Appeal of Hickock and Smith’s convictions and habeas corpus hearing

The Appeal of Hickock and Smith’s convictions and habeas corpus hearing reopened the question of whether Dick and Perry had received a constitutionally fair trial, even though their guilt was supported by confessions and physical evidence. What began with Dick’s letters protesting his conviction became an unusual Kansas Bar Association investigation and a six-day evidentiary hearing. The proceeding tested claims of community prejudice and inadequate representation against the circumstances the defense attorneys had faced, and it ended with the convictions left intact and a new execution date set.

From Prison Letters to a Habeas Petition

Dick continued writing letters to contest the convictions. He argued that the hostile atmosphere in Garden City had prevented the selection of an unbiased jury and that a change of venue should have been granted. He also challenged the jurors’ impartiality: at least two, he maintained, had indicated during questioning that they presumed guilt. The difficulty of checking that claim was itself part of his argument, because Kansas law did not require the voir dire examination to be recorded unless a specific request was made. Dick further alleged that many jurors knew the deceased and that Judge Tate had been an intimate friend of the family.

His most extensive accusations concerned the defense attorneys, Arthur Fleming and Harrison Smith. Dick characterized their work as incompetent and inadequate, alleging that they had failed to prepare a genuine defense and implying that their neglect was deliberate or collusive. These were not merely complaints about strategy: if substantially true, they raised the possibility that the defendants’ constitutional rights had been violated.

Everett Steerman, chairman of the Kansas State Bar Association’s Legal Aid Committee, took the allegations seriously. At his prompting, the association undertook an unprecedented course of action in Kansas legal history: it appointed Wichita attorney Russell Shultz to investigate and, if the evidence warranted, challenge the convictions through habeas corpus proceedings in the Kansas Supreme Court, which had already upheld the verdict. Shultz’s inquiry appears to have rested largely on interviews with Dick and Perry. He nonetheless brought the question into public view as a matter of whether even plainly guilty defendants were entitled to a complete defense, and whether the state could risk the integrity of due process in securing their punishment.

The Six-Day Hearing

Shultz filed the habeas corpus petition, and the Kansas Supreme Court appointed retired justice Walter G. Thiele to conduct a full hearing. Almost two years after the trial, many of its central participants were again assembled in a Garden City courtroom. The original defendants were absent from the initial setting; Judge Tate and the two defense attorneys faced renewed scrutiny. The hearing later moved to Lansing, where Dick and Perry testified. It lasted six days, allowing the allegations to be examined point by point rather than left as claims in prison correspondence.

The jury evidence weakened the assertion that jurors had entered the trial prejudiced by personal acquaintance with the slain family. Eight jurors testified that they had never known any member of the family. Four acknowledged slight acquaintance with Herbert Clutter, but each said he had entered the jury box with an unprejudiced mind. One was the airport operator whose answer about capital punishment had attracted attention during voir dire. He explained that he would ordinarily have been against the death penalty but could favor it given the magnitude of the crime; questioned by Shultz, he also said he would have been willing to proceed with a juror who held the same view.

Shultz’s effort to establish that Judge Tate was personally close to Herbert Clutter also met resistance. Tate testified that Clutter had once appeared as a litigant in a case he presided over, a property-damage action concerning an airplane that had fallen on Clutter’s land and damaged fruit trees. Apart from that proceeding, Tate said, he had no occasion to associate with him and had seen him perhaps once or twice in a year. Tate also rejected the claim that the community’s attitude toward the accused required a change of venue. In his view, the defendants were to be tried under the law and judged by whether they were guilty; he emphasized that a court could not grant a change of venue on its own initiative when Kansas law required a proper request.

The Defense Attorneys Under Examination

The decision not to seek a change of venue became a central test of the claim that Fleming and Harrison Smith had failed their clients. Fleming explained that he believed opposition to capital punishment among local ministers, including Reverend Cowan, and a statement attributed to a relative of Mrs. Clutter could indicate that some people in the area might be more lenient on the penalty than people elsewhere in the state. His explanation did not establish that the jury was unbiased by itself, but it showed that the decision had been made against a particular understanding of local opinion rather than simply ignored.

Shultz also challenged the attorneys over consultation with their clients, their waiver of a preliminary hearing, remarks attributed to them in the press, and the adequacy of their preparation. Fleming said he had devoted more time to the case than to most cases and had worked to the best of his ability. Harrison Smith disputed the suggestion that the attorneys had waived the preliminary hearing after they were appointed, explaining that neither had yet been appointed counsel at the time of the waiver. He also denied that Dick had said he was concerned only with obtaining life imprisonment rather than the death penalty. The hearing thus put the accusations through adversarial examination, but the testimony did not convert each allegation into established fact.

Confessions, Evidence, and the Limits of the Defense

A later assessment by three federal judges placed the attorneys’ choices in the context of the evidence available when they accepted the appointments. Dick and Perry had made full confessions and did not seriously claim in the state courts that those confessions were involuntary. A radio taken from the Clutter home and sold by the defendants in Mexico City had been recovered, and the prosecution held additional evidence of guilt. When called upon to plead, the defendants stood mute, and the court entered pleas of not guilty for them.

The judges also considered the possibility of an insanity defense. They found no substantial evidence to support it, either at trial or afterward. The attempt to connect such a defense to Dick’s earlier accident injuries, headaches, and occasional fainting spells was, in their assessment, extremely weak. Faced with admitted crimes and evidence linking the defendants to them, Fleming and Harrison Smith had little room for a conventional defense. The federal judges concluded that they could have advised guilty pleas and appealed for mercy; the practical hope left to counsel was that some turn of fate might spare their clients’ lives. That retrospective judgment sharply constrained the claim that a different defense strategy would necessarily have changed the result.

Decision and Reprieve

In his report to the Kansas Supreme Court, Thiele found that Dick and Perry had received a constitutionally fair trial. The court denied the writ that sought to overturn the verdict and set October 25, 1962, as the new execution date. In legal terms, the hearing therefore left the convictions and sentences standing; it did not resolve the case in the defendants’ favor.

The scheduled date did not bring an immediate end to the appeals. A federal judge granted the Clutter killers a reprieve, and they avoided the date, while Lowell Lee Andrews, scheduled to die a month later, was executed. The contrast underscores the distinction between the state court’s ruling on the fairness of the trial and the further procedural delays that could intervene before an execution. The hearing’s lasting significance lies in that tension: it subjected allegations of prejudice and deficient counsel to a detailed review, yet the confessions, recovered property, and lack of a substantial insanity case weighed heavily against the prospect of undoing the convictions.