sentences in 2010 and were removed from the death row population, including several inmates whose death sentences were overturned because jurors did not hear mitigating evidence during their original trials. Three other inmates died in custody, including Ronald Chambers, who spent 35 years on death row and was awaiting a fourth sentencing hearing related to the 1975 murder of Mike McMahan.
•    A nationwide shortage of the first drug used in the lethal injection protocol, sodium thiopental, led some states to postpone executions as their supplies dwindle or expire.  In November, officials with the Texas Department of Criminal Justice revealed that they had enough drugs on hand to execute 39 people, but that doses of sodium thiopental will expire in March 2011.
•    There currently are 317 people (307 men and 10 women) on death row in Texas. Texas holds the third-largest death row population in the nation, after California (713) and Florida (393).

News coverage of the report will be in the next post.

Coverage of TCADP's 2009 report is at the link.  The Death Penalty Information Center issues an annual report focusing on national trends.  I expect it will be issued soon.  Coverage of the DPIC 2009 report is noted at the link. 

Related posts are in the reports index

Texas Monthly to Call for Moratorium in Texas

That news from Jason Embry in his First Reading blog at the Austin American-Statesman. this morning.

Texas Monthly calls for a moratorium on the death penalty in its January issue, which will hit newsstands Thursday. From the piece by Michael Hall: “The flaws in our death penalty system have become too obvious to ignore any longer. Five times in the past seven years we’ve learned about a person wrongly convicted and taken off death row or a person convicted on bogus forensic science—and executed. It’s clear: Until the day comes when we are able to guarantee that our system will never put innocent men and women to death, we can’t continue to use a form of punishment that is irreversible. It’s time for Texas to put a moratorium on capital punishment.”

The article revisits several cases, including that of Anthony Graves, whom Texas Monthly has written about in extensive details in recent months. Graves was recently set free after spending 18 years behind bars, including 12 on death row.

From Hall: “Agents of the state grabbed a completely innocent man out of his mother’s apartment, prosecuted him for capital murder, and kept him locked away for almost two decades. What can we learn from Graves’s ordeal? Governor Rick Perry, campaigning in Lubbock two days later, was asked by a reporter about the case. ‘I think we have a justice system that is working, and he’s a good example,’ Perry said. ‘I think our system works well; it goes through many layers of observation and appeal, et cetera. So I think our system is working.’ In fact, the Graves case proves the exact opposite. Graves was failed every step of the way by the system—or, to be more precise, by imperfect humans working in a flawed system. He, like so many other wrongly convicted death row inmates, had inexperienced trial attorneys who were no match for a powerful prosecutor. He was also failed by the judges on the state appellate courts; the Court of Criminal Appeals, the highest of Perry’s fail-safe layers of appeal, turned him down three times.”

Hall has written a number of Texas Monthly articles on criminal justice in Texas; noted at:

• More on Scent Lineups, Junk Science, & Science Based Forensics
• Memo to Kay
• The Judgment of Sharon Keller
• The Exonerated
• Death Letters

More on Anthony Graves' exoneration at the link.  As I've noted before, Michael Hall and I are not related. 

Innocence Found

That's the title of Pamela Colloff's latest Texas Monthly article ---- tracing Anthony Graves' exoneration.  Her October 2010 Texas Monthly profile, "Innocence Lost," brought national exposure to the case at a critical time.

Here's an excerpt from the beginning of "Innocence Found."

The 6,640th day of Anthony Graves’s incarceration—October 27, 2010—began like any other. He awoke at five o’clock in the morning to the sound of the food cart rattling down the hall of the Burleson County jail, where a guard slid his breakfast tray through a slot in his cell door. At seven o’clock, the overhead fluorescent lights came on, illuminating the windowless cell where he had lived in solitary confinement for the past four years. Graves turned on the TV, switching it to the local morning newscast. The 45-year-old inmate compulsively watched the news, trying to keep up-to-date on a world he had left behind when a newcomer named Bill Clinton was running for president. When it came time for his allotted hour of exercise, a guard escorted him to an empty concrete room, where he walked briskly in circles. He could glimpse the sky through four small windows above him that were covered in chicken wire. Every so often, when the wind kicked up outside, he could feel the breeze against his skin.

Earlier coverage of Anthony Graves' exoneration begins at the link

Anthony Graves Seeks Compensation for Wrongful Incarceration

Harvey Rice writes, "Innocent man seeks his due from state," for today's Houston Chronicle.

Attorneys for a Somerville man freed last month after spending more than a decade on death row will return to court next week to take the first step toward claiming the $1.4 million they say he's due for 18 years of wrongful imprisonment.

Anthony Graves will ask the Texas Comptroller's Office for compensation provided for under the Tim Cole Act, enacted last year and named for an imprisoned Fort Worth man posthumously exonerated of committing a rape. Burleson County District Attorney Bill Parham and special prosecutor Kelly Siegler have said Graves is innocent of the 1992 murders of five people.

Graves, 45, kept track of every day of his 18 years and two months imprisonment. "It wasn't written on paper, but it was definitely written in my heart and in my mind," Graves said.

If the Comptroller's Office approves, Graves would get $80,000 for each year he was incarcerated and free college tuition.

And:

"Compensation could never make up for the injustice I've had to go through," Graves said. "At the same time that's the only thing I have to help me put my life back.

"If I didn't have that option, if that wasn't on the table, wow, it would be really hard. I don't want to even think of that."

Getting the money requires a judge's finding of actual innocence, said one of Graves' attorneys, Jimmy Phillips Jr.

Graves attorneys plan to ask Burleson County District Judge Reva Towslee-Corbett next week to alter the wording on the document ordering his release to use the words, "actual innocence," Phillips said.

Parham and Siegler could not be reached for comment Thursday, but Phillips said both are willing to support the effort to change the wording.

Getting the judge to change the wording won't necessarily guarantee compensation, Phillips said. Graves's attorney Katherine Scardino said most wrongful conviction cases meriting compensation involved DNA testing. "It's less normal for it to be a result of a dismissal in a case as serious as capital murder," Scardino said.

Graves said he would use the tuition payments awarded as part of the compensation to enroll in college. "I plan to take full advantage of it," he said.

He intends to take communications courses that will assist him in his new mission: spreading the word about a justice system so flawed that it can condemn the innocent to death or confine them for half their lives in prison. "My life now is dedicated to a solution," Graves said.

Earlier coverage of his case begins with the post, "Leonard Pitts Revisits the Anthony Graves Exoneration."  More on compensation to the exonerated at the link

Leonard Pitts Revisits the Anthony Graves Exoneration

"Death Row backers blind to injustice," is the title of the award-winning columnist's latest.  His syndicated column is via the Miami Herald, his home paper.  In this excerpt, Pitts is referring to Pamela Colloff's Texas Monthly examination of the case, published last month.

Colloff’s story drew outraged media attention, including from yours truly. But the attention that mattered was that of the current DA, Bill Parham, who undertook his own investigation. He was unequivocal in explaining his decision to drop charges. ‘‘There’s not a single thing that says Anthony Graves was involved in this case,” he said. “There is nothing.”

One hopes people who love the death penalty are taking note. So often, their arguments in favor of that barbarous frontier relic seem to take place in some alternate universe where cops never fabricate evidence and judges never make mistakes, where lawyers are never inept and witnesses never commit perjury. So often, they behave as if in this one critical endeavor, unlike in every other endeavor, human beings somehow get it right every time.

I would not have convicted Anthony Graves of a traffic violation on the sort of evidence Sebesta offered. Yet somehow, a jury in Texas convicted him of murder and sent him to die.

When you pin them on it, people who love the death penalty often retreat into sophistic nonsense. Don’t end the death penalty, someone told me, just enact safeguards to ensure the innocent are never sentenced. Yeah, right. Show me the safeguard that guarantees perfection.

Those who propose to tinker with the death penalty until it is foolproof remind me of the addict attempting to negotiate with his addiction, desperately proffering minor concessions that will allow him to continue indulging in this thing that is killing him. But there comes a day when you simply have to kick the habit.

