Confessions, Co-Defendants and Innocence

Why would someone plead guilty to something they didn’t do? Why would they confess and implicate a friend? Why would three people do the same thing?

It’s easy to say, “I’d never confess to something I didn’t do.” But in reality it’s never that easy. What if you were facing serious jail time? What if you were promised little to no jail time in exchange for your confession? What if you were facing the death penalty? What if you were promised life without parole and the death penalty would be off the table? What if you were threatened or physically assaulted? Is your response still easy? Would you still hold out on principle?

Of course prosecutors and cops maintain that no one was pressured, threatened, or physically assaulted, yet, three once cooperating and confessing co-defendants now say they were threatened and coerced and even assaulted into confessing and implicating their friend. Because of their confessions, they were promised a probation deal in exchange for their testimony against their friend. A judge now says they are innocent, the same judge who previously presided over the original trial.

Richard Kussmaul was convicted of capital murder for the deaths of two people. James Edward Long, Michael Dewayne Shelton, and James Wayne Pitts Jr. each confessed to their role as rapists and co-conspirators in the murders. Leslie Murphy and Stephen Neighbors were both shot to death in 1992. Leslie Murphy was also raped. Long, Shelton and Pitts further testified during Kussmaul’s 1994 trial that all four of them raped the girl before Kussmaul shot both victims in the back with a high-powered rifle. Following his conviction, Kussmaul’s conviction was affirmed by an appellate court finding that other evidence sufficiently corroborated the co-defendants’ testimony. [Texas requires a co-defendant’s testimony be corroborated by sufficient evidence that establishes more than just the crime occurred.]

Though forensic DNA testing first made its way into law enforcement as early as 1987, technological and procedural advances in the sciences developed over time. Scientific methodologies changed. Testing became more common and more precise. Newer technologies allow crime labs to analyze shrinking quantities of DNA.

In light of technological advances, Judge George Allen found newly discovered DNA evidence that was not available at the time of the trial constitutes clear and convincing evidence that no reasonable juror would have found the defendants guilty. In other words, the DNA evidence recovered from the victims in this case cleared all four defendants, including those who confessed, and implicated at least two unknown males.

Judge Allen wrote that an unknown man’s DNA was found on a number of clothing items from the victims and that the four defendants in the case were excluded as contributors of the DNA.

Allen also noted that a hair that couldn’t have belonged to the four defendants was collected from the victims’ bodies.

Despite DNA clearing the four defendants, the Court of Criminal Appeals ordered additional hearings

Though the trio testified against Kussmaul, they recanted their confessions soon after they were each sentenced to 20 years in prison for sexual assault. All three testified this summer that former McLennan County Sheriff’s Detective Roy Davis “threatened them with the death penalty and coerced them into signing 15-page confessions that he wrote.” They all stated they were also promised a plea deal for probation in exchange for their testimony against Kussmaul. Though they had plea deals for probation, Judge Allen rejected those deals and sentenced each to 20 years in prison – the maximum for their charge of sexual assault.

“I was willing to say anything they wanted me to say because I thought I was getting probation and no prison time,” Long said. “I had two small children and I was afraid of going to prison for life or, worse, getting executed.”

Though the judge heard the testimony and sentenced these men to 20 years each, he now finds their recantations credible.

“The probative value of the testimony given by Long, Pitts and Shelton at Kussmaul’s trial is outweighed by the persuasiveness of the physical evidence . . . for two primary reasons,” the judge wrote.

“The plea bargains offered to Long, Pitts and Shelton created a powerful incentive for each of them to falsely admit culpability, and material inconsistencies between and among the statements made and testimony given by Long, Pitts and Shelton call into doubt the veracity of those prior incriminating statements.”

Yes, in light of the physical evidence, the DNA clearing these men, it’s much easier to see how and why they each would have falsely confessed. Additionally, the material differences between the confessions and their testimony cast doubt on their then truthfulness. Without the DNA evidence, much like during the Kussmaul trial, false confessions are much easier to believe.

Undoubtedly, jurors heard about the plea deals offered to these three men during the Kussmaul trial. Yet, they still found their testimony credible and worthy of convicting Kussmaul. Surely the jury also heard about the material differences between their confessions and their trial testimony. Any good defense lawyer would have pointed out those inconsistencies and differences. Yet, what we as defense lawyers fear most occurred: you can’t un-ring that bell. It’s rare that jurors will set aside testimony that is given in exchange for a plea deal. It’s rare that jurors will disregard a confession. Jurors are all too likely to believe no one would confess to a crime he didn’t commit. Much less three people. Even you; you wouldn’t confess to a crime you didn’t commit, right?