Anthony Graves and small town injustice

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U.S. Magistrate Judge John Froeschner recommended on Oct. 4 that Texas death row inmate Anthony Graves be released on $50,000 bail while awaiting retrial, reports the Houston Chronicle. The recommendation will go to U.S. District Judge Samuel Kent in Galveston for a final decision. The 5th U.S. Circuit Court of Appeals in March overturned Graves' 1994 capital murder conviction, ruling that Burleson Co. District Attorney Charles Sebesta withheld from the defense two key witness statements that could very well have changed the outcome of Graves' original trial. Graves and co-defendant Robert Carter (who was executed in May 2000) were sentenced to die for the murders of six family members – including four children less than 10 years old – who were bludgeoned and shot, and their home was set on fire in an apparent attempt to cover the crime. Graves has maintained his innocence but was fingered for the crime by Carter; Carter later recanted, saying Graves played no part in the murders or arson. The fight to free Graves has been waged in part by a group of journalism students at the University of St. Thomas who, working with the University of Houston's Texas Innocence Network, investigated the case for three years and say they've uncovered evidence that proves Graves' innocence.

Texas Attorney General Greg Abbott's appeal of the 5th Circuit decision to the U.S. Supreme Court was denied Oct. 2, but Assistant AG Edward Marshall continued to try to block Graves' release from prison during a bail hearing before Froeschner, arguing that the federal judge had no jurisdiction to consider bail since the federal appeals process has run its course. Instead, the state argued that Burleson Co. Judge Reva Towslee-Corbett, who will preside over Graves' retrial, should have the authority to decide whether Graves should be released. But Froeschner wasn't buying: "If a federal court issues an order that a man is being held unconstitutionally, it makes no sense that the state can just thumb its nose," he said.

No retrial date has been set, though it seems likely that Graves' attorneys – including Amarillo's Jeff Blackburn, who heads up the innocence project at Texas Tech – may fight to have Towslee-Corbett recused from presiding over any future proceedings involving Graves – her father, former District Judge Harold Towslee, presided over Graves' original trial. It wouldn't be the first time that Towslee-Corbett has presided over a case originally heard by her father – nor the first time that attorneys and other court watchers have been skeptical of her decision not to recuse herself. Harold Towslee presided over the 1998 Bastrop Co. capital murder trial of Rodney Reed; earlier this year his daughter presided over an evidentiary hearing in that case – ordered by the Court of Criminal Appeals, in part over a question of whether the Bastrop DA withheld evidence from Reed's defense. During that hearing, Towslee-Corbett consistently ruled against the defense, and in June signed off on a prosecutor-drafted findings of fact to declare that Reed has no basis on which to receive a new trial.

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LIVINGSTON -- In the great death penalty debate, the case of Anthony Graves is one for both sides.
The 35-year-old father of three sits on death row at the Terrell Unit here for the barbarous 1992 murder of a Somerville family. Bobbie Joyce Davis, 45; her 16-year-old daughter, Nicole; and four grandchildren, between 4 and 9 years old, were shot, stabbed and beaten to death in the middle of the night. Their home was set ablaze to conceal the crime.

"I have never encountered anything any worse," said former Burleson County District Attorney Charles Sebesta, whose December retirement brought an end to a 25-year career as a prosecutor. "It's absolutely as bad as you can get."

But as bad as the crime was, the evidence against Graves is arguably even worse.

A new Houston Chronicle poll found that six out of 10 Texans believe there should be a higher threshold of proof required in capital cases. Yet Graves' case is an example of how little it can take to send someone to death row.

No physical evidence tied him to the crime, and prosecutors could never ascribe to him a strong motive. Instead, the case was built almost exclusively on the testimony of Robert Carter, who confessed to the crime but later claimed police pressured him into naming an accomplice -- any accomplice. He went to his death proclaiming Graves' innocence.

Graves insists, as he has since the day he was arrested, that he did not participate in the horrific crime.