Earlier coverage of Anthony Graves' exoneration is a the link.  Pamela Colloff's October 2010 Texas Monthly profile is "Innocence Lost."  Pitts' earlier column is noted at the link.

Graves' Attorney Responds to Perry "System Works Well' Comment

Elliott Blackburn posts, "Update: Graves attorney reacts to Perry's comments on case in Lubbock," at the Lubbock Avalanche-Journal.

Anthony Graves’ incensed co-counsel called the governor’s description of the freed death row inmate’s case “ludicrous” and “idiotic” Monday, three days after Gov. Rick Perry’s campaign stop in Lubbock.

“I mean, I just, I can’t breathe I get so angry at stupid people who will sit back and allow this kind of system to maintain itself in our state,” Katherine Scardino said during a lunch-hour interview. “I love Texas. I think it’s a wonderful place to live, but the things that our politicians say and do are just beyond me."

Perry focused on the ultimate freedom of Graves, who spent 18 years in Texas prisons and a dozen of those on Death Row for the murder of a family of six, in answering a question about how the Texas legal system should change in light of Graves’ case.  Texas leads the nation in exonerated, wrongfully convicted inmates.

“I think we have a justice system that is working, and he’s a good example of — you continue to find errors that were made and clear them up,” Perry said Friday at a south Lubbock coffee shop. “That’s the good news for us, is that we are a place that continues to allow that to occur. So I think our system works well; it goes through many layers of observation and appeal, et cetera. So I think our system is working.”

I couldn’t reach Scardino before the original story ran, which is why you’re only reading about it now. She reached me Monday during the pre-election crush.

Graves’ case was flawed from the start and prosecutors were offering him life in prison as recent as a year ago, three years after a 5th Circuit of Appeals ruling throwing out the case against him based on prosecutorial misconduct, Scardino said.

And

“It’s ludicrous!” she said. “It’s an idiotic statement to say our system works great, because all this guy had to do was spend 18 years in prison.”

At the Dallas Morning News Crime blog, Diane Jennings posts, "Defense attorneys suggest charging prosecutor in Graves case with attempted murder."

A provocative idea is being batted around in the wake of the release of Anthony Graves from Death Row after a special prosecutor declared he was an innocent man, found guilty due to prosecutorial misconduct. The statute of limitations on prosecutorial misconduct has expired but according to the Bryan Eagle,some defense attorneys are suggesting the proseuctor be charged with attempted murder.

The idea may seem to be a stretch but Katherine Scardino, one of Graves' attorneys noted that Sebesta tried to have Graves executed. Graves says he doesn't have time to be bitter but noted, "There's no statute of limitations for murder"

"Freedom 'heaven' for Graves," is the Bryan-College Station Eagle report noted by Jennings.  It appeared in the Sunday edition. It's written by Matthew Watkins.  It's a must-read.

Defense attorney Jimmy Phillips Jr. was the first to learn on Wednesday of the development his team was waiting to hear, working toward, hoping for, daily.

But he left it to his co-counsel, Nicole Casarez, to share the news with their client.

Anthony Graves -- a 45-year-old Brenham man who had been forced to live with the brand of condemned killer for almost two decades, but maintained his innocence throughout -- was minutes away from being set free. But he had no idea that the events that would lead to his independence were unfolding down the street.

He had spent 12 years on Death Row while several lawyers, a college professor, some students and his family fought to prove his innocence.

Graves was writing a letter inside his cell when a guard opened the door and walked him to a small interrogation room. His lawyers were waiting there.

Casarez grabbed him by the hands before he could sit down. She looked him in the eyes and said: "Anthony, God is good. God is good. Your charges are dismissed, Anthony. It's over. You got through it."

Graves staggered and almost fell.

"You mean I am free?" he asked.

"You're going home," she said.

And:

Burleson County District Attorney Bill Parham planned to file a motion to dismiss the case against Graves at 9 a.m. Thursday morning. That would give Graves' third lawyer, Katherine Scardino, time to return to Texas from Seattle and allow TV cameras to film his first seconds of freedom.

But District Judge Reva Towslee-Corbett vetoed that idea.

"No, we are not waiting," Towslee-Corbett told Parham. "Bring me the paperwork and he is going to be released."

Parham filled out a one-page "motion to dismiss" form. On the blank line for reason, he wrote: "We have found no credible evidence which inculpates this defendant."

The judge signed the form and the Burleson County District Clerk filed it at 3:57 p.m. Parham then drove the document to the Burleson County Jail.

Earlier coverage begins with this post.

Rick Casey on Prosecutorial Misconduct and Anthony Graves

"My fantasy: Siegler puts DA on trial," is the title of his column in today's Houston Chronicle.

The import was lost on much of the statewide press corps attending the press conference in Brenham on Thursday, but the jaws of some Houston reporters dropped when former Harris County prosecutor Kelly Siegler described another prosecutor of handling a death penalty case "in a way that could best be described as a criminal justice system's nightmare."

Siegler was considered among the most aggressive prosecutors in a hang-'em-high Harris County stable.

So when she said a district attorney "absolutely" committed prosecutorial misconduct in the capital murder trial of Anthony Graves and called it "the worst I've ever seen," those who knew her felt the impact.

Here's my fantasy: Kelly Siegler prosecuting former Washington and Burleson counties DA Charles Sebesta for his egregious behavior in putting an innocent man on death row for 12 years and behind bars for another six after a federal appeals court overturned his conviction because of prosecutorial misconduct.

It won't happen.

That's not because evidence is lacking. The federal court found that Sebesta pressured two witnesses to testify falsely against Graves and didn't disclose, as required by law, statements by witnesses that would have helped Graves' defense. Siegler said Sebesta fabricated evidence, and she called Graves "an innocent man."

A creative prosecutor could fashion those and other alleged actions into a variety of chargeable crimes, but none would survive the statute of limitations 16 years later.

And:

That leaves the State Bar. Prosecutors can be sanctioned for violating professional ethics.

It happened to the prosecutor in the infamous Tulia drug cases that sent 46 people to jail on drug charges ginned up by an informant known by the DA to have committed perjury during the trial.

Likely safe

That DA was tried by the State Bar and punished with two years of probation. But even that punishment was suspended so that he could continue practicing, as long as he behaved.

About a year ago, a bar official at my request asked regional directors by e-mail if they knew of any other sanctions ever levied on prosecutors. None responded.

Sebesta is safe from even this unlikely risk, since the Bar too has a five-year statute of limitations. (Houston attorney Bob Bennett filed a grievance against Sebesta in the Graves case in 2007, but it was dismissed, he believes, without even a secret hearing before a bar ethics panel.)

Sebesta says he did nothing wrong. I only wish he could have his day in court.

Earlier coverage begins with this post.

The Anthony Graves Exoneration - More Coverage

Sunday's Houston Chronicle featured two news articles.  First, "A mother always knows," by Cindy George.

Doris Curry often points to a framed poster in her front room of footprints in the sand, an illustration that shows how a believer can be carried by God through trying times.

It's her quickest explanation for how she found the strength to endure her first-born's 18 years locked up on a wrongful conviction, some of which was spent on Texas death row.

What's even harder to understand is how she faced life in a small town like Brenham, where almost everyone knew that her son, Anthony Graves, was a convicted murderer believed to be involved in the slayings of six people. On Wednesday, her 45-year-old son was released and declared innocent by special prosecutors. His family enjoyed a celebratory feast at home on Saturday.

"I have faith and hope, and that's how I fought that war," said Curry, now 62, who always believed her son was innocent.

It's a journey that cost Graves his freedom and required incredible sacrifice from his family — particularly his mother.

And:

Curry has spent most of her life taking care of people. She had Anthony Graves at 17 and by 19 was supporting two children with a job at Dairy Queen. A workforce program allowed her to get hired as a caretaker at the Brenham State School. By her mid-20s, she had five children and later took in her ill sister's four kids.

The wrongful charges against her son weren't the first time she experienced injustice. Curry's brother was killed in 1970, and her estranged husband was murdered in the early 1980s.

She quit her job in November 1992 to cash in her retirement savings for Graves' legal defense. One administrator "thought they shouldn't hire me back because I could be threatening to the people who work there ­­- like I did something," Curry remembered.

