SHELLY'S WORLD: Innocence Project Re-trial Frees Child Murderer Ed Graf, Jr.

By Shelly Reuben
Shelly Reuben
Shelly Reuben

Today, I’m going to tell you a story.  It’s a mystery, as good or better than the fictional ones we love to read, and it starts in 1986, when a fire was discovered in the backyard of Claire and Ed Graf’s home in Waco, Texas.  Claire, who already had two children from a previous relationship, married Ed Graf Jr. after a short courtship.  They soon had a son, and named him Edward Graf III.

Before they got married, though, Graf had embezzled over $70,000 from the bank where he worked as Vice President.  He was caught, and in exchange for a no-prosecution deal, he paid back all the money that he stole.  Then he moved on to a new job with State Farm Insurance Company, but he never told Claire about his criminal past.

At the time our story begins, Jason and Joby, Claire’s other sons, were eight and nine years old.  Without telling Claire what he was doing, Graf took out life insurance on both boys.  After calculating in double indemnity benefits for their accidental deaths, these policies amounted to over $154,000 in benefits.  In today’s dollars, that would be around $310,000.

We now have three of our plot elements in place:  One:  A wicked stepfather.  Two: Claire’s sons, Jason and Joby.   Three:  Huge amounts of insurance that Ed surreptitiously had taken out on the boys’ lives.

Since I said “wicked” stepfather, I’m sure you can figure out what the fourth plot element will be.

Waco, Tribune-Herald.   Friday, April 22, 1986.  Ed Graf, 36, “…is charged with two counts of capital murder in the August 26…fire deaths of the two boys Graf adopted after marrying their mother.  The boys’ bodies were found in a storage shed behind their…residence.”

The Hewitt Volunteer Fire Department, which fought the fire, took color photographs of the fire scene.  Then, wanting to spare the family the grief of constantly seeing reminders of the boys’ deaths, they demolished the shed “as a courtesy to Graf’s family.”  However, in destroying the shed, they also destroyed all additional evidence that would have been discovered at the scene.

And that brings us to Graf’s arrest and prosecution.  During trial preparation, the district attorney, believing that he was dealing with an unscrupulous murderer, not only wanted to get a conviction, he also wanted to make sure that none of his investigators could be accused of bias.  So he decided to call in a nationally known, highly respected private arson consultant.  One who had no previous relationship with Waco, Texas.  

That was New York City fire investigator, Charlie King.

Charlie was my husband and my business partner.  In my other life, I am an International Association of Arson Investigators (IAAI) Certified Fire Investigator and a court qualified expert in determining the origin and cause of fires.  I have been president of Charles G. King Associates since Charlie’s death in 2003, and I am good at what I do.  To any and all who knew Charlie King, it would be unnecessary to state his qualifications.  He was the Sherlock Holmes of fire investigation, and he was the best.  But his credentials are important to this story, so I’ll have to mention some here. 

Starting with him having been a fire fighter with the New York City Fire Department, which means that he not only understood the science of how fire burns, he also knew it up close and personal – with smoke in his nose, and eyebrows singed by flames.  Charlie fought fires for 23 years and then switched to the Division of Fire Investigation, first as a fire marshal and then as a supervising fire marshal.  After investigating thousands of fires for over eight years, including the infamous Waldbaum’s fire in which six fire fighters died, he moved to the New Jersey State Commission of Investigation, where he investigated organized crime and corruption.   Two and a half years later, we started Charles G. King Associates.

In light of later attacks on his competence and professionalism, I am going to give you just few credentials from his career after he went private.  I’ll start with some of his publications:

 Charlie wrote the first chapter ever published on Arson Detection & Investigation for The Fire Chief’s Handbook.  Never before had this vital reference objectified and delineated the responsibilities of fire fighters to preserve and protect evidence at a fire scene.  He also wrote Preventing Crimes and Fires in Health Care Facilities, published by Panel Publishers; Detecting Arson for the Aetna Arson Prevention Series, published by the Battelle Institute; and chapters on arson and pathological fire setters for The New Jersey Arson Investigation Prosecutor’s Manual; Charlie was not only on the editorial advisory board of Fire Engineering Magazine he also wrote articles for them on such subjects as: D.O.A. at the Fire Scene; The Archeology of Fire Investigation; Ethics and Arson Investigation; Fire Fighter Response to Terrorist Bombs.  And more.

As a guest speaker, Charlie taught fire and arson investigation throughout the country at organizations including the Middlesex County Fire Academy, the State of New Jersey Division of Criminal Justice, the American Society of Safety Engineers, and the Victor Collimore Institute of Advanced Forensic Skills.

