The Contrarian

When Texas Observer staff writer Emily DePrang first met Josh Gravens in early 2012, his life was in shambles.

The 25-year-old husband and father was still suffering for a mistake he had made when he was 12 years old. As Emily would later write in her June 2012 cover story, Life on the List—which yesterday won a national Sigma Delta Chi Award from the Society of Professional Journalists—Josh had sexual contact with his sister when he was 12. “It was never penetrative,” Josh said. “Obviously, it couldn’t have been what they call consensual, but it was playing.”

Emily detailed what happened next: “Josh’s sister told their mother, who was alarmed. She wanted to ensure that, even if Josh’s intentions were only curious, he learned appropriate behavior right away. She called a Christian counseling center near their home in Abilene and described what happened. She was informed that, by law, the center had to report Josh to the police for sexual assault of a child.

“The next day, Josh was arrested and sent into Texas’ juvenile justice system. He wouldn’t get out for three and a half years.”

When he finally did get out, Josh had to register as a sex offender, and his name would appear on the Texas sex offender registry for a decade.

Emily’s story vividly portrays what happens when children are placed on the sex offender list. In Josh’s case, the Texas criminal justice system had treated a kid much like it would treat a serial sex offender. The result is that one incident when he was 12 would continually sabotage his efforts to live a normal life. It followed him through high school and college, where he excelled academically but received death threats when local media did a story on sex offenders. Employers rejected of fired him when they learned his status. When Emily met Josh, he was a married father trying to support his family and start a career.

As Emily wrote, Texas’ sex offender registry had exploded to more than 76,000 names. The huge list makes little distinction between low-level, juvenile offenders like Josh, who a mountain of research shows almost assuredly won’t re-offend, and adult, predatory sex offenders. As Emily reported, the size of the sex offender list is counter-productive, obscuring the truly dangerous sex offenders on a massive list.

This was a difficult subject, one that many reporters wouldn’t have the courage to take on. But Emily did, and she wrote one hell of a story.

When a Texas judge read Emily’s piece, he worked to remove Josh from the sex offender registry. Now, Josh is no longer a registered sex offender. He’s a finalist for a Soros Justice Fellowship to educate lawmakers about the unintended consequences of placing juveniles on public sex offender registries.

I don’t think it’s a stretch to say that Emily’s story helped change Josh’s life. This is impact journalism at its best. And yesterday the Society of Professional Journalists recognized Emily’s work with its Sigma Delta Chi award for Public Service in Magazine Journalism. We hope that the story has raised awareness about the plight of children on the sex offender list. Congratulations to Emily for well-deserved recognition of her work. And we wish Josh luck working to keep other kids from suffering his fate.

Texas’ highest criminal court on Wednesday overturned the arson conviction of Ed Graf who’s served nearly 25 years of a life sentence for a crime he likely didn’t commit.

In a two-page opinion, the Texas Court of Criminal Appeals ruled that the arson evidence used to convict Graf of burning to death his two stepsons in a Waco suburb in August 1986 was flawed. “This false testimony violated [Graf’s] due process rights,” the judges wrote. But while they threw out the original conviction, the judges stopped short of declaring Graf actually innocent. That means he will be sent to the McLennan County jail in late April to wait for county prosecutors to decide if they will seek a new trial or set Graf free. The McLennan County DA’s office released a statement on Wednesday saying it’s still examining the case.

If prosecutors pursue a new trial, they will have to win a conviction without the use of much evidence of arson. Three nationally known fire scientists have examined the Graf case and found no evidence of arson. The prosecutors’ own expert who recently looked at the case also found no indicators of arson.  At a January hearing, fire scientist Doug Carpenter delivered devastating testimony that the fire and toxicology evidence disproved the prosecution’s theory of how Graf set the fire.

Graf was convicted of drugging his 8- and 9-year-old stepsons, dragging them into a shed behind his house in Hewitt, pouring gasoline on the floor, locking the door and setting the shed on fire. The forensic evidence for this scenario has fallen apart. Autopsies found no drugs in the boys’ bodies; there’s no evidence gasoline was poured on the floor, arson experts say the door to the shed must have been open or the fire would have died from lack of oxygen. The other evidence that investigators once thought were indicators of arson has been disproved in the two decades since the fire. As Carpenter testified in January, the high levels of carbon monoxide in the boys’ blood point to an accidental fire, not one intentionally set with gasoline.

