Oct. 27, 2006, 11:21PM

Judge's denial of motion stuns Graves' attorneys

Defense says it never requested a hearing for jurist's recusal from the inmate's retrial

CALDWELL — Defense attorneys for a man whose capital murder conviction was overturned were stunned Friday when a visiting judge ruled on a motion they never filed in a hastily called hearing.

The visiting judge refused to recuse the judge presiding over the retrial of Anthony Graves, who spent 12 years on death row before a federal appeals court found prosecutorial misconduct in his first trial.

Burleson District Judge Reva Towslee-Corbett, whose father presided over Graves' 1994 trial, will remain on the case.

"We are shocked and have been unable to prepare anything because we didn't file a motion to recuse," Graves' attorney, Jeff Blackburn, told the court.

Olen Underwood, presiding judge of the Texas Second Administrative Judicial Region, heard no evidence before saying, "I'm going to deny your motion."

Underwood said Towslee-Corbett asked him to convene the hearing after the defense filed a motion asking her if there was any reason she should recuse herself. Underwood sent out a letter Wednesday notifying attorneys of the hearing, giving them only one day to prepare.

Towslee-Corbett's father, Harold Towslee, presided over the 1994 trial in which Graves was convicted of capital murder and sentenced to death for the slaying of a woman and five children in Somerville.

A gag order prevented attorneys from commenting, but Michael Ware, a Fort Worth attorney and board member of the Texas Innocence Project, which has been watching the case, said it was unusual to have a hearing if the defense never asked for one.

"I've never heard of a judge insisting on a recusal hearing before recusal motion is filed," Ware said. "It makes me wonder what else is going on down there."

No gag order ruling

She did not rule on defense motions to lift the gag order and to remove Joan Scroggins, assistant district attorney for Washington and Burleson counties, from the prosecution because she was a member of the 1994 prosecution team.

The prosecution has not yet filed motions in response.

Scroggins should be removed because she is a potential witness and "she has a very strong and personal interest in the outcome of this case. That is, to clear her and her office's name," the defense said.

Scroggins worked under former District Attorney Charles Sebesta, who was taken to task by the U.S. 5th Circuit Court of Appeals when it overturned Graves' conviction earlier this year. The appeals court said Sebesta elicited testimony he knew was false.

Court records show that the defense has subpoenaed as witnesses Scroggins, Sebesta and the lead prosecutor in the retrial, District Attorney Renee Ann Mueller.

harvey.rice@chron.com