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Wendy Davis speaking
Patrick Michels
Wendy Davis speaks at her gubernatorial campaign announcement October 3 in Haltom City.

If Wendy Davis and the rest of the Democratic slate of statewide candidates have any chance of defying the polls, or even doing better than the disastrous (for Dems) year of 2010, they’ll probably need a large number of voters to turn out to the polls. We’ve written this story many, many times: The Achilles’ heel for Texas Democrats is that their voters don’t show up. Texas has some of the worst voter turnout numbers in the nation and that abounds perpetually to the Republicans’ advantage. This election cycle was supposed to start changing that. A year and a half ago, Battleground Texas—the hyped Obama-style grassroots machine—came here promising to launch a multi-year effort at rebuilding the Democratic apparatus largely by expanding the electorate and deepening engagement with neglected communities and constituencies, especially with Latinos.

Well, we’re more than a week into early voting. How are Davis and Battleground Texas doing? It’s probably still too early to reach any definitive conclusions but the tentative answer so far is that turnout does not look all that different from 2010, the last mid-term election and a horrible year for Texas Democrats, when Bill White lost by 13 points to Rick Perry and Republicans won so many seats that they secured a super-majority in the Texas House.

The total number of people voting early barely tops 2010. Despite a bump in registered voters and significant population growth, only about 16,000 more people have voted in the first nine days of early voting this year compared to the last mid-term in 2010.

Voter turnout in Texas, 2006-2014
Stefan Haag
Voter turnout in Texas, 2006-2014

The conventional wisdom is that’s bad for Democrats, though the Davis campaign says there’s reason for “cautious optimism.”

“Of course higher turnout is generally better,” said Jeff Rotkoff, a Democratic operative who advises Steve and Amber Mostyn, the Houston couple who are among the biggest donors to Texas Democrats. “But counties don’t vote. People do. In Harris County we’re not focused on the overall percentage turnout, but rather on who is voting. And that while it looks like Republicans carried the first week of early voting in person, that we carried the weekend and Monday.”

Battleground Texas says its volunteers knocked on the doors of 300,000 people over the weekend alone. “We’re encouraged by the support we’ve seen to date, and we expect our voters to increasingly make their voices heard at the ballot box as they continue to hear from our 33,000 grassroots supporters on the phones and at the doors,” said Jenn Brown, executive director for Battleground.

In Texas’ 15 most populous counties, voter turnout (the percentage of registered voters making it to the polls) so far is actually down by almost 6 percent, compared to 2010. And that gap has been growing with every day. A number of big urban counties are posting anemic numbers: Dallas, Bexar, Travis and El Paso all have lower voter turnout than four years ago. Perhaps most ominously, 5,000 to 8,000 fewer voters are showing up to the polls every day in Harris County, the state’s biggest county and a natural target for progressives looking to establish an anchor for statewide candidates.

In 2010, 13.5 percent of registered voters had cast a vote at this point; this year, it’s about 12.7 percent. Democrats are quick to point out that the number of registered voters has increased, but even by raw vote totals Harris County, which is now 70 percent minority, is in a sad way. In 2010, a little under 295,000 people had voted in the first eight days of early voting; in 2014, it’s dropped 15 percent, to 252,000.

Democrats say just focusing on turnout is simplistic. “In Harris County we’re not focused on the overall percentage turnout, but rather on who is voting,” Rotkoff said.

Battleground Texas says its internal analysis shows that the electorate consists of more Democratic-leaning voters. Through Monday, African-Americans made up .8 percent more of the early vote electorate compared to 2010. Hispanics made up 2.2 percent more.

Meanwhile, there are major parts of the state where voter turnout is looking good: Tarrant (Fort Worth), Collin, Denton and Hidalgo (Rio Grande Valley) are all posting double-digit gains, which may have a lot to do with local dynamics. In Fort Worth, the only truly competitive state Senate seat—Wendy Davis’ district—is up for grabs. Denton voters are deciding whether to ban fracking. And Hidalgo County voters are considering a hospital district. Collin County, which has seen a 22 percent increase in the number of voters, is one of the most hardcore suburban GOP counties in the state. On the other hand, turnout is down in the heavily GOP suburban counties of Williamson and Montgomery.

“The data isn’t 100 percent clear, but it is clear that turnout seems to be lagging,” said Karl-Thomas Musselman, an Austin-based Democratic political consultant, “and I think it’s helping Rs more than Ds.”

There are three more days of early voting left, including today, as well as Election Day. Perhaps turnout could surge. Perhaps the GOTV efforts we’ve heard so much about are paying dividends that are hard to discern in the public data. But at this point, statewide Democrats will probably need a turnout miracle to keep the dream alive.

Wendy Davis speaks to students at the University of Texas at Austin, October 27, 2014.
Christopher Hooks
Wendy Davis speaks to students at the University of Texas at Austin, October 27, 2014.