At work, she wondered about the suspicious looks. Some people would question her about her son's case - and not in a supportive way.

"One secretary asked me: 'If your son didn't do it, how come he's not out?' And some people whispered, thinking that he was guilty. I could tell people were talking about me, and it made me uncomfortable."

Dr. Vineeth John, associate professor of psychiatry at The University of Texas Health Science Center at Houston, said the concept of shame becomes "even more painful" when relatives are convinced of their loved one's innocence.

"Many people are not prepared to tackle an event of such magnitude that brings so much social ostracism," John said. "This is a woman with a resilient mind-set surrounded by a loving family who helped her retain a sense of hope."

Safiya Ravat writes, "Slain victims' relatives looking for peace."

After almost two decades of attending trials, hearing intricate details of how his mother, two daughters, sister, niece and nephew were stabbed, killed and set ablaze in 1992, Keith Davis and his family hope to find peace after the exoneration of Anthony Graves, the only remaining suspect convicted in the murders.

Graves, 45, who spent the last 18 years in prison for the murders of Davis' six family members, was released Wednesday after prosecutors in a retrial filed a motion to dismiss charges against Graves due to lack of substantial evidence.

The exoneration brought a mix of emotions to relatives of the victims, some of who spoke out for the first time Saturday.

A few were outraged, believing Graves to be a guilty man set free. Others, like Davis, stood by the justice system's verdict.

"If Anthony Graves is innocent, then he very well should be released," Davis said. He, along with his brother and sister, believe that Graves' exoneration was appropriate due to the lack of evidence.

Davis admits that though there was no physical evidence against Graves from the very beginning, he did believe him to be guilty for many years.

"For 18 years it was embedded in us to believe that he was guilty," Davis said.

But after sitting through numerous trials against both Graves and co-defendant Robert Carter, who was executed in 2000 for the murders, Davis began to notice patterns that cast doubt into his mind about Graves' involvement.

Next, let me return to Friday's coverage.  It starts with a Dallas Morning News editorial, "Death-row case underscores fallibility."

Let us recount the grave injustices inflicted upon Anthony Graves. He has spent the last 18 years behind bars, including 12 on death row, for a murder he did not commit. Prosecutors never established a plausible motive linking him to the 1992 deaths of six people who were shot, bludgeoned and stabbed to death in Sommerville, Texas, near Bryan. And prosecutors hid crucial exculpatory evidence that would have helped exonerate Graves.

On Wednesday, Burleson County District Attorney Bill Parham conceded that Graves "is an innocent man" and obtained his release. "There is nothing that connects Anthony Graves to this crime," he said after completing a five-month investigation of his predecessor's seriously flawed handiwork. "I did what I did because that's the right thing to do."

Graves is, no doubt, overjoyed today as he relishes his first hours of freedom and the ability to hug his mother whenever he wants. But if Graves harbors resentment and outrage over former District Attorney Charles Sebasta's egregious behavior in this case, he is absolutely justified. Graves owes his freedom in no small part to the work of University of St. Thomas journalism students, the Texas Innocence Project and Texas Monthly magazine.

Nothing excuses what prosecutors and investigators did in a blind pursuit of a conviction, an expansive account of which appeared in Texas Monthly's October issue.

The other Friday news coverage includes, "Team overturning Graves case blasts ex-DA," by Brian Rogers for the Houston Chronicle, and, "An army of believers," by Jeannie Kever.

Earlier coverage begins with this post.

Anthony Graves Exoneration - Additional Coverage

This morning's Houston Chronicle has expanded coverage in, "Prisoner ordered free from Texas' death row," by Brian Rogers.

After 18 years of incarceration and countless protestations of innocence, Anthony Graves finally got a nod of approval from the one person who mattered Wednesday and at last returned home — free from charges that he participated in the butchery of a family in Somerville he did not know and free of the possibility that he would have to answer for them with his life.

The district attorney for Washington and Burleson counties, Bill Parham, gave Graves his release. The prosecutor filed a motion to dismiss charges that had sent Graves to Texas' death row for most of his adult life. Graves returned to his mother's home in Brenham no longer the "cold-blooded killer," so characterized by the prosecutor who first tried him, but as another exonerated inmate who even in the joy of redemption will face the daunting prospect of reassembling the pieces of a shattered life.

"He's an innocent man," Parham said, noting that his office investigated the case for five months. "There is nothing that connects Anthony Graves to this crime. I did what I did because that's the right thing to do."

An attorney for Graves, Jimmy Phillips Jr., said his client was released from Burleson County Jail, where he had been awaiting a retrial, at about 5:30 p.m.

Graves immediately went to see his mother in Brenham and reportedly spent the night near Austin. "The first place he wanted to go is to go hug his mama," Phillips said. "He is a free man, and he's home."

Graves called his mother to tell her he was coming home. Doris Curry left the house to pick up her youngest son, and by the time she returned home, Graves was already there, surrounded by family and friends.

"I hugged him and I hugged him and I cried and we both cried and we hugged and we cried," Curry said. "He said: 'Mama, it's over. Mama, 18 years we've fought this fight a long time. It's over. Justice has been done for me.' "

And:

Graves' appellate attorneys, Jay Burnett and Roy Greenwood, knew it was far less. They soon were convinced their client had no knowledge of or participation in the crime, just as he had claimed since the moment of his arrest.

Over the years, there was increasing evidence raised to doubt the validity of the conviction. Students in a University of St. Thomas journalism class worked with The Innocence Project at the University of Houston to review the Graves case in detail.

Nicole Casarez, the journalism professor who taught the class, and one of her students interviewed Carter's brother, whose affidavit along with other evidence they gathered helped persuade the 5th Circuit Court of Appeals to order a hearing, which eventually led to the new trial.

"I think the dismissal motion filed this morning says it best: There is no credible evidence to inculpate this defendant," Casarez said Wednesday night. "I’m just thrilled that it has finally come to this. I think it was a lot of people working very hard, perhaps even divine intervention, so that it all worked out today."

The 5th U.S. Circuit Court of Appeals overturned Graves’ conviction in 2006. A three-judge panel said he deserved a new trial after ruling that prosecutors elicited false statements from two witnesses and withheld two statements that could have changed the minds of jurors.

Graves eventually was returned to county jail with a bond set at $1 million, and Parham began to reassemble the case and review the evidence. He hired former Harris County assistant district attorney Kelly Siegler as a special prosecutor. Siegler soon saw that making a case against Graves was all but impossible.

Jordan Smith posts, "Anthony Graves Freed," at the Austin Chronicle.

And finally, on Wednesday, after nearly two decades behind bars, Graves was released from jail and all charges against him in connection with the Somerville murders were dropped. Importantly, prosecutors declared Graves actually innocent of the crime – a declaration that should help him collect some compensation for all the years of wrongful incarceration.

Finally.

The state's case against Anthony Graves was tenuous at best. For starters, there was no evidence to suggest he had anything to do with the crime – and there was ample evidence that he wasn't anywhere near the Somerville home the night the family was murdered. But the state ignored every single sign that their case was crap – even after the Fifth Circuit told them it was. Instead, prosecutors decided to retry Graves – intimating at one point that they were willing to use now discredited junk science in order to railroad the man.

Interestingly, although the case was fraught with problems, it never received the kind of media attention it deserved. We've written about it a number of times in the Chronicle, but it wasn't until last month, when Texas Monthly writer Pamela Colloff's story on the case was published that the entire tale was laid out in one place.

It's hard to imagine that the Colloff story didn't have some impact on the decision to finally free Graves. Regardless of the reasons behind the release, it was a move that was long, long overdue.

The list of stories on the case from our archives is here.

Earlier coverage begins with the preceding post from last night.  Pamela Colloff's October 2010 Texas Monthly profile is "Innocence Lost."

Anthony Graves Exonerated, Free

"Prisoner ordered free from Texas' death row," is the title of Brian Rogers' post at the Houston Chronicle.  Here's an extended excerpt:

A Texas inmate sentenced to die in 1994 has been released after prosecutors said today the man is innocent.

Anthony Graves was convicted of assisting Robert Earl Carter in the slaying of a grandmother, her daughter and four grandchildren in the Burleson County city of Somerville.