His most famous case was as the cause and origin fire expert for the Philadelphia Special Commission of Investigation on the MOVE fire, in which eleven people died and over 60 houses burned down.  

Those are just a few highlights of his achievements.  Now, to get back to our mystery.  

After prosecutors brought Charlie into the case, he suggested (Strongly!  Firmly!) that they hire James I. Ebert to be their photogrammetrist.  Dr. Ebert’s assignment would be to analyze the pictures taken by the Hewitt Volunteer Fire Department, and using his equipment, skill, experience, and specialized knowledge, to make more readily visible details in those photographs that could not be perceived without enhancement.

Since James Ebert’s professional credentials were attacked in the same manner that were Charlie’s, I will digress to tell you a little about this amazing scientist.   Dr. Ebert has a Ph.D. in anthropology, is a fellow in the American Academy of Forensic Sciences, a Certified Photogrammetrist, and member of the Society for American Archeology and the American Anthropological Association.   As a photogrammetrist, which has the most relevance to the Ed Graf murder case, he has done work for and or/received grants from the National Science Foundation, the National Park Service, and the University of New Mexico/National Aeronautic and Space Administration.  His seven page single-spaced resume also includes work as consultant for the New York State Police Medico Legal Investigations Unit, the U.S. Army’s Central Identification Laboratories, the U.S. Army Corps of Engineers, and the Department of Justice.  And that’s just the tip of the iceberg.  

Dr. Ebert’s offices and laboratory are in Albuquerque, New Mexico, where he does photo interpretation, digital image processing, case preparation, and so on.  

One more thing with regard to credentials, because in a few seconds, you are going to begin to doubt both of the prosecution’s experts on the Graf murder case.  In 2006, Dr. Ebert and I received letters from David J. Icove about a new edition of “Fire Forensic Scene Reconstruction,” a book that he co-authored with John DeHaan.  Icove’s letter requested permission to quote from an article called, “Integrating Archeology and Photogrammetry with Fire Investigation,” written by King and Ebert and published in Fire Engineering. 

In his letter, Icove says:  “John DeHaan and I…would like to cite your work, and possibly the case examples…” Icove’s collaborator, DeHaan, also wrote the latest edition of Kirk’s Fire Investigation, considered to be the most respected book on arson investigation in the field.

I mention this here as another instance of the professional esteem in which King and Ebert were held by their peers.  

Now I’m done with credentials.

During Charlie’s trial testimony and again quoting from the Tribune-Herald, “King…said there is no doubt that the fire was arson and that the children…had nothing to do with it being set.”   Which means that Claire’s boys had not been playing with matches, despite the defense’s allegations to the contrary.

Or, to rephrase that, despite defense efforts to blame the eight and nine-year-old victims.  

Continuing…

 “King, who had studied electronically enhanced photographs of the scene, said both doors of the shed were closed during the fire.  Burn patterns indicate one fire was set near the doorway and another was ignited almost nine feet away near a corner of the shed.”

There are many forensic details about this case that I would love to tell you now, but space limits me to emphasizing just three points:

ONE:   Charlie stated that there was no doubt the fire was arson.

TWO.  Charlie’s conclusions were drawn from his analysis of burn patterns.

THREE.  Charlie was able to come to those conclusions after studying photographs that Jim Ebert – Dr. James I. Ebert, Ph.D. and Certified Photogrammetrist – had provided to him.

Back to our story.  The trial continued.  In his summation to the jury, the prosecutor said, “Even a rattlesnake at least has a rattle to warn its victims so (that they) can take precautions…but not Ed Graf.  He crawls and walks among us with no warning.”

Both of the attorneys rested their case and turned it over to the jury.  The jury deliberated, voted, and agreed upon a verdict:  Ed Graf was guilty of Capital Murder.  

Then the case went into the penalty phase.  Wanting the maximum sentence, the prosecutor said, “The facts of the case cry out for the death penalty.”  This time, though, he did not get his wish.   Graf was sentenced to life imprisonment.  

Claire, mother of the murdered boys, stated, “I feel like all my prayers have been answered.  But it still doesn’t bring my precious little boys back.”

Graf’s defense attorney, however, had a different point of view.  She described the jury’s guilty verdict as “The greatest travesty of justice that this courtroom has ever seen.”  Nor was she the only one who felt that way.  

Now we’re going to fast forward to 2009, when Dr. Ebert started to hear murmurs of dissatisfaction about Ed Graf’s trial, imprisonment, and guilt.  He alerted me to the rumors, and they all turned out to be true.

