An attorney for Edward Graf Jr. claims that capital murder charges against his client should be dismissed because files that may contain evidence helpful to his client are missing.
Prosecutors are required to turn over to the defense exculpatory evidence, or material that could be favorable or tend to exonerate a defendant.
But because District Attorney Abel Reyna and Vic Feazell, the former district attorney who tried Graf in 1988, have said the original DA’s office file cannot be located, Graf’s attorney, Walter M. Reaves Jr., is seeking dismissal of the charges.
Graf, 61, who won a new trial from the Texas Court of Criminal Appeals, is set for trial May 19 in Waco’s 54th State District Court.
“Defendant suggests that his trial cannot proceed without the assurance that any evidence which points to his innocence has been produced,” Reaves wrote in his motion to dismiss the charges. “That assurance cannot be given.”
Judge Matt Johnson has not ruled on Reaves’ motion.
The day after Reaves’ motion was filed in January, the district attorney’s office subpoenaed Feazell’s files, documents, evidence, notes or recordings from the first Graf trial.
Graf, who remains in the McLennan County Jail, was sentenced to life in prison 25 years ago, convicted of putting his two stepsons, Jason, 8, and Joby, 9, in a backyard shed behind their Hewitt home and setting it on fire with gasoline in 1986.
But there was no evidence that Graf somehow rendered the boys unconscious, and the expert testimony about the fire was based on “arson indicators” that since have been debunked as junk science by at least five arson experts.
Johnson, on a request from prosecutor Michael Jarrett, placed the attorneys in the Graf case under a gag order, preventing them from speaking about the case.
Reyna and Reaves both declined comment Tuesday, citing the gag order.
Feazell said Tuesday that, in response to the subpoena, he filed an affidavit saying that he has old copies but no original documents, notes or files from the original trial.
“Everything I had was put on my website . . . several years ago, and that is where it still resides, and anybody who wants to go look can go look,” Feazell said. “It is mostly just witness statements and some fire reports.”
Reaves’ motion says he has been told that the file maintained in the case by the district attorney’s office is no longer available. As a result, the parties have relied on copies of documents from other agencies, the motion states.
“Because the original file has been lost, destroyed or misplaced, both the state and the defense have no way of determining whether there is ‘exculpatory evidence’ that must be disclosed,” the motion says. “Anything produced or created by the district attorney’s office is no longer available.”
Reaves contends it was common for Feazell to “conduct his own investigation, using his own employees, and defendant believes that happened in this case.
“That information is no longer available. Defendant believes that there is a strong likelihood that exculpatory evidence existed at the time of defendant’s trial.”
The failure to disclose such evidence has been an issue in other cases, especially the case against David Wayne Spence.
Spence twice was convicted and twice sentenced to death in the 1982 murders of three teenagers whose bodies were found at Lake Waco’s Speegleville Park.
He was executed in 1997.
In Spence’s case, the post-conviction lawyers discovered “a tremendous amount of information that had not been disclosed, much of which was exculpatory,” Reaves wrote in the motion to dismiss.
Feazell called the allegations “a damn lie.”
“The courts have never found that,” Feazell said. “That is a total lie.”