The dismissal comes 10 years after Carter, whose testimony convicted Graves, said in the moments before he was executed: "Anthony Graves had nothing to do with it. ... I lied on him in court."

Washington-Burleson County District Attorney Bill Parham dismissed the case after he and his team investigated the case for five months.

"He’s an innocent man," Parham said today. "There is nothing that connects Anthony Graves to this crime."

He said the dismissal was just.

"I did what I did because that’s the right thing to do, and I’m fine with it," he said.

An attorney for Graves, Jimmy Phillips, Jr. said his client was released about 5:30 p.m.

"The first place he wanted to go is to go hug his mama," Phillips said. "He is a free man and he’s home."

Kelly Siegler, a prosecutor hired to re-try Graves, agreed with Parham.

"After months of investigation and talking to every witness who’s ever been involved in this case and people who’ve never been talked to before, after looking under every rock we could find, we found not one piece of credible evidence that links Anthony Graves to the commission of this capital murder," Siegler said.

"This is not a case where the evidence went south with time or witnesses passed away or we just couldn’t make the case anymore. He is an innocent man."

In 2006, a three-judge panel from the 5th U.S. Circuit Court of Appeals decided Graves deserved a new trial after ruling that prosecutors elicited false statements from two witnesses and withheld two statements that could have changed the minds of jurors.

The AP report is, "Charges dropped against Texas death row inmate," via the Fort Worth Star-Telegram.

A man sent to Texas death row for the 1992 slaughter of a central Texas family became a free man Wednesday after prosecutors dropped the capital murder charges against him.

Anthony Graves walked out of the Burleson County Jail in Caldwell on Wednesday afternoon after 16 years behind bars.

He had been convicted of helping Robert Earl Carter kill Bobbie Joyce Davis; her 16-year-old daughter, Nicole; and four grandchildren between the ages of 4 and 9 in the family's Somerville home. The family was stabbed, shot and bludgeoned with a hammer and their house doused with gasoline and set ablaze.

The only evidence tying Graves to the killings was Carter's testimony, and Carter recanted just before his 1998 execution. The 5th U.S. Circuit Court of Appeals in New Orleans overturned Graves' conviction in 2006, ruling that prosecutors withheld evidence and elicited false testimony. Authorities decided to retry Graves, and he had been in the county jail since then.

Earlier coverage begins with this post.  The October 2010 Texas Monthly profile is titled "Innocence Lost."

Leonard Pitts Looks at the Anthony Graves Case

The Pulitizer Prize-winning syndicated columist writes, "Justice, delayed and denied."  It's via the Miami Herald, Pitts' home paper.

It was once a staple plot of TV westerns: There's been a vicious killing. Everybody knows who did it -- or thinks they know -- and the posse wants to string the varmint up. No need for the bother of a trial. The crime was outrageous, people are furious. So get the rope, find a tree.

Watching, you'd be glad we've moved beyond frontier justice, glad the howling of the mob can no longer stampede us into condemning an innocent man.

Anthony Graves would beg to differ. In 1992, he was arrested for a multiple murder that roiled the tiny Texas town of Somerville. A 45-year-old woman, her 16-year-old daughter and four children, all younger than 10, had been beaten, stabbed and shot to death and their home torched.

No physical evidence linked Graves to the crime. He had no motive to butcher six strangers. Three witnesses placed him at home at the time of the murders.

And in the end, it didn't matter. Graves was convicted and sentenced to die solely on the word of one Robert Carter, father of one of the murdered children.

And:

The tale is recounted in the new issue of Texas Monthly magazine. To read Pamela Colloff's report is to be sobered by the degree to which public outrage still drives death penalty decisions.

It was an awful crime, and people needed to see someone punished for it. Indeed, Somerville mayor Tanya Roush told the Austin American Statesman her town was impatient with the idea of a trial. ``They're saying, `Bring back the hangin' tree, and save the taxpayers' money.' ''

``There was a lot of pressure in this community to get convictions,'' says Colloff. ``No one stopped along the way and said, `Hey, wait a minute. Does this case make any sense?' It just kept moving forward.''

And because it did, Anthony Graves -- 26 when he was arrested, 45 now -- has lost years he can never get back. He may yet lose his life. What has happened and is happening to him is obscene.

Earlier coverage of the Anthony Graves' case begins here.  Colloff's magnificent article, "Innocence Lost," in the current issue of Texas Monthly is noted here.

Dallas Morning News on the Anthony Graves Case

"Murder conviction chock full of holes," is the title of an editorial in today's Dallas Morning News.

For anyone with an interest in prosecutorial misconduct and capital punishment, the October issue of Texas Monthly contains required reading – a chilling account alleging deceit and abuse in pursuit of a murder conviction. The article, available today, should make even ardent supporters of the death penalty shudder to consider how an egregiously flimsy and unproven case nearly ended the life of Anthony Graves before a federal appeals court intervened and ended his 18-year residence on death row.

Even more troubling is that Graves, 45, still sits in jail awaiting a new trial in a 1992 murder case in which six people, including a teenager and four children, were shot, bludgeoned and stabbed to death and their house set afire in Sommerville, near Bryan. Robert Carter, absentee father of one of the victims, emerged as a key suspect after he appeared at their funeral with bandages covering burns on his face. Various investigative blunders led to Graves' identification as a second suspect, though he had no association with the victims and no motive. No evidence linked him to the slayings, while substantial evidence and motives pointed to Carter's guilt.

And:

This newspaper has examined numerous questionable cases over the years, and evidence of prosecutorial malfeasance, among other important factors, convinces us that this state's use of the death penalty is too error-prone, and the result too permanent, to be justifiable.

Anthony Graves defied the odds and had an ill-gotten conviction thrown out, but his ongoing ordeal reminds us how extremely fallible our justice system can be.

Coverage of the must-read TM article is here.

Innocence Lost

That's the title of Pamela Colloff's 14,000 word examination of the case of Anthony Graves, noted yesterday. 

It's subtitled, "Since August 23, 1992, Anthony Graves has been behind bars for the gruesome murder of a family in Somerville. There was no clear motive, no physical evidence connecting him to the crime, and the only witness against him recanted, declaring again and again before his death, in 2000, that Graves didn’t do it. If he didn’t, the truth will come out. Won’t it?" 

Here's a small excerpt from this must-read:

Graves, who had moved back to Brenham from Austin that spring after getting laid off from an assembly line job at Dell, was picked up before noon at his mother’s apartment and brought to the Brenham police station in handcuffs. In the station’s booking room, a surveillance camera captured the half hour that passed as the 26-year-old—who was never told why he was being detained—waited, bewildered. He repeatedly asked an officer who busied himself with paperwork what he was being held for, but he was informed that he would have to wait until a magistrate arrived to read him the charges. Graves turned his attention to another officer, who he hoped would be more forthcoming, but the man feigned ignorance. “You don’t know neither?” Graves said, sighing. “I wish somebody would tell me what’s going on.” When the justice of the peace finally appeared, Graves jumped to his feet, eager for information.

“You’re Anthony Charles Graves?” asked the justice of the peace, glancing up from the warrant that she held before her. She was flanked by two police officers.

“Yes, ma’am,” he said.

“Anthony, this is going to be your warning of rights,” she said. Her delivery was matter-of-fact: “You’re charged with the offense of capital murder.”

“Who?” he said, dumbfounded. He stared back at her blankly.

“An affidavit charging you for this offense has been filed in court,” she continued. As she read him his Miranda rights, he watched her in disbelief. “At this time, no bond has been set,” she said. “Do you understand what I’ve told you, Anthony?”

Graves held up his hands in protest. “Capital murder?” he said, incredulous. “Me? Wh-wh-who murdered? I mean—”

A man wearing a white Western hat interrupted him. “You’ll have a chance to talk to the officers who are actually working the case,” he said.

“This is a big mistake,” Graves said, his voice rising. “Capital murder?” Dubious, he turned to the police officer who had brought him down to the station. “This is a joke,” he said, breaking into a grin, as if he were suddenly on to the elaborate prank that he seemed certain was being played on him. “Somebody’s messing with me, right?” The officer, who did not smile back, ordered him to have a seat.

