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Capital murder defendant freed by DNA wants something more: a declaration of innocence

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Richard Kussmaul poses near a pallet of onions in the Caritas warehouse, where he has gotten a job since his release from prison. Kussmaul served more than 25 years before new DNA evidence led a court to overturn his conviction for a double murder he says he did not commit.

During his 26 years in prison, Richard Bryan Kussmaul heard scraps of news from the world he left behind: the death of his brother from cancer, followed by the deaths of his parents and the incarceration of his son.

Meanwhile, he sewed prison clothes and found a faith that would sustain him through the battle of his life: proving he was wrongfully convicted of sexual assault and double murder.

When he was released on bond this spring after winning a new trial based on DNA evidence, he walked into a unfamiliar world of smartphones and new fast-food joints, owning nothing more than a shirt and a pair of pants.

Now he has found a job, moved in with his disabled sister in Moody and rekindled his relationship with his son’s mother. But his battle continues as he tries to remove the last lingering doubts about his innocence.

The McLennan County District Attorney’s Office dismissed the capital murder charge against Kussmaul last month in the 1992 shooting deaths of Leslie Murphy, 17, and her traveling companion, Stephen Neighbors, 14. Prosecutors said the age of the case and the compelling DNA evidence made a successful prosecution unlikely.

The DA’s office also dismissed sexual assault charges against Kussmaul’s three co-defendants: James Edward Long, Michael Dewayne Shelton and James Wayne Pitts Jr. The three had testified that they had joined Kussmaul in raping the girl, and that Kussmaul then shot the victims with a high-powered rifle. All three later recanted their confessions and apologized to Kussmaul.

Kussmaul said he is eager to put the past behind him, and his faith has helped him to overcome his bitterness against his former friends.

“I have forgiven,” Kussmaul said this week. “Now, I am trying to forget.”

One thing he can’t forget is that he has never been officially declared “actually innocent.”

Retired District Judge George Allen, who had presided over the original trial, also presided over a 2016 writ hearing in Kussmaul’s case and recommended that the Court of Criminal Appeals declare the four defendants innocent. The high court set aside the four convictions in June 2018 but rejected their actual innocence claims.

The ruling did not just leave a cloud on Kussmaul’s reputation. It also cost him more than $2 million.

With an “actual innocence” ruling, the state would have to pay Kussmaul and the others $80,000 for every year they wrongfully sat in prison, plus lifetime health care benefits and educational scholarships.

Instead, Kussmaul was released from the McLennan County Jail with nothing but a shirt and a pair of pants, and he struggled to scrounge up documents for an ID card.

Kussmaul said he also is troubled that there is a potential murderer or murderers who have gone unpunished all these years.

In dismissing the cases last month, First Assistant District Attorney Nelson Barnes said he would forward the case to the McLennan County Sheriff’s Office cold case unit. Sheriff Parnell McNamara said last month that his office would look at the case, but he said he was “absolutely not” convinced that the four convicted in the crimes are innocent.

Kussmaul’s attorney, Gerry Morris, of Austin, said the sheriff’s statements are troubling.

“I think I would rather some other agency be conducting the next investigation if the head of the first investigation is not convinced that they absolutely are not responsible,” Morris said. “I think someone needs to be taking a fresh look at it without some preconceived notions about who might be responsible.

“I thought the trial judge was correct in making a finding of actual innocence, and the analysis that was in the Court of Criminal Appeals decision didn’t convince me that the evidence fell short of clear and convincing to prove their innocence.”

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Richard Kussmaul poses inside the Caritas warehouse. Kussmaul was released from prison after serving 26 years for a crime he says he did not do. 

McNamara, who was not sheriff during the original investigation, confirmed Wednesday that the DA’s office has forwarded the case to his office. He pledged to conduct an impartial investigation, past comments aside.

“We are definitely going to take an objective look at it, absolutely,” McNamara said. “We plan to look at the case in whole and make a determination on how to proceed, but we are definitely looking at it really hard. This was a very brutal double murder and I would disagree with the attorney. We are going to be objective and we are going to do a very thorough investigation.”

Meanwhile, Kussmaul is 48 years old and trying to get his feet on the ground again. He recently started working at the Caritas food warehouse at 300 S. 15th St. for $10.15 an hour. As a welcome home present, a friend gave him a 1979 Ford Courier pickup truck that runs pretty well, and he is living in Moody with his disabled sister and his girlfriend, the mother of his 30-year-old son.

“It’s hard starting over again, particularly when you don’t have nothing,” Kussmaul said.

Alicia Jallah, assistant executive director of operations at Caritas, said Kussmaul was honest about his past when he applied for a job there. Caritas has a history of offering second chances to people, and Jallah said she admires Kussmaul’s attitude and how he has handled the adversity in his life.

“He has a very strong work ethic,” Jallah said. “He is always going above and beyond and being proactive in getting tasks done here in the warehouse. He is so gracious and kind, especially since what he has gone through. It’s amazing how almost joyful he is.”

She said Kussmaul helps organize, weigh, load and unload the food the charitable organization provides to people in need.

“Last year, we served over 10 million pounds of food, so it is a busy warehouse,” Jallah said. “We love having him here.”

Kussmaul was born in Temple, but his family moved to Moody when he was 5. He described Pitts, Shelton and Long as “running-around buddies” who weren’t especially close, though Shelton would become a roommate. They were part of a teenage crowd who would hang out in the small southern McLennan County town and drink beer on their cars, tolerated by the police as long as they didn’t get too rowdy, Kussmaul said.