On the campus of the University of Texas at Austin today, Democratic gubernatorial candidate Wendy Davis urged a packed room of students to vote and to help her campaign turn out voters. The rally comes as spotty turnout numbers during the first week of early voting have called into question Democrats’ ability to turn out enough voters to make an impact on Election Day, only a week away.

At the rally, Davis told students that her opponent, Greg Abbott, would “shortchange the future of the state.” Davis ran through her campaign’s core arguments—Abbott only cared about his “insider buddies,” and hadn’t used his office to protect the state’s citizens. She highlighted Abbott’s defense of school funding cuts, and told the crowd she would try to win an increase in the minimum wage, increased access to health care, and equal pay laws for women.

“I know very much who I am. I know very much where I come from. It is deeply embedded in me,” she told the crowd. “I am a fighter for people.”

With Davis’ campaign behind in most polls, Democrats have to turn out a large number of unlikely voters to make an impact this cycle. But turnout in the first week of early voting has been low. Davis and other Democrats are traveling the state, hoping to excite their core constituencies.

At Monday’s rally, Davis predicted that young voters would “lift us across the finish line.” She told the young crowd that her campaign “need[s] your help in this next eight days. I need you to make sure that no one stays home. I need you to talk to your friends about the fact that not voting is voting to keep the status quo.”

Afterward, Davis told members of the press that her campaign was in a “place of momentum,” and boasted of her campaign’s “32,000 volunteers.” She blasted recent polls, including one from the Texas Tribune that gave Abbott a 16 point lead, as “internet polls” that were “wildly inaccurate” and didn’t reflect the true state of the race. “The real poll is taking place right now,” she said. “The momentum is going to continue through this week of early voting.”

When a reporter pointed out that turnout has been flat so far—the state’s major population centers have seen fewer voters take advantage of the first week of early voting than in 2010—Davis said the campaign had evidence that “our voters are increasing. And they’re a greater percentage of the overall vote.”

When another reporter pressed her for the source of that belief, Davis said the campaign’s models and data operation showed a more Democratic-favorable electorate coming to the polls. “We’re very encouraged by what we’re seeing in those numbers,” she said. “More people who are inclined to vote for me are showing up and voting.”

She continued to hit Abbott hard on ethics, as she has for much of the campaign. On Abbott’s mishandling of materials relating to the Texas Enterprise Fund, she told a reporter that Abbott “has shown himself to be a dishonest person,” she said, adding that she would fight for “accountability” in office.

Photo illustration of a communist Texas barn.
Original photo by Stuart Seeger/Flickr
A Communist stronghold somewhere in Falls County.

I don’t know about you but I’m already terrified of the next crisis. I don’t know what it is, but it’s probably going to be really, really scary—like, scarier than the current crisis. Which is Ebola, right? Or is it ISIS coming across the border bearing Urdu dictionaries, prayer rugs/soccer jerseys and, let’s say, also Ebola? Or is it:

Or are we still terrified of those leprous illegals from Central America who came here to steal jobs/spread disease? I haven’t heard much about those kids (who aren’t really kids) lately so that probably means they’re up to no good and Obama is covering it up. The point is: Be scared. Be afraid. See you at the polls.

1) First of all: communists. We all know they’re out there… biding their time till they can get into the Texas House of Representatives and join forces with Speaker Joe Straus. Democrat, Republican, doesn’t matter. Communism is on the march, no more so than in House District 149, an ethnically diverse slice of suburban Houston currently represented by Democrat Hubert Vo, whose communist leanings include owning dilapidated apartment complexes with “leaky ceiling, rats and high energy bills.”

His opponent, Republican businessman Al Hoang, according to Vo supporters, might also be a communist. And communists do what communists do: Grab the nearest boxcutter.

The rough-and-tumble campaign for state representative in District 149 escalated as police arrested a campaign supporter for Republican candidate Al Hoang for allegedly threatening his opponent’s supporter with a boxcutter.

On Monday afternoon, a Hoang campaign volunteer, Peter Vo, reportedly brandished a boxcutter at an early voting location and cut through a banner that called Hoang a Communist. That’s quite the insult in this southwest Houston district, which is slightly under 20 percent Vietnamese. The campaigns have accused each other of not being sufficiently anti-Communist.

2) Also scaring the tar out of us this week every week: What else? Muslims. Jeffrey Swindoll is a young man who attends Baylor University and covers sports for the Baylor Lariat. He doesn’t like “politically correct” because it isn’t “always right.” It’s not right, he writes, for everyone to go around “defending Islam” by pointing out that the vast majority of Muslims are not violent jihadists. Swindoll is taking the fight to political correctness with an arsenal of mixed metaphors:

There are a lot of problems with the national discussion about the terrorist group known as the Islamic State (also referred to as ISIS or ISIL), terrorism, and Islam as a whole. The majority of those problems come from non-Muslims that are bending over backwards to defend Islam without a leg to stand on.

Which sounds like one hell of a yoga move.