Graves studied the copy of the arrest warrant that the judge had handed to him, trying to make sense of it. He repeated the words “capital murder” eighteen times, enunciating each syllable as if doing so would help him better grasp their meaning. “This is a big mistake,” he repeated. “This has got to be straightened out today.” Finally, before he was led down the hall to talk to the Rangers, he slapped the side of his head and cried out, “Am I dreaming?”

And:

On September 6, 2006, Graves walked off of death row. But there was no celebration beyond the floodlights and the coils of concertina wire, no crush of television reporters shouting questions, no tearful embrace with his mother, whom he had been allowed to touch just once during his fourteen years of incarceration. Instead, Graves walked out of his six-by-ten-foot concrete cell and into the arms of Burleson County sheriff’s deputies, who transported him back to the county jail in Caldwell, where he would await retrial. The Fifth Circuit’s ruling had not exonerated him, and he still faced the original criminal charges that had been filed against him in 1992. In the eyes of Burleson County, he remained a murderer, and a child killer at that. Judge Towslee’s successor—his daughter, Judge Reva Towslee-Corbett—set his bail at $1 million.

The article notes that his new trial is currently scheduled for February 2011.

Earlier coverage begins here.

Texas Monthly to Spotlight Anthony Graves' Case

The October issue should be available online tomorrow.

"Texas Monthly to feature Graves case," is the post today at the Brenham Banner.

The murder conviction of Anthony Graves is being featured in the October issue of Texas Monthly magazine.

The 20-page article, called “Innocence Lost,” details the arrest and conviction of Graves, a Brenham native, for the brutal murders of six Somerville residents in 1992.

Graves was found guilty of murder by a jury in Brazoria County in 1994 and was sentenced to death.

The 14,000-word story was written by Pamela Colloff, who spent months researching the case and talking to people involved, including Graves, who remains in the Burleson County jail awaiting a new trial.

“It was definitely the most complicated story I have ever written in 15 years of writing crime stories,” Colloff said.

And:

The article says: “Since August 23, 1992, Anthony Graves has been behind bars for the gruesome murder of a family in Somerville. There was no clear motive, no physical evidence connecting him to the crime, and the only witness against him recanted, declaring again and again before his death, in 2000, that Graves didn’t do it.

“If he didn’t, the truth will come out, won’t it?’

Robert Carter, who was also convicted in the murders and was put to death by lethal injection May 31, 2000, originally implicated Graves but later recanted, including a statement in the execution chamber that “it was me and me alone. Anthony Graves had nothing to do with it. I lied on him in court.”

San Antonio Express-News columnist Cary Clack writes, "A matter of life and death in Texas."

Texas is a state known not only for its high volume of death-row inmates but for questions about the guilt of some of those condemned.

The most well-known of these inmates is Cameron Todd Willingham, who was executed in 2004 for the arson deaths of his three daughters in Corsicana in 1991. Considerable evidence suggests that the fire was accidental and Willingham innocent. In July, the Texas Forensic Science Commission said in a preliminary report that the arson investigators used flawed science. On Friday, the commission will meet in Dallas to address the case.

Earlier this year, the U.S. Supreme Court stayed the execution of Henry Skinner for the 1993 murder of three people in Pampa until crucial DNA testing can be conducted.

There are reasons to believe that Willingham and Skinner may not have committed the crimes they were convicted of, but there's also evidence that lends credence to their convictions. In the most controversial of death-row cases, reasonable people can look at the evidence and come to different conclusions about guilt or innocence.

Then there's the case of Anthony Graves. In 1994, Graves was convicted and sentenced to die for six horrific murders in the Central Texas town of Somerville. The victims were Bobbie Davis, her teenage daughter and four grandchildren, ages 9, 6, 5 and 4.

The only thing that incriminated Graves - the only thing - was the word of the man who was eventually executed for the murders and who, until the final moments of his life, insisted that he'd lied about Graves' involvement.

In the October issue of Texas Monthly, which will be on newsstands Thursday, Pamela Colloff has written a masterfully reported and exhaustively detailed 14,000 word story about the Graves case.

I've read dozens of accounts of death-row inmates who claim to have been falsely convicted and may have intriguing evidence to support their claims. After reading Colloff's story - the magazine's second longest in 30 years - Graves' case is the only one in which I'm left 100 percent certain of the innocence of the convicted.

There was no physical evidence connecting Graves to the crime. He didn't know the victims, unlike Robert Carter, the man who was executed for the crimes and who was the father of the youngest child, yet who initially claimed that he was only in the car while Graves stabbed, shot and bludgeoned the victims. At least three people can attest to where Graves was while the murders were being committed.

The night before Carter testified against Graves, he was taking sole responsibility for the crimes, but he still incriminated him in court the next day. For years, in letters, conversations and sworn testimony, Carter insisted that Graves was innocent. While lying on the gurney as he was about to be executed in 2000, his last words, after apologizing to the victims' family, was, "It was me and me alone. Anthony Graves had nothing to do with it. I lied on him in court."

Earlier coverage of Anthony Graves begins with this post.

An Update on Anthony Graves

Even in the midst of all that surrounds the case of Todd Willingham, there are other Texas cases highlighting the failures of Texas' criminal justice system.

Jordan Smith reports, "'Junk Science' Emerges in Graves Case," in the current issue of the Austin Chronicle, our local, independent alt-weekly.  Here's an extended excerpt:

It's been 17 years since Bobbie Joyce Davis, her daughter, and four grandchildren were murdered inside their home in Somer­ville, about 70 miles east of Austin, and the home was set on fire in an attempt to cover the crime. It's been nine years since Robert Carter, the father of one of the children killed in the crime, was executed for his admitted role in the bludgeoning murders. And it's been three years since the 5th U.S. Circuit Court of Appeals overturned the conviction of Anthony Graves, who was sentenced to death for the murders based almost entirely on the word of Carter, who had fingered him as an accomplice. But if and when Graves will finally be retried for the crime remains unclear – and as time wears on, the state's case against Graves grows weaker and increasingly more disturbing.

Graves has maintained his innocence since the 1992 murders. He was tried in 1994, with Carter testifying to Graves' involvement. What Graves and his defenders did not know at the time, however, was that Carter had repeatedly recanted that assertion – both to Texas Ranger Ray Coffman, who was investigating the crime, and to then-Burleson Coun­ty District Attorney Charles Sebesta, who was trying the case. Indeed, Carter had recanted to Sebesta the night before testifying for the state against Graves. The 5th Circuit overturned the case in 2006, ruling that Sebesta had withheld statements from Graves and had elicited false testimony from Carter.

Since then the case has slogged strangely forward. Although Carter was executed in 2000 and is thus permanently unavailable to testify during any retrial, the state, through its special prosecutor Patrick Batchelor (who worked on the conviction of Cameron Todd Willingham, whose 2004 execution is now a matter of high-profile debate as a likely example of the state having executed an innocent man), sought to have Carter's likely perjured testimony allowed into evidence during Graves' expected retrial. How the defense could be expected to cross-examine a dead man is unclear – as is an explanation of how allowing that testimony into evidence wouldn't run afoul of Graves' Sixth Amend­ment confrontation right. Nonetheless, Judge Reva Towslee-Corbett (whose father presided over Graves' first trial) has said she would allow Carter's statements into evidence.

Graves' retrial date has been pushed back several times. And now, new developments have further derailed any hope for a "speedy" trial; Katherine Scar­dino, one of Graves' attorneys, says a Feb­ru­ary 2010 trial date is now also certain to be postponed to some unknown future date.

One sticking point is figuring out who will be in charge of trying the case for the state: Citing health issues, Batchelor has now filed a motion seeking to be removed from the case. An attorney from the Texas Attorney General's Office would be a likely candidate to take over the case, but at press time, the A.G.'s office had not responded to a request for comment.

