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.
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.
“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 cojones. So when they took Andy out to the warehouse, they had to walk him along the path. We were all at our windows watching—Perry and me, Ronnie York, Jimmy Latham. It was just after midnight, and the warehouse was lit up like a Halloween pumpkin. The doors wide open. We could see the witnesses, a lot of guards, the doctor and the warden—every damn thing but the gallows. It was off at an angle, but we could see its shadow. A shadow on the wall like the shadow of a boxing ring.
“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 doo
r.
“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 would. The fact is, his heart kept beating for nineteen minutes.
“Andy was a funny kid,” Hickock said, smiling lopsidedly as he propped a cigarette between his lips. “It was like I told him: he had no respect for human life, not even his own. Right before they hanged him, he sat down and ate two fried chickens. And that last afternoon he was smoking cigars and drinking Coke and writing poetry. When they came to get him, and we said our goodbye, I said, ‘I’ll be seeing you soon, Andy. ’Cause I’m sure we’re going to the same place. So scout around and see if you can’t find a cool shady spot for us Down There.’ He laughed, and said he didn’t believe in heaven or hell, just dust unto dust. And he said an aunt and uncle had been to see him, and told him they had a coffin waiting to carry him to some little cemetery in north Missouri. The same place where the three he disposed of were buried. They planned to put Andy right alongside them. He said when they told him that he could hardly keep a straight face. I said, ‘Well, you’re lucky to have a grave. Most likely they’ll give Perry and me to the vivisectionist.’ We joked on like that till it was time to go, and just as he was going he handed me a piece of paper with a poem on it. I don’t know if he wrote it. Or copied it out of a book. My impression was he wrote it. If you’re interested, I’ll send it to you.”
He later did so, and Andrews’ farewell message turned out to be the ninth stanza of Gray’s “Elegy Written in a Country Churchyard”:
The boasts of heraldry, the pomp of pow’r,
And all that beauty, all that wealth e’er gave,
Await alike the inevitable hour:
The paths of glory lead but to the grave.
“I really liked Andy. He was a nut—not a real nut, like they kept hollering; but, you know, just goofy. He was always talking about breaking out of here and making his living as a hired gun. He liked to imagine himself roaming around Chicago or Los Angeles with a machine gun inside a violin case. Cooling guys. Said he’d charge a thousand bucks per stiff.”
Hickock laughed, presumably at the absurdity of his friend’s ambitions, sighed, and shook his head. “But for someone his age he was the smartest person I ever come across. A human library. When that boy read a book it stayed read. Course he didn’t know a dumb-darn thing about life. Me, I’m an ignoramus except when it comes to what I know about life. I’ve walked along a lot of mean streets. I’ve seen a white man flogged. I’ve watched babies born. I’ve seen a girl, and her no more than fourteen, take on three guys at the same time and give them all their money’s worth. Fell off a ship once five miles out to sea. Swam five miles with my life passing before me with every stroke. Once I shook hands with President Truman in the lobby of the Hotel Muehlebach. Harry S Truman. When I was working for the hospital, driving an ambulance, I saw every side of life there is—things that would make a dog vomit. But Andy. He didn’t know one dumb-damn-darn thing except what he’d read in books.
“He was innocent as a little child, some kid with a box of Cracker Jack. He’d never once been with a woman. Man or mule. He said so himself. Maybe that’s what I liked about him most. How he wouldn’t prevaricate. The rest of us on the Row, we’re all a bunch of bull-artists. I’m one of the worst. Shoot, you’ve got to talk about something. Brag. Otherwise you’re nobody, nothing, a potato vegetating in your seven-by-ten limbo. But Andy never would partake. He said what’s the use telling a lot of stuff that never happened.
“Old Perry, though, he wasn’t sorry to see the last of Andy. Andy was the one thing in the world Perry wants to be—educated. And Perry couldn’t forgive him for it. You know how Perry’s always using hundred-dollar words he doesn’t half know the meaning of? Sounds like one of them college niggers? Boy, it burned his bottom to have Andy catch up on him and haul him to the curb. Course Andy was just trying to give him what he wanted—an education. The truth is, can’t anybody get along with Perry. He hasn’t got a single friend on the premises. I mean, just who the hell does he think he is? Sneering at everybody. Calling people perverts and degenerates. Going on about what low I.Q.’s they have. It’s too bad we can’t all be such sensitive souls like little Perry. Saints. Boy, but I know some hardrocks who’d gladly go to The Corner if they could get him alone in the shower room for just one hot minute. The way he high-hats York and Latham! Ronnie says he sure wishes he knew where he could lay hold of a bullwhip. Says he’d like to squeeze Perry a little. I don’t blame him. After all, we’re all in the same fix, and they’re pretty good boys.”
