Convicted murderer Richard Bryan Kussmaul and the three co-defendants who testified against him 22 years ago are “actually innocent,” and Kussmaul should be freed from prison, a retired state district judge ruled Friday.

Judge George Allen, who presided over Kussmaul’s 1994 capital murder trial, recommended that the Texas Court of Criminal Appeals grant applications for writs of habeas corpus for Kussmaul, James Edward Long, Michael Dewayne Shelton and James Wayne Pitts Jr.

Kussmaul is serving a life prison term in the 1992 shooting deaths of Leslie Murphy, 17, and Stephen Neighbors, 14, in a mobile home near Moody.

At a hearing in July, Long, Shelton and Pitts all testified that they gave false testimony against Kussmaul at his trial because a prosecutor promised them probation and a deputy coerced their confessions by threatening them with the death penalty.

The judge’s findings will be forwarded to the Texas Court of Criminal Appeals, which will make the final decision.

Allen wrote in his four-page opinion that newly discovered DNA evidence that was not available at the time “constitutes clear and convincing evidence that no reasonable juror would have found (the defendants) guilty beyond a reasonable doubt had the new evidence been available at trial.”

Long, Shelton and Pitts testified at Kussmaul’s 1994 trial in Waco that all four of them raped the girl before Kussmaul shot both victims in the back with a high-powered rifle.

The trio recanted their confessions soon after they were sentenced to 20 years in prison on sexually assault charges.

Long and Pitts both served their full 20-year terms, while Shelton served 17 years before his release.

All three testified at the July hearing, which the Texas Court of Criminal Appeals ordered on the four defendants’ claims that they are innocent and that DNA evidence excludes all four in the sexual assault.

David Sheppard, an Austin attorney who represents Kussmaul on his writ application, said he had not seen the judge’s order but is pleased with his decision.

“That is very good. I think that is the correct ruling,” Sheppard said. “The evidence just seemed overwhelming, with the DNA evidence having excluded these men from any contact whatsoever with these people.”

State payments

If the Court of Criminal Appeals grants the relief sought by the four and their claims of actual innocence are upheld, they stand to become instant millionaires.

Texas pays its exonerated prisoners $80,000 a year for every year served in prison, meaning Kussmaul could collect more than $1.7 million.

“I would hope that they would spend it wisely and get an education and take care of themselves and their families,” Sheppard said, cautioning he didn’t want to “put the cart before the horse.”

The next-best outcome from the hearings for the four could be a ruling from the Court of Criminal Appeals that they deserve a new trial. But with the current state of the evidence, officials say it would be difficult if not futile to retry any of the four.

McLennan County District Attorney Abel Reyna, whose office defended the convictions against the writ applications, did not return phone messages Friday.

Long, Shelton and Pitts told similar stories at the July hearing. All charged 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 said Davis tailored their stories to match the evidence.

“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.”

Long now works as a refrigeration technician in Odessa.

After the three testified in graphic detail about the killings and sexual assaults at Kussmaul’s trial, Allen rejected the plea offers for probation and gave the men a chance to withdraw their guilty pleas. They declined, and the judge sentenced them to 20 years in prison, the maximum penalty for sexual assault.

Kussmaul did not testify at the hearing last month.

Shelton is a heavy machine operator in San Antonio, while Pitts, 45, said he is living in Dallas and having a hard time finding a job because of his sex-offender status.

In his previous ruling, 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.

“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.”

Allen’s previous ruling was upheld by Waco’s 10th Court of Appeals.

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