Saturday, August 20, 2016

Threats of death coerced false testimony in Waco innocence case

A judge in Waco recommended granting a habeas corpus writ on "actual innocence" grounds in a case which demonstrates the risks of false convictions from plea bargaining and informant practices. A report from Tommy Witherspoon at the Waco Tribune Herald (Aug. 20) began:
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.”
Without the DNA, nobody would believe these recantations. With it, and 20/20 hindsight, the grim reality which confronted these four defendants appears as obvious as it does stark. The prosecutor* A Sheriff's detective implicitly or explicitly told these guys: Accuse your friend or we'll kill you. The prosecutor is seeking the death penalty, they'll stick a needle in your arm, and you'll be dead. Or you can bear false witness against your friend and live. You choose. And three of them took the bait. Should we be surprised?

Does anyone imagine that any of the innocence reforms installed in Texas so far would prevent that from happening? Not in a million years. The same incentives and practices which caused these false convictions play out all the time in courthouses across Texas. From a game-theory perspective, the three men made a rational choice, if perhaps a dishonorable one. At the time, this was not a situation in which the truth will set you free.

Texas has done a good job making sure false convictions can be rectified by DNA testing when biological evidence from old cases is available and probative. But there's a lot more to do to prevent false convictions on the front end, particularly with regard to informant incentives and the plea bargain system.

*CORRECTION: McLennan County Sheriff’s Detective Roy Davis, not a prosecutor, threatened the men with the death penalty. However, the prosecutor in the case, unnamed in the story, agreed to the deals the judge criticized on the grounds that they "created a powerful incentive for each of them to falsely admit culpability," while "material inconsistencies between and among [them] ... call into doubt the veracity of those prior incriminating statements."


Anonymous said...

The same can be said of Tyler, Smith county, Texas prosecutors.

Margaret Moon said...

What happens to the prosecutors who threatened the witnesses to elicit the false testimony? Have they moved on to become judges and politicians?
My question pertains not only to the aforementioned prosecutors but to all of the others who have used unethical, illegal, and immoral means to reach their ends.

Anonymous said...

The more I learn about cases like these, the more I think maybe the target of reforms should be in how cases are investigated. When state's witnesses have matters pending before the courts whether directly related or not, the outcomes of those matters should be recorded in the case. A DA should be required to file a disclosure form indicating how a witness benefits if at all from their testimony. You might say well, they won't comply with that. Maybe if sanctions are high enough they will. But additionally, defense counsel should be tracking this too--should be obligated to track.

doran said...


Moon has a point. Who was the prosecutor on those cases?


Anonymous said...

Sure need a Star Chamber to right these types of wrongs. Without one, these crooked no good POS cops and prosecutors will not pay for their crimes. They're all laughing to the sound of clinking bourbon-filled glasses as they vacation on their government pensions.

Gritsforbreakfast said...

@doran: Don't know who the prosecutor was. From the story: "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."

The judge recommended overturning the conviction because "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 [them] ... call into doubt the veracity of those prior incriminating statements." But we can't tell from the story the name of the prosecutor who made that deal.

@margaret moon: the statute of limitations probably prevents their prosecution. Maybe state bar action, too, depending on when all this was discovered. As you know, holding prosecutors accountable is no easy task. There are many structural and procedural barriers, which is why it's so rare.

Anonymous said...

That is where the justice problem lays, the prosecutors protections. They must be stripped of their powers.

Anonymous said...

And once again, we have a case that shows the level of corruption within the judicial system in the state of Texas. Law enforcement officers and prosecutors that are so anxious to have a conviction of someone for a crime that they are willing to sell their souls to the devil in order to achieve their goals. Is it just me, or does anyone else think it's time that checks and balances be better used to prevent this sort of thing from happening again and again?

Anonymous said...

I totally agree with Anonymous 3:00 a.m. and 10:10 a.m. - As long as prosecutors, judges (shamed Layne Walker in Jefferson County) and court appointed attorneys know there will be no punishment for them if the defendant is eventually found actually innocent they will continue to participate in the wrongful conviction of an innocent person. When a judge, DA, and the court appointed attorney(doug barlow in my case in Jefferson county) are all in the game together to get a conviction, there's not much that can be done during the trial or sometimes even afterwards. Case in point: Michael Morton - if the defense attorney is in on the "deal" who's going to defend the defendant? I'm not stating that Morton's defense attorneys were in on the deal in his case.
It's reasonably easy and quick to get a conviction, but takes years and years to prove your innocence.

Anonymous said...

Witherspoon reported "McLennan County District Attorney Abel Reyna, whose office defended the convictions against the writ applications".

That's our boy. He's out there doing justice. In the grand tradition of the Grand Dragons that proceeded him.

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