Paper: Houston Chronicle
Date: Mon 12/05/2005

Lawyers fight for a new trial in killings of 6

Attorneys say evidence backing Anthony Graves' alibi has surfaced

By HARVEY RICE
STAFF

Attorneys for death row inmate Anthony Graves will argue Tuesday for a new trial that will allow evidence unearthed by the Texas Innocence Project to be presented.

Graves remains a candidate for execution despite his co-defendant's declaration of Graves' innocence moments before being executed and a federal judge's ruling that the prosecutor withheld evidence during his trial.

As Graves' attorney, Roy Greenwood, prepared to argue before a three-judge panel of the 5th U.S. Circuit Court of Appeals, an affidavit by prominent Houston attorney Dick DeGuerin surfaced, showing that there may be a witness who can testify that Graves was with his family while the slayings he was convicted of were taking place.

The effort to convince the appeals court to give Graves a new trial comes amid increasing evidence that there may be more wrongful convictions in death penalty cases than law enforcement officials thought.

In the latest of a string of national cases that have raised doubts about death-penalty convictions, the lone surviving witness and a co-defendant say that Ruben Cantu was innocent of a San Antonio murder that he was executed for in 1993.

In the Graves case, DeGuerin signed an affidavit last month stating that a Brenham woman was prepared to testify at Graves' trial that she was speaking with Graves on the phone about the time of the murders.

"He was not there," DeGuerin said in an interview Friday.

DeGuerin was retained by a local businessman to challenge the validity of the charges against Graves, but other attorneys represented Graves during the trial, he said.

DeGuerin said he spoke with Kay Vest, a dormitory supervisor at Blinn College in Brenham. Vest denied speaking with DeGuerin.

"I cannot believe that Dick DeGuerin, with his reputation, would say something like that," Vest said in a telephone interview. "That is not true."

DeGuerin signed the affidavit at the request of journalism students from the University of St. Thomas in Houston, who are part of the University of Houston-based Texas Innocence Network.

...

Trying for years

Law and journalism students at universities belonging to the network analyze hundreds of innocence claims every year, but investigate only those that meet rigorous standards of evidence. Those making innocence claims are warned that evidence uncovered by students could be used against them.

Journalism professor Nicole Casarez, adviser to the St. Thomas students, said they have been trying for the last three years to get a statement from Vest. Student Robin Hunter, 20, said she and student Andrew Lubetkin tried last week to present Vest with a copy of DeGuerin's affidavit, but Vest threatened to call the police and slammed the door.

Casarez said that if DeGuerin's affidavit is correct, Vest could support Graves' alibi that he was home with his girlfriend, brother and sister the night of the slayings.

The students have located other witnesses and evidence, such as a copy of grand jury testimony never made available to the defense in which the wife of Graves' co-defendant says her husband framed Graves.

...

Based on testimony

Graves and Robert Earl Carter were convicted and sentenced to death in separate trials for the Aug. 18, 1992, slaying of Bobbie Davis, 45; her 16-year-old daughter, Nicole; and four grandchildren ages 4 to 9 in Somerville. They were shot, stabbed and beaten before their house was torched.

Carter declared Graves innocent moments before he was executed May 31, 2000. "Anthony Graves had nothing to do with it," Carter said. "I lied on him in court."

Carter had also insisted on Graves' innocence in an deposition before his execution. Greenwood said Carter wrote him at least 11 letters in an effort to clear Graves.

Greenwood said he was unaware of any other case in which the "primary witness, the primary killer" recanted.

The prosecution's case was built almost entirely on Carter's testimony.

Charles Sebesta, district attorney for Washington and Burleson counties during Graves' trial, said in a television interview in 2000 that Carter had told him before the trial that Graves' was innocent.

The case ended up in Galveston last year before U.S. Magistrate Judge John Froeschner, who found that Sebesta was guilty of prosecutorial misconduct for failing to disclose Carter's statement to Graves' defense attorneys.

...

Try for reversal

Nevertheless, Froeschner said a jury would still have found him guilty based on the evidence presented and recommended against granting a new trial. U.S. District Judge Samuel Kent adopted Froeschner's recommendation.

In a rebuttal filed with the court, Greenwood said it was improper for Froeschner to speculate on how the jury might have ruled.

Greenwood will try Tuesday to convince the circuit judges to reverse Kent.

The rules won't permit Greenwood to use any evidence that journalism students have discovered over the last three years, enough to convince them of Graves' innocence.

"We do look at these cases objectively," Casarez said. "But there comes a certain point that the evidence we've collected and seen points to nothing but his innocence."