The Observer wrote the first in-depth investigation of the Graf case in May 2009, part of a four-part series on flawed arson cases. (Read our original story on Graf’s case here.)

The Graf case is the first Texas arson conviction overturned since the controversy over the execution of Cameron Todd Willingham, put to death in 2004 on similarly flawed arson evidence. The Graf case is also being examined by a panel of fire experts reviewing Texas arson cases in partnership with the Texas Innocence Project. The panel will meet in early April when it’s expected to make recommendations on the Graf case. That may help sway prosecutors’ decision on whether to launch a new trial. They can take as long as they want to make a decision. It could still take months or years to win his release.

So while Wednesday’s ruling was undoubtedly welcome news for Graf and the many other Texans still in prison on faulty arson convictions, his attorney remains cautious.

“It’s good news,” said Walter Reaves, who’s been worked to free Graf for more than five years, “but there’s still a long way to go.”

All of us at The Texas Observer were deeply saddened to learn of the passing of our friend, supporter and benefactor Mary Margaret Farabee from cancer on Sunday morning.

Like so many organizations and nonprofits in Austin, the Observer benefited greatly from Mary Margaret’s generosity, warmth and energy. Married to former state Sen. Ray Farabee, she was a tireless believer in, and supporter of, the kind of truth-telling journalism that’s been the Observer’s trademark for nearly 60 years. Mary Margaret served on the board of the Texas Democracy Foundation, the nonprofit that publishes the Observer. She was instrumental in creating the MOLLY National Journalism Prize in 2006 to honor journalism in the tradition of the late great Molly Ivins. Proceeds from the award and its annual dinner benefit the Observer. Mary Margaret organized the wildly successful MOLLY dinners—along with Texas Democracy Foundation board Chair Susan Longley—that have featured keynote speeches by noted journalists such as Paul Krugman, Gail Collins and Seymour Hersh.

The Observer was just one of the causes Mary Margaret supported. She co-founded the Texas Book Festival, and, as the Austin American-Statesman noted in its obituary, devoted herself to supporting a long list of Austin organizations, including the Paramount Theater, KLRU, the Ann Richards School for Young Women, the Ransom Center, the Junior League, Friends of the Governor’s Mansion and many, many more.

Mary Margaret was also a great friend. Her visits to the Observer office always brightened our day—whether it was words of encouragement, a little gift to let us know she was thinking of us or just her smiling face coming through the door. Her warmth and generosity of spirit were infectious. We will miss her dearly.

A memorial service for Mary Margaret will be held on March 18 at 10:30 a.m. at the Lady Bird Johnson Wildflower Center.

We will be honoring Mary Margaret more in the coming days. But for now, our feelings on this sad day were summed up best by the marquee outside the Paramount Theater on Congress Avenue that read, “Mary Margaret Farabee: One of Austin’s greatest. We love & will miss you.”

Click here to support The Texas Observer in honor of Mary Margaret.

After the horrific shooting at Sandy Hook elementary school in Newtown, Connecticut, the safety of schoolchildren has become a much-discussed topic everywhere, and Texas is no exception. Texas lawmakers’ ideas for protecting kids at school range from the sensible (restricting military-style assault weapons) to the colossally stupid (arming teachers and other school employees). Lt. Gov. David Dewhurst has even suggested the state pay for teachers to take handgun training courses. That’s ironic, given the massive cuts to public education that the Republican-dominated Texas Legislature—Dewhurst included—enacted in 2011 and seems so reluctant to undo. Who knew that the trick to getting schools more state money was teachers taking up arms?

The gun-control debate, at least in Texas, is largely cosmetic. Texas school districts, if they choose to, can already allow teachers to carry guns in the classroom. And hell will freeze over before the Legislature enacts more regulations on firearms, even assault weapons—any new restrictions will have to come from the federal government. The more likely outcome—and the one that concerns us the most—is Texas bulking up its already sizeable number of school cops.

Most Texas schools are patrolled by armed police officers. While they do provide a measure of protection from, say, a mentally ill person armed with an AR-15, the officers principally concern themselves with criminalizing student behavior. In recent years, Texas school cops have doled out alarming numbers of tickets and criminal charges for minor misbehavior such as cursing, disruption of class and, in the case of one 12-year-old in Austin, spraying perfume on herself. Incidents that in years past would land a student in detention or earn a suspension are now resulting in Class C misdemeanor tickets or arrests that send kids to the juvenile justice system.

