First case under consideration in Texas arson review

The Dallas Morning News editorial board offered praise this week for the arson review being conducted by the state fire marshal and my employers at the Innocence Project of Texas in an item ("Duty to correct arson cases," Jan. 9) which opened thusly:

Breakthroughs take time in criminal justice reform, and they get messy, but they are no less impressive when they happen.

Just this week in Houston, the state fire marshal’s office sat down with outside experts to pore over a short list of old arson cases suspected of using junk science to put someone behind bars. One of those suspect cases, from the Central Texas town of Hewitt, is on a separate review track in McLennan County. The district attorney there has cited “serious and complex issues” involving arson forensics in the murder conviction of Ed Graf, who will get a hearing Friday on a writ to reopen his 26-year-old case.

All this traces back to the noisy early days of the Texas Forensic Science Commission and its first case, the arson-murder conviction of Cameron Todd Willingham, executed in 2004. Critics were prone to calling reformers out of bounds, grandstanders who were out to undermine Texans’ support of the death penalty.

Those critics need to take a look today. The fight was a righteous one and has yielded a kind of systematic re-examination of the science in arson convictions that is unprecedented in the nation.

The News pointed to a Waco Tribune Herald report from December ("Experts to testify in Ed Graf arson/murder case from 1980s," Dec. 23) on the first arson case to undergo joint review by IPOT and the fire marshal, that of a man named Ed Graf. A hearing on Graf's habeas writ was scheduled in Waco for today. The Trib story opened:

Two of the nation’s leading fire science experts are scheduled to come to Waco next month for a hearing that will help decide the fate of a Hewitt man who claims he was wrongfully convicted of arson murder.

But the hearing could have implications far beyond Ed Graf’s case, said Jeff Blackburn, chief counsel for the Innocence Project of Texas.He said the state’s criminal justice system is starting to come to terms with the idea that junk science contributed to a number of wrongful convictions in recent decades.

But the state’s highest criminal court has not yet developed a uniform and fair way of handling such injustice, he said.

The hearing in Graf’s case, scheduled for Jan. 11, will be the first post-conviction hearing in Texas where attorneys will present evidence to show faulty fire science was used to secure an arson conviction, Blackburn said.

If he and Waco attorney Walter M. Reaves Jr. are able to provide the level of proof they think they can, Graf’s case could well be the one that finally causes the Texas Court of Criminal Appeals to set a precedent that offers appropriate relief to people ensnared by bad science, he said.

“The law in this area is complicated and generally terrible, but the facts of Ed Graf’s case are not,” Blackburn said. “It shows the stark possibilities of the way science can be misused and abused in a courtroom. The guy shouldn’t have been convicted and deserves a new trial.”

The DA and Graf's ex-wife still believe he is guilty, but the arson "science" in Graf's case eerily tracks the outdated and debunked techniques in the Todd Willingham debacle. Again, from the News:

The commission’s final report — while not commenting on Willingham’s guilt or innocence — said prosecutors relied on arson investigators who had a poor understanding of fire science and learned their craft when there were no uniform standards.

Those very themes surfaced in the Graf case, in reports compiled by experts retained by the Innocence Project of Texas. Prosecutors put Graf away for life after his two stepsons burned to death in a frame storage shed behind his house.

Yet the state arson investigator had little grasp of how fire burns and employed “old wives’ tales” in reaching conclusions, one expert wrote. Worse, there was no “crime scene” to examine, since the burned-up shed had been knocked down by volunteer firefighters and hauled off to a dump.

That's exactly what happened in the Willingham case, where probative evidence was simply hauled off to the dump and the main arson indicators cited by investigators are no longer considered valid.

Grits has no connection to IPOT's legal work on Graf's case and knows nothing more about it than has been reported in the press. But I've spent a great deal of time analyzing the revolution in arson investigation that's occurred since the early '90s, and feel strongly that the possibility of error in some of these older cases was high. For that reason, Grits agrees with the Morning News that "Graf, at the very least, deserves another day in court." And today's the day.