From the Burleson County Tribune, Nov. 20, 2006
Part 1
Hearing set on Scroggins recusal in Graves case
 
    A 10 a.m. hearing is scheduled for Thursday, Nov. 30, in Caldwell on defense attorneys request to have assistant district attorney Joan Scroggins removed from Anthony Graves' capital murder retrial.
    A myriad of other pre-trial defense motions remain pending, including an objection to a gag order imposed by District Judge Reva Towslee Corbett.  That motion could also be considered at the Thursday hearing or at a later date.
    Graves was convicted of capital murder in the 1992 deaths of six Somerville residents, but the 5th Circuit Court of Appeals ordered a new trial on March 3. 
    Defense attorneys are seeking the motion about Scroggins because she served as an assistant district attorney in 1994 during Graves original trial, and the defense has alleged that prosecutors suppressed a statement by co-defendant Robert Earl Carter saying Graves was not involved in the case.  Also, the prosecution proceeded with its case using Carter's testimony, which the defense believes was false. 
    Then district attorney Charles Sebesta has steadfastly maintained that Carter's statements were not credible, and that he did not withhold pertinent evidence. 
    The 5th Circuit ruled that the state withheld two statements made by Carter that they believed might have changed the jury's mind. 
    But Sebesta said previously that he did notify Graves defense attorney about Carter's statements, even though he did not believe they were credible.  He voluntarily took and passed a polygraph test this year about his statements to Graves defense attorney. 
    The current defense team's motion states that prosecutors erred by not disclosing Carter's statements and that Sebesta and his assistant district attorneys "solicited and used perjured testimony" in Graves trial. 
    "At all relevant times, assistant district attorney Joan Scroggins participated in the prosecution of Graves that the 5th Circuit has now held to be an unconstitutional prosecution," the motion states. 
    The motion states Scroggins should have informed the State Bar of Texas about the prosecution's actions, and she should be disqualified from Graves' second trial because of a conflict of interest. 
    Scroggins cannot comment on the motion because of a gag order instituted by Towslee Corbett that forbids all attorneys and law officers involved from talking to the media. 
    Scroggins could be subpoenaed to testify at the Nov. 30 hearing. 
    District Attorney Renee Mueller said at the hearing that the motion to disqualify Scroggins could also apply to any member of the district attorney's office from 1994, which would also include her. 
    Therefore, Mueller urged Towslee Corbett to address the recusal matter first before considering the other motions. 
    Defense attorneys filed more than 20 motions prior to Friday's hearing, but Towslee Corbett took no action on most of them pending the Nov. 30 pre-trial hearing.
    Towslee Corbett said she hoped to set a trial date after the recusal hearing, either in January or in March. 
    Still to be determined is whether a change of venue will be granted due to pre-trial publicity. 
    Regarding the gag order, defense attorneys said in their motion that it was a prior restraint on free speech and unconstitutional according to the Texas and U. S. Constitutions. 
    Citing U.S. vs. Ford, the court ruled that "such broadly based restrictions on speech in connection with litigation are seldom if ever justified," the motion states. 
    "Trial judges, the government, the lawyers and the public must tolerate robust and at times acrimonious or even silly public debate about litigation.  The courts are public institutions funded with public revenues for the purpose of resolving public disputes, and the right of publicity concerning their operation goes to the heart of their function under our system of civil liberty."  
    The motion also states that Graves "has 12 years of his life in prison to show for what happens when the integrity of the criminal justice system fails and rightfully has a reason to distrust the criminal justice system." 
    '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."
    The motion also said the gag order would harm his ability to receive a fair trial, countering the argument that it ensures a fair trial. 
    Again quoting the Ford case, "to the extent that publicity is a disadvantage for government, the government must tolerate it." 

    "The government is our servant, not our master," the Ford ruling states.