PUBLISHER'S NOTE: This Blog is interested in false confessions because of the disturbing number of exonerations in the USA, Canada and multiple other jurisdictions throughout the world, where, in the absence of incriminating forensic evidence the conviction is based on self-incrimination – and because of the growing body of scientific research showing how vulnerable suspects are to widely used interrogation methods such as the notorious ‘Reid Technique.’ As all too many of this Blog's post have shown, I also recognize that pressure for false confessions can take many forms, up to and including physical violence, even physical and mental torture.
Harold Levy: Publisher; The Charles Smith Blog:
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PUBLISHER'S NOTE: This is about a cold case that heated up after a police officer named Davis was asked to take another look at the case. As we learn from Register of Exonerations entry: "In March 1993, Mclennan County deputy sheriff Roy Davis was assigned to take another look at the case. He decided to question Pitts again. Davis later said that he had no evidence implicating Pitts, but decided to “go fishing.” He said he falsely told Pitts that he had witnesses who saw Pitts with Murphy and Neighbors near Moody before their bodies were found. Davis said Pitts “lost it,” and admitted that he had been with Murphy and Neighbors before they were killed. Over the next four days—from March 29 to April 1—Pitts gave five different statements, three of which were tape recorded. Davis later said that after each statement, he would investigate. When there were inconsistencies, he re-interviewed Pitts. Davis said Pitts—who had an IQ of 68, indicating a diminished mental capacity—changed his account and gave a “little bit more each time.” Ultimately, Pitts said that he and three others— Kussmaul, Long, and 22-year-old Michael Shelton—had raped Murphy, and Kussmaul then shot the victims to death. During the following 12 months, Davis obtained confessions from Shelton and Long as well. The prosecution offered deals to all three—plead guilty to aggravated criminal sexual assault and testify against Kussmaul in exchange for probation. In April 1993 Pitts, Long, Shelton, and Kussmaul were arrested. Kussmaul was charged with capital murder. Long, Pitts, and Shelton pled guilty and testified against Kussmaul, who went to trial in McLennan County Criminal District Court in May 1994. Needless to say, bye bye Kussmaul. So there's Kussmaul locked up with lots of time on his hands when he leafs through his trial lawyer's file and discovers a 1993 report showing that DNA testing had been performed on the vaginal swab from the rape kit and on the paper towels found next to Murphy’s body, all of which contained sperm. The tests excluded Kussmaul, Long, Shelton, and Pitts. So Kussmaul launches a legal battle - and ultimately after Long, DSheldon and Pitt's Jr. had served their time, the truth pours out. We learn that:
"All three denied involvement in the crime and said that Sheriff’s Deputy Roy Davis had coerced them. Long said he confessed “because I was scared of going to prison or, worse, getting the death penalty.” He said Davis told him to confess or he would make sure Long got the death penalty. Long said Davis grabbed his arm and showed him the vein where the needle would be inserted. Long said Davis and prosecutor Freeman promised him probation. Long also testified that he was never in Poor Boy’s at the same time that Kussmaul was there because Long’s father, who frequented Poor Boy’s, hated Kussmaul. “I was willing to say anything they wanted me to say because I thought I was getting probation and no prison time,” Long testified. “I had two small children and I was afraid of going to prison for life or, worse, getting executed.” During his testimony, Long addressed Kussmaul who sat at the defense table. “I feel sorry that I ruined your life along with mine,” Long said. Shelton testified that he took two polygraph exams, but was never informed of the results. He said Davis “was cussing at me and told me he knows I did it and he said if I don’t come clean, he was going to make sure I got the death penalty….I had a two-week-old daughter at the time, and he said he would make sure she would be turned over to (Child Protective Services) and my ex-wife would go to prison because she must have known something about the murders, too.” Pitts testified that Davis kicked him in the stomach, smashed his head against a wall, and threatened him with execution. “That’s when I told him what he wanted to hear,” Pitts said. “I was scared I was going to be charged with capital murder and sentenced to death.” Evidence also was presented that Davis searched for the exit fragments of the bullet that had left a hole in the blanket, but never found any. The defense claimed that had the shooting occurred in the trailer, as the prosecution contended, the fragments would have been in the mattress."
