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?


Ask Allison: July 20, 2016

Dear Allison,

I’m having trouble with one of my clients. He’s saying he’s not guilty, but he wants to take jail time instead of taking the case to trial. The case has serious flaws in it, and I think if we went to trial we would probably win, but the prosecutor refuses to dismiss. There’s no way the jury would give my client more time than the offer, so even if we lost, there’s nothing to lose. He’s insistent on taking the jail time offer, though. The prosecutor has also offered a (longer) term of deferred adjudication probation, which would mean the offense wouldn’t even be on his record if he would do the probation and complete it, but he’s saying he wants the time. I have talked to him about this for hours, but he won’t change his mind. I am sick about this. What should I do?


Candid Cameron


Dear Cameron,

One thing your darling Allison wasn’t really ready for when she first started practicing criminal defense was the fact that she has different priorities than some of her clients do. It seemed we all probably had the same priorities- get them out of jail, keep it off their record, fight to the death against steep odds at trial if necessary. Unfortunately, though, it doesn’t start or end there.

A huge part of your job, Candid C., is to be a counselor. We advise our clients to the best of our ability, and, when it comes to how to plead and what deal to accept or reject, they make the decisions. Sometimes, Dear Cameron, our clients do not listen to us. Sometimes they don’t understand what we’re telling them. Sometimes they listen and don’t like what we have to say. A lot of times they listen and don’t think we’ve listened to them so how could we possibly advise them?

A lot of my clients, guilty or innocent, are bad decision-makers. Yeah, some of them were really just in the wrong place at the wrong time, but a lot of the time, being in the wrong place at the wrong time also involved making bad decisions.

Some of my clients make bad decisions because they never really learned about how to think things through critically and rationally, some of them have impulse-control problems, and some of them have behavioral disorders or problems with addiction.

Other than navigating the intentionally opaque language of the law, part of the reason our clients need us is to help them make good decisions. That’s a really difficult thing to be tasked with.

I think there could be a lot of reasons why your client maintains his innocence but does not want to go to trial, even with you advising him that trial would likely turn out favorably. Aside from spitting facts and bravado at your client, have you listened to why he doesn’t want to go to trial? Those reasons are glaringly absent in your letter, friend. Are you sure your client understands what you’re telling him? I have found it an invaluable tool to ask my clients to tell me what they think I just said. “Hey, I’m worried that I wasn’t coming across very clearly. What do you think I meant when I said that?”

In order to really be able to counsel your client, you need to have developed enough of a rapport with him that you can address his real concerns. Being accused of a crime is really embarrassing for a lot of people, and I’d imagine it’s pretty awful to have to discuss a bunch of truly intimate things about yourself, especially things you’re really not very proud of, with a total stranger. If you’re just walking into meetings with him telling him why YOU would go to trial, you’re not doing your job.

But maybe you HAVE developed a close relationship with your guy. Maybe he’s told you everything. Maybe you’ve listened and he’s just still insisting that he wants to do the jail time. In my experience, these are the clients who have different priorities than I do, and it’s a struggle. The clients that I have had like this are generally fairly self-aware. They know that they will not be able to meet the requirements of probation, and they don’t want to keep hassling with trying to keep something off of their record. Largely, in my experience, these clients are drug users who are not ready to stop using drugs.

Here’s the problem, sweet friend. We are not here to judge. We are not here to wrangle and control. We are here to advocate for our clients. It’s great when a client wants treatment and we get them help instead of punishment. It’s a wonderful feeling to see your client doing better and feeling better and starting a more productive life- and gosh, I want everyone who seeks that kind of help to be able to access it. But not all of our clients want that.

Aside from issues of competency and mental health, which are, of course, big issues, we have to give our clients the dignity to make their own decisions, even if we think they are bad decisions. If you have talked about all of the consequences of taking this conviction, explained the reasons why you think this case would be successful at trial, talked through all of the resources and programs your client is eligible for, and had a meaningful conversation about the reasons why your client wants to do the jail time, your job is not to convince him to make the decision you would have made.

Talk to your client one more time. Make sure he understands what you are telling him. Make sure you tell him everything. Ask him why he still wants to do this. And then (and this is the hard part), honor his decision.

Love Always,


Every week attorney Allison Jackson answers a question sent in from our readers. Have a question for Allison? Write to her at askallison AT