Walter G. Thiele

Walter G. Thiele was the retired justice entrusted with examining whether Perry Smith and Dick had been denied a fair trial. His six-day habeas corpus hearing brought the case’s legal actors back together, tested allegations about jury prejudice and the defense, and ended with a finding that the convictions should stand.

Appointment and Purpose

After the Kansas Supreme Court had upheld the verdicts, the Kansas State Bar Association appointed Russell Shultz to investigate claims that the defendants’ constitutional rights had been violated and, if the evidence warranted, pursue habeas corpus relief. Shultz filed the petition, and the court commissioned Thiele to conduct a full-scale hearing. The inquiry therefore concerned not a new trial of the murders, but whether the proceedings that produced the convictions had been constitutionally fair.

Almost two years after the trial, the principal figures reassembled in Garden City. The defendants themselves were absent from that courtroom; Judge Tate, Arthur Fleming, and Harrison Smith were among those whose conduct and professional reputations were now under scrutiny. The hearing was also transferred to Lansing, Kansas, where Thiele heard Perry Smith and Dick testify.

The Hearing and Its Questions

The proceedings took six days, and the inquiry reached the principal points raised by the petition. Jury impartiality was a central issue. Eight jurors testified that they had not known any member of the slain family; four acknowledged slight acquaintance with Herbert William Clutter. Each maintained that he had entered the jury box without prejudice, including N. L. Dunnan, the airport operator whose answer during jury selection had drawn attention to his possible willingness to impose capital punishment in a case of this magnitude.

The hearing also examined whether local feeling should have prompted a change of venue and why the defense had not requested one. When Russell Shultz questioned Judge Tate about his acquaintance with Herbert William Clutter, Tate described a prior lawsuit over damage to fruit trees and said he had otherwise had little occasion to associate with him. Tate rejected the premise that community feeling required a venue change, maintaining that the defendants were entitled to trial under the law and that a judge could not order a change of venue without a proper request.

Shultz then questioned the defense attorneys about that missing request. Arthur Fleming explained that he had believed opposition to capital punishment among respected local ministers, including Reverend Cowan, might mean that some residents would be inclined toward leniency. The issue placed the lawyers’ judgment under examination: Shultz’s central aim was to establish that they had failed to provide even the minimum protection for their clients. Fleming and Harrison Smith withstood the questioning; the account particularly notes Fleming’s composed manner as he answered.

Finding and Legal Consequence

In the report he submitted to the Kansas Supreme Court, Thiele concluded that the petitioners had received a constitutionally fair trial. The court denied the writ that sought to set aside the verdicts and established October 25, 1962, as a new execution date. The ruling did not end the defendants’ efforts to avoid execution: a federal judge later granted a reprieve, and they escaped that scheduled date.

A subsequent opinion by three federal judges placed the representation complaints in the circumstances confronting the appointed lawyers. Perry Smith and Dick had made full confessions, the prosecution possessed other evidence, and the federal judges considered the proposed insanity defense unsupported by substantial evidence. That retrospective assessment supplies context for the legal challenge, but Thiele’s reported conclusion is specific: the trial was constitutionally fair. His hearing turned a broad allegation of deficient representation and prejudice into a record examined over six days, after which the state court left the convictions in place.