In 2010, Texas school cops handed out 300,000 Class C misdemeanor tickets to children as young as 6, according to the advocacy group Texas Appleseed. Several recent studies have confirmed that students sent to alternative education programs or the juvenile justice system have an increased chance of dropping out and ending up in prison. Texas Appleseed calls it the “school-to-prison pipeline,” and it’s become a major problem.

Texas has made an industry of criminalizing schoolchildren. While we too fear for the safety of schools, more police officers isn’t the answer. More cops in schools might increase security a bit—but the likely result would be more Texas kids headed to prison.

Photo courtesy The Waco Tribune-Herald

A state district judge in Waco on Thursday recommended a new trial for Ed Graf, who has spent nearly 25 years in prison on an arson conviction that forensic experts now say was based on junk science.

Retired Judge George Allen recommended throwing out Graf’s conviction and convening a new trial after a brief hearing this morning to review the well-documented flaws in the forensic evidence. The case now goes before the Texas Court of Criminal Appeals.

Graf was convicted in 1988 of allegedly starting the fire that killed his 8- and 9-year-old stepsons in the shed behind the family’s home in a Waco suburb. Graf always claimed he was innocent, and the physical evidence seems to confirm that he’s served a quarter century in prison for an arson that never happened.

Thursday’s hearing, held in a first-floor courtroom in the McLennan County courthouse annex, lasted barely five minutes. Graf’s lawyer Walter Reaves and Assistant District Attorney Alex Bell agreed that the physical evidence used to convict Graf in 1988 was flawed. “Were the case tried today, there is no scientific evidence…of arson,” said Reaves, an innocence attorney who’s been working to exonerate Graf for more than five years. (Graf was one of three flawed arson cases the Observer investigated in 2009. Read our original 2009 story on Graf’s conviction here. You can read other stories in our four-part series on debunked arson evidence here.)

Bell wouldn’t concede Graf’s innocence. The prosecutor pointed to the circumstantial evidence that made Graf appear guilty: He took out life insurance policies on the boys just two months before their deaths; he insisted the boys keep the tags on their new clothes and then returned them for a refund after the fire; he hadn’t bought them more cereal like he usually did. (The circumstantial evidence is the reason that Clare Bradburn, Graf’s ex-wife and the mother of the boys, remains convinced of his guilt, as she told the Waco Herald-Tribune last week.)  But Bell agreed the forensic evidence in the case was problematic and that justice demanded a new trial. “We agree a new trial is appropriate in this instance because of the scientific evidence,” the prosecutor told the court.

Three nationally known fire scientists have reviewed the evidence and found no signs of arson. At a hearing on Jan. 11, fire scientist Doug Carpenter eviscerated the physical evidence against Graf, arguing that fire investigators at the time had misread burn patterns and mistaken an accidental fire for an intentionally set one. Carpenter also testified that the carbon monoxide levels in the boys’ blood proves that the fire wasn’t started with gasoline, as the prosecution claimed in 1988. (Gasoline fires don’t produce the high levels of carbon monoxide found in the boys’ blood. Read our dispatch from the Jan.11 hearing here.) If there was no intentionally set fire, then Graf is, by definition, innocent.

Allen wouldn’t go that far, refusing to recommend a finding of actual innocence, as Reaves had hoped, though a recommendation for a new trial is a significant victory.

Still, Graf, who wasn’t present at Thursday’s hearing, has a long way to go before he might be released from prison. The Texas Court of Criminal Appeals—the state’s highest criminal court—will consider Allen’s recommendation and issue a final ruling in the case. Reaves said he was hopeful the Court of Criminal Appeals would free Graf or at the very least grant him a new trial. It seems unlikely there would be another trial. Given the troubling forensic evidence, prosecutors probably couldn’t win another conviction, so if the Court of Criminal Appeals mandates a new trial, then Graf would likely go free. But the Court of Criminal Appeals could take months or years to issue a ruling.

Reaves said he hopes that when the Court of Criminal Appeals does address Graf’s case, it issues a written opinion that would help Texans wrongly convicted of arson win new trials.

Graf’s is the first flawed arson case to go before the Court of Criminal Appeals since the Cameron Todd Willingham controversy. (Willingham was convicted on similarly flawed arson evidence and executed in 2004.) Since the uproar over the blatant mistakes made in the Willingham case, Texas authorities have begun a thorough review of arson convictions in the state. Perhaps dozens of wrongly convicted Texans remain in prison on arson convictions based on evidence that has since been debunked.

“This is the first case that’s made it up through the system,” Reaves said. “It’s very significant.”