Temporary Freedom for Anthony Graves?

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.