Oh yes: The forensics that put Kussmaul behind bars for capital murder? Here is some more from the Register of Exonerations:
"In September 2014, Judge Allen held a hearing on the test results. Barbara Leal, a senior DNA forensic analyst for Cellmark Forensics, which performed the tests, testified that all four defendants were excluded, as was Neighbors. Tests performed on cuttings from Murphy’s jeans and the vaginal swab identified DNA profiles of two unidentified males. One profile was suitable for running through the state of Texas DNA database, but it was not linked to anyone. Neither profile was suitable to submit to the FBI’s national database of convicted offenders and unsolved crimes. Blake Goertz, the DNA section supervisor of the Texas Department of Public Safety crime lab in Waco, testified and agreed with Leal’s findings. Leal and Goertz agreed that the 1993 DQ-Alpha testing on evidence gathered during the investigation of the crime excluded all four defendants.
Both disagreed with Linch’s trial testimony in which he suggested that such results did not exist in the case and were unlikely in any case because of the limitations of the technology at the time. (My emphasis. HL):
In 2014, Judge Allen recommended that Kussmaul and his co-defendants be granted new trials. In Kussmaul’s case, the judge said, “Had the DNA results obtained in this (proceeding) been available at the time of Kussmaul’s conviction, it is reasonably probable that Kussmaul would not have been convicted of the offense of capital murder of Leslie Murphy and Steven Neighbors.” The judge made similar findings as to Long, Shelton, and Pitts. “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,” the judge 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.”
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Here is the entire entry on this pathetic case - by Maurice Possley - from the U.S. Nation Register of Exonerations.
Early on March 21, their bodies were found wrapped in a sheet and a blanket along a gravel road near Moody, Texas, about 25 miles south of Waco in McLennan County. Both had been shot in the back.
Police questioned Krebbs, who said he had not seen them after their visit on March 18. Police also questioned 20-year-old James Pitts Jr., an acquaintance of Murphy’s who lived in Moody. Pitts said he had only met Murphy once a long time ago in Dallas. Pitts took a polygraph examination, and subsequently he and Krebbs were cleared as suspects.
In May 1992, police interviewed an acquaintance of Pitts's, 21-year-old Richard Kussmaul, who was staying in his ex-girlfriend’s trailer in rural Moody. Kussmaul said he did not know Murphy or Neighbors, or who may have killed them. Kussmaul’s ex-girlfriend and her sister told police that Kussmaul was with them on March 20 and 21.
No murder weapon was found and the investigation went cold.
In March 1993, Mclennan County deputy sheriff Roy Davis was assigned to take another look at the case. He decided to question Pitts again. Davis later said that he had no evidence implicating Pitts, but decided to “go fishing.” He said he falsely told Pitts that he had witnesses who saw Pitts with Murphy and Neighbors near Moody before their bodies were found. Davis said Pitts “lost it,” and admitted that he had been with Murphy and Neighbors before they were killed.
Over the next four days—from March 29 to April 1—Pitts gave five different statements, three of which were tape recorded. Davis later said that after each statement, he would investigate. When there were inconsistencies, he re-interviewed Pitts. Davis said Pitts—who had an IQ of 68, indicating a diminished mental capacity—changed his account and gave a “little bit more each time.”
Ultimately, Pitts said that he and three others—Kussmaul, Long, and 22-year-old Michael Shelton—had raped Murphy, and Kussmaul then shot the victims to death.
During the following 12 months, Davis obtained confessions from Shelton and Long as well. The prosecution offered deals to all three—plead guilty to aggravated criminal sexual assault and testify against Kussmaul in exchange for probation. In April 1993 Pitts, Long, Shelton, and Kussmaul were arrested. Kussmaul was charged with capital murder.
Long, Pitts, and Shelton pled guilty and testified against Kussmaul, who went to trial in McLennan County Criminal District Court in May 1994.
Pitts testified that on March 20, 1992, Murphy called to say that she and Pitts’s former girlfriend were in San Antonio, and that they would be coming through Bruceville-Eddy—a town located about six miles east of Moody along Interstate 35. Pitts said he agreed to meet them outside a movie rental store and called Kussmaul to give him a ride.
