Russell Shultz

Russell Shultz was a young Wichita attorney whose investigation brought claims of inadequate representation in the Smith and Hickock case before the Kansas Supreme Court. Appointed after allegations raised questions about the defendants’ constitutional rights, he sought to test whether their convictions had followed a fair process. His work became a contested inquiry into both the defense at trial and the evidence that had confronted the lawyers.

Appointment and Investigation

The claims that prompted the review reflected on the integrity of the trial judge and the two defense attorneys, Arthur Fleming and Harrison Smith. If even partly true, the allegations suggested that the defendants’ constitutional rights had been compromised. At the prompting of Everett Steerman, the Kansas State Bar Association appointed Shultz to investigate and, if the evidence warranted, challenge the convictions through habeas corpus proceedings in the Kansas Supreme Court, which had recently upheld the verdict.

The account presents Shultz’s investigation as narrow: it consisted of little more than interviews with Perry Smith and Dick Hickock. Shultz nevertheless emerged from those meetings with a public argument centered on whether poor defendants who appeared plainly guilty still had a right to a complete defense. He distinguished the likely consequences of the defendants’ deaths for Kansas from the consequences of a death in the law’s protection of due process. That distinction made the procedural question, rather than a claim of innocence, the center of his appeal.

Shultz filed the habeas petition, and the Kansas Supreme Court assigned retired justice Walter G. Thiele to conduct a full hearing. Nearly two years after the trial, participants gathered again in Garden City, Kansas. The original defendants were not present at the initial courtroom proceedings; Judge Tate and the two trial lawyers instead became central witnesses. The review later moved to Lansing, Kansas, where Thiele heard testimony from Smith and Hickock.

The Habeas Hearing

The hearing lasted six days and examined the allegations in detail. Jury impartiality was one point of inquiry. Eight jurors testified that they had not known anyone in the slain family, while four acknowledged some slight acquaintance with Herbert William Clutter. All four said they had entered deliberations without prejudice. One of them, N. L. Dunnan, had been questioned during jury selection about capital punishment: he said he would probably oppose it under ordinary conditions but could vote for it given the scale of the crime.

Shultz pressed Dunnan on whether he would have accepted a juror with the same outlook. Dunnan said that he would. The exchange placed a concrete tension before the hearing: a juror could describe a general reluctance to impose capital punishment while also allowing that the particular case might change his decision. Shultz’s questions tested how that position bore on the fairness of the jury, rather than establishing that Dunnan had entered the trial with a fixed view of the defendants’ guilt.

Shultz also examined Judge Tate about his acquaintance with Herbert William Clutter and the community’s attitude toward the accused. Tate described his contact with Clutter as limited, apart from a court case involving damage to fruit trees after an airplane fell on Clutter’s property. He said the community expected the defendants to be tried according to law and denied that they had been prejudged. When Shultz raised the possibility of moving the trial, Tate replied that Kansas law did not allow a judge to order a change of venue on the court’s own initiative; a proper request had to be made.

Challenges to Trial Counsel

The venue question led Shultz to confront Fleming and Harrison Smith directly. Fleming explained that he had not sought a change because local ministers had spoken against capital punishment and because a relative of Bonnie Clutter had reportedly made a public statement opposing the defendants’ execution. In his view, those expressions suggested that the area might include people more inclined to leniency on the penalty than jurors elsewhere in the state. The testimony thus presented the absence of a venue request not simply as an omission, but as a decision counsel said had been informed by local attitudes toward capital punishment.

Shultz’s wider accusations concerned whether the lawyers had consulted sufficiently with their clients, waived a preliminary hearing, made damaging remarks to reporters, and prepared an inadequate defense. Fleming said he had worked on the case to the best of his ability and devoted more time to it than he did to most cases. Harrison Smith disputed Shultz’s account of the preliminary-hearing waiver, explaining that neither attorney had yet been appointed when it occurred. He also denied that a newspaper quotation attributed to him—that there was no doubt of Dick Hickock’s guilt and that the defense sought life imprisonment rather than death—accurately represented what he had said.

The charge of inadequate preparation received particular emphasis from Shultz. A later appellate discussion supplied an important counterpoint: when Fleming and Harrison Smith took the appointments, both defendants had confessed, neither was seriously arguing in the state courts that the confessions were involuntary, and the prosecution had recovered a radio taken from the Clutter home and sold in Mexico City. The discussion also noted that the attorneys knew of other evidence held by the prosecution. These circumstances did not erase Shultz’s questions about the quality of representation, but they show why the hearing’s review of counsel’s performance had to reckon with the case as the lawyers encountered it.

Significance and Limits

Shultz’s role was to reopen procedural questions after the convictions had already been upheld, not to retry the killings or establish the defendants’ innocence. His interview-based inquiry was limited, yet it prompted a full hearing in which jurors, the judge, and defense counsel answered specific challenges. The resulting record placed competing accounts side by side: Shultz’s concern that the defendants had not received an adequate defense, and witnesses’ explanations of the trial decisions under scrutiny.

The episode gives due process a concrete institutional form. The Bar Association’s appointment, the petition, and Thiele’s six-day hearing created a route for examining claims against the trial process even when guilt was not the principal dispute. At the same time, the testimony did not make every allegation equivalent: some claims were directly contested, and the later appellate account stressed the confessions and other evidence known to counsel. Shultz’s significance lies in initiating that scrutiny, while the available account leaves the ultimate resolution of the habeas challenge beyond the scope of his role.