Unfortunately, Obama isn’t interested in addressing the reality of Islam. He’s more interested in making the American worldview a liberal pipe dream. Liberals are using one hand to throw Christianity out of the window while using the other hand to pull out the chair for Islam to sit at the head of the table. It doesn’t make sense, but that’s exactly what they’re doing.

Guess who’s coming to dinner? Islam, that’s who. Liberals, they’ve only got good manners when terrorists are guests. It doesn’t make sense.

Swindoll cites several verses from the Quran to prove, definitively, that Muslims are violent extremists and complains that followers of Islam have a “literal” interpretation of their holy book. Meanwhile, at Baylor, professors must be Christian (or Jewish!) and students are expected to share the “conviction that truth has its ultimate source in God and by a Baptist heritage…” But, hey, God picked a hell of a football team.

When the voice of tolerance and reason is Ken Starr, perhaps you’ve gone too far.

3) This week, we also quivered (in a non-sexual kind of way) at the thought of Gays in the Military, led by (shocker!) Louie Gohmert. The East Texas statesman was on the radio this week glitter-bombing us with his wisdom:

“I’ve had people say, ‘Hey, you know, there’s nothing wrong with gays in the military. Look at the Greeks,'” he said. “Well, you know, they did have people come along who they loved that was the same sex and would give them massages before they went into battle. But you know what, it’s a different kind of fighting, it’s a different kind of war and if you’re sitting around getting massages all day ready to go into a big, planned battle, then you’re not going to last very long.”

You’re not going to last very long when you’re getting a gay back massage. OK, Louie. Time to set the “Days Since Louie Has Said Something Hilarious” sign back to zero.

4) We were also frightened by juries of our peers this week. Here’s proof that there’s merit to the old tough-guy boast “I’d rather be carried by six than judged by 12”: The jury in the re-trial of Ed Graf, a Waco man who spent the last 25 years in prison based on faulty arson science, had a little trouble with the notion of “unanimous”:

5) Most apocalyptic of all though was the revelation of the true face of evil this week. Few people probably remember it, but one of the weirdest and distressingly stupidest moments of the lieutenant governor primary was the sudden emergence of cat GIFs and BuzzFeed-style political ads.

DewFeed

Well, now we have an extensive profile in Bloomberg about the man who introduced Dan Patrick to the Internet Culture. His name is Vincent Harris and he’s a 20-something Austin millennial religious fundamentalist who listens to Lana Del Rey in his BMW while doing 95 on the toll road, man, and is totally on a Paleo diet. #YOLO. He’s getting rich making Ted Cruz and Mitch McConnell cool for the Yo set. He’s explaining BuzzFeed to Dan Patrick.

In August 2013, trying to build support for Texas State Senator Dan Patrick as Patrick aimed to knock off David Dewhurst, still the lieutenant governor, in the GOP primary, Harris conjured up the idea of a BuzzFeed spoof that used the Internet’s most popular animal diversions to castigate Dewhurst for not stopping State Senator Wendy Davis’ legendary filibuster against an anti-abortion measure. Patrick, who was initially nervous about whether such an approach would diminish him, was persuaded by Harris to take a gamble that ended up drawing copious press coverage and more than doubled his social media following.

“When he laid that out last August, I didn’t know what BuzzFeed was, I didn’t know what a gif was,” says Patrick, 64. “DewFeed was one of many things we did over the last 14 months. It wasn’t a game changer. It didn’t decide the election. Did it help? I think so. It’s hard to know.”

Dan Patrick, talk-radio show guy who once had a vasectomy performed on the air and was filmed shirtless while Houston Oilers cheerleaders painted him in blue, thought maybe it was maybe going too far. LOL. OMG. What’s next? Patrick’s plan to hike the sales tax explained with a Buzzfeed quiz? Patrick’s latest tete-a-tete with God over legislation disseminated via Snapchat?

And Harris isn’t done. He’s got a whole generation of bright minds working at his downtown office using their talents to turn complex geopolitical machinations and weighty electoral choices into trivial memes:

In one corner, a young woman ponders how to turn a remark over the weekend by Iranian president Hassan Rouhani in support of Hamas and Hezbollah into a gif that will help drive traffic to an advocacy group’s Facebook page. Nearby, a co-worker puts the finishing touches on a classic Concentration-style game in which each matching pair of cards offers a way Alison Lundergan Grimes agrees with President Obama.

When fascism comes to America it will be wearing a smiley emoji.

Leticia Van de Putte addresses a crowd of students at the University of Texas-Pan American
Christopher Hooks
Leticia Van de Putte addresses a crowd of students at the University of Texas-Pan American, October 23, 2014.

At a campaign event in Edinburg on Thursday, Democratic nominee for lieutenant governor Leticia Van de Putte—with a little help from actress Eva Longoria—made a strong and pointed pitch to a cohort that will be an important factor in whether Democrats put up a strong showing on Nov. 4: young voters of the Rio Grande Valley.

For decades, predominantly Hispanic communities in South Texas have had some of the lowest voter participation rates in the country, and hopes for a Democratic revival in the state are premised partially on raising those rates. On the campus of the University of Texas–Pan American, Van de Putte, along with a number of other speakers, made a multi-pronged argument for the Democratic ticket.

