CALDWELL — A special prosecutor Wednesday acknowledged that crucial evidence, including the skull caps and clothing of the victims, may never be found for the retrial of former death row inmate Anthony Graves, whose 1994 capital murder conviction was overturned for prosecutorial misconduct.

The acknowledgment by special prosecutor Patrick Batchelor came after Graves' bail was reduced from $1 million to $600,000 and his trial was set for July 10.

Defense attorney David Mullin said the bail was still too high for Graves, who the Texas Innocence Network says is innocent, and that the ruling would be appealed.

Batchelor told Burleson County District Judge Reva Towslee-Corbett that he would produce or account for the lost evidence by May 1, but said, "Because of the change of jails and personnel, we may not have a definitive answer, except to say that they are gone."

A new jail has been built and Sheriff's Department personnel has changed since Graves and Robert Carter were arrested in 1992 for the slaying of a grandmother and five children in Somerville. A gun, knife and hammer were used and the house torched to hide the crime.

Although lab tests failed to connect Graves to the crime, defense attorneys want to use improved technology to retest clothing taken from Graves and the victims. They also want to examine fingerprints that were identified as not belonging to Graves.

Missing items

But prosecutors so far have been unable to find the skull caps, clothing, fingerprints, bullets from the victims, a bloody hammer and a hunting knife found on a Washington County highway. The evidence was available for the 1994 trial.

Mullin, who along with other defense attorneys is working for free because he thinks Graves is innocent, said the only remaining physical evidence held by the prosecution are several photos and six knives used as props in a demonstration by the medical examiner.

Investigators never recovered the knife used in the killings of Bobbie Joyce Davis, 45; her 16-year-old daughter, Nicole; and four grandchildren between 4 and 9 years old.

Mullin said he would ask the judge to dismiss the case if prosecutors fail to produce the evidence.

Testimony concerns

Mullin told the judge that questionable testimony was used to set Graves' bail in 1992 and was being relied on by the special prosecutor in opposing a bail reduction.

Five jail inmates and jailers testified that they overheard Graves admit to the slayings in a jail conversation with Carter, but all of them admitted that they were unable to distinguish between Graves' voice and Carter's, Mullin said.

Carter, whose testimony was crucial in Graves' conviction, recanted several times, including his final statement moments before his execution in 2000 for the slayings. The 5th U.S. Circuit Court of Appeals last year overturned Graves conviction because prosecutors failed to inform the defense that Carter had said Graves was innocent before he testified against him.

harvey.rice@chron.com

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