"I've been in this business 28 years ... I've handled over 13,000 cases. I can tell when somebody is giving me a snow job," said former state District Judge Jay Burnett of Houston who is representing Graves on appeal. "If he is lying, he's one of the best I've ever seen."

Graves' journey to death row began with the arrest of Carter.

It wasn't hard to finger Carter for the crime. He showed up at the Davis family funeral in Somerville, 90 miles northwest of Houston. He was stricken with grief and covered in burns. Under police questioning, he quickly confessed to the crime.

He told police he went to the Davis home that August night to confront Lisa Davis, the girlfriend he continued to see on occasion despite his recent marriage to Theresa Carter.

He said he was upset because Lisa was demanding more child support for their 4-year-old son, Jason. He also believed she was trying to sabotage his marriage by leaving things in his car for his wife to find or by harassing her over the telephone.

Carter said he went to the house expecting to find Lisa there and the children at a relative's house in Houston. He was wrong on both counts.

Thirteen days before he was executed for the murders, Carter gave a sworn statement exonerating Graves and Theresa Carter, who earlier had been indicted for the crimes but had the charges dropped. Carter described in detail how he committed them by himself.

Carter said he arrived about 2 a.m. and confronted Bobbie Davis in the living room. He said he hit her in the head with a hammer, then pulled out a knife with a 6-inch blade and stabbed her to death.

Then he ventured back into a bedroom, where he found his son and stabbed the boy to death.

From there, he went into the bedroom where 16-year-old Nicole and 9-year-old De'Nitra were sleeping.

Carter said he hit Nicole in the head with the hammer and she woke up. He said he pulled his .22-caliber pistol and emptied it in her. Then he stabbed De'Nitra.

While he was in the room, the door opened. It was 6-year-old Brittany and 5-year-old Lea'Erin. He said he turned on them as well and stabbed them to death.

He went to his car to retrieve a five-gallon can of gasoline from the trunk, according to his sworn statement. He doused the bodies and the house and set them on fire. Vapors flared up and flames hit him the face and arms, burning him, he said.

The harrowing story was far different from the statement that resulted in Graves' arrest.

Skeptical of Carter's claim that he alone wielded three murder weapons, police pushed him for the name of an accomplice. Carter said officers threatened to charge his wife if he did not point to someone. He named Graves.

"I never been in trouble before and I fell through the crack and I told them," Carter said in the sworn statement. "I gave them a name even though I knew he didn't know anything about this."

Carter told police Graves participated in the murders because he was angry with Bobbie Davis because she received a promotion over his mother at the Brenham school for juvenile offenders where they both worked. The promotion occurred several years before the murders were committed.

At first, Carter's statement was the only thing linking Graves to the crime. There was no physical evidence tying him to the scene. Unlike Carter, Graves was not burned.

But once authorities had him in custody, the case against him seemed to grow stronger.

Graves said police questioned him for hours but failed to elicit a confession. Then they locked him in a jail cell across an aisle from Carter.

At least two Burleson County sheriff's deputies said they heard Graves threaten Carter to get him to change his story. A jail nurse said that while Carter was incarcerated, he suffered bruises on his neck that appeared to be caused by a choking from a small man. Graves stands 5 feet 6 inches tall.

At Graves' 1994 trial, Burleson County prosecutors called the three jail employees as well as a jail inmate who claimed he heard Graves incriminate himself while talking to Carter about the crime.

Prosecutors also called a medical examiner who testified that the stab wounds could have been made by a kind of knife Graves once owned, or by one of several other types of knives. The murder weapon was never recovered.

That was the case against Graves. Sebesta admits it was not one of his strongest.

"I've had some slam-dunk cases," he said.

"It was not a slam-dunk case."

Still, Sebesta said he has no doubts about Graves' guilt.

"I'm personally comfortable with the conviction," he said. "If I were not, I would be the first one to step up and say so."

Sebesta said he believes Carter and Graves committed the murders with the help of Theresa Carter. Initially, she was charged with capital murder, but Sebesta said he did not have sufficient evidence to prosecute so he dropped the case against her.

