The Injustice of an Innocent Man for 26 Years

By Jay Goodman

The more I understand the law in Texas, the more I’m shocked that no one tries to push for change. I am assuming the reason the men and women who have gotten involved with the law was because they wanted to help protect the community and of course wanted to see justice. But when I think of justice and I see what’s happened to people in prison, I cannot help but wonder. If anyone that has worked for the court system truly understands the word they like to throw around so much, “Justice”?

Earlier in my book I wrote a chapter called, “Executing The Innocent”, and showed the many flaws in the Texas legal system. One of the things that upsets me the most is that Texas is fully aware of these many flaws, but will not do anything to stop it. Instead, they make excuses for it and continue to ruin peoples lives.

Which brings me to my story. Richard Bryan Kussmaul, lost 26 years of his life. Why? Because his friends/co-defendants, James Edward Long, Michael Dewayne Shelton, and James Wayne Pitts Jr., all testified against him. This was a capital murder case, that involved the rape and murder of Leslie Murphy 17 years old and Stephen Neighbors 14 years old, out of Waco, Texas, October 1992. He won a new trial based on DNA evidence. He was released on bond with nothing more than the clothes on his back. His “friends” all recanted their confessions and apologized to Kussmaul. “Gee”, that was nice of them. The McLennan County district attorney’s office dismissed the capital murder charge, against Kussmaul. 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, who had testified that they had joined Kussmaul in raping the girl, and that Kussmaul then shot the victims with a high-powered rifle. Wow! With friends like these, all I can say is, thank God Kussmaul did not have any enemies.

Retired District Judge George Allen, who had presided over the original trial, was also the judge who presided over his 2016 writ of Habeas Corpus §11.07 hearing. Judge Allen was the one who recommended that the court of criminal appeals declare the four defendant’s innocent. The court of criminal appeals set-aside the four convictions in June 2018, but rejected their actual innocence claim.

Now as crazy as this sounds, let’s take a long look at, “why”? Your only allowed to bring-up certain issues in a writ of Habeas Corpus §11.07. But what bothers me is the why, part. Why did Kussmaul’s co-defendants sign statements against him? The answer is very simple. Police now have an easy way out. Lawyers usually don’t do basic investigations anymore. They look over the prosecutions evidence and make a judgement call based on the DA’s evidence. What would have happened “if” Kussmaul’s attorney had asked them for DNA testing? Kussmaul would have had a fighting chance. Even at its early stages of testing, DNA was still used to convict people. Why did Kussmaul’s friends/co-defendants make those statements? Fear. Ask yourself what you would do if you were placed in their shoes? Lie and go to prison for a while, or tell the truth and get your one-way ticket to death row? To add insult to injury, the DA’s office doesn’t believe that they have enough evidence to retry Kussmaul because of the “Compelling DNA Evidence”. If this DNA evidence is so compelling, then why didn’t the judges from the court of criminal appeals in Austin, find him actually innocent? Bottom line, it’s money. If they had cleared Kussmaul and found in favor of his actual innocence, Texas would have to pay out $80,000 for every year he was incarcerated. Plus, lifetime health care benefits and educational scholarships. Not just for Kussmaul, but for his co-defendants as well. For Kussmaul alone that’s $2,080,000.00 for an actual innocence ruling.

Instead, Kussmaul was released from the McLennan County Jail with nothing but a shirt and a pair of pants. He struggled to scrounge up documents for an ID. By the court of criminal appeals not giving him an actual innocence ruling, there was still doubt in people's minds as to whether or not he was actually involved. Just look at the comments by the McLennan County Sheriff’s Office. Sheriff Parnell McNamara said, “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 Gary Morris, of Austin, Texas, 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”. No other law enforcement agency likes anyone questioning their investigations. What should be investigated are the tactics that were used to gain the false confessions in the first place.

I wonder if the real killers or killer are not law enforcement themselves, or were at one time? Could it be simply the real killer or killers have superior standing in the community, so they call in favors to make this disappear? Sound crazy? Well, let me point out something that’s very important. If you were to look at all of the convictions this idiot sheriff and the DA’s office has had because of DNA evidence you would quickly see that they used DNA to convict thousands of people. And of course, that’s alright. It’s alright to use it if it’s in their favor. They will stand in front of a jury and say, here it is DNA doesn’t lie, you have all of the evidence you could hope for. But because they f--ked up, and sent a man to prison for 26 years, now this clown sheriff says he’s not absolutely sure.

Truthfully it should anger everyone because like they say DNA doesn’t lie. That’s what DNA gets you, strong evidence that can’t be disputed unless it’s analyzed by another professional using the same DNA procedures. Which should give the same DNA results. Unless of course you’re the Houston crime lab. Kussmaul and his co-defendants do have an alternative to sue under 42u.s.C.A.§1983, you can sue the state for being illegally detained. See Trezeranty V. City of Tampa, 741 F.2d336(11th Cir.1984). Or Civil rights, Sanders V. English, 950F.2d 1036(6th Cir.1992). Also, James V. Kentucky, 466 US 341 (1984). Either way make sure you keep fighting for your name to be cleared. This is just some of the same business as usual attitudes.

Remember most judges were at one time or another a District Attorney. So they feel that they can now “fix” some of the rulings that went against them when they were a DA. Never mind their foremost duty is to the constitution, Texas Code of Criminal Procedure and the citizens of this state.

Everyone knows this system is broken, but no one wants to fix it. What would happen if your car broke down? But you couldn’t find someone with moral fortitude to fix it. It would continue to break- down on you, possibly leaving you stranded. That’s very reassuring. Well the laws of this state are similar to this problem. Now we know where the Texas Department of Criminal Justice gets their ideas from. No wonder Texas continues to allow this corrupt prison system to continue in its criminal activity. Just like everyone knows this system is broken, they also know the prison system is even worse, but they just sit back and allow it to be run by criminals.

I know full and well what Kussmaul went through in the Texas prison system on a rape and murder charge. For those of you who don’t? Imagine a time in the early 1990’s when no one wanted anything to do with a sex-offender, whether you had a prison uniform on or a guard’s uniform. I have seen prisoners with rape cases humiliated, spit on, smacked, punched, beat, and killed. And even though it’s a little better today, because of safe prisons, they are still ridiculed and mentally abused by prisoners and staff. Believe me, the mental anguish alone has left Kussmaul scarred for life. Do you think he’s just another one who fell through the cracks? How many men and women continue to be found innocent? There is one thing no one will ever be able to return to Kussmaul. “Time”. Time, he could have had with his parents, or with his brother who died from cancer, or watching his son grow up. His son also sits in prison. Would he have been able to stop that, if he would have been there the last 26 years?

Let’s take a long look at something else no one ever considers. What if his Mom and Dad, or other family members suffered from people ridiculing them all of these years? What if his family even stopped talking to him for the last 26 years? None of these things are ever talked about when someone is found to be innocent of the crimes they’ve sat in prison for. For all the people who were involved in allowing this man to sit in prison for almost 3 decades, take a long look in the mirror at yourselves. Look at what this man lost, imagine if it was your son or daughter. It’s because of these types of people that I am so against the death penalty. What would Texas have done if they executed Kussmaul? Texas would have gone on TV and said, it was a horrible mistake, and that they were going to look into this and try to make sure this never happened again. Remember the keyword, “try”, which means they are not going to do “shit”. There has been case after case in Texas just like Kussmaui’s. My question for every person in Texas, especially the politicians is, how many dozens or hundreds of people has Texas executed, that were innocent? My God, the number has to be staggering.