From Burleson County Tribune, December 7, 2006:
 Part 2
Judge to rule this week on Scroggins' recusal
Gag order remains in Graves' capital murder case
 
    District Judge Reva Towslee Corbett is expected to issue a written ruling by Friday, Dec. 8, on whether assistant district attorney Joan Scroggins must be removed from the Anthony Graves capital murder case.
    Defense attorneys asked for her removal in a Thursday, Nov. 30 hearing, but Towslee issued no immediate ruling, asking for more time to consider some objections raised at the hearing.  She said she would issue the written ruling by Friday.
    Meanwhile, Towslee Corbett also ruled that she was continuing her gag order in the case, citing case law supporting that practice in certain high profile cases.
    Graves was convicted of capital murder in the 1992 deaths of six Somerville residents and sentenced to death.  He and co-defendant Robert Earl Carter, executed for his role in the crimes in 2000, were convicted in 1994 for the Aug. 18, 1992, murders of Bobbie Davis, her 16-year-old daughter and four grandchildren.  They suffered a total of 66 stab wounds.  After the crime, the bodies were doused with gasoline, and the house was set on fire.  Prosecutors believe a gun, a hammer and a knife were used.
    The 5th Circuit Court of Appeals on March 3 ordered a new trial for Graves.  The court ruled that the state withheld two statements by Carter that they believe might have changed the jury's mind.  In one of those statements issued to former district attorney Charles Sebesta the night before he testified, he says he acted alone and Graves was not involved.
    Defense attorneys offered a scathing rebuke of the prosecution of the case at the Nov. 30 hearing.
    Sebesta has consistently maintained that Carter's statements were not credible and that he did not withhold pertinent evidence.  Sebesta insists that he did notify the defense about Carter changing his story.  Sebesta reported previously that he passed a voluntary polygraph test indicating that he did.
    Also, Carter's statements are not credible because the physical evidence presented, indicating multiple weapons used, proves that one person could not have committed the crimes, he said previously.  Therefore, Carter's statements could not be credible, he said.  Sebesta also said prior evidence acknowledged by the state and defense indicated multiple parties were involved.  In addition, the federal court in Galveston ruled that Sebesta had acted properly.
    At the Nov. 30 hearing, defense attorney David Mullin said Scroggins should recuse herself because she was part of the original prosecution team, and the 5th Circuit Court of Appeals ruled that Sebesta erred by not telling defense attorneys about changing his story the night before he was scheduled to testify.
    Mullin said Scroggins should recuse herself to ensure that Graves got a fair trial the second time, to ensure that the prosecution had no "axes to grind."  Mullin said the prosecution's role in the original case is pertinent to this case because the 5th Circuit ruled that Sebesta erred.  Scroggins' axe to grind might be trying to vindicate herself and her boss's role in the original case, Mullin said.
    Mullin said he was not seeking to disqualify Mueller or the entire district attorney's office. Referring to the 5th Circuit's ruling, Mullins cited the "tremendous failure of the system in the first trial."  The legal system is rooted in the need for truth, and Sebesta proceeded with testimony from Carter he knew to be false, Mullin said.
    In closing arguments, Mullin said defense attorneys were "looking for a trial beyond reproach."
    Mullin also argued that Scroggins should have reported Sebesta's actions to the State Bar of Texas.
    District attorney Renee Mueller argued at the Thursday hearing that Scroggins' role in the original case was minimal, and she was not with Sebesta when Carter told him he was changing his story.  Also, without specific prior knowledge, she was under no obligation to report Sebesta to the State Bar, she said.
    Mullin on Thursday called Scroggins, former assistant district attorney Bill Torrey, Texas Ranger Ray Coffman and David Bennett, an expert witness specializing in attorney ethics issues, as witnesses. 
    Scroggins testified that Sebesta may or may not have told her about Carter changing his story.  She had no specific recollection.  The state's position is that her role in the original trial was primarily for voir dire (jury selection) rather than for specific strategy sessions with Sebesta. 
    Scroggins testified that she did not believe that Sebesta had acted unethically in the case and did not report him to the State Bar.  When asked why not, Scroggins said for the same reason no other attorney did. 
    "Did you?" she asked Mullins. 
    Scroggins also testified that she did not produce documents subpoenaed by the defense, citing a section of the Texas Code of Criminal Procedure for discovery. Scroggins testified that she was not required to produce those documents. 
    Mullin later in the hearing criticized the district attorney's office for not maintaining an open file policy. 
    However, Mueller said her office wants an open file policy but first had to determine if the existing prosecution team would be allowed to try the case.  If not, she wanted to respect what the newly appointed prosecutor wanted released, she said. If the district attorney's office is allowed to proceed, she plans to maintain an open file policy. 
    In Ranger Coffman's testimony, he testified that he was aware of a polygraph examination given to Carter the night before he testified but he was not present at the examination. 
    The defense, in the motion filed with the court, cites the 5th Circuit ruling which says Sebesta allowed Coffman to testify without Coffman knowing about Carter changing his story. 
    However, Coffman also testified that he did not believe Carter's story about acting alone.  Coffman also testified that Carter's story had changed several times from the time of the crime until the trial. 
    Robert S. Bennett, a Houston attorney and expert witness who specializes in attorney ethics, also testified. 
    Bennett said what happened was a "gross violation of justice and a gross violation of Mr. Graves' rights" and was the most "outrageous" behavior he had seen in 30 years of experience. 
    Bennett also testified that he believed that prosecuting attorneys routinely work closely on cases and share information.  Even if Scroggins had no absolute knowledge regarding Carter changing his story, she knew something but "didn't want to upset the apple cart with her boss." 
    Bennett testified that Scroggins should recuse herself from the case. 
    However, on cross examination from Mueller, Bennett testified that he did not know Sebesta or how the prosecution handled its cases in Burleson and Washington counties.  Mueller argued that Bennett was making a generalized comment about how prosecution teams routinely work together, but that was not proof of how things were done locally.  Mueller, in closing arguments, also said Bennett had served as a prosecutor for only about three and a half to five years. 
    Former assistant district attorney Bill Torrey also testified. 
    Torrey testified that he was aware of a polygraph given to Carter the night before he testified, but he was not present for the polygraph examination.  Also, he knew there was some problem with Carter but was not aware of the specifics at that time, he testified.  Torrey testified that Sebesta routinely worked with his own witnesses, and he worked with his specific witnesses. 
    Torrey, like Scroggins, testified that he did not believe that Sebesta had acted unethically. 
    Though Sebesta was sworn as a witness, he was never called to testify.  He remained in the hallway throughout the hearing and was not allowed to share his side of the story. 
      In closing arguments, Mueller said the state also wants a trial above reproach and that seeks truth, but defense attorneys should "not get to decide who prosecutes a case."
    Mueller said Scroggins was not present at the polygraph examination, and there is no evidence that she wants to vindicate her boss.
    Regarding the gag order, Towslee Corbett cited case law that had gone to the U.S. Supreme Court and a case before the 5th Circuit that indicated it was valid in this case.
    Towslee Corbett referred to the gag order as "restrictive and protective order" and told defense attorney Jeff Blackburn that the order does not completely forbid communication between attorneys and the press.  Some communication may occur under the guidelines expressed in her written order, she said.  However, specific, substantive comments about case evidence or testimony is not allowed, according to the written ruling.
    The order also establishes security areas in the courthouse and specifies that no interviews be conducted there, according to her order.