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. When they accepted the appointments each petitioner had made a full confession, and they did not then contend, nor did they seriously contend at any time in the state courts, that these confessions were not voluntary.
A radio taken from the Clutter home and sold by the petitioners in Mexico City had been recovered, and the attorneys knew of other evidence of their guilt then in the possession of the prosecution. When called upon to plead to the charges against them they stood mute, and it was necessary for the court to enter a plea of not guilty for them. There was no substantial evidence then, and none has been produced since the trial, to substantiate a defense of insanity. The attempt to establish insanity as a defense because of serious injuries in accidents years before, and headaches and occasional fainting spells of Hickock, was like grasping at the proverbial straw. The attorneys were faced with a situation where outrageous crimes committed on innocent persons had been admitted. Under these circumstances, they would have been justified in advising that petitioners
enter pleas of guilty and throw themselves on the mercy of the court. Their only hope was through some turn of fate the lives of these misguided individuals might be spared.»
In the report he submitted to the Kansas Supreme Court, Judge Thiele found that the petitioners had received a constitutionally fair trial; the court thereupon denied the writ to abolish the verdict, and set a new date of execution — October 25, 1962. As it happened, Lowell Lee Andrews, whose case had twice traveled all the way to the United States Supreme Court, was scheduled to hang one month later.
The Clutter slayers, granted a reprieve by a Federal judge, evaded their date. Andrews kept his.
ln the disposition of capital cases in the United States, the median elapsed time between sentence and execution is approximately seventeen months. Recently, in Texas, an armed robber was electrocuted one month after his conviction; but in Louisiana, at the present writing, two rapists have been waiting for a record twelve years. The variance depends a little on luck and a great deal on the extent of litigation. The majority of the lawyers handling
