Defense witnesses Wednesday testified that Jason and Joby Graf played with matches, smoked and hid cigarettes in their room and one walked across the hot embers of a campfire at a school camping trip.
During the eighth day of Edward E. Graf Jr.’s capital murder retrial, his defense attorneys continued trying to prove that the young boys were fascinated by fire, were not scared of it and accidentally started the fire in a shed in which they died.
Graf, 62, is on trial in Waco’s 54th State District Court in the August 1986 deaths of his adopted stepsons, Jason, 8, and Joby, 9, in a shed behind their former home on Angel Fire Drive in Hewitt.
Doug Carpenter, a defense arson and fire investigation expert from Columbia, Maryland, is expected to testify beginning Thursday morning that the fire was accidental and not one caused by arson or other incendiary means.
There has been conflicting testimony during the trial about whether the doors to the shed were open or closed, which will have a significant effect on Carpenter’s calculations.
Graf spent more than 25 years in prison after he was convicted of capital murder in 1988. He won a new trial last year from the Texas Court of Criminal Appeals, who ruled the fire science evidence used to convict him was flawed.
The jury at the time recommended a life prison term, rejecting prosecutors’ efforts to get a death sentence.
A McLennan County Jail inmate testified Tuesday that Graf told him he locked the boys in the shed and started the fire by tying gasoline-soaked cotton balls to threads taped to the ceiling. He said Graf told him he allowed the fire and heat to build up long enough to render the boys unconscious before opening the doors to the shed just as neighbors arrived to investigate the smoke coming from his backyard.
Graf said he learned methods of arson investigation at his job as an insurance adjuster at State Farm, the inmate, Fernando Herrera, told the jury.
In defense testimony Wednesday, Brad Leftwich, who taught the boys at Trinity Lutheran School, said Jason caught some leaves on fire at the school playground and he took the matches away from him. He said he caught Jason two other times with matches at school but explained that he didn’t tell Graf or Clare, the boys’ mother, about it because he was a new teacher trying to earn the trust of his students.
He also said he didn’t testify about the other two incidents at Graf’s first trial in 1988 because he was not asked about them. He did not volunteer the information to anyone until telling defense investigator Ed McElyea a few months ago and has “been kicking myself about that ever since,” he said.
“I realized later that I was young and immature and I didn’t want to be the one to tell on Jason,” he said. “I realize now I should have called his parents.”
Several witnesses who testified at Graf’s first trial 26 years ago, including Graf’s mother, Sue Graf, have died. Attorneys have read excerpts of their testimonies from the first trial to the jury.
Reading testimony from William Flake Jr., who lived three houses up from the Grafs on Angel Fire Drive, Flake testified he saw Jason and Joby smoking cigarettes several times around the neighborhood.
In other testimony that was read to the jury, Fannie Sims, who cleaned the houses of Graf and his parents, testified in 1988 that she found cigarettes hidden in the guest room and in the boys’ room.
She also testified that Graf was a good father to Jason and Joby, treating them “just like his own.”
Nola Barrington, a school counselor in Idaho who taught at Trinity Lutheran School from 1982 to 1986, said Graf was an attentive parent to the boys and participated in their school activities.
She said the boys did not seem afraid of or intimidated by Graf and she never saw any signs that they were abused. Prosecution witnesses said they saw Graf beat the boys 15 to 20 times with a belt and saw one with bruises covering his backside.
Barrington said she saw Jason walk across hot coals with his tennis shoes just as a school camp-out campfire was about to be doused. She said she told Graf about the incident.
In other defense testimony, five people who attended Trinity Lutheran Church with the Grafs all testified that the new family seemed happy and well-adjusted and that the boys seemed to respect and love Graf.
Three women said Clare Bradburn, Graf’s ex-wife, told them just weeks before the fire that she was lucky to have married Graf and that the previous two years had been the happiest of her life.
Prosecution testimony showed Graf’s marriage was failing and he was broke because he got fired from a job at a bank for embezzling $75,000. Prosecutors say he took out life insurance policies on the boys a month before their deaths in an effort to reverse his financial fortunes.
Defense testimony will resume at 9 a.m. Thursday.