Enter…The Innocence Project.  And please, when you read “innocence” from this point on, imagine that you are seeing double quotation marks around the word.

The Innocence Project made a lot of noise.  They saddled up, climbed on their horses, and rode to Texas.  The bottom line of their (angry, contemptuous, vociferous) protestations was that Ed Graf, Jr. may have been guilty of a little tiny $70,000 embezzlement; and maybe he was a little tiny bit culpable of taking out life insurance policies Claire’s sons without telling their mother; and maybe he didn’t have the all-time best personality in the world.  But other than that, he deserved a new trial because his conviction was based on…are your ready for this? -– “Junk Science.”

From now on, every time you hear the words “Junk Science” or “Bad Science,” remember that Graf’s defenders want you to see Charles G. King and James I. Ebert, Ph.D. as stupid yokels wearing flannel shirts and investigating fire with divining rods and Ouija boards. 

To quote from articles and reports generated on Graf’s behalf by the Innocence Project:  Dr. Gerald Hurst, their arson expert, called “the Graf case one of the most inept arson investigations he’s ever seen,” and said, “it would be comical…if it hadn’t sent a man to prison.”  He also stated:  “Nearly every piece of forensic evidence that sent Graf to prison for life was seriously flawed…the forensic evidence against Graf was a collection of ‘old wife’s tales’ that researchers have disproved…(and that) no competent fire investigator could take evidence in this case and conclude the fire was intentionally set by Graf.”

David Mann, for a George Soros organization called Open Society, wrote:  “Given the botched forensics in this case (Ed Graf) should never have been convicted.”

Paul Bieber, in article called “How Sloppy Fire Science Sends Innocents to Prison,” stated, “Ed Graf has been in prison for dozens of years for a crime that was never a crime at all.”

Douglas Carpenter, another fire scientist, wrote, “There is no evidence to be able to formulate a valid hypothesis that this is an incendiary fire.”

The Texas State Fire Marshal, accommodating the Innocence Project to a fault (and no doubt wanting to appear “scientific”), changed its classification of the Graf fire from “arson” to “Undetermined.”

And the Chief Counsel for the Innocence Project in Texas said, among other things:  “The criminal justice system is starting to come to terms with the idea that junk science contributes to a number of wrongful convictions…Graf’s case could be the one that finally causes the Texas Court of Criminal Appeals to set a precedent that offers appropriate relief to people ensnarled by bad science…The facts of Ed Graf’s case…show the stark possibilities of the way science can be misused and abused in a courtroom.  The guy shouldn’t have been convicted and deserves a new trial.”

Well, that’s enough for now.  I’m done heaping abuse on our two heroes.  Nor do I have to keep it up, because the Innocence Project won its battle.  In a ruling on Wednesday, March 27, 2013, the Texas Court of Criminal Appeals announced that Edward Graf deserved a new trial because “the scientific testimony used to convict him was false.”

And that brings us to October 6 -– exactly one month ago -– when that re-trial began.  This time, however, Graf was tried only on circumstantial evidence.  Apparently, the prosecution was also convinced that the forensic testimony by their original experts on the case was flawed.

The new trial lasted fifteen days.  Witnesses for both the defense and the prosecution testified, but Ed Graf Jr. did not take the stand.  Finally, on Monday, October 20, the case went to a jury of six men and six women.  They retired to the jury room, began their deliberations, and worked throughout the day.  After ten long, fatiguing hours, they advised the judge that they were deadlocked.

Monday retreated into the shadows, and a new day began.  

Tuesday, October 21.  Court reconvened.  Once again, the jurors retired to deliberate.  They kept at it for another five hours.  

And then something truly remarkable happened.

I found out at 5:00 p.m. New York Time, when Dr. Ebert called me from his laboratory in Albuquerque, New Mexico.

“Shelly,” he said, his voice, deep and troubling.  “I have to tell you something.”

 

“What?”  I gasped.  I was exercising at my gym and surrounded by sweating bodies.  “Make it quick.  I can’t talk now.”

“All right,” Dr. Ebert said.  And then, in just four words, he made it quick.  He said, and I quote, “Ed Graf just confessed.”

I can honestly say that in my entire life, I have never been more shocked, startled, and overjoyed.   I almost dropped my dumbbells on my foot, and all I could say in response, and I kept saying over and over again like a demented parrot, was, “What?  What?  What?  What?”

