Due process

Due process is the constitutional standard at the center of Dick’s challenge to his conviction: the question was not simply whether he and Perry Smith had committed the crimes, but whether the state had tried them fairly and protected their rights along the way. The book tests that question against specific allegations about the jury, the judge, and defense counsel, then sets those claims beside the evidence confronting the lawyers and the courts’ eventual rulings. Its account leaves a pointed tension intact: even a case in which guilt had been confessed still demanded a complete and lawful process.

The challenge to the trial

Dick continued writing letters protesting the conviction. One reached Everett Steerman, chairman of the Legal Aid Committee of the Kansas State Bar Association, and persuaded him that the allegations merited investigation. Dick argued that hostility in Garden City had made an unbiased jury impossible and that the court should have moved the trial elsewhere. He also alleged that at least two jurors had revealed a presumption of guilt during jury selection. Because Kansas law did not require the questioning to be recorded unless a specific demand was made, there was no transcript with which to settle the dispute directly.

The challenge extended to Judge Tate. Dick maintained that many jurors had known the murdered family and that the judge had been an intimate friend of Herbert William Clutter. These claims turned the fairness question toward relationships and local loyalties: even if the defendants’ guilt was widely believed, had the trial been insulated from community prejudice? Dick’s other and more serious accusation was that Arthur Fleming and Harrison Smith had provided an inadequate defense, perhaps deliberately, in collusion with the prosecution. The allegations implicated not only the attorneys’ professional conduct but the constitutional legitimacy of the convictions.

Investigation and habeas corpus

The Kansas State Bar Association appointed Russell Shultz, a young Wichita attorney, to investigate and, if the evidence justified it, challenge the convictions through habeas corpus in the Kansas Supreme Court, which had already upheld the verdict. Shultz’s inquiry consisted largely of interviews with Dick and Perry Smith. He nevertheless framed the issue as one of principle: whether poor defendants, even those plainly guilty, were entitled to a complete defense. His concern was that the death of due process could damage the state more profoundly than the executions of the appellants.

Shultz filed the petition, and the Kansas Supreme Court assigned retired justice Walter G. Thiele to conduct a full hearing. Nearly two years after the trial, the participants returned to the courtroom in Garden City, though Dick and Perry Smith were absent from that phase of the proceedings. The inquiry later moved to Lansing so Thiele could hear their testimony. It lasted six days, and the record addressed each major allegation. In the book’s construction, habeas corpus becomes a second examination of the trial: not a retrial of the killings, but a test of how the first proceeding had been conducted.

Testing the claims against the record

The juror evidence complicated Dick’s assertion that the jury had been prejudiced by acquaintance with the Clutter family. Eight jurors said they had never known anyone in the family; four acknowledged slight acquaintance with Herbert William Clutter. Each testified that he had entered the jury box with an unprejudiced mind. N. L. Dunnan, the airport operator whose answer during jury selection had raised concern, acknowledged that under ordinary circumstances he might oppose capital punishment, but that the magnitude of the crime could lead him to vote for it. Asked whether he would accept a juror in the same state of mind, he said that he would. The testimony did not erase the ambiguity of his original answer, but it gave the court a fuller account than Dick’s letter had offered.

Shultz also questioned Judge Tate about his supposed intimacy with Herbert William Clutter. Tate described only one prior connection: Clutter had once sued over damage to fruit trees after an airplane fell on his property, in a case Tate presided over. Apart from that litigation, Tate said he had no occasion to associate with Clutter and had seen him perhaps once or twice in a year. When Shultz asked whether the community had been prejudiced against the accused, Tate maintained that they were expected to be tried under the law and treated like anyone else charged with a crime. He further explained that Kansas law did not allow him to order a change of venue on his own; such a change had to be properly requested.

The hearing then examined why Fleming and Harrison Smith had not sought a change of venue. Fleming said he believed the local climate might favor leniency: Reverend Cowan and other ministers had spoken against capital punishment, and a brother of Bonnie Clutter had reportedly said that the defendants should not be put to death. Shultz’s broader charges included inadequate consultation, the waiver of a preliminary hearing, damaging remarks to reporters, and failure to prepare a proper defense. Fleming said he had worked on the case to the best of his ability and had given it more time than he gave most cases. Harrison Smith disputed responsibility for the preliminary-hearing waiver, explaining that neither attorney had yet been appointed when it occurred. He also denied the accuracy of a newspaper report attributing to him a statement that Dick’s guilt was beyond doubt.

The limits of the defense and the ruling

A later opinion by three federal judges put the defense attorneys’ choices in the context of the evidence they had faced. By the time Fleming and Harrison Smith accepted their appointments, both defendants had fully confessed and were not seriously arguing that the confessions were involuntary. A radio taken from the Clutter home and sold by the defendants in Mexico City had been recovered, and the attorneys knew of other prosecution evidence. When asked to plead, the defendants stood mute, so the court entered not-guilty pleas for them. The judges found no substantial evidence for an insanity defense; the proposed reliance on old accident injuries, Dick’s headaches, and occasional fainting spells amounted, in their assessment, to a desperate argument. Given the admitted crimes, the lawyers’ realistic hope was that some turn of fate might spare their clients’ lives.

That assessment does not make the right to adequate representation disappear. Instead, it explains why the hearing had to distinguish between a poor outcome and a failure of duty: the prosecution’s evidence and the confessions sharply constrained what a defense could plausibly accomplish. Judge Thiele concluded that the petitioners had received a constitutionally fair trial. The Kansas Supreme Court denied the writ that sought to undo the verdicts and set a new execution date, October 25, 1962. A federal judge later granted Dick and Perry Smith a reprieve, so they evaded that date; the reprieve postponed the executions but did not itself resolve the underlying conviction in their favor.

Appeals, delay, and the meaning of fairness

The book broadens the case into a reflection on capital appeals. It gives the median interval between sentence and execution in the United States as approximately seventeen months, while noting examples ranging from an execution one month after conviction to prisoners waiting twelve years. The difference, it argues, depends partly on luck and substantially on the extent of litigation. Court-appointed lawyers often worked without pay, yet the possibility of later complaints about inadequate representation encouraged courts to appoint capable counsel and allowed appeals to continue through state and federal courts toward the Supreme Court of the United States. Even defeat there might not end the process if counsel found new grounds to pursue.

This account makes due process neither a guarantee of acquittal nor a technical obstacle detached from human consequences. The defendants’ guilt was supported by confessions and physical evidence, yet those facts could not substitute for examining whether the state had provided a lawful trial. Conversely, a claim of unfairness could not by itself invalidate a verdict: it had to survive investigation, testimony, and judicial review. The repeated appeals appear as a wheel that can postpone an execution, sometimes for years, but can also pause with a ruling against the prisoner. The final contrast is Lowell Lee Andrews, whose lawyers fought to the end but whose execution proceeded while Dick and Perry Smith received a reprieve. In that uneven timing, procedural fairness is shown as both a fundamental demand and a struggle carried out through institutions whose outcomes are uncertain.