While waiting for Murphy, Pitts said, he and Kussmaul went to the Frontier Lounge for about an hour. They then went to the rental shop, where they picked up Murphy and Neighbors. Pitts said his former girlfriend was not there.
Pitts said they rode in Kussmaul’s pickup truck to a mobile home in a rural area near Moody where Kussmaul lived with Shelton and two women. On their way, they picked up another friend of Kussmaul’s, James Long. Pitts said the two women were not at the trailer that night.
Pitts testified that after a short time, they filled a cooler with beer and went to Poor Boys, a nightclub in Eddy where they shot pool and stayed well past midnight. They then returned to the trailer. Pitts said everyone was drinking except for him, Murphy, and Neighbors because they were underage.
Pitts—whose testimony was corroborated by Long and Shelton—said that at the trailer, Kussmaul began making sexual advances on Murphy by placing his hands on her breasts and between her legs. She told him to stop and when he didn’t, she slapped him in the face. Pitts said Kussmaul then punched her in the face and knocked her to the floor.
Kussmaul then yelled at Pitts, Long, and Shelton to hold Murphy down while he used his knife to cut the crotch out of her jeans and underwear. Pitts said that as Murphy screamed for help, Kussmaul began raping her on the carpeted living room floor. However, because she resisted, they carried her into the bedroom and threw her onto a bed.
Long testified that he punched Neighbors in the face and knocked him to the floor “almost unconscious.” Kussmaul punched Murphy again, tied a gag over her mouth, and resumed his sexual assault. When Kussmaul left the bedroom, Pitts, Long, and Shelton took turns raping Murphy, Long said.
They heard a gunshot outside and Kussmaul then returned to the bedroom with a bolt-action rifle. Neighbors was dragged from the living room into the bedroom, where Kussmaul kicked him in the face and he fell to the floor. Kussmaul then shot both Murphy and Neighbors in the back.
Shelton, Long, and Pitts all testified that they wrapped the bodies in bedding and put them in the back of Kussmaul’s truck. After driving around, they dumped the bodies beside a gravel road. They then returned to the mobile home, where they cleaned the blood and vacuumed the floors.
Claudine McNamara, a bartender at Poor Boys nightclub, testified that she saw Kussmaul, whom she had once dated, in the club on the night of March 20—the night before the bodies were found. With him were Long and Shelton and Pitts, as well as Murphy and Neighbors. The defense noted that in November 1992, when first questioned by police, she did not recognize photographs of Neighbors or Murphy. She said she saw photographs of Murphy and Neighbors in flyers every day after the crime while the case was still unsolved, but did not realize where she first saw them until 1993.
Charles Linch, a trace evidence analyst, testified about carpet fibers found on a sheet and blanket used to wrap the bodies. He said, “There was one fiber from the white bed sheet that I could not exclude as coming from the master bedroom of the mobile home trailer. There was one trilobal fiber from the pink blanket that I could not exclude as coming from the bedroom of the mobile home trailer.”
Linch said that “going through my steps of comparison with the comparison light microscope, the polarized light microscope, the fluorescence microscope and micro spectrophotometer, no differences at all were seen. That means that the fibers found with the bedding with the bodies either came from the carpet in the mobile trailer or carpet that is identical to that in the mobile trailer.”
Kussmaul’s defense attorney called Patricia Eddings, a senior trace analyst from the Tarrant County Crime Lab, who testified that she examined the microscopic slides that Linch had prepared and reviewed his reports. She said she, too, could not exclude the fibers from the blanket and sheet as having come from the carpet.
Long, Pitts, and Shelton said the blanket was already in Kussmaul’s truck when they took the bodies out of the trailer.
Although Linch had not performed any DNA testing, he testified that he examined the bedding used to wrap the bodies and found no semen. He said that without sperm, no DNA tests could be performed using the method of DNA testing then employed by the crime lab. “To answer your question with regard to seminal fluid and the absence of sperm, it would be unlikely to recover DNA,” he testified. He was never asked whether any tests were performed on the rape kit or paper towels found next to Murphy’s body.
Linch also testified that he had examined hundreds of hairs recovered by police and could not link any of them to the defendants. Two hairs were identified as “Negroid” head hairs. He testified, “The majority of the hairs that were collected from the clothing of the victims, I could not exclude the victims as being the source. With regard to other hairs, there were some that were foreign to the victims that I could not in confidence associate to another individual.”
