stars.» The girl and her hastily
packed cardboard suitcase ended up as blood-soaked wreckage at the bottom of a ravine near
Craig, Colorado; but not many hours after she had been shot and thrown there, her assassins
were in fact performing before motion-picture cameras.
Descriptions of the red car’s occupants, provided by witnesses who had noticed them loitering in
the area where Otto Ziegler’s body was discovered, had been circulated through the Midwest and
Western states. Roadblocks were erected, and helicopters patrolled the highways; it was a
roadblock in Utah that caught York and Latham. Later, at Police Headquarters in Salt Lake City, a
local television company was allowed to film an interview with them. The result, if viewed without
sound, would seem to concern two cheerful, milk fed athletes discussing hockey or baseball anything but murder and the roles, boastfully confessed, they had played in the deaths of seven
people. «Why,» the interviewer asks, «why did you do it?» And York, with a self-congratulatory
grin, answers, «We hate the world.»
All five of the states that vied for the right to prosecute York and Latham endorse judicial
homicide: Florida (electrocution),Tennessee (electrocution), Illinois (electrocution), Kansas
(hanging), and Colorado (lethal gas). But because it had the firmest evidence, Kansas was victorious.
The men on the Row first met their new companions November 2, 1961. A guard, escorting the
arrivals to their cells, introduced them: «Mr. York, Mr. Latham, I’d like you to know Mr. Smith here.
And Mr. Hickock. And Mr. Lowell Lee Andrews — ‘the nicest boy in Wolcott!'»
When the parade had passed, Hickock heard Andrews chuckling, and said, «What’s so funny
about that sonofabitch?»
«Nothing,» Andrews said. «But I was thinking: when you count my three and your four and their
seven, that makes fourteen of them and five of us. Now five into fourteen averages out — «
«Four into fourteen,» Hickock curtly corrected him. «There are four killers up here and one
railroaded man. I’m no goddam killer. I never touched a hair on a human head.»
Hickock continued writing letters protesting his conviction, and one of these at last bore fruit. The
recipient, Everett Steerman, Chairman of the Legal Aid Committee of the Kansas State Bar
Association, was disturbed by the allegations of the sender, who insisted that he and his codefendant had not had a fair trial. According to Hickock, the «hostile atmosphere» in Garden City
had made it impossible to empanel an unbiased jury, and therefore a change of venue should
have been granted. As for the jurors that were chosen, at least two had clearly indicated a
presumption of guilt during the voir dire examination («When asked to state his opinion of capital
punishment, one man said that ordinarily he was against it, but in this case no»); unfortunately,
the voir dire had not been recorded because Kansas law does not require it unless a specific
demand is made. Many of the jurors, moreover, were «well acquainted with the deceased. So was
the judge. Judge Tate was an intimate friend of Mr. Clutter.»
But the bulkiest of Hickock’s mud pies was aimed at the two defense attorneys, Arthur Fleming
and Harrison Smith, whose «incompetence and inadequacy» were the chief cause of the
correspondent’s present predicament, for no real defense had been prepared or offered by them,
and this lack of effort, it was implied, had been deliberate — an act of collusion between the
defense and the prosecution.
These were grave assertions, reflecting upon the integrity of two respected lawyers and a
distinguished district judge, but if even partially true, then the constitutional rights of the
defendants had been abused. Prompted by Mr. Steerman, the Bar Association undertook a
course of action without precedent in Kansas legal history: it appointed a young Wichita attorney,
Russell Shultz, to investigate the charges and, should evidence warrant it, challenge the validity
of the conviction by bringing habeas corpus proceedings in the Kansas Supreme Court, which
had recently upheld the verdict.
It would appear that Shultz’s investigation was rather one-sided, since it consisted of little more
than an interview with Smith and Hickock, from which the lawyer emerged with crusading phrases
for the press: «The question is this — do poor, plainly guilty defendants have a right to a complete
defense? I do not believe that the State of Kansas would be either greatly or for long harmed by
the death of these appellants. But I do not believe it could ever recover from the death of due
process.»
Shultz filed his habeas corpus petition, and the Kansas Supreme Court commissioned one of its
own retired justices, the Honorable Walter G. Thiele, to conduct a full-scale hearing. And so it
came to pass that almost two years after the trial, the whole cast reassembled in the courtroom at
Garden City. The only important participants absent were the original defendants; in their stead,
as it were, stood Judge Tate, old Mr. Fleming, and Harrison Smith, whose careers were imperiled

not because of the appellant’s allegations per se, but because of the apparent credit the Bar
Association bestowed upon them.