There was the positive case: More civic engagement would help the Valley—the area needed good government to keep growing, and Van de Putte told the crowd of mostly students that she would convince the Legislature to spend more on education and infrastructure.

But Van de Putte also hit her opponent Dan Patrick directly. At a rally the night before in San Antonio, Van de Putte’s mother had been in attendance. “My mom always told me, ‘Leticia, if you can’t say anything nice about somebody, then don’t say anything at all,’” Van de Putte told the Edinburg crowd. “But my mom’s not here.”

Patrick, Van de Putte said, stood for the “past.” He had voted for and supported cuts to education funding, and his rhetoric on the border represented policy preferences that were a threat to the future and stability of South Texas. When Van de Putte told the crowd that one of Patrick’s first acts in office would be to end in-state tuition for undocumented migrants, there was a round of boos from the students. UTPA has a significant number of undocumented students.

Afterwards, Van de Putte spoke to local media and again criticized Patrick’s attitude toward the region. Patrick had ”only been here one or two times,” she said, to “take a picture of him in a gunboat. He understands that to get votes in his primary, he has to insult our families, our culture.”

Earlier this year, Democrats were excited about the prospect of running against Dan Patrick, whose extraordinarily strange and alienating rhetoric during his GOP primary run seemed to present the possibility of being too far-right even for Texas. So far, that hope hasn’t seemed to materialize—most recent polls have Patrick considerably ahead of Van de Putte, doing even better, relatively, than Greg Abbott in his race. But Democrats still hope Patrick excites Hispanic turnout and alienates some number of moderate Republicans.

There was another warning for the students on Thursday. Eva Longoria and Henry R. Muñoz III, co-founders of the Texas-focused Latino Victory, both told students at the rally that “’they’ don’t want you to vote.” Republicans like Patrick were counting on young and Hispanic voters to stay home. “They” might talk about inclusion, and in the importance of voter participation, but they didn’t really care. It served as an implicit criticism of Patrick as well as Abbott, who has been campaigning in the Rio Grande Valley in an effort to bolster the GOP’s Hispanic vote share.

Afterwards, Van de Putte and Longoria worked a ropeline together, and the campaign headed for Corpus Christi, where Abbott had been campaigning with Chuck Norris just the day before. If you needed yet another way to distinguish between the Democratic and Republican tickets this November, there you have it: It’s the Chuck Norris slate vs. the Eva Longoria slate.

A hydroponic garden growing medical marijuana.
A hydroponic garden growing medical marijuana.

If you’re going to host a conference at which entrepreneurs pitch marijuana-based products and services, you should definitely make sure your projection equipment is working. Otherwise, the young man describing his fast-acting, long-lasting, zero-calorie cannabis drink will lose legitimacy with every frustrated shake of the slide clicker. That would be true of any conference, but it’s especially pertinent at an event where everyone is acutely aware of the need not to seem stoned.

Fortunately, the Marijuana Investment Conference, held at the swank West Houston Westin Hotel in early October, had legitimacy to spare. About 20 presenters took 10 minutes each to describe their businesses to investors who’d paid $1,000 to attend. Ideas were divided into “touching the plant” and “not touching the plant,” with most business plans involving significant distance from the ganja itself. One young man (young men were abundant) introduced MassRoots, his “social network for the cannabis community” that already has 170,000 users, emphasizing its potential for harvesting profitable data. (It’s not paranoia if they’re really spying on you.) Another pitched an app that would let smokers order weed with the press of a button. Still others offered products meant for growers—greenhouse kits, lighting, fertilizer—or consulting services, promising to use insider knowledge of the industry to vet other investment opportunities as they arise. Obviously, these products are meant to be sold where marijuana is legal, but investors were urged to anticipate the eventual opening of market after market, state by state, at which point getting a financial foothold will be much harder.

The conference was originally scheduled for September but was postponed when its founder, Stuart Maudlin, a Houston entrepreneur who became interested in medical marijuana after being diagnosed with throat cancer, took a turn for the worse. Maudlin died before he could see his dream take place, and his protégé, Gold Darr Hood, a senior analyst at Codexx Capital, took over. Hood says Houston might seem like a strange fit for the conference, at least compared with liberal Austin, but it’s not. Investors here are used to the oil and biomedical industries, which are high-risk and take years to realize a return. But the legal marijuana industry is growing so fast, she says, “You can get a full return on capital in a year. … People are willing to accept a higher degree of risk on the regulatory front if they’re going to be able to have such expectations on capital and such very high returns.”

Houston is also home to the Baker Institute at Rice University, which has extensively researched marijuana policy, and to several pro-pot organizations including Republicans Against Marijuana Prohibition. And in October, the Harris County District Attorney’s office started a new program of offering first-time nonviolent offenders caught with small amounts of weed a choice between community service and an eight-hour class, rather than jail. If the program is completed, the charge will be scrubbed.