Dr. Janice Parchman, who conducted the autopsies, said both victims were shot in the back and that she recovered bullet fragments from both victims.
Lannie Emmanuel, a Dallas County firearm and tool mark examiner, testified that the fragments came from “British .303 Mark 7” bullets. Emmanuel used the class characteristics to identify what particular firearms could have been used to fire the bullets. He testified there was only one weapon that came up: “a .303 British Lee Enfield” bolt-action rifle.
The prosecution claimed this corroborated Long’s testimony that Kussmaul used a “bolt action rifle,” and Shelton’s testimony that the rifle wasn’t the .22-caliber rifle or .410-gauge shotgun that he had seen at the mobile home before.
McLennan County Deputy Sheriff Larry Abner testified that on the day the bodies were discovered, he saw tire tracks that suggested that the vehicle that was used to dump the bodies had been backed into the spot, and that the driver had spun the tires in the grass while leaving. Abner said there were oily droppings that followed the tracks. He said he followed the drops for three or four miles up the road, but then lost the trail because of a high volume of spots due to excessive traffic.
Mike Avila, a neighbor living near the trailer, testified that around 1 a.m. on the night before the bodies were found, he heard a truck with a loud exhaust pull up. Ten minutes later, he heard a gunshot, and heard “a girl or a woman” calling for help. A half hour later, he heard two more gunshots, very close together. Ten or fifteen minutes after that, he heard the pickup leave. He said he never told anyone because he was “afraid of getting hurt.”
Another neighbor, James Phelps Sr., testified he heard a single gunshot around 11:00 p.m. that night, and said he discussed the gunshot with Avila that next morning.
Long and Pitts testified that Kussmaul’s truck had a loud exhaust and leaked transmission fluid.
Richard Chaney testified that he was in the McLennan County Jail with Kussmaul and that Kussmaul admitted he shot the victims. Chaney testified that Kussmaul said he used a rifle, which he had gotten rid of in Denton. Chaney said he knew Kussmaul before they were locked up together. He said Kussmaul had once given him a ride and they had crossed paths at a gas station. The trial judge barred the defense from cross-examining Chaney about an unrelated case in which Chaney said another jail inmate had confessed to a crime, but that claim was proven false.
On May 20, 1994, the jury convicted Kussmaul of capital murder. He was sentenced to life in prison without parole.
In July 1994, District Judge Charles Allen, who presided over Kussmaul’s trial, rejected the prosecution’s recommendation of 10 years of probation for Long, Shelton, and Pitts. Instead, he sentenced all three to 20 years in prison.
In September 1995, Kussmaul’s conviction was upheld. He then began filing state law petitions for a writ of habeas corpus, without success. His second writ, which was based on recantations by Long, Shelton, and Pitts, was denied.
He subsequently obtained his file from his trial attorney, Walter Reaves. In the file, Kussmaul found a 1993 report showing that DNA testing had been performed on the vaginal swab from the rape kit and on the paper towels found next to Murphy’s body, all of which contained sperm. The tests excluded Kussmaul, Long, Shelton, and Pitts. Kussmaul filed another habeas petition, claiming that he did not know about the test results, and that Reaves had provided an inadequate legal defense by failing to introduce them. That petition was denied on the ground that the evidence was known to the defense—even if not known by Kussmaul—at the time of trial and so was not newly discovered evidence, as required by law.
Ultimately, the Actual Innocence Clinic at the University of Texas at Austin began investigating Kussmaul’s case and recruited private lawyers to represent Long, Shelton, and Pitts. In 2002 and 2003, Long, Pitts, and Kussmaul filed motions for DNA testing, arguing that advances in testing procedures would provide more accurate results.
Judge Allen denied the writs, concluding: “Because the prior DNA testing did not match and excluded all of the suspects as the source of the DNA on the vaginal swab and paper towels, these former results were both accurate and probative.”
The Texas Court of Criminal Appeals upheld the ruling, noting that any new test results would not outweigh the trial testimony of Shelton, Long, and Pitts, as well as Kussmaul’s jailhouse confession.
