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
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 these cases are court-appointed and work without recompense; but more often than not the courts, in order to avoid future appeals based on complaints of inadequate representation, appoint men of first quality who defend with commendable vigor. However, even an attorney of moderate talent can postpone doomsday year after year, for the system of appeals that pervades American jurisprudence amounts to a legalistic wheel of fortune, a game of chance, somewhat fixed in the favor of the criminal, that the participants play interminably, first in the state courts, then through the Federal courts until the ultimate tribunal is reached—the United States Supreme Court. But even defeat there does not signify if petitioner’s counsel can discover or invent new grounds for appeal; usually they can, and so once more the wheel turns, and turns until, perhaps some years later, the prisoner arrives back at the nation’s highest court, probably only to begin again the slow cruel contest. But at intervals the wheel does pause to declare a winner—or, though with increasing rarity, a loser: Andrews’ lawyers fought to the final moment, but their client went to the gallows on Friday, November 30,1962.
“That was a cold night,” Hickock said, talking to a journalist with whom he corresponded and who was periodically allowed to visit him. “Cold and wet. It had been raining like a bastard, and the baseball field was mud up to your
“The chaplain and four guards had charge of Andy, and when they got to the door they stopped a second. Andy was looking at the gallows—you could sense he was. His arms were tied in front of him. All of a sudden the chaplain reached out and took off Andy’s glasses. Which was kind of pitiful, Andy without his glasses. They led him on inside, and I wondered he could see to climb the steps. It was real quiet, just nothing but this dog barking way off. Some town dog. Then we heard it, the sound, and Jimmy Latham said, “What was that?”; and I told him what it was—the trap door.
“Then it was real quiet again. Except that dog. Old Andy, he danced a long time. They must have had a real mess to clean up.
Every few minutes the doctor came to the door and stepped outside, and stood there with this stethoscope in his hand. I wouldn’t say he was enjoying his work—kept gasping, like he was gasping for breath, and he was crying, too. Jimmy said, ‘Get a load of that nance.’ I guess the reason he stepped outside was so the others wouldn’t see he was crying. Then he’d go back and listen to hear if Andy’s heart had stopped. Seemed like it never