Those steps toward legalization, tiny though they may seem, had Houston’s investors, well, buzzing.

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Ebola tweet
The satire Ebola tweet that landed Twitter user @colin_dime in hot water.

Is a silly Photoshop prank the equivalent of yelling “Fire!” in a crowded theater?

The Frisco Police Department seemed to think so when officers took a high school jokester into custody in early October.

The student’s crime? Trolling his fellow Friscoans for their gullibility, playing on their willingness to believe hyperbolic news reports generated by a 24-hour news cycle ravenous for speculation about Ebola’s recent arrival in nearby Dallas.

Punctuating an Oct. 1 tweet with just the right amount of bawling emoji, the student—whose name has not been released—posted a pretty good imitation of a Fox News screenshot broadcasting the sort of Ebola story that readers might fear to find splashed across the Dallas-Fort Worth affiliate’s website: “6 New Cases of Ebola Discovered Within Dallas Fort Worth Area, Specifically Frisco ISD.”

Even a cursory perusal of the student’s Twitter timeline would lead a thinking person to conclude that he was goofing, but that didn’t stop the image from spreading, and in what appears to have been a matter of hours the affluent exurb was all afroth.

Parents kept their kids home from school. The district issued a soothing email: “… there is currently no reason to believe that the situation [in Dallas] presents a health concern to Frisco ISD students or staff members.”

Police took the teenager into custody for making a “false alarm or report.” Law enforcement authorities tell me he was later transferred to the Collin County Juvenile Detention Center, and that as of mid-October the case was “still under investigation.”

Juvenile incarceration. Over a fake news story attributed to an “AP Medical Scriber.”

Give the kid credit—imitating the local Fox affiliate was a brilliant move. Average Joes and Janes will find the “source” just reputable enough to not immediately dismiss the “news” as a hoax, and “Obola”-fearing Fox loyalists will treat it as the word of God Hisownself.

In the tweet accompanying the photo, the student perfectly captured the fear and confusion that’s run beneath the surface of news reports since the Ebola diagnosis of a Liberian man in Dallas was announced Sept. 30.

“… [O]ut of everywhere in the USA [Ebola] is at my EXACT HIGH SCHOOL.” This followed an earlier panic-belying chastisement that “Y’all know its [sic] not an airborne disease? You’d have to share body fluids to get it.”

That nugget—that Ebola is actually pretty difficult to contract and spread—has been notably missing from a great deal of the mainstream coverage so far, despite the fact that it’s arguably the most important information for reporters to relay to a jumpy public clearly ready to believe, and overreact to, just about anything.

The Dallas Morning News showed how CareFlite crews disinfect their helicopters. Television news broadcast a seemingly perpetual reel of hazmat-suited cleaners filing in and out of the Dallas apartment where patient Thomas Eric Duncan—who succumbed to the disease Oct. 8—stayed before his hospital admission. A WFAA-TV phone interview with Duncan’s wife used a spooky silhouette as a stand-in for the interviewee.

But this Frisco kid is thrown in the clink for pulling off a pretty solid Photoshop job? Even as the perpetrators of far more insidious Ebola-related fictions remain free to engage in racist right-wing agitation over what they claim is a very real possibility of the disease infiltrating the Texas-Mexico border?

Two days after the Frisco teen was taken into custody, Fox News Latino printed the headline “Border Patrol on alert after 71 people from hard-hit Ebola countries illegally enter U.S. this year,” building on Rand Paul-fueled fears of a “whole ship full” of American soldiers returning from Africa teeming with the virus. A week after the Frisco Fox hoax, Breitbart Texas didn’t hesitate to imply that the National Institute of Health’s infectious disease czar, Dr. Anthony Fauci, was either stupid or a liar when he called the Ebola-infiltration claims of Paul and others “far-fetched.”

These are real lies being spread by people with far more influence than a suburban Texas high schooler. This is real fearmongering, and it’s given morbidly gleeful credibility by people who get paid by the byline.

I don’t mean to suggest that we should imprison journalists, hucksters or hypesters. Freedom of speech and all that. But no more should the police be jailing a kid who used a computer to create a mirror that reflects our terrified faces right back at us.

Apparently it’s only OK to scare the shit out of people if that’s your main line of business.

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Ed Graf in 1988.
Waco Tribune-Herald
Ed Graf at his 1988 trial.

Update: Ed Graf struck a plea deal on Tuesday afternoon, taking the verdict out of the jury’s hands while it was still deliberating. Graf pleaded guilty to two counts of murder and received a 60-year sentence.

It was stunning to hear Graf admit guilt. He did so to maintain his eligibility for parole. Under the plea deal, Graf will be credited for the 25 years he served in prison, including his time for good behavior.

That means Graf will likely be paroled from prison in just a few months under a mandatory release policy that was in place at the time of his offense. Graf feared a guilty verdict that might have denied him a chance for parole or a hung jury that would leave him in county jail for perhaps a year or more awaiting a new trial. Instead, he agreed to plead guilty knowing he would be paroled in a few months. I’ll have a full story on the bizarre conclusion to the Graf case posted soon.

