Waco attorney Walter M. Reaves Jr. is known throughout Texas for his appellate skills. He has filed hundreds of appeals for convicted criminals, freeing a couple of high-profile defendants, winning new trials for some and going down swinging with others.
But in his 37 years of practicing law, Reaves, called “Skip” by those who know him, never handled an appeal where a defendant was convicted on such flimsy evidence as Joe Bryan, the former Clifton High School principal twice convicted in the 1985 shooting death of his wife, Mickey.
Reaves and attorney Jessi Freud, who became fascinated with Bryan’s case as a second-year Baylor University law student in Reaves’ Innocence Clinic, are trying to exonerate Bryan, or at least win him a third trial 32 years after Bryan went to prison.
“No question. Without a doubt. On a scale of 1 to 10 in terms of lack of evidence, it is definitely a 10,” Reaves said. “I am trying to think of a case that involves less evidence. There isn’t one, at least not in my experience.”
Bryan’s case and the effort to clear his name recently hit the national spotlight with an engrossing two-part series in The New York Times Magazine by acclaimed writer Pamela Colloff, a former executive editor at Texas Monthly and senior reporter for ProPublica.
And Reaves and Freud have won a hearing Aug. 20 in Comanche County on their application for writ of habeas corpus, at which they hope to convince Senior Judge Doug Shaver to recommend a finding of innocence or say Bryan deserves a new trial. Shaver’s findings will be forwarded to the Texas Court of Criminal Appeals for their review.
Colloff’s comprehensive story and word of the hearing have people in Clifton, a Bosque County town of about 3,400 residents, talking about the case again, said Leon Smith, the 65-year-old longtime former owner of the Clifton Record who now operates the online Lone Star Iconoclast.
Smith, who knew Bryan and his wife before Mickey Bryan was gunned down in her home, has worked behind the scenes for years, conducting his own investigation into the Bryan case because he was not convinced that Joe Bryan was guilty. He is even more convinced now of his innocence, Smith said.
“What happened was, before the first trial, Joe had a bunch of supporters,” Smith said. “After the first trial, I think a lot of people felt betrayed. They believed in the justice system and think if the jury found you guilty, you are guilty. He lost a lot of support.
“But now, since (Colloff’s) article came out, a lot of people have turned around on it. They are seeing that there were probably big errors in the trial and the evidence.”
It was a violent crime that shocked the small, close-knit community. Mickey Bryan was a 44-year-old elementary school teacher. Her husband was high school principal. The popular couple’s mission was to help and educate children. They were beloved.
Bryan was in Austin at an educational conference when he was told of his wife’s death the next morning. Colleagues checked on Mickey Bryan when she uncharacteristically failed to show up for work. She had been shot three times in the head and once in the abdomen at close range with a gun loaded with ratshot, according to testimony at Bryan’s first trial in April 1986.
Bryan’s attorneys, Charles M. McDonald and Lynn Malone, two of Waco’s finest criminal defense attorneys at the time, argued that investigators focused solely on Bryan when they could find no other suspects or motives. They ignored the fact, the attorneys said, that Bryan would have had to drive more than 120 miles from Austin to Clifton, kill his wife between 3:25 and 4:25 a.m. and drive back to Austin in time for an 8 a.m. meeting.
Besides that, Smith added, there was a heavy thunderstorm that night followed by dense fog. He said Bryan had eye problems that made it difficult for him to drive at night.
The jury convicted Bryan and recommended a 99-year sentence. His conviction was overturned after an appeals court in Eastland said the judge was wrong for not allowing McDonald and Malone to reopen their case to rebut testimony from a Texas Ranger that Bryan killed his wife over a $300,000 insurance policy.
Reaves said an insurance agent was ready to testify that he approached the Bryans, as he did many other educators in the community, and sold them the policy and that there was nothing unusual about it.
The second trial, moved to Comanche County, ended the same way. Bryan, now 77 and suffering from congestive heart failure, is serving a 99-year prison term and is currently under parole review. He has been turned down for parole several times. Reaves knows those convicted of murder are not frequently paroled and said he is unsure what effect Bryan’s clinging to his innocence has played in parole decisions.
“I don’t think Joe would say he is guilty just to get out, even if it meant he would be released from prison tomorrow,” Reaves said. “But if you had asked me if Ed Graf would ever say he was guilty, I would have said the same thing.”
A writ filed by Reaves won Graf a new trial 25 years after he was convicted in Waco in the 1986 arson deaths of his two stepsons, Jason and Joby. While the jury in his retrial deliberated, Graf accepted a plea deal for 60 years offered by McLennan County District Attorney Abel Reyna.
Because he was given credit for time served, Graf walked out of prison seven days later under rules governing mandatory release.
Reaves and Smith, the former newspaper editor, don’t think Bryan would follow Graf’s lead.
“I think he would never confess to something he didn’t do,” Smith said. “He is pretty high-principled. One thing he told me was that if he pleaded guilty, that is just giving a walk to the real killer, and he wasn’t up for doing that.”
One of the points in Reaves’ and Freud’s writ application hits on the fact that the court allowed a family member of Mickey Bryan to hire a special prosecutor to assist the Bosque County DA’s office. They allege the family’s involvement in assisting the prosecution unfairly cast a bias against Bryan because it made it seem like the family believed in his guilt at the same time they were contesting her estate.
Also, the attorneys allege that the Texas Ranger and special prosecutor planted seeds that Bryan was gay, an undercurrent that ran through both trials and prejudiced the proceedings despite the lack of evidence of his sexuality or any domestic trouble between he and his wife.
“It is improper,” Reaves said. “It has nothing to do with the facts of the case, apart from there being absolutely no evidence from any source that it was remotely true.”
Reaves said with no other possible suspects identified at trial, authorities, and possibly the juries, turned the precepts of reasonable doubt and the burden of proof on their ears.
“He was the only viable suspect,” Reaves said. “I really think it boiled down to he had the burden to prove he didn’t do it and couldn’t prove somebody else might have done it. She was definitely killed and she was dead and somebody did it, and he was the one there standing trial. In cases like this, the presumption of innocence is completely flipped. You have the burden of proof to prove your innocence.”
Freud, who has visited Bryan in prison several times, said she got so involved in the case because she believes in his innocence and said Bryan’s case exemplifies problems in the justice system that people should care about.
“If something like this can happen to Joe Bryan, it can happen to anybody. … I don’t blame our juries at all. I think our jury system is perfectly imperfect,” she said. “I think the problem or the issue is not with the way our juries make decisions. I think in this case, the small community had a lot of faith that if their elected official was coming to them and saying this person did this, they trust the person they elected to that office and they trust that person will do the right thing and do justice the way they are supposed to.”
Andy McMullen, former district attorney for the judicial district that includes Bosque, Comanche and Hamilton counties, prosecuted both of Bryan’s cases, with the assistance of the special prosecutor hired by Mickey Bryan’s family. He did not return phone messages left at his Hamilton office.