Additionally, new "evidence" that the state is seeking to use against Graves will likely cause yet another pretrial hicc

Additionally, new "evidence" that the state is seeking to use against Graves will likely cause yet another pretrial hiccup. Specifically, prosecutors this summer brought in Fort Bend County Deputy Keith Pikett to conduct a "scent lineup" – a practice of dubious scientific validity that was recently the subject of a scathing report from the Lubbock-based Innocence Project of Texas. This type of lineup, with dogs supposedly matching a scent from a crime scene to a scent collected from a suspect, is junk science, the Innocence Project charges, while questioning Pikett's techniques in conducting the dog-led lineup. The procedure has indeed been implicated in a number of wrongful arrests and convictions. According to the report, released Sept. 21, Pikett has no formal training in the practice – nor does he apparently think any is necessary. Pikett has testified in court (in a matter unrelated to Graves) that there is no need for formal training or for scientific rules or protocols when conducting such lineups, and Pikett has rejected the importance of scientific studies regarding scent identification. Nonetheless, prosecutors across the state – including with the Texas Attorney General's Office – have relied on Pikett for "expert testimony" in a number of criminal cases.

In the Graves case, Pikett's dogs apparently "hit" on two items of clothing evidence taken from the scene of the 1992 murders – linking them to Graves' scent during a lineup conducted in a parking lot. But the validity of those results is hardly credible, says Scardino. For starters, the evidence was collected from a burned-out house 17 years ago and then was part of evidence that was "lost" for years, until the state finally found it among a host of evidentiary items that had been stored in a cell in the old and unused Caldwell jail. The notion that the evidence has not been compromised and that dogs could smell Graves on two of six items presented to them by Pikett is simply ludicrous, says Scardino.

Earlier coverage of the Graves case begins with this post; more on Deputy Pikett and his dogs, here.

An Update on Anthony Graves

Today's Houston Chronicle carries Harvey Rice's report, "Ex-DA turns to court of public opinion."

The news item on KBTX (Channel 3) in Bryan-College Station was one indignity too many for former Burleson County District Attorney Charles Sebesta.

The television report about a death penalty case that has dogged Sebesta for nearly a decade prompted him to take an unusual step: paying $2,561 to defend himself in a 5,000-word double-page advertisement published recently in two Burleson County newspapers.

Sebesta, former district attorney for Burleson and Washington counties, has suffered criticism for his handling of a 1994 capital murder trial that ended in a death sentence for Anthony Graves of Brenham.

The criticism began in 2000 after co-defendant Robert Carter, whose testimony convicted Graves, said moments before his execution: “Anthony Graves had nothing to do with it. ... I lied on him in court.”

Five years later, journalism students at the University of St. Thomas in Houston, working for the University of Houston Innocence Network, issued a report saying the prosecution in the Graves case withheld evidence “in its desire to win at all costs.”

n 2006, the 5th U.S. Circuit Court of Appeals overturned Graves' conviction and ordered a new trial, ruling that Sebesta withheld statements from the defense and elicited false statements from witnesses.

Sebesta's public defense of the case comes as Graves' attorneys prepare to ask a Burleson County district judge on Friday to delay a retrial while they wait to hear whether the U.S. Supreme Court will consider an appeal arguing that Graves can't get a fair trial because so many witnesses have died or forgotten the facts.

Legal experts, meanwhile, have raised questions about Sebesta's advertisement and whether the former prosecutor is trying to influence the outcome of Graves' retrial.

And:

The troubling aspect of the ad for Robert Schuwerk, law professor at the University of Houston Law Center, is that it could influence Graves' retrial.

“I would be persuaded that what he was trying to do is to convince a jury that this guy was really guilty,” Schuwerk said.

The Burleson Banner-Press is widely read in Lee County, where the retrial will be conducted after being moved from neighboring Burleson County, where the crime was committed and Sebesta was district attorney, said Katherine Scardino, one of Graves' defense attorneys.

Geoffrey Corn, law professor at the South Texas College of Law, said Sebesta had every right to defend his reputation, but questioned his judgment in running an ad that could influence the prosecution in Graves' retrial.

Early coverage of the Graves case begins with this post.

Anthony Graves Case Raises the Dead ... Again

That's the title of Jordan Smith's report on another long-running controversial Texas case, in the latest Austin Chronicle.  LINK

Adding to the string of dubious edicts delivered from her bench, on May 21 Burleson Co. District Judge Reva Tows­lee-Corbett denied a writ filed by Anthony Graves' defenders, who argue that the charges against their client should be tossed because the state's attempt to retry Graves violates his right to due process and amounts to double jeopardy. Towslee-Corbett's latest ruling reaffirms the position she took last summer, concluding that the testimony of a dead man, Robert Carter, could be used as evidence against Graves at trial – even though the fact that Carter is dead, executed by the state in 2000, would certainly preclude Graves from exercising his Sixth Amendment right to cross-examine the witnesses against him.

Indeed, the dead-man-testimony issue lies at the heart of the writ filed by Graves' new defense team, attorneys Kather­ine Scardino and Jimmy Phillips Jr. They argue that because Carter's coerced and perjured testimony at Graves' original 1994 trial was crucial to the 5th U.S. Circuit Court of Appeals decision in 2006 to vacate Graves' conviction, the state cannot now use that tainted testimony in their attempt to secure a second conviction.

And:

Notwithstanding the 5th Circuit's conclusion, Towslee-Cor­bett ruled that the transcript of Carter's questionable testimony would be allowed in court. (How, exactly, she came to that conclusion is entirely unclear, given that the U.S. Supreme Court has said – in an unrelated 2004 case – that nothing short of direct confrontation will satisfy the Sixth Amendment. Asked about this last week, Patrick Batchelor, the special prosecutor assigned to handle Graves' retrial and who sought Towslee-Corbett's permission to use Carter's testimony, told me that it wasn't his "job to argue or explain" his position to a "nonlawyer." In short, he said, "I argued it in court, and the judge agreed with me." So there.)

But allowing Carter's testimony in court, says Scardino, is a clear violation of Graves' right to due process – and sets up a clear case of double jeopardy. The defense argument goes like this: In finding that the state essentially suborned perjury from Carter at the trial and failed to provide to Graves information that Carter had recanted the portion of his statement inculpating Graves, the 5th Circuit ruled that the district court could not again allow the tainted testimony to be used as evidence against Graves. By ruling that the testimony would be allowed, Towslee-Corbett has thumbed her nose at the federal bench, once again stacking the evidentiary deck in favor of the state. And as such, the state has placed Graves in the exact path of disaster that already caused his conviction to be overturned – a circumstance that Scardino and Phillips say amounts to double jeopardy. "The 5th Circuit said [the state could] retry" Graves, says Scardino, "but that he can never be put back in the same situation he was put in at the earlier trial." By allowing the tainted testimony, she says, Towslee-Corbett has done just that.

Scardino and Phillips are in the process of appealing Towslee-Corbett's ruling to the Court of Criminal Appeals. Graves' trial date, set for July 7, will likely be reset, pending the outcome of the appeal.

Earlier coverage of Anthony Graves' case is here.  Earlier coverage of the Graves case at the Austin Chronicle is linked in Jordan Smith's article.

An Update on Anthony Graves

Anthony Graves continues to await a new trial, after his conviction and death sentence were overturned due to prosecutorial misconduct more than two years ago.  In today's Houston Chronicle, Harvey Rice reports, "Judge to allow dead witness's testimony."

A Burleson County district judge ruled Wednesday that the transcribed testimony of a dead witness will be allowed in the retrial of Anthony Graves, whose capital murder conviction was overturned for prosecutorial misconduct.

The ruling by state District Judge Reva Towslee-Corbett allows transcripts of the 1994 testimony by co-defendant Robert Carter to be used in Graves' July 7 trial. Carter and Graves were convicted in separate trials in the 1992 slaying of a woman, her daughter and her four grandchildren in Somerville. The victims were shot, stabbed and beaten with a hammer before the house was set afire.

Carter testified that he and Graves were the killers, and his testimony was instrumental in convicting Graves. But moments before Carter's execution in 2000, he said he lied. Carter also recanted his trial testimony in a deposition.

The 5th U.S. Circuit Court of Appeals overturned Graves' capital murder conviction in March 2006, ruling that the prosecution withheld evidence from the defense and elicited false testimony.

Students from the Texas Innocence Network say they have uncovered evidence showing that Graves is innocent.