 

Original post: Ed Graf’s fate now lies with a Waco jury.

Testimony in Graf’s controversial re-trial concluded on Friday, and attorneys presented their closing arguments this morning. The six men and six women of the jury will now decide if they believe that Graf murdered his 8- and 9-year-old stepsons by starting a 1986 fire in a shed behind his house; or if Graf was wrongly convicted and spent decades in prison for what was actually an accidental fire.

Graf was originally convicted in 1988 and spent 25 years in prison. His conviction was overturned last year after advancements in the field of fire science disproved the physical evidence that convicted him. Yet McLennan County prosecutors chose to re-try him. (You can read the Observer’s 2009 investigation of Graf’s case here, our piece about the flaws in the evidence here, and my dispatches from earlier in the trial here and here.) Graf’s is the first case to reach re-trial since Texas began reviewing flawed arson cases following the Cameron Todd Willingham controversy.

As I noted at the beginning of the trial, prosecutors faced a difficult mission, trying to convict Graf with largely circumstantial evidence. Prosecutors couldn’t use any of the discredited arson evidence from the original trial. In fact, most of the physical evidence—analyzed using modern techniques and a modern understanding of fire—points to an accidental fire.

Science may not have been on their side, but prosecutors put on quite a case. They dredged up much of the circumstantial evidence from the first trial, the most damaging of which was the $50,000 insurance policy Graf took out on the boys the month before the fire, and a comment Graf allegedly made to a co-worker that his marriage would be better without the boys. The defense countered that the insurance coverage was a universal policy that’s commonly used as a good investment for kids and that Graf’s remark was simply an innocent complaint about his home life.

But the most stunning testimony came from a jailhouse informant.

Fernando Herrera, an inmate at the McLennan County jail who said he got to know Graf over the past few months, was likely the most controversial of the more than 30 prosecution witnesses. Herrera testified, as Tommy Witherspoon, the Waco Tribune-Herald’s long-time courthouse correspondent reported, that Graf confessed the crime to him in detail. He testified that Graf admitted to burning the children alive for the insurance money. Graf admitted, according to Herrera, that he had been struggling financially. Graf’s supposed confession went into surprising detail, including how he used ropes to tie the boys up and how he requested one casket at the funeral. He also supposedly told Herrera in jail that he had locked the boys in the shed, then opened the door just before neighbors saw what he was doing.

(Whether the door was open or closed is a key point. The door only locked from the outside, and Graf was the only adult in the house. So if the door was closed and locked, that would point toward Graf’s guilt. But witness testimony is mixed—some firefighters swear the door was closed and neighbors  swear the door was open. The fire scientists say the door had to be open or the fire would have died out from lack of oxygen.)

Herrera’s supposed confession just happens to match much of the prosecution’s theory of the case. In Herrera’s version, Graf locked the boys in the shed, then opened the door just in time to supply the fire with needed oxygen.

Defense lawyers sought to discredit Herrera, pointing out that he has at least six known aliases and more than a dozen convictions. They also noted that Herrera had asked for preferential treatment in jail multiple times before contacting prosecutors about the Graf case. Still, Herrera claimed prosecutors weren’t giving him anything in exchange for his testimony.

Defense attorneys also noted how unbelievable it seems that Graf would spend 25 years in prison, then, after his conviction was overturned, confess to a random jail inmate just before his retrial. Moreover, jailhouse informants don’t have the best track record, as the Innocence Project reports.

The defense team built its case on the scientific evidence. Doug Carpenter, a nationally renowned fire expert, was the key witness. He testified that the high carbon monoxide levels in the boys’ bodies point to an accidental fire (gasoline/arson fires typically result in low carbon monoxide levels. More on that here.) The defense also offered evidence that the boys had played with matches on several occasions and theorized that the boys had started the accidental fire themselves.

In his closing argument, prosecutor Michael Jarrett told the jury to ignore the scientific testimony and to go with their “heart,” as Witherspoon reported on Twitter.

That’s the essence of the case: Will the jury go with their heads or their hearts, with the scientific evidence or with their suspicions?

In many ways, the prosecutors’ case felt very familiar. They vilified the defendant, emphasized circumstantial evidence and offered fantastic testimony from a jailhouse snitch. Quite a few Texans have been wrongly convicted with this formula.

The difference this time is that the defense had modern fire science on its side. The jury will decide if the scientific testimony is enough to outweigh the considerable circumstantial evidence and the informant.

In that sense, the Graf case feels very much like a contrast between the old method that Texas prosecutors have used to convict people for years and the new approach to criminal cases based on more reliable, scientific evidence.

For Graf, 62, the stakes are high. If he’s found not guilty, he’ll be free for the first time in 26 years. If he’s convicted of capital murder, he may well die in prison.

Attorney General Greg Abbott
Patrick Michels
Attorney General Greg Abbott soaks up the applause after announcing he's running for governor.