In 2012, all four defendants filed another habeas petition seeking DNA testing. Kussmaul’s attorney, Tiffany Dowling, director of the Actual Innocence Clinic, said the clinic would pay for the testing. Judge Allen ordered testing on evidence gathered during the investigation.
In September 2014, Judge Allen held a hearing on the test results. Barbara Leal, a senior DNA forensic analyst for Cellmark Forensics, which performed the tests, testified that all four defendants were excluded, as was Neighbors. Tests performed on cuttings from Murphy’s jeans and the vaginal swab identified DNA profiles of two unidentified males. One profile was suitable for running through the state of Texas DNA database, but it was not linked to anyone. Neither profile was suitable to submit to the FBI’s national database of convicted offenders and unsolved crimes.
Blake Goertz, the DNA section supervisor of the Texas Department of Public Safety crime lab in Waco, testified and agreed with Leal’s findings. Leal and Goertz agreed that the 1993 DQ-Alpha testing on evidence gathered during the investigation of the crime excluded all four defendants. Both disagreed with Linch’s trial testimony in which he suggested that such results did not exist in the case and were unlikely in any case because of the limitations of the technology at the time.
In 2014, Judge Allen recommended that Kussmaul and his co-defendants be granted new trials. In Kussmaul’s case, the judge said, “Had the DNA results obtained in this (proceeding) been available at the time of Kussmaul’s conviction, it is reasonably probable that Kussmaul would not have been convicted of the offense of capital murder of Leslie Murphy and Steven Neighbors.” The judge made similar findings as to Long, Shelton, and Pitts.
“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,” the judge 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.”
In 2015, the Texas Court of Criminal Appeals ordered further hearings in the case. At a hearing in July 2016, Long, Pitts, and Shelton all testified. By that time, they were no longer in prison. Long and Pitts served their sentences and were released in April 2014. Shelton had been released on parole in 2011.
All three denied involvement in the crime and said that Sheriff’s Deputy Roy Davis had coerced them.
Long said he confessed “because I was scared of going to prison or, worse, getting the death penalty.” He said Davis told him to confess or he would make sure Long got the death penalty. Long said Davis grabbed his arm and showed him the vein where the needle would be inserted. Long said Davis and prosecutor Freeman promised him probation. Long also testified that he was never in Poor Boy’s at the same time that Kussmaul was there because Long’s father, who frequented Poor Boy’s, hated Kussmaul.
“I was willing to say anything they wanted me to say because I thought I was getting probation and no prison time,” Long testified. “I had two small children and I was afraid of going to prison for life or, worse, getting executed.”
During his testimony, Long addressed Kussmaul who sat at the defense table. “I feel sorry that I ruined your life along with mine,” Long said.
Shelton testified that he took two polygraph exams, but was never informed of the results. He said Davis “was cussing at me and told me he knows I did it and he said if I don’t come clean, he was going to make sure I got the death penalty….I had a two-week-old daughter at the time, and he said he would make sure she would be turned over to (Child Protective Services) and my ex-wife would go to prison because she must have known something about the murders, too.”
Pitts testified that Davis kicked him in the stomach, smashed his head against a wall, and threatened him with execution. “That’s when I told him what he wanted to hear,” Pitts said. “I was scared I was going to be charged with capital murder and sentenced to death.”
Evidence also was presented that Davis searched for the exit fragments of the bullet that had left a hole in the blanket, but never found any. The defense claimed that had the shooting occurred in the trailer, as the prosecution contended, the fragments would have been in the mattress.
Judge Allen again recommended that all four be granted new trials and declared that all four were factually innocent.
In June 2018, the Texas Court of Criminal Appeals granted the writs and vacated the convictions of all four men. However, the appeals court declined to find that they were factually innocent. The court ruled that while the DNA tests may have indicated that they did not commit the sexual assault, the test results did not mean that they were not involved in the murders.
In April 2019, Kussmaul was released on bond while awaiting a retrial. On October 16, 2019, the prosecution dismissed the charges against all four men.
– Maurice Possley
The entire National Registry entry can be read at:
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5629
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PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
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FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices.""
Lawyer Radha Natarajan:
https://www.providencejournal.com/news/20191210/da-drops-murder-charge-against-taunton-man-who-served-35-years-for-1979-slaying
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