HOUSTON - A former death-row inmate awaiting retrial on a capital murder charge is challenging the judge's gag order in the case, arguing that it prevents him from receiving a fair trial.

The 5th U.S. Circuit Court of Appeals in March threw out Anthony Graves' 1994 capital murder conviction when it found prosecutors withheld two statements that could have swayed jurors during his trial.

"Graves has 12 years of life in prison to show for what happens when the integrity of the criminal justice system fails and rightfully has reason to distrust the criminal justice system," Graves' attorneys said in a court filing.

Burleson County District Court Judge Reva Towslee-Corbett issued the oral gag order in September, prohibiting prosecutors and defense attorneys from commenting on the case.

Graves' attorneys are expected to oppose the imposition of a written version of the gag order at a hearing scheduled for Thursday.

"Graves neither seeks nor wants the court to enter a gag order in this matter and feels that the entry of a gag order will actually cause him to receive a lesser fair trial rather than a more fair trial," his attorneys wrote.

Graves was convicted for the 1992 deaths of Bobbie Joyce Davis, 45; her 16-year-old daughter, Nicole; and four grandchildren between ages 4 and 9. The victims were shot, stabbed and beaten. Their home in Somerville, about 80 miles northwest of Houston, was set on fire to conceal the crime.

Graves' lawyers, Jeff Blackburn and David Mullin of Amarillo and Nicole Casarez of Houston have said they're working for free because they believe Graves is innocent.

Their court filing said they want an open trial to prevent further prosecutorial misconduct.

"Moreover, the public as a whole has a legitimate interest in the integrity of the Burleson County Criminal justice system as well especially in a case involving a retrial," their filing said.

Towslee-Corbett wrote in her proposed gag order that both the prosecution and defense are entitled to a fair trial and cited pretrial publicity in the case.

Lawyers who've worked with First Amendment law said it's unusual for a judge to impose a gag order when the defense opposes it.

"It's not unheard-of, but more often than not, the defense would be supporting or seeking one," said Paul Watler, a Dallas lawyer and former president of the Freedom of Information Foundation of Texas.

Austin attorney David Donaldson said the defense normally benefits the most from dampening publicity.

"In most cases they want to have a gag order because they want the prosecution not to talk about all the bad things the client did," Donaldson said.