Houston Chronicle

Prosecutor off retrial of Graves in 1992 slayings

December 13, 2006

A prosecutor who helped send Anthony Graves to death row in 1994 has been removed from the team that will prosecute in his new trial.

The trial judge recused Joan E. Scroggins, a Burleson County assistant district attorney, in an order issued Friday.

Graves, 41, will get a new trial because the 5th U.S. Circuit Court of Appeals threw out his capital murder conviction for the 1992 slayings of a grandmother and five children in the small town of Somerville, northwest of Brenham.

The appeals court in March accused Burleson County prosecutors of misconduct, including failure to disclose statements that could have helped Graves' defense.

Robert Carter, who was executed in 2000 for the murders, testified against Graves but later told prosecutors that he alone had killed the victims and that he was coerced into implicating Graves.

Moments before he was put to death, Carter again said that Graves is innocent.

Graves spent 12 years on death row. A federal judge ordered his release last month, pending the retrial, but the 5th Circuit Court ordered that he remain in the Burleson County Jail.

Defense lawyers argued in October that keeping Scroggins on the case would deny their client a fair trial.

They allege, among other reasons, "her egregious behavior violating her ethical obligations as a prosecutor and causing prejudice to Graves" in his first trial.

In dismissing Scroggins from the case, however, state District Judge Reva Towslee Corbett wrote that she had found no evidence of misconduct. None of the parties involved in the case can comment because of a gag order issued by the judge, who included herself.

The defense team also had asked that Scroggins be disqualified because she is considered a likely witness in the second trial.

Towslee Corbett's brief order offered little more explanation for the recusal.

Lupe Salinas, a former state district judge, noted Tuesday that the Texas Code of Criminal Procedure requires prosecutors "not to convict but to see that justice is done."

"I think this reaction from the judge may be an enforcement of that provision," said Salinas, a professor at Texas Southern University's Thurgood Marshall School of Law.

But he added that there is no way to know whether Scroggins' removal will enhance Graves' chances for a fair trial.

The defense motion also suggested that the entire Burleson County District Attorney's Office leave the case voluntarily.

Defense lawyers cited Alcorta v. Texas, a 1957 case in which the U.S. Supreme Court held that a prosecutor who knowingly fails to correct a witness's false testimony denies the defendant due process.

Confession weakened case
In throwing out the conviction, the appeals court ruled that revealing Carter's statements to Graves' lawyers "would have resulted in a markedly weaker case for the prosecution and markedly stronger one for the defense."

University of Houston Law Center professor David Dow said Scroggins' recusal was an unusual move.

"I think that it's yet another indication that the entire proceeding has a strong air of taint about it," said Dow, the founder and director of the Texas Innocence Network. "I think this just simply underscores the difficulty Anthony Graves is going to have getting a fair trial in Burleson County."

Dow said a special prosecutor might be in order.

"I think, at some point, the county is going to have to realize that there isn't a case against Anthony Graves," he said. "Instead of trying to resist and sentence an innocent person to death, hold the prosecution."

Scroggins isn't the only current Burleson County courthouse official linked to the 1994 trial. Towslee Corbett's father, Judge Harold Towslee, presided over the original trial. In October, a visiting judge refused to remove her from presiding over the retrial.

District Attorney Renee Mueller, the lead prosecutor for the retrial, was an assistant district attorney in 1994 but wasn't involved in the Graves case.

No need to move retrial

Austin lawyer John Niland said removing any appearance of impropriety is a good move by Towslee Corbett, although he says the case also needs a new judge and a new venue.

"In a small community, the inclination is that the defendant is going to have to suffer the consequences of that, rather than that it's the state's obligation to provide him a fair trial," said Niland, director of the Capital Trial Project at the Texas Defenders Service in Austin. "It's not really a problem when you consider that cases are moved all the time, special prosecutors are brought in all the time and judges are replaced from time to time."

Austin attorney David H. Donaldson Jr. said removing Scroggins will avoid a possible appeal later. "It makes a lot of sense for the judge to have made that decision, whether the judge was convinced or not that this person had some involvement in the original misconduct," he said.

But Donaldson disagreed about moving the trial.

"People in the community do have an interest in seeing that justice is done," he said.

A retrial date for Graves has not been set.

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