If modern DNA results had been available in the 1992 capital murder case of Richard Bryan Kussmaul, it is “reasonably probable” that he and his three co-defendants would not have been convicted, a Waco intermediate appellate court ruled Friday.
The opinion, written by Justice Al Scoggins of Waco’s 10th Court of Appeals, affirms findings issued seven months ago by retired State District Judge George Allen, who presided over Kussmaul’s trial more than 20 years ago.
Kussmaul, 43, is serving a life prison term in the shooting deaths of transient teens Leslie Murphy, 17, and Stephen Neighbors, 14, in a mobile home near Moody.
Three of Kussmaul’s co-defendants, who also filed requests for DNA testing, had pleaded guilty to sexually assaulting Murphy and were sentenced to 20 years in prison. They agreed to testify against Kussmaul in exchange for a recommendation from prosecutors that they be placed on probation for 10 years.
All three since have recanted their confessions and their testimonies implicating Kussmaul as the pair’s killer.
Allen conducted a hearing in September 2014 based on the quartet’s claims of innocence and requests for DNA testing that they hope will exonerate them.
Allen concluded from evidence presented at the hearing that testing of items from the crime scene with improved DNA technology likely would have changed the outcome of the cases, including Kussmaul’s trial.
The co-defendants, James Wayne Pitts Jr., Michael Dewayne Shelton and James Edward Long, testified that all of them, including Kussmaul, raped the girl before Kussmaul shot both victims in the back with a high-powered rifle.
After the men testified in graphic detail about the killings and sexual assaults, 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 for sexual assault.
Shelton, 44; Long, 43; and Pitts, 43, have since been released from prison. Kussmaul becomes eligible for parole in 13 years.
Tiffany Dowling, director of the Actual Innocence Clinic at the University of Texas School of Law, said she is “excited and happy” about the opinion.
“This is just one step in a long journey,” she said. “We will keep working on behalf of our clients, with the ultimate goal to prove they are all innocent.”
Dowling’s clinic filed the motions and paid for the DNA testing of evidence for the four men.
Neither Sterling Harmon nor Gabe Price, who handled the appeal on behalf of the McLennan County District Attorney’s Office, returned phone messages Friday.
If the state appeals, Allen’s findings and the 10th Court opinion will be forwarded to the Texas Court of Criminal Appeals.
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.
Also, Allen noted, a “Negroid hair” was collected from the victims’ bodies. All four defendants are Caucasian and could not be the source of the Negroid hair, which likely was deposited by Murphy’s assailant, the judge wrote.
“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,” Allen 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.”
If the men ultimately are declared innocent, they could be eligible to collect money from the state for each year they spent behind bars.