The hearing, which at one point was transferred to Lansing, where Judge Thiele heard Smith and
Hickock testify, took six days to complete; ultimately, every point was covered. Eight jurors swore
they had never known any member of the slain family; four admitted some slight acquaintance
with Mr. Clutter, but each, including N. L. Dunnan, the airport operator who had made the
controversial reply during the voir dire, testified that he had entered the jury box with an
unprejudiced mind. Shultz challenged Dunnan: «Do you feel, sir, that you would have been willing
to go to trial with a juror whose state of mind was the same as yours?» Dunnan said yes, he
would; and Shultz then said, «Do you recall being asked whether or not you were averse to capital
punishment?» Nodding, the witness answered, «I told them under normal conditions I would probably be averse to it. But with the magnitude of this crime I could probably vote in favor.»
Tangling with Tate was more difficult: Shultz soon realized he had a tiger by the tail. Responding
to questions relevant to his supposed intimacy with Mr. Clutter, the judge said, «He [Clutter] was
once a litigant in this court, a case over which I presided, a damage action involving an airplane
falling on his property; he was suing for damages to — I believe some fruit trees. Other than that, I
had no occasion to associate with him. None whatever. I saw him perhaps once or twice in the
course of a year . . .»Shultz, floundering, switched the subject.
«Do you know,» he asked, «what the attitude of the people was in this community after the
apprehension of these two men?»
«I believe I do,» the judge told him with scathing confidence. «It is my opinion that the attitude
toward them was that of anyone else charged with a criminal offense — that they should be tried
as the law provides; that if they were guilty they should be convicted; that they should be given
the same fair treatment as any other person. There was no prejudice against them because they
were accused of crime.» «You mean,» Shultz slyly said, «you saw no reason for the court on its
own motion to grant a change of venue?» Tate’s lips curved downward, his eyes blazed. «Mr.
Shultz,» he said, as though the name was a prolonged hiss, «the court cannot on its own grant a
change of venue. That would be contrary to Kansas law. I couldn’t grant a change unless it was
properly requested. «But why had such a request not been made by the defendants’ attorneys?
Shultz now pursued this question with the attorneys themselves, for to discredit them and prove
that they had not supplied their clients with the minimum protection was, from the Wichita lawyer’s
viewpoint, the hearing’s principal objective. Fleming and Smith withstood the onslaught in good
style, particularly Fleming, who, wearing a bold red tie and an abiding smile, endured Shultz with
gentlemanly resignation. Explaining why he had not applied for a change of venue, he said, «I felt
that since the Reverend Cowan, the minister of the Methodist church, and a man of substance
here, a man of high standing, as well as many other ministers here, had expressed themselves
against capital punishment, that at least the leaven had been cast in the area, and there were
likely more people here inclined to be lenient in the matter of the penalty than perhaps in other
parts of the state. Then I believe it was a brother of Mrs. Clutter’s who made a statement that
appeared in the press indicating he did not feel the defendants should be put to death.»
Shultz had a score of charges, but underlying them all was the implication that because of
community pressure, Fleming and Smith had deliberately neglected their duties. Both men, Shultz
maintained, had betrayed their clients by not consulting with them sufficiently (Mr. Fleming
replied, «I worked on the case to the very best of my ability, giving it more time than I do most
cases»); by waiving a preliminary hearing (Smith answered, «But sir, neither Mr. Fleming nor I had
been appointed counsel at the time of the waiver»); by making remarks to newsmen damaging to
the defendants (Shultz to Smith: «Are you aware that a reporter, Ron Kull of the Topeka Daily
Capital, quoted you, on the second day of the trial, as saying there was no doubt of Mr. Hickock’s
guilt, but that you were concerned only with obtaining life imprisonment rather than the death
penalty?» Smith to Shultz: «No, sir. If I was quoted as saying that it was incorrect»); and by failing
to prepare a proper defense.
This last proposition was the one Shultz pedaled hardest; it is relevant, therefore, to reproduce an
opinion of it written by three Federal judges as the result of a subsequent appeal to the United
States Court of Appeals, Tenth Circuit: «We think, however, that those viewing the situation in
retrospect have lost sight of the problems which confronted Attorneys Smith and Fleming when
they undertook the defense of these petitioners.