Defense attorney Jimmy Phillips said the defense will appeal a refusal by Towslee-Corbett to cancel the trial and set Graves free because his attorneys will not be able to question Carter. Phillips said the trial date could be pushed back months if the state appeals court agrees to hear the appeal.

Earlier coverage of Anthony Graves' case is here.

Graves Trial Moved

That's the headline in the Brenham Banner, though the location has not yet been determined.   LINK

A second trial for a death row inmate won’t be held in the county where six brutal murders occurred almost 15 years ago.

District Judge Reva Towslee Corbett Tuesday granted a motion filed by attorneys for Anthony Graves to move his capital murder retrial out of Burleson County. Corbett also said it won’t be held in Brazoria County, the site of Graves’ first trial, where a jury found him guilty in 1994 of being involved in the 1992 slayings of six Somerville residents.

And:

Graves’ case has drawn widespread media attention and even involvement from the University of Houston-based Texas Innocence Network.

The network consists of law and journalism students who analyze hundreds of criminal cases each year. The students claim they found other witnesses and evidence in the Graves case.

Graves’ retrial had also been tentatively scheduled to begin at the end of July, but delays in finding old evidence and the Department of Public Safety’s crime lab reports on that evidence will make that impossible.

Corbett, whose father Harold Towslee presided over Graves’ original trial, now says she hopes the retrial can begin by the end of he year.

Graves has always maintained his innocence.  The conviction and death sentenced were thrown out by the U.S. Fifth Circuit Court of Appeals last year due to prosecutorial misconduct.  Earlier coverage is here.

More on Anthony Graves

The Austin Chronicle's Jordan Smith has, "Anthony Graves Update: Defense team shot down again."

When it comes to the retrial of death row inmate Anthony Graves, Burleson Co. District Judge Reva Towslee-Corbett apparently doesn't feel the need to comply with the 5th U.S. Circuit Court of Appeals or, for that matter, with the opinion of the U.S. Supreme Court. Perhaps Justice Antonin Scalia simply isn't conservative enough for the Texas judge. Or maybe Towslee-Corbett is – dare we say it? – completely biased against Graves. Considering the latest ruling she's made in Graves' case, it would seem that one or the other – if not both – must be true.

On July 12, Towslee-Corbett denied a motion by Graves' defense team, ruling that special prosecutor Patrick Batchelor may use the recanted – and likely perjured – testimony of Robert Carter, who fingered Graves as his accomplice in the 1992 multiple murder of Bobbie Joyce Davis, her daughter, and four grandchildren in Somerville. Carter, who was convicted of the crime, later recanted, saying Graves was not involved in the grisly murders – a recantation he repeatedly reiterated, including in his final statement before being executed in 2000.

"Anthony Graves had nothing to do with it," said Carter from the Texas death chamber. "I lied on him in court."

And although the veracity of Carter's trial testimony, implicating Graves in the crime, was at the heart of the 5th Circuit's decision to overturn Graves' conviction and death sentence last year, Towslee-Corbett last week ruled – without any explanation – that she will allow the state to use a transcript of the dead man's questionable testimony as evidence in Graves' upcoming retrial. (Although originally scheduled to begin Aug. 10, Graves' new trial has been postponed until sometime this fall.)

Earlier coverage is here.

Anthony Graves' Defense Suffers Setback

That's the title of an article in today's Houston Chronicle.  LINK

The recorded testimony of a witness who recanted moments before his execution will be admitted in the capital murder retrial of Anthony Graves, a Burleson County district judge ruled Thursday.

The ruling by state District Judge Reva Towslee-Corbett is a setback for Graves, whose conviction was overturned last year after a federal appeals court found that the prosecution withheld statements from the defense and elicited false testimony during his 1994 trial.

And:

The 5th U.S. Circuit Court of Appeals found that Carter told prosecutors the night before he testified that he acted alone, without Graves. Prosecutors failed to notify the defense of Carter's statement and threatened to prosecute his wife as a participant in the slayings, the court said.

Carter recanted his testimony in a deposition and in his last statement before he was executed in 2000. "Anthony Graves had nothing to do with it," Carter said. "I lied on him in court."

The defense asked Towslee-Corbett to prohibit the prosecution from using a transcript of Carter's 1994 testimony, but she denied the request without explanation.

"I can't tell you how disappointed I've been," said David Mullin, one of three defense attorneys representing Graves.

"It's as if she said everything the 5th Circuit said is not right," Mullin said.

Special prosecutor Patrick Batchelor did not respond to a request for comment.

The order allowing Carter's testimony is the latest in a string of decisions by Towslee-Corbett that have favored the prosecution, including a gag order imposed over the objections of the defense that was overturned by a state appeals court.

Graves remains in the Burleson County Jail awaiting a trial date. Attorneys are waiting for Towslee-Corbett to rule on a change of venue request.

Earlier coverage is here.

Additional Delay in Graves Trial

Anthony Graves' retrial hits another delay due to testing of evidence by the Texas Department of Public Safety crime lab.  The Brenham Banner has "Graves retrial delayed."

Graves’ retrial is being delayed because evidence used during the original trial in 1994 was only recently found in an old cell in the Burleson County jail. That evidence has been sent to Department of Public Safety scientists to be re-analyzed based on new techniques.

The DPS crime lab agreed to test only five items, and officials there said they don’t expect to have the results back until late June, said special prosecutor Patrick Batchelor.

“They said they were swamped and didn’t have time (to test more items),” Batchelor said.

It’s possible the retrial may be pushed back until much later in the year.

The Bryan College Station Eagle has, "Graves murder re-trial delayed."

He and co-defendant Robert Carter were accused of brutally killing 45-year-old Bobbie Joyce Davis, her teenage daughter and four grandchildren at Davis' Somerville home in 1992 then burning the residence in an attempt to hide the slayings.

Graves' conviction came after Carter named him as an accomplice on the witness stand. But Carter recanted his testimony - stating that he acted alone - several times, including moments before he was executed in 2000.

Last year, a federal judge ordered Graves' guilty verdict to be invalidated. The decision was based in part on allegations the district attorney at the time didn't disclose a statement from Carter - on the night before he testified against Graves - that he acted alone.

Such a disclosure could have changed the course of the case, defense attorney David Mullin said Tuesday while asking the judge to suppress all of Carter's previous testimony for the upcoming trial because he is no longer alive to be cross-examined with the new information.

The state district judge presiding over the case will rule on the motion before the trial begins.  Earlier coverage is here.

Update on Anthony Graves' Case

It's one of Texas most tangled and criticized death penalty cases.  Anthony Graves has always proclaimed his innocence of the crime that sent him to death row.  Last year, the Fifth Circuit Court of Appeals overturned his conviction due to prosecutorial misconduct.  Graves remains in jail awaiting a new trial.  The Houston Chronicle's Harvey Rice has, "Evidence missing in Graves' retrial is found in old jail cell."

Evidence missing in the capital murder retrial of former death row inmate Anthony Graves was discovered in a cell that had been welded shut in the old Burleson County Jail, defense attorneys said Friday.

The evidence used in Graves' 1994 trial went missing and was found in the old jail cell just before a May 1 deadline set by Burleson County District Judge Reva Towslee-Corbett, defense attorney Jeff Blackburn said.

"All that stuff was just thrown in there," said Blackburn, one of four attorneys representing Graves, 41, for free because they believe he is innocent. Prosecutors are seeking the death penalty again.

Blackburn said he learned of the discovered evidence through a phone conversation Friday with special prosecutor Patrick Batchelor.

Batchelor did not respond to a request for comment, but Blackburn said the evidence in the old jail, which is now used by the Department of Public Safety, was discovered very close to the deadline.

He said the evidence could be seen in the cell, but officials were unable to pry it open until Wednesday or Thursday.

Blackburn said skull caps of the victims were among the evidence discovered, but he was awaiting the completion of an inventory to know exactly what had been found.

"It's certainly important for us in the sense that we are eager to have it tested because I am confident it is not going to implicate Anthony and it will shed light on who was responsible for this," said Nicole Casarez, one of Graves' attorneys.

Earlier coverage of the case is here.