If you’re a politician who has taken a public position against gay marriage, as Greg Abbott has, there’s a tricky thing you have to do to keep your position cogent. You need an argument for a same-sex marriage ban that doesn’t contradict or aim to invalidate the Supreme Court’s 1967 decision in Loving v. Virginia, which struck prohibitions against interracial marriage, including in Texas, and established marriage as one of the core, basic rights enshrined in the Constitution.

That’s proven tough for many anti-gay marriage politicians. When the Supreme Court declined to consider lower court rulings earlier this month, effectively making same-sex marriage legal in a number of states, Texas Sen. Ted Cruz, who used to argue cases before the high court and so should know better, released a statement asserting that “marriage is a question for the States.”

Yet in Loving, Chief Justice Earl Warren wrote in the court’s unanimous opinion that marriage is one of the “basic civil rights of man,” and that the “freedom to marry … cannot be infringed by the State.” When the GOP candidate for attorney general in Wisconsin responded to a question about Loving by saying that he would have defended a ban on interracial marriage in court, too, he was at least being consistent.

When Abbott met with the San Antonio Express-News editorial board recently, reporter Peggy Fikac asked him about Loving. He had defended the state’s gay marriage ban in court recently—would he have defended a ban on interracial marriage? Abbott took a different tack:

“Right now, if there was a ban on interracial marriage, that’s already been ruled unconstitutional,” Abbott pointed out. “And all I can do is deal with the issues that are before me … The job of an attorney general is to represent and defend in court the laws of their client, which is the state Legislature, unless and until a court strikes it down.”

When I said I wasn’t clear if he was saying he would have defended a ban on interracial marriage, he said, “Actually, the reason why you’re uncertain about it is because I didn’t answer the question. And I can’t go back and answer some hypothetical question like that.”

Some hypotheticals are difficult to answer. What if the South had won the Civil War? Is it nobler for a Danish prince to suffer the slings of outrageous fortune or take arms against them? How many roads must a man walk down? This one shouldn’t be particularly difficult. It’s especially odd because Abbott is himself married to a Hispanic woman—though the anti-miscegenation laws struck by Loving were particularly targeted to black-white relationships.

But perhaps Abbott was wise to have dodged the question, because he likely would have defended a ban on interracial marriage, according to his own principles and record. He wouldn’t have known how not to. Abbott hasn’t shown a whole lot of independent spirit during his tenure as AG—he’s bound, he says, to defend whatever the Legislature vomits up:

“Believe me, I would love it,” he added, “The state would look a whole lot more like me right now if I did abandon my role and exercised my magic wand and decided what cases I would defend and which I didn’t, and therefore allowed me to dictate policy in this state.

“But I think that by doing what I do, I am maintaining the policy that I think is appropriate, and that is for each elected official to fulfill their constitutional obligations,” he said.

But while the Attorney General may have to mount some kind of defense of the state, he has “a tremendous amount of discretion” over how aggressively to prosecute those cases, how “effectively” to prosecute cases, and which cases to bring to court. Abbott has been using his stint as AG to campaign for governor for years—he’s brought failed case after failed case against the federal government, costing Texas taxpayers millions. But his hands are tied when it comes to gay marriage and school finance, he insists. He has to aggressively defend bad laws to the last.

Abbott’s tenure has included a number of instances in which he pursued comically bizarre legal arguments in cases for which he could have no reasonable hope of victory—seemingly forfeiting his powers of discretion. In 2008, Abbott chose to defend the state’s ban on the sale of sex toys, a case that emerged from the fallout of Lawrence v. Texas. Over the years, Abbott has deployed novel legal arguments against gay marriage. But this wasn’t a case about gay marriage, a subject that still animates sincere moral disagreements. This was a case about every American’s god-given right to buy dildos.

At the time, anti-sex toy laws were widely understood to be unconstitutional, but Abbott suited up for battle. The state, his lieutenants argued with straight faces before the 5th Circuit, had an interest in “discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation.” The state of Texas has a pressing interest, Abbott said, in discouraging you from masturbating or blowing your boyfriend. That was just six years ago.

As The Dallas Morning News notes, several past attorneys general, including Abbott’s predecessor John Cornyn, have refused to take part in cases when they felt they’d be in the wrong. But it seems there’s no law so bad Abbott won’t defend it.

Here’s the thing: We’re just two weeks away from Election Day, and we still don’t know much about what kind of governor Greg Abbott would be. Apart from the fishing ads and vague policy proposals, and even given his lengthy record as attorney general, we don’t necessarily know much about what drives him, or his leadership style.

Next session, if the GOP sweeps important races, Abbott will face a divided Legislature, with House Speaker Joe Straus and Lt. Governor Dan Patrick representing very different policy preferences and styles. Which will Abbott rely more on? How forceful will he be in asserting his own will over the Legislature? Perry used his longevity to turn a relatively weak office into a powerful one: Under Abbott, would the position revert to its former status, or would Abbott seize Perry’s reins?