Kussmaul has a vivid memory of the March night of the murder, because he asked his live-in girlfriend to marry him.

He had been at his mother’s apartment in Hewitt to check on things while she was with his sister, who was recovering from a stroke, he said.

“I called my mom and told her I asked her to marry me, and she said, ‘Don’t do nothing until I get home,’” Kussmaul said. “She thought I was rushing into something, which I was because we didn’t last two months after that. That might have been a good thing.”

Kussmaul, his girlfriend and another couple went to a Waco dance hall to celebrate their engagement that night, he said.

The next day, the bodies of Murphy and Neighbors were found dumped along a roadway between Moody and Eddy. Sheriff’s office investigators concluded the four raped Murphy at a mobile home that Kussmaul shared with his girlfriend and Shelton. In Kussmaul’s 1994 trial, Pitts, Shelton and Long testified in great detail that they all raped Murphy before Kussmaul shot both victims in the back with a high-powered rifle.

The trio pleaded guilty to sexual assault in exchange for recommendations by former prosecutor Mike Freeman that they be placed on probation, but Judge Allen rejected the plea bargains and each ended up serving most or all of a 20-year prison sentence.

At a writ hearing in 2016, Shelton and Long apologized to Kussmaul and testified that their statements were coerced by retired McLennan County Sheriff’s Office Detective Roy Davis, who they said threatened them with the death penalty.

Davis, who is retired, and Freeman, who prosecuted the cases, both testified at the hearing that they did nothing improper to obtain the confessions or the testimonies of the three men who said Kussmaul killed the teens.

Kussmaul recalls that his former girlfriend could have provided him an alibi if she would have testified that he was with her, but he claims Davis threatened to arrest her if she did. She did testify at his 2016 writ hearing in Waco.

“She could have stopped me from going to prison, but she was scared,” Kussmaul said. “She testified at the hearing that the murders didn’t happen at the trailer house like they said. Her mom lived right behind us and her mom was nosy. If there had been gunshots and somebody hollering for help, she would have been over there right away.”

Attorneys for all four defendants presented evidence at the 2016 hearing that showed modern DNA testing from the sexual assault case excluded all four and identified two unknown persons as contributors of DNA evidence. Also, analysis of a hair recovered in evidence came back to an unknown male.

Freeman, who is retired after serving as a county court-at-law judge, said this week he did what he thought was right at the time.

“I don’t have total confidence in the findings they made in regard to their innocence, but that is what the system is and I will live with it,” Freeman said. “If I had to do it all over again, I wouldn’t do anything differently, knowing what I knew at the time.”

After his conviction, Kussmaul spent 25 years at the Eastham prison unit in Lovelady, just north of Huntsville in Houston County.

He worked in the garment factory there for 18 years, sewing white pullover shirts and white pants with elastic.

“I didn’t know how to sew when I went in there and when I was leaving I was a shop tailor,” he said. “There is pretty much not anything I couldn’t make if it had to be sewed.”

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Richard Kussmaul moves a pallet of onions at his new job at the Caritas warehouse.

Kussmaul was 5 feet 7 inches tall and 170 pounds when he got to prison. He learned quickly to negotiate his way and to try to get along with different groups that were there. But he had his share of fights, he said, because he knew he could not be perceived as weak.

Kussmaul’s brother died of brain cancer in 1997, his father died in 2000 and his mother died in 2017, knowing that her son might be on the verge of proving his innocence.

“My mom tried to stay alive long enough so she could see me set free,” Kussmaul said. “But she didn’t make it.”

Kussmaul’s requests to attend the funerals of his family members were rejected, he said. He said his mother brought his son to see him in prison once, and the boy’s mother, Lindy Goss, also brought him once. His son fell in with the wrong group of people and is now serving a federal prison term for drug possession, Kussmaul said.

He wonders if he had been around for his son if things would have turned out differently for him.

Goss, 49, a waitress at Denny’s at the Flying J truck stop, said she and Kussmaul were split up at the time of his arrest, but she knew he was not the type of person to harm anyone like that.

“I knew he was innocent. He’s a lover, not a fighter,” she said. “He’s like a teddy bear.”

She and Kussmaul are discussing marriage, she said.

“I am glad that he is back home, but what really bothers him now is that, even though the DNA excludes him, people still stare at him and point their finger at him and say he did it. It’s just a bunch of small-town finger pointing,” Goss said.

Despite the Court of Criminal Appeals ruling, Kussmaul and Morris are not giving up on changing the judges’ minds, including a search of their own for the actual killer or killers.

Morris said they are exploring additional DNA testing to see if they can get a better DNA profile through genealogical searches for the actual killer or relatives.

“Technology on DNA analysis is just moving forward very rapidly and we are hoping at some point to be able to have the technology available to get a profile with the remaining samples,” Morris said. “We have enough to exclude him but not enough to identify an actual perpetrator.”

Morris, a former president of the National Association of Criminal Defense Lawyers, said he and Kussmaul have talked about the possibility of Kussmaul seeking the help of support groups who specialize in assisting exonerated prisoners.

“I talked to several individuals who have been through what he has been through, and it is quite a change,” Morris said. “There are support groups that are out there to help with re-entry, but I can’t imagine it. There is no way for me to put myself in his shoes and to try to imagine with any real accuracy what it must be like to be in that strict, confined prison setting knowing you didn’t do it, and all of a sudden you are out.”

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