Oct. 5, 2006, 12:01AM

Judge recommends bail for inmate on death row

Retrial pending for man who has served 12 years

Anthony Graves is close to becoming a free man after spending 12 years on death row following a federal magistrate judge's recommendation Wednesday that he be released on a $50,000 bail.

U.S. Magistrate Judge John Froeschner made the recommendation following a hearing in Galveston where the Texas Attorney General's Office opposed the bail, then suggested it be set at $1 million.

The recommendation will go to U.S. District District Judge Samuel Kent in Galveston.

Jeff Blackburn, one of Graves' attorneys, said district judges usually follow recommendations but are not bound by them.

Blackburn said that if the family is unable to come up with the 10 percent of the bail required to be posted with the court, he and the other two attorneys who are volunteering their time to represent Graves in his retrial on murder charges will make up the difference.

Kent ordered a new trial for Graves after the 5th U.S. Circuit Court of Appeals ruled in March that prosecutors withheld two statements that could have changed the outcome of the 1994 murder trial.

Graves, now 40, and Robert Carter were convicted in separate trials of bludgeoning, stabbing and shooting to death Bobbie Joyce Davis, 45, her 16-year-old daughter, Nicole, and four grandchildren, ages 4 to 9.

Carter, whose testimony convicted Graves, said moments before his execution in 2000 that Graves was innocent.

In the hearing Wednesday, Assistant Attorney General Edward Marshall argued federal courts no longer had authority in the case because the appeals process had run its course in the federal system. Marshall was referring to the U.S. Supreme Court's refusal Monday to hear the state's appeal of the 5th Circuit Court decision.

Froeschner swept aside the objection, saying, "If a federal court issues an order that a man is being held unconstitutionally, it makes no sense that the state can just thumb its nose."

The judge said that even if Kent approves the bail, the state can hold its own bail hearing and jail Graves if they can show evidence that he committed the crime. "In light of the 5th Circuit decision, I don't know that they can prove that," Froeschner said.

Renee Ann Mueller, district attorney for Washington and Burleson counties, would be responsible for seeking a bail hearing in state court. Mueller declined comment because of a gag order by Burleson County District Judge Reva Towslee-Corbett, who is presiding in the retrial.

Assistant Attorney General Kelli Weaver warned that Graves could flee to France, where he has an acquaintance who has visited him in prison 26 times. Graves' attorney David Mullin told the judge that Graves cannot flee the country because he has no passport.

She also said that he had violated terms of a 10-month probation he received on a drug charge before his arrest on murder charges in 1992.

Froeschner also dismissed the state's attempt to impose conditions on the bail.

Marshall said a decision to set bail would end the involvement of the Attorney General's Office in the case. The office normally represents the state only in appeals cases. He told Froeschner his office would not appeal the bail decision.

harvey.rice@chron.com