Hickock chuckled ruefully, shrugged, and said, “You know what I mean. Good—considering. Ronnie York’s mother has been here to visit him several times. One day, out in the waiting room, she met my mother, and now they’ve come to be each other’s number-one buddy. Mrs. York wants my mother to come visit her home in Florida, maybe even live there. Jesus, I wish she would. Then she wouldn’t have to go through this ordeal. Once a month riding the bus here to see me. Smiling, trying to find something to say, make me feel good. The poor lady. I don’t know how she stands it. I wonder she isn’t crazy.”
Hickock’s uneven eyes turned toward a window in the visiting room; his face, puffy, pallid as a funeral lily, gleamed in the weak winter sunshine filtering through the bar-shrouded glass.
“The poor lady. She wrote the warden, and asked him if she could speak to Perry the next time she came here. She wanted to hear from Perry himself how he killed those people, how I never fired shot one. All I can hope is that some day we’ll get a new trial, and Perry will testify and tell the truth. Only I doubt it. He’s plain determined that if he goes I go. Back to back. It’s not right. Many a man has killed and never seen the inside of a death cell. And I never killed anybody. If you’ve got fifty thousand dollars to spend, you could bump off half of Kansas City and just laugh ha ha.” A sudden grin obliterated his woeful indignation. “Uh-oh. There I go again. Old crybaby. You’d think I’d learn. But honest to God, I’ve done my damnedest to get along with Perry. Only he’s so critical. Two-faced. So jealous of every little thing. Every letter I get, every visit. Nobody ever comes to see him except you,” he said, nodding at the journalist, who was as equally well acquainted with Smith as he was with Hickock. “Or his lawyer. Remember when he was in the hospital? With that phony starvation routine? And his dad sent the postcard? Well, the warden wrote Perry’s dad and said he was welcome to come here any time. But he never has showed up. I don’t know. Sometimes you got to feel sorry for Perry. He must be one of the most alone people there ever was. But. Aw, the hell with him. It’s mostly every bit his own fault.”
Hickock slipped another cigarette away from a package of Pall Malls, wrinkled his nose, and said, “I’ve tried to quit smoking. Then I figure what difference does it make under the circumstances. With a little luck, maybe I’ll get cancer and beat the state at its own game. For a while there I was smoking cigars. Andy’s. The morning after they hanged him, I woke up and called to him, ‘Andy?’—the way I usually did. Then I remembered he was on his way to Missouri. With the aunt and uncle. I looked out in the corridor. His cell had been cleaned out, and all his junk was piled there. The mattress off his bunk, his slippers, and the scrapbook with all the food pictures—he called it his icebox. And this box of ‘Macbeth’ cigars. I told the guard Andy wanted me to have them, left them to me in his will. Actually, I never smoked them all. Maybe it was the idea of Andy, but somehow they gave me indigestion.
“Well, what’s there to say about capital punishment? I’m not against it.
Revenge is all it is, but what’s wrong with revenge? It’s very important. If I was kin to the Clutters, or any of the parties York and Latham dispensed with, I couldn’t rest in peace till the ones responsible had taken that ride on the Big Swing. These people that write letters to the newspapers. There were two in a Topeka paper the other day—one from a minister. Saying, in effect, what is all this legal farce, why haven’t those sonsabitches Smith and Hickock got it in the neck, how come those murdering sonsabitches are still eating up the taxpayers’ money? Well, I can see their side. They’re mad ’cause they’re not getting what they want—revenge. And they’re not going to get it if I can help it. I believe in hanging. Just so long as I’m not the one being hanged.”
But then he was.
Another three years passed, and during those years two exceptionally skillful Kansas City lawyers, Joseph P. Jenkins and Robert Bingham, replaced Shultz, the latter having resigned from the case. Appointed by a Federal judge, and working without compensation (but motivated by a hard-held opinion that the defendants had been the victims of a “nightmarishly unfair trial”), Jenkins and Bingham filed numerous appeals within the framework of the Federal court system, thereby avoiding three execution dates: October 25, 1962, August 8, 1963, and February 18, 1965. The attorneys contended that their clients had been unjustly convicted because legal counsel had not been appointed them until after they had confessed and had waived preliminary hearings; and because they were not competently represented at their trial, were convicted with the help of evidence seized without a search warrant (the shotgun and knife taken from the Hickock home), were not granted a change of venue even though the environs of the trial had been “saturated” with publicity prejudicial to the accused.