MOODY, Texas (KWTX) A man who along with three other men was convicted of the murders of two Moody teenagers in 1992 and was sentenced to life in prison, was free on bond Wednesday while he awaits a final decision on his appeal of actual innocence.
Richard Kussmaul, who had been held in the McLennan County Jail, did not appear on either jail or state prison rosters Wednesday.
Executive Assistant McLennan County District Attorney Tom Needham confirmed Kussmaul had been freed but added Wednesday “the matter remains under active investigation.”
The Texas Court of Criminal Appeals on June 7, 2018, set aside the convictions for Kussmaul, James Long, Michael Shelton and James Pitts Jr., and ruled DNA evidence in the case exonerates the four men in the March 1992 deaths of Leslie Murphy, 17, and Stephen Neighbors, 14, in Moody.
Long and Pitts completed their individual 20-year sentences and were released and Shelton was paroled after he served 17 years.
Only Kussmaul remained in custody
Retired Judge George Allen, in 54th District Court, approved a $10,000 personal recognizance bond for Kussmaul on Friday.
The state’s highest criminal appeals court did grant writs of habeas corpus relief for Kussmaul, Long, Shelton and Pitts after the justices determined DNA evidence, which was not available at the time of the original trial, indicated the four could not have been responsible for killing Murphy and Neighbors.
In a 78-page order the Texas Court of Criminal Appeals stopped short of finding the four men “actually innocent.”
Crime scene evidence from the time of the incident showed Murphy had been sexually assaulted, then she and Neighbors both were shot in the back with a high-powered rifle at a mobile home near Moody.
The Actual Innocence Clinic in Austin had pushed for new DNA samples in the case and Allen ordered the new testing in 2016.
DNA and hair evidence presented at the hearing did not match any of the defendants’ and was from an unknown male donor, Allen wrote, and, he said the new evidence “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.
“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.
Shelton, Pitts and Long all pleaded guilty to sexual assault and testified in Kussmaul’s original trial that they and Kussmaul sexually assaulted Murphy and that Kussmaul then used the rifle to shoot both victims, but they later recanted their confessions, which they claimed in testimony during a two-day hearing before Allen in July 2016 were coerced and choreographed by McLennan County Sheriff’s investigator Roy Davis.
“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 opinion also said.
Shelton, Pitts and Long agreed to plead guilty in exchange for a promise of probation, but after Kussmaul's conviction in May 1994, Allen, who was then serving as a state district judge, rejected their plea deals and sentenced each to serve 20 years in state prison for sexual assault.
Kussmaul was sentenced to life.
An actual innocence ruling would have eliminated possibility of retrial
And, local attorney Stan Schweiger said, each of the men could have been eligible for payment of as much as $80,000-a-year for each year they were incarcerated, from the State of Texas.
Winning actual innocence ruling isn’t easy
Unlike a not guilty verdict, which means the state failed to meet the burden of proof that a defendant committed a crime, an actual innocence ruling means the defendant did not commit the crime, period.
The legal resource Westlaw, the attorney’s Bible, says “to prove actual innocence, the defendant must submit additional evidence that undermines the court's confidence in the verdict reached by the trier of fact.
“Appellate rules normally require that this evidence must not have been available to the defendant at the time of the trial.”
In the United States, establishing actual innocence after a conviction usually is considerably more difficult than winning an acquittal at trial, however.
At trial, the defendant enjoys a due process right to the presumption of innocence, and the state is obligated to prove the guilt of the accused beyond a reasonable doubt.
However, innocence is a factual question, and once a fact-finder—judge or jury—makes a factual determination, appellate and post-conviction courts generally are bound by those factual determinations.
Appeals and post-conviction cases, by their very nature, focus on legal errors, not factual disputes.
Indeed, it is unclear whether proof of actual innocence is, in and of itself, grounds for appellate reversal.
Winning an actual innocence ruling isn't easy
There are two ways to achieve a ruling of actual innocence.
The first is direct appeal, which is limited in number and scope, and addresses only those issues raised in the lower court.
The second method of attacking the validity of a conviction is known as collateral review, and it can take many forms, such as state and federal petitions for writs of habeas corpus, petitions for writs of error coram nobis, a legal order allowing a court to correct its original judgment, and—increasingly—a newly developed form of collateral relief which allows petitioners to raise claims of actual innocence, whether through DNA testing or through some other method.
It is in collateral, post-conviction filings that claims of actual innocence are most likely to be considered.
To achieve that, rules say: “Given the extent to which an inquiry into actual innocence intrudes upon the finality of convictions and otherwise untainted jury conclusions, the court reasoned, a “threshold standard” must be met.
That means: “An applicant seeking habeas relief based on a claim of factual innocence must, as a threshold, demonstrate that the newly discovered evidence, if true, creates a doubt as to the efficacy of the verdict sufficient to undermine confidence in the verdict and that it is probable that the verdict would be different.
“An applicant who meets the threshold standard is entitled to an opportunity to establish his right to relief.”
Meeting those standards is not easy.
“In order to be entitled to relief on a claim of factual innocence the applicant must show that based on the newly discovered evidence and the entire record before the jury that convicted him, no rational trier of fact could find proof of guilt beyond a reasonable doubt,” which is exactly what Judge Allen found.
But, in spite of Allen’s request, the court refused an actual innocence finding in the case of the four.