Disclosure debated at Graves hearing

Burleson County Tribune, p. 1, March 15, 2007

Disclosure debated at Graves hearing

Attorneys for Anthony Graves, convicted of capital murder in the 1992 deaths of six Somerville residents, and newly appointed special prosecutors sparred on Friday in a hotly debated hearing addressing evidence disclosure and bond.

District Judge Reva Towslee Corbett set another hearing for April 13 and is expected to rule by then on Graves' motion regarding whether he should be free or released on bond while awaiting his new trial, and possibly on a trial date and whether the trial should be moved out of Burleson County.

The hearing included sharp exchanges between the attorneys over a myriad of discovery motions that prosecutors believe are over-reaching or over broad. The state is now represented by Patrick Batchelor of Corsicana and Julie Ann Stone, with the Texas Attorney General's Office. District attorney Renee Mueller and assistant district attorney Joan Scroggins were previously recused from the case.

Defense attorneys Jeff Blackburn and David Mullin countered that a full range of evidence is needed to determine if Graves was wrongfully convicted. That includes evidence from the first trial and possible undisclosed evidence not revealed before.

Both sides also addressed the issue of some missing evidence. Defense attorneys say they plan extensive testing of that evidence if found, questioning of as many witnesses as possible and scrutiny of those witnesses, since they later learned that one of the state's original witnesses was under indictment.

Defense attorneys are trying to get Graves released on bond while he awaits a new trial ordered by the 5th Circuit Court of Appeals in March of last year.

A federal magistrate on Jan. 5 set a $50,000 bond on Graves, and his attorneys posted the bond. However, Graves was not freed. He was returned to jail in Burleson County due to a conflicting $1 million bond set on Dec. 20 of last year by Towslee Corbett, an issue bitterly opposed by Graves' attorneys. They believe he should be allowed to post bond while awaiting a new trial.

The 5th Circuit ruled that the state withheld two statements made by co-defendant Robert 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.

Sebesta has maintained that Carter's statements were not credible and that he did not withold pertinent evidence. Sebesta insists that he did notify the defense about Carter changing his story. Sebesta has argued that Carter's statements were not credible because the physical evidnece presented, including multiple weapons used, proves that one person could not have committed the crimes, he said previously.

Graves and Carter were convicted in 1994 in the Aug. 18, 1992 murders of Bobbie Davis, her 16-year-old daughter and four other 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. Carter was executed for his role in the crimes in 2000.

At the Friday hearing, the attorneys differed over a variety of disclosure motions that prosecutors believe are too broad, would put an undue burden on them and force them to reveal their strategies. They also insisted that they had already turned over all evidence that they now have and would turn over anything else found later as required by law.

"Some of this stuff is so broad... They are asking us to do their job of investigating the case," Batchelor said.

But Blackburn and Mullin disagreed, insisting that more evidence was needed, including evidence not used at the first trial, and more witnesses should be questioned and scrutinized.

"We are not asking them to do our work. We can do our work," Blackburn said.

Blackburn said defense has already uncovered many pertinent facts on their own not available through traditional means, indicating that the case has many unanswered questions.

One of those includes the possible role of Cookie Carter, Robert Carter's wife, he said. Cookie Carter was originally indicted, but the indictment was later dropped, he said. Blackburn said he wanted to know why and any further evidence that might indicate her possible involvement.

Defense attorneys also argued for more scrutiny over witness testimony from sheriff's deputies and jailers who testified taht they overheard a conversation over an intercom between Carter and Graves at the Burleson County Jail. They testified that Graves admitted his involvement.

But Blackburn said they learned that one of those witnesses was under indictment.

"That was a concealed fact," Blackburn said. "It was never revealed. We did not make this up. We had to dig it up. It was not given to us."

Stone said the current prosecution team checked available criminal history data bases for that witness, and the indictment never showed up. If it had, they would have disclosed it, she said.

Batchelor agreed.

"I have said 15 times that we have given you everything that we have," he said.

Regarding missing eviidence, Blackburn said there is "lots of physical evidence that is either missing or gone, including the shoes he had on and his clothes."

"These are things we would use for testing, things that go absolutely to the heart of the case," he said.

Batchelor also acknowledged that some evidence was missing, and he was looking for it.

Batchelor and Stone introduced evidence from Graves original bond hearing regarding facts in the case and whether Graves would be a threat to society if released.

Bond was denied at that time, and that was affirmed on appeal in 1993 by the Court of Appeals for the 1st District in Houston, court records show.

At that time, prosecutors cited the overheard conversations on the jail intercom, with the court ruling that prisoners have no reasonable expectation of privacy in such a setting.

The defense's exhibits included Graves jail transaction report, regarding his finances, his resident jail history report, the order from the U.S. District Court in Galveston recommending the $50,000 bond and the May 2000 deposition of Carter where he insists that he acted alone and Graves was not involved.

In the testimony at the Friday hearing, Texas Ranger Ray Coffman testified that Carter had never directly told him that he acted alone and Graves was not involved.

Carter made that statement to Sebesta and to the grand jury, Coffman testified.

In prior testimony from Nov. 30 of last year, Coffman testified that Carter told him Graves was not involved.

When asked if Graves ever refused to cooperate in the investigation, he answered, "not to my knowledge."

Defense attorney Nicole Casarez also testified on Graves prior criminal history, whcih included a conviction on a drug delivery charge and a 10-year shock probation.

Casarez testified that Graves sister would be willing to let him live with her in Pflugerville if he were released on bond, and a Brenham real estate developer had agreed to give him a job.

She also testified that Graves family could put up no more than $5,000 in bond for Graves.

Betty Williams, who once dated Graves, also testified.

When asked by Stone if she ever saw a switchblade knife in the house when Graves lived with her, she testified: "I think so."

However, she testified that she never saw Graves hold or use the knife.

Graves mother Doris Curry also testified that she would be willing to let Graves live with her at her apartment in Brenham. She also testified that she had exhausted her savings to pay for Graves legal fees.

Burleson County Sheriff Dale Stroud testified about Graves conduct at the jail, since being returned there in 2006 and about his jail expenses.

Stroud testified that Graves was mostly compliant in custody, and he found nothing significant in records of disciplinary action or regarding violating rules of conduct.

Stroud said Graves is a security risk for the jail because of the nature of the charge but not because of behavior.

Regarding Graves jail funds, Stroud testified that he was "considerably better off than the normal inmate." Stroud, in part, addressed funds available for telephone cards.