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Retrial In Texas Murder Case Opens With A New Understanding Of Arson

Ed Graf, convicted in 1986 of setting a fire that killed his two stepsons, has been granted a new trial. Jury selection began Monday.
LM Otero AP
Ed Graf, convicted in 1986 of setting a fire that killed his two stepsons, has been granted a new trial. Jury selection began Monday.

Graf's ex-wife, Clare Bradburn, pictured here in 2013, still believes that Graf set the fire.
Kim Johnson Flodin AP
Graf's ex-wife, Clare Bradburn, pictured here in 2013, still believes that Graf set the fire.

Ed Graf has spent 25 years in prison in Waco, Texas, convicted of setting a fire in a shed that killed his two stepsons.

But in the years since Graf's trial, much of the forensic evidence used against him has been revealed to be nothing more than junk science.

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That has prompted the state of Texas to take a look old arson convictions dating back to at least 2003. And on Monday, Graf becomes the first person in the state to get a retrial based on new understandings of fire forensics.

Circumstances Seemed To Point To Graf

In the prosecution's portrayal of events, Graf, a banker, thought his two stepsons were coming between him and his wife, Clare Bradburn. She said Graf was too tough on the boys and she had considered leaving him over it.

So Texas prosecutors say Graf made a cold-blooded move to solve that problem permanently.

"So the prosecution's version is that Ed Graf left work early on Aug. 26, 1986," says Dave Mann, editor of the Texas Observer who has spent years following this case. "He picked up his two sons from daycare. He told his wife to stay at work late.

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"They got home about 4:40 in the afternoon," Mann continues. "Ed Graf rendered the boys unconscious, dragged them from the house to this small wood shed in the backyard. He poured gasoline around near the door, closed the door, locked it, went back to the house."

By 4:55 p.m., flames engulfed the shed and burned it to almost nothing in minutes, Mann says.

There was circumstantial evidence presented at the original trial.

"One of the most damning pieces of evidence in the case was the fact that Ed had taken out insurance policies on the boys about a month before the fire," Mann says.

Prosecutors also pointed out that Graf hadn't bought the usual amount of cereal, as if anticipating the boys wouldn't be around to eat it.

Graf's wife was certain he had set the fire.

"Clare testified at the trial," Mann says. "She said, 'He never said one time that he was sorry the boys were dead.' "

There were no eyewitnesses, but prosecutors brought in an expert from the State Fire Marshal's Office, Joseph Porter, who pointed to burn patterns on the shed.

Porter said an "alligator" charring pattern was the result of an intense gasoline fire. The boys had been found dead on their backs, which he said indicated that the boys were unconscious when the fire had started.

The floor had been completely burned through, and Porter said that meant the fire had been set with gasoline.

But "that's a myth," counters Chris Connealy, the current Texas fire marshal. "Fires just normally do that."

A Different Theory

Connealy has a totally different take than Joseph Porter. He says it is now known that these patterns are simply evidence of a phenomenon known as flashover, when most of the combustible material within an area ignites almost simultaneously.

Flashover will cause alligator charring and floors to burn through, he says. And fire victims, he says, are found on their backs all the time.

"It's taken time to get past those myths and biases to educate fire investigators that you have to look for more than just that," Connealy says.

It's Connealy's mission to overhaul fire investigations in Texas. He has formed a science advisory board and beefed up training for his staff. Connealy is collaborating with the Innocence Project of Texas, which works to overturn wrongful convictions.

While the effort has been controversial, Connealy says, "We want to make sure we're doing it right so we don't put the wrong people in jail."

Connealy's office says the cause of the fire in the Graf case is undetermined. Prosecutors will likely argue that doesn't mean it wasn't arson.

But there is new evidence from a fire investigator hired by the defense, Doug Carpenter.

"My opinion in this case, based on the evidence and analysis, is this was an accidental fire," Carpenter says.

Carpenter focused on blood tests taken from the Graf boys. The carbon monoxide levels in Joby and Jason Graf's blood were over 70 percent.

In a hot, burning gasoline fire, the boys would have died from the heat before the carbon monoxide levels in their blood got that high, Carpenter says.

Here's an alternative to the prosecution's theory: What if the fire was an accident, set off on a shelf or underneath an upholstered chair that was in the shed? The boys had a habit of playing with fire, according to testimony in the first trial.

"We can create flashover conditions in smaller compartments within a room," Carpenter says. "We call it a room-within-a-room."

In this scenario, inside that small compartment, the fire went to flashover, and at that point it no longer had enough oxygen to burn efficiently.

"That's when we start producing copious amounts of carbon monoxide that then can incapacitate, but you don't realize that's happening," Carpenter says. "You can survive that about a minute or two."

The two boys were quickly overwhelmed in 1986. In this alternate version of events, the boys were already dead, on their backs, by 4:55 p.m., when the shed was consumed by flames.

Despite the new evidence, there's no guarantee that Graf will be acquitted in the new trial. The judge has put a gag order on attorneys on both sides, so reporters are unable able to talk to prosecutors or their witnesses.

Up until a few months ago, Bradburn was still convinced that her ex-husband killed her children. According to her sister, she still plans to testify.

As with the first trial, the jurors will not be scientific experts. They will ultimately have to decide whom to believe.

Copyright 2014 NPR. To see more, visit http://www.npr.org/.