From time to time, we get little glimpses of Abbott and how he thinks about government. At the second debate, we caught one when Abbott, flustered, said he wouldn’t prevent the Legislature from repealing the Texas DREAM Act. Miscegenation-gate is another interesting episode. Abbott seems more like a follower than a leader, which isn’t a very good sign when you consider the forceful personalities he’ll be clashing with next year.

Vote for me or the little guy gets it, see?
Vote for me or the little guy gets it, see?

Over the last few weeks, the editorial boards of the state’s newspapers have been rolling out their endorsements. On Thursday night, the first major newspaper endorsement in the governor’s race dropped—The Dallas Morning News is backing Greg Abbott.

That’s not particularly surprising. Unlike other statewide races, both Abbott and Wendy Davis are relatively serious, thoughtful people, capable of approximating the kind of serious, thoughtful figure editorial boards like. Texas newspapers have turned heavily against more tarnished GOP figures like Dan Patrick and Ken Paxton, but Abbott’s not really one of them. There’s the added factor that newspapers may aspire to endorse candidates from both parties, and they frankly don’t have many Republican options who meet the low bar of being able to appear serious and thoughtful.

There are plenty of perfectly reasonable arguments in favor of Abbott, and the Morning News gives some of them. But one of their reasons for endorsing Abbott is fascinating. Here it is:

Where Davis would be likely to encounter ideological battles at every turn, Abbott has the best chance to inspire legislative progress.

Davis has fought valiantly. But for all her progressive promise, and alignment with this newspaper on many issues, Texas cannot afford to provoke the kind of partisan stalemate her victory would probably bring, much like the gridlock that has paralyzed Washington. As much as Texas needs to counterbalance its GOP hard-liners, we fear Davis would only invigorate them.

Elect Davis, and GOPers will be so mad they won’t cooperate on anything, just like what happened when Barack Obama took office. This is a really beautiful encapsulation of some of the most depressing features of American politics right now—a reminder that we do government primarily these days by hostage-taking, in contravention of the ostensible norms of representative government. It’s also an assertion that the hostage-takers should win, and a demonstration of why they will keep winning. It’s monumentally demoralizing. But applied to the Texas context, is it right?

What would a Gov. Davis look like? Well, she would probably have little influence over the Legislature. Assume Davis wins and so does Patrick—Davis would be able to get hardly any of her legislative priorities through. Patrick would be preparing to run against her in 2018, and his Senate would kill or mangle almost anything that bore her personal stamp. But Davis would have a veto which would prevent Patrick’s worst bills and initiatives from getting through.

But the Morning News endorsement anticipates something worse—that the conservative Legislature seizes the levers of state government and goes to war against Davis, refuses to budge on any issue, refuses to put together a budget, refuses to consider new and important legislation, until its demands are met and Davis effectively surrenders. In effect, if the people of the state elect Davis to lead them, conservatives in the Legislature—probably led by Patrick—will take Texas hostage.

So the Morning News’ instinct is to reward the hostage-taker, pay the ransom, and keep the state safely gripped by one-party rule. On the one hand, it feels like a pretty bleak misperception of how small-r republican government is supposed to work. It’s especially odd because the endorsement urges Abbott to be “a moderating influence” for his party—a bit like a liberal urging his radical-left friends to “work inside the system.”

It seems probable that Patrick will be the dominant figure of the 2015 legislative session, not Abbott. It would be very difficult to make the case that a Gov. Abbott will be better at containing Patrick than a Gov. Davis, with a veto stamp and a reason to oppose him openly. It seems like extraordinarily wishful thinking to hope Abbott will turn out to be the state’s version of a Rockefeller Republican. On Friday, the Houston Chronicle and the Austin American-Statesman issued strong endorsements for Davis, in part because of the belief that putting Davis in the governor’s mansion would provide a check on the state GOP’s worst impulses.

But on the other hand, the Morning News might just be conceding to reality. Certain features of the American system of government simply aren’t working as well as they used to. One fundamental cause of that is that the two parties have become ideologically purified—no longer is there much overlap between Republicans and Democrats in Congress, and they have little reason to work together. But the way that problem manifests itself most severely is within the Republican Party, and its willingness to throw gum in the system’s gears.

Consider Texas’ extraordinarily polarized politics. As the state inevitably moves toward a two-party system, it’s easy to anticipate Texas GOPers picking up the tactics of John Boehner and Ted Cruz. Patrick’s probable victory may be one sign that’s already happening.

That’s also a pretty big problem for Democrats. As long as the economy is going OK here—without a prolonged drop in oil prices, or the bursting of a regional real estate bubble—a lot of people will be a little frightened of the implications of a competitive two-party system. It’s not unlike the way a lot of people feel in a truly one-party system—be it the PRI in Mexico, Augusto Pinochet’s Chile during the 1988 plebiscite, or China today. Why mess with (relative) success? Why leave the devil you know for the devil you don’t?

In Texas that feeling is shared, apparently, by the editorial board of the state’s second-largest newspaper.