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."