Dick was rather a bookworm, too; but his interest was restricted to two themes—sex, as represented in the novels of Harold Robbins and Irving Wallace (Perry, after being lent one of these by Dick, returned it with an indignant note: “Degenerate filth for filthy degenerate minds!”), and law literature. He consumed hours each day leafing through law books, compiling research that he hoped would help reverse his conviction. Also, in pursuit of the same cause he fired off a cannonade of letters to such organizations as the American Civil Liberties Union and the Kansas State Bar Association—letters attacking his trial as a “travesty of due process,” and urging the recipients to aid him in his quest for a new trial. Perry was persuaded to draft similar pleas, but when Dick suggested that Andy follow their example by writing protests in his own behalf, Andrews replied, “I’ll worry about my neck and you worry about yours.” (Actually, Dick’s neck was not the part of his anatomy that most immediately troubled him. “My hair is coming out by the handfuls,” he confided in yet another letter to his mother. “I’m frantic. Nobody in our family was baldheaded as I can recall, and it makes me frantic the idea of being an ugly old baldhead.”)
The Row’s two night guards, arriving at work on an autumn evening in 1961, had a piece of news. “Well,” one of them announced, “seems like you boys can expect company.” The import of the remark was clear to his audience: it meant that two young soldiers, who had been standing trial for the murder of a Kansas railroad worker, had received the ultimate sentence. “Yessir,” the guard said, confirming this, “they got the death penalty.” Dick said, “Sure. It’s very popular in Kansas. Juries hand it out like they were giving candy to kids.”
One of the soldiers, George Ronald York, was eighteen; his companion, James Douglas Latham, was a year older. They were both exceptionally personable, which perhaps explains why hordes of teen-aged girls had attended their trial. Though convicted of a single slaying, the pair had claimed seven victims in the course of a cross-country murder spree.
Ronnie York, blond and blue-eyed, had been born and raised in Florida, where his father was a well-known, well-paid deep-sea diver. The Yorks had a pleasantly comfortable home life, and Ronnie, overloved and overpraised by his parents and a worshipful younger sister, was the adored center of it. Latham’s background was at the opposite extreme, being every bit as bleak as Perry Smith’s. Born in Texas, he was the youngest child of fertile, moneyless, embattled parents who, when finally they separated, left their progeny to fend for themselves, to scatter hither and thither, loose and unwanted as bundles of Panhandle tumbleweed. At seventeen, in need of a refuge, Latham enlisted in the Army; two years later, found guilty of an AWOL offense, he was imprisoned in the stockade at Fort Hood, Texas. It was there that he met Ronnie York, who was also under sentence for having gone AWOL. Though they were very unlike—even physically, York being tall and phlegmatic, whereas the Texan was a short young man with foxy brown eyes animating a compact, cute little face—they found they shared at least one firm opinion: the world was hateful, and everybody in it would be better off dead. “It’s a rotten world,” Latham said. “There’s no answer to it but meanness. That’s all anybody understands—meanness. Burn down the man’s barn—he’ll understand that. Poison his dog. Kill him.” Ronnie said Latham was “one hundred percent correct,” adding, “Anyway, anybody you kill, you’re doing them a favor.”
The first person they chose to so favor were two Georgia women, respectable housewives who had the misfortune to encounter York and Latham not long after the murderous pair escaped from the Fort Hood stockade, stole a pickup truck, and drove to Jacksonville, Florida, York’s home town. The scene of the encounter was an Esso station on the dark outskirts of Jacksonville; the date was the night of May 29, 1961. Originally, the absconding soldiers had traveled to the Florida city with the intention of visiting York’s family; once there, however, York decided it might be unwise to contact his parents; his father sometimes had quite a temper. He and Latham talked it over, and New Orleans was their new destination when they stopped at the Esso station to buy gas. Alongside them another car was imbibing fuel; it contained the two matronly victims-to-be, who, after a day of shopping and pleasure in Jacksonville, were returning to their homes in a small town near the Florida-Georgia border. Alas, they had lost their way. York, from whom they asked directions, was most obliging: “You just follow us. We’ll put you on the right road.” But the road to which he led them was very wrong indeed: a narrow side-turning that petered off into swamp. Nevertheless, the ladies followed along faithfully until the lead vehicle halted, and they saw, in the shine of their headlights, the helpful young men approaching them on foot, and saw, but too late, that each was armed with a black bullwhip. The whips were the property of the stolen truck’s rightful custodian, a cattleman; it had been Latham’s notion to use them as garrotes—which, after robbing the women, is what they did. In New Orleans the boys bought a pistol and carved two notches in the handle.
During the next ten days notches were added in Tullahoma, Tennessee, where they acquired a snappy red Dodge convertible by shooting the owner, a traveling salesman; and in an Illinois suburb of St. Louis, where two more men were slain. The Kansas victim, who followed the preceding five, was a grandfather; his name was Otto Ziegler, he was sixty-two, a robust, friendly fellow, the sort not likely to pass distressed motorists without offering assistance. While spinning along a Kansas highway one fine June morning, Mr. Ziegler spied a red convertible parked by the roadside, its hood up, and a couple of nice-looking youngsters fiddling with the motor. How was the good-hearted Mr. Ziegler to know that nothing ailed the machine—that this was a ruse devised to rob and kill would-be Samaritans? His last words were, “Anything I can do?” York, at a distance of twenty feet, sent a bullet crashing through the old man’s skull, then turned to Latham and said, “Pretty good shootin’, huh?”
Their final victim was the most pathetic. It was a girl, only eighteen; she was employed as a maid in a Colorado motel where the rampaging pair spent a night, during which she let them make love to her. Then they told her they were on their way to California, and invited her to come along. “Come on,” Latham urged her, “maybe we’ll all end up movie 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, milkfed 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 f
ive 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 co-defendant 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 mudpies 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 jurybox 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 the
n 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.
In 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.