The Dallas News.  Tuesday, October 21.  12:30 p.m.  “A Waco area man admitted…to setting a backyard fire that killed his two young stepsons a quarter-century ago, bringing a surprising end to a long fight over whether faulty fire science had wrongfully imprisoned him … Ed Graf pleaded guilty to two counts of murder even as a jury in Waco was deliberating during his trial…”

I could go on for hours, but again, space limits me to just three more things:

One:  Several times during the evolution of this case, lawyers for both the defense and prosecution complained that all of the photographic evidence had disappeared.  The evidence they were referring was the pictures from which Charlie King had drawn his conclusions about burn patterns in this fire, i.e., the photographs that Jim Ebert had enhanced.  

I had those photographs all along, and I still have them.  Dr. Ebert and I informed the prosecutors of this fact, offered to meet with them, go over the photos, explain the fire, and also provide them with copies.  But after one brief phone call from the prosecutor’s office, I never heard from them again.

Every burn pattern in every photograph, particularly the burn patterns in the photographs that Dr. Ebert enhanced, corroborate Graf’s confession.  Why didn’t the prosecutors want the photographs?  I don’t know.  Maybe it was just easier to bow to pressure from Innocence Project attorneys than to study and understand the evidence.   

Two:  When I came home from the gym, exhilarated by Graf’s confession, I told a friend that it vindicated Charlie and Dr. Ebert, and cleared them of the ”junk science” shadow that had been cast over their work.  

My friend’s immediate  response was, “That’s great, Shelly.  Are the Innocence Project people going to apologize?”

I laughed cynically.

Right after their attorneys heard Graf’s confession, they announced that they did not see it as a setback.  The chief counsel of the Innocence Project stated, “The most important thing is that we got the science right.”

To which I blinked my eyes in stunned disbelief, and said, “Huh?”

The scientific method, as defined in NFPA 921 – Guide for Fire & Explosion Investigations is: “The systematic pursuit of knowledge involving the recognition and formulation of a problem, the collection of data through observation and experiment, and the formulation and testing of a hypothesis.”

There is nothing new about the scientific method.  Over a hundred years ago, our favorite fictional detective, Sherlock Holmes, was employing it when he exclaimed:  “Always approach a case with an absolutely blank mind.  Form no theories, just simply observe and draw inferences from your observations … it is a capital mistake to theorize before one has data.  Insensibly one begins to twist facts to suit theories, instead of theories to suit facts … Data! Data! Data ... I can't make bricks without clay … I never guess.  It is a shocking habit -- destructive to the logical faculty.”  

Nor is the scientific method “science” in the trace evidence/laboratory analysis sense of the word.  It is a way of thinking that demands respect for facts, consistency, truth and proof.  It goes back to Aristotle and the Greeks, and all good cops, whether they call it “accepted investigative techniques,” gut instinct, or something else, use it when they are working a case. Just as all good investigators, when they can find evidence, send it and/or evidence samples to laboratories and/or experts to confirm or disprove their hypotheses.  

Back in 1985, a good fire investigator did not strap a gas chromatograph on his back and trudge with it through fire scenes.  Nor did a good detective bring a ballistics laboratory with him to a homicide.  Then as now, they bring their brains, their experience, their knowledge … and their knowledge of which other experts can assist them in which other area of expertise.

As Charlie King did when he brought Dr. Ebert and the science of photogrammetry into the Graf investigation during the first trial.  

And that brings us to the last thing I wanted to tell you … and to the end of our story.  Remember earlier, when I said that Claire, the mother of the two murdered boys, had a third child with Ed Graf, and that the boy’s name was Edward Graf III?

Well, after Graf’s first trial and conviction, that child’s name was changed to Jacob.  And during the second trial, immediately after Graf confessed to murdering his two step-sons, Jacob addressed his father in court, and in front of the judge, the jury, his mother, and the entire world, he said, “May God have mercy on your soul, because no one on this earth should.”

So ended the second trial of Ed Graf, Jr.

But not quite.  Because there was another, final and most depressing consequence of that second trial.  

On Wednesday, October 29, exactly seven days ago, having served 28 years of his original 60-year sentence, Ed Graf Jr. was released from prison.

Guilty.  And set free.

Thank you Innocence Project.  Thank you very much.    

                                      * * * 

Shelly Reuben has been nominated for Edgar, Prometheus, and Falcon awards. She is an author, private detective, and fire investigator. For more about her books, visit  HYPERLINK "http://www.shellyreuben.com" \t "_blank" www.shellyreuben.com.

Copyright © Shelly Reuben, 2014

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