Sebesta said Carter told six or seven versions of what happened the night of the murders. He believes Carter tried to recant his testimony against Graves because he feared if he didn't, Graves would implicate Theresa Carter in the crime.

Graves insists he couldn't implicate the woman even if he wanted to. He said he spent the night of the murders with his girlfriend and with his family.

At Graves' trial, his brother Arthur Curry and his girlfriend, Yolanda Mathis, were to testify on his behalf. His brother did testify that Graves was with the family all night. Mathis, however, did not.

Before she was to take the stand, Sebesta asked the judge to warn her that she was considered a suspect in the slayings and that her testimony could be used against her. Mathis fled the courthouse in fear.

During a recent interview from death row, Graves explained away the case against him.

He denied threatening Carter, although he does admit he confronted him.

"All I asked this man," Graves said, "is `Why did you lie on me? For my mother, for my family, will you please tell the truth?' "

Graves also said he understands why the jury convicted him.

"I ask myself if I was on the jury could I have been impartial?" he said. "I don't think so. You've got to prove to me you didn't do it. This was a case that was high on emotions."

Graves has been on death row six years, and he is running out of opportunities to prove his innocence.

He appealed his conviction on the grounds there was insufficient evidence to corroborate Carter's testimony, but the Court of Criminal Appeals disagreed with him. The court also rejected his habeas corpus appeal.

Graves is now represented by Burnett and Austin attorney Roy Greenwood. They are trying to convince the Court of Criminal Appeals that Graves deserves a second habeas appeal because his first attorney did not properly investigate or prepare for the case.

Among the most egregious mistakes they cite was the original attorney's failure to subpoena Robert Carter, which meant the court never heard Carter's recantation. The attorneys are battling to get a court to consider the new evidence.

Graves said he hopes for the best as he fears the worst.

"When you know you haven't done nothing, you can't help but have hope," he said. "But I'd be lying to you if I said I wasn't scared.

"They don't send you here to let you go. They've got you here to execute you."

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A visiting judge has said he won't recuse the presiding judge in the retrial of Anthony Graves, a Brenham man convicted of helping murder six members of a Somerville family in 1992.

Olen Underwood's ruling Friday in Caldwell apparently came as a surprise to attorney's representing Graves, who said they had not even filed a motion asking Judge Reva Towslee-Corbett be recused from the case.

“We are shocked and have been unable to prepare anything because we didn't file a motion to recuse,” said Jeff Blackburn, an attorney representing Graves.

Underwood, presiding judge of the Texas Second Administrative Judicial Region, said Towslee-Corbett had asked him to hold a hearing after the defense filed a motion asking her if there was any reason she should step aside in the case.

Her father, H.R. Towslee, presided over the 1994 hearing in which Graves was convicted of capital murder.

Graves received the death penalty.


Graves, who had been on death row since his conviction, was returned to the Burleson County jail after an appeals court last March ordered that he be given a new trial.

That court ruled that Charles Sebesta, who successfully prosecuted Graves and co-defendant Robert Carter, had withheld statements by Carter that Graves was not involved.

Carter, who was executed in 2000, originally implicated Graves in the murders but later recanted Graves' involvement, including Carter's final statement.

While strapped to a gurney in the Texas Department of Criminal Justice's execution chamber, Carter said Graves was innocent.

Those statements, the court said, should have been presented to jurors and Graves' attorney.

Sebesta has been adamant that he never considered Carter's statement that he committed the murders credible or material and “simply dismissed it.”

Sebesta said evidence clearly showed more than one killer. Sebesta also voluntarily took a lie detector test which showed there was no deliberate deception on his part.

That test, Sebesta has said, showed he did not deliberately withhold any evidence that would have cleared Graves.

Towslee-Corbett has issued a gag order in the case, ordering District Attorney Renee Mueller and Graves' attorneys not to talk publicly about it.