Anthony Graves

Jordan Smith has, "Anthony Graves Update," in the Austin Chronicle that hit the stands today. 

    Unbelievably, a retrial of the capital murder case against Anthony Graves is set to go forward this summer, even though a special prosecutor admitted on April 13 that crucial evidence in the case – including the alleged murder weapon – is lost and likely will never be found.

Graves' 1994 conviction in connection with a gruesome multiple murder in Burleson County, was overturned last year by the 5th U.S. Circuit Court of Appeals upon a finding that the state had committed prosecutorial misconduct, in part by keeping from the defense crucial witness statements that could have affected the outcome of the trial.

In the wake of the appellate-court opinion, the Burleson Co. District Attorney's Office stepped aside – after a judge disqualified one of the office's attorneys – prompting the appointment of special prosecutor Patrick Batchelor to take over. Batchelor is likely best known as the attorney who secured a death sentence for Cameron Todd Willingham, who was executed in 2004 even though evidence suggests that he was wrongfully convicted. (Indeed, there's little evidence to suggest that there was even a crime for which to convict. Willingham was tried and convicted of the arson-murder of his three children, but an investigation led by the Innocence Project determined the fire was likely accidental.)

Batchelor told District Judge Reva Towslee-Corbett that he will "account" for the missing evidence by May 1, reports the Houston Chronicle, but made no assurance that the evidence would actually be found. Among the missing, and crucial, pieces of evidence are the skullcaps of the victims, their clothing, fingerprints, bullets taken from the victims, and a bloody hammer and knife that prosecutors allege are the murder weapons. In short, the state is seeking to retry Graves – and is seeking the death penalty – without the benefit of any physical evidence to back up its theory of the crime. It is a stunning admission – but one that sources tell us is not exactly new information. Sources say there have been rumors around Burleson Co. since late last year that the county deliberately destroyed evidence in the case. Batchelor noted the "change of jail [facilities in the county] and personnel" since Graves and co-defendant Robert Carter were arrested in 1992 for the murder of six people in Somerville. Carter initially implicated Graves in the crime but subsequently recanted that claim on numerous occasions, including just before his execution in 2000.

Defense attorneys have been seeking access to the now-reportedly-missing evidence: Attorney Jeff Blackburn says Graves' legal team wanted to conduct DNA testing on the victims' clothing – DNA analysis wasn't available at Graves' first trial, but blood-typing analysis did not link Graves to the scene – and to analyze fingerprints found at the murder scene, which at this point have not been matched to anyone involved in the case – including Graves. Now, Batchelor says, the only answer he may have to give the defense is that the evidence is simply "gone."

Unless the charges are dismissed – and, despite a total lack of solid evidence, it seems likely the state will push on with this increasingly embarrassing prosecution – Graves' trial is set to begin July 10.

Some observers question whether the case will actually go to trial.  Earlier coverage is here.

Graves Retrial Judge Erred in Gag Order, Panel Finds

That's the headline in today's Houston Chronicle reporting on the troubled saga of the Anthony Graves case.  LINK

A state appeals court ruled that a Burleson County judge abused her discretion by imposing a gag order in the capital murder retrial of former death-row inmate Anthony Graves.

The opinion issued last week gives Burleson County District Judge Reva Towslee-Corbett 14 days to vacate the gag order.

Towslee-Corbett "committed a clear abuse of discretion by issuing a gag order without making sufficiently specific findings to support a prior restraint on Graves' right to free expression" under the Texas Constitution, the opinion said.

The majority said the judge presented no evidence to support her gag order, but they were not ruling on whether there was such evidence.

And:

Graves' attorneys opposed the gag order, arguing their client was first convicted in 1994 because of prosecutorial misconduct and that unrestrained access to the media was necessary to ensure a fair retrial.

His attorneys appealed, arguing the order violated Graves' free-speech rights under state and U.S. constitutions.

Earlier coverage is here.

Continuing Saga of Anthony Graves' New Trial

The Houston Chronicle reports that a special prosecutor will seek a death sentence when Anthony Graves receives his new trial, "Former Texas death-row inmate to face death again."

A special prosecutor will seek the death penalty in the retrial of former death-row inmate Anthony Graves, whose capital murder conviction was overturned because of prosecutorial misconduct.

The decision to seek the death penalty for Graves, who the Texas Innocence Network says is innocent, came in a one-sentence court filing this week in Burleson County district court by former Navarro County District Attorney Patrick Batchelor.

Batchelor was appointed Burleson County district attorney pro tem in January after District Attorney Renee Mueller recused her entire office.

Batchelor is being assisted by Assistant Attorney General Julie Stone, a rare case of the Texas Attorney General's Office being involved in a local criminal prosecution.

A gag order imposed by Burleson County District Judge Reva Towslee-Corbett prevents either prosecutors or defense attorneys from commenting.

Graves was convicted in 1994 as an accomplice in the slaying of Bobbie Joyce Davis, 45; her 16-year-old daughter, Nicole; and four grandchildren, between 4 and 9.

They were bludgeoned, stabbed and shot to death and Davis's Sommerville home doused with gasoline and set ablaze.

Robert Carter was executed in 2000 for the slayings, proclaiming Graves' innocence moments before his death. Carter said in a deposition that he gave false testimony against Graves to prevent prosecutors from trying his wife as an accomplice.

A three-judge panel of the 5th U.S. Circuit Court of Appeals ordered a new trial last year after finding that prosecutors withheld from the defense Carter's statement that he acted alone. The court also said that the prosecution elicited false testimony.

Graves remains in the Burleson County Jail awaiting trial under a $1 million bail that a federal magistrate judge in Galveston, chosen by the 5th Circuit to handle federal issues in the case, has called "pretty excessive and pretty oppressive," but legal.

Earlier coverage is here and here.

More on Anthony Graves Bail Status

Mary Alice Robbins of Texas Lawyer has an article in the current issue on Anthony Graves' case, "High Bond Blocks Successful Capital Habeas Petitioner from Release."

Anthony Graves traded a cell on Texas' death row for a cell in the Burleson County Jail, where he awaits retrial for the 1992 murders of a woman and five children who were shot, stabbed and beaten and whose Somerville home was set on fire.

More than 10 months after the 5th U.S. Circuit Court of Appeals set aside Graves' 1994 capital murder conviction and ordered the state either to release him or retry him "within a reasonable time," Graves remains behind bars, unable to pay a $1 million bond.

On Jan. 22, Graves' lawyers will argue at a hearing before 335th District Judge Reva Towslee-Corbett that the $1 million bond is excessive. Towslee-Corbett set bond for Graves in December 2006, about a month after U.S. District Judge Samuel B. Kent of Galveston found that Graves was not a flight risk and set his bond at $50,000, requiring only a $5,000 cash payment.

Kent, who first considered Graves' federal habeas corpus writ application, had set a 120-day deadline for the state to retry Graves after the 5th Circuit threw out his conviction.

In the 5th Circuit's March 3, 2006, decision in Graves v. Dretke, the 5th Circuit concluded that former Burleson County District Attorney Charles Sebasta Jr. withheld from the defense two statements by the state's key witness against Graves — statements that could have influenced the jury's verdict in Graves' 1994 trial.

The deadline that Kent had set for the prosecution to retry Graves passed on Sept. 13, 2006. Towslee-Corbett has not set a trial date.

And:

Graves argues in a December 2006 application for writ of habeas corpus submitted to Towslee-Corbett that the 5th Circuit's March 3, 2006, decision in Graves v. Dretke returned Graves to the legal status he had prior to his conviction: that of a "pretrial detainee."

In the application, Graves contends that the 5th Circuit's action "gave him the right to bond like any other citizen accused of a crime by the state, and it gave him the right to be presumed innocent of the charge against him."

Fort Worth criminal defense solo Michael Logan Ware, a board member for the Innocence Project of Texas, says Article 1, Section 11 of the Texas Constitution requires courts to set bail for all defendants, except in capital cases in which the proof of a defendant's guilt is evident.

"Absolutely, there is not evidence of Graves' guilt; Carter stated on numerous occasions that he acted alone," says Ware, who is not involved in Graves.