Evil Among Us
by Ken Driggs
[p.114] Within hours of Kleasen’s arrest, it was apparent he was not rational. One police source told a reporter Kleasen was a “totally split personality.” The U.S. magistrate who informed him of his rights concluded that Kleasen “may have been insane.” He was moved to the Bexar County Jail in San Antonio for what was first described as medical problems, but was later disclosed as a preliminary mental evaluation.
Dr. Richard Coons, an Austin psychiatrist, was frequently called on to undertake competency evaluations for state and federal courts. Shortly after Kleasen’s arrest, Coons was asked to do a preliminary screening of Kleasen. The psychiatrist was escorted to a room where he was left with Kleasen whom he knew almost nothing about. “He looked like someone who’d just crawled up out of the brush,” he recalled. Not that he looked like he’d been roughed up by the police, he just seemed unkempt and surly. He looked big and muscular. And menacing. “His demeanor was frightening,” Coons recalls. “He was scary.” The doctor thought Kleasen was “somewhat paranoid” but didn’t think there was any question he was competent to stand trial.
The first official action about Kleasen’s mental illness came in federal court. On November 13, 1974, eight days after his arrest on the federal firearms charges, U.S. District Judge Jack Roberts ordered Kleasen committed to the Medical Center for Federal Prisoners in Springfield, Missouri. The hospital was given 90 days to evaluate Kleasen’s competency to stand trial and sanity at the time of the federal offenses. District Attorney Smith lamented, “There’s no way we can touch him,” while Kleasen was in the federal facility. U.S. Attorney Jim Bock agreed that Texas officials could not contact Kleasen while he was hospitalized.
[p.115] Crazy or not, Kleasen kept up a steady stream of letters. He continued to write his Pentecostal friend, Linda Miller, describing his cell and routine while still spinning yarns of espionage in the CIA and big game hunting. Two days after arriving at the Springfield facility, he wrote Miller describing the trip, and in one cryptic sentence added, “If you reread my first letters I told you this might happen in a round about way.”
His almost daily letters described a 6-by-12-foot white solitary cell. He mentioned a cold draft through a window, complained about the flu, the intrusion of flashlight checks of his cell every thirty minutes, and talking to other prisoners by way of a radiator pipe. He told Miller about the one small window in his cell through which he watched traffic on a nearby highway, observed a flag snapping in the wind over a small post office, and airplanes approaching a nearby airport which he could not see.
As with his letters to the Jensen family in Copenhagen, he again complained about the weight of the passing days. “You can’t let it get to you, you have to be calm and take each day one at a time and lick it. The main thing is to know in 84 days I will go some place,” he wrote after his first week. “And so I cross off the days one at a time day by day. A calendar is a must for a prisoner or you lose perspective as to time passing as it is a world without calendars or clocks.”
If Kleasen sounded rational in his letters, he was not viewed that way by the Springfield mental health experts who examined him, several of whom prepared written reports in December. They apparently had no knowledge of Kleasen’s earlier psychiatric hospitalizations.
On December 11, 1974, Dr. Clifford Whipple, a forensic psychologist, described Kleasen as a paranoid. “He reports during the interview a history of being persecuted for his political views,” and that “the CIA and FBI have been after him for years and any time he surfaces they are looking for something to charge him with.”
Whipple administered a battery of standardized psychological tests. They showed Kleasen to be “quite guarded in his responses, somewhat evasive, and engaged in some degree of paranoid ideation.” He went on to describe him as “somewhat depressed, and in general is [p.116] rebellious and non-conforming.” Kleasen would not take responsibility for his acts and saw “his difficulties as the result of other people persecuting him.” The Rorschach test revealed him to be “quite constricted, somewhat explosive in nature, and [having] difficulty with interpersonal behavior.” Other tests indicated Kleasen was “a person who has a very poor control of self and who is holding on to reality at the present time but with great deal of effort.” In one likely important detail, Whipple wrote, “Especially significant on the House-Tree-Person [test] was a figure which was fairly well drawn with the exception of a grossly distorted left hand. One cannot help but speculate that there may be some guilt associated with behavior which the left hand has been engaging in.”
As with anyone else who would listen, Kleasen made grandiose claims of post-graduate college education both in the United States and Europe. Whipple’s WAIS testing revealed an IQ of 99, which, he wrote, was “not consistent” with Kleasen’s claims. Nor was this consistent “with an organic disturbance,” meaning a mental illness arising from a physically damaged brain. “They are consistent with an individual who has fairly high intellectual abilities but who is suffering from a psychotic reaction.”
The psychologist noted that while Kleasen was “fairly cooperative,” he seemed to have memory gaps and simply made up material to fill them. Kleasen reported “a history of blank periods” lasting “two or three days up to a week or more.” Such blank spaces were frequently associated with his drinking, Kleasen reported, yet almost no one who knew him recalled his ever using alcoholic beverages. He could not recall what had happened during these lost days and weeks. Kleasen also “had difficulty in maintaining a coherent sentence and he frequently would forget what he was talking about.”
Whipple diagnosed Kleasen as a paranoid schizophrenic with a possible psychomotor epileptic condition.
Dr. George S. Parlato, a consulting psychiatrist, reported that during his interview Kleasen said “he might have ‘killed … two men.’” His December 30, 1974, report describes Kleasen as paranoid with sudden mood swings. “He is quite tense and restless. … At times he be-[p.117]comes very angry, talking about how he felt persecuted and then suddenly he becomes quite bland, staring vacantly past me, as if I wasn’t sitting in front of him.” Others who knew Kleasen would later recognize this description as similar to what they observed. Parlato felt Kleasen’s grasp on reality was loose, his perceptions distorted.
Kleasen also expressed to Parlato a distorted personal identification with Joseph Smith:
He indicates that he was having interpersonal difficulties in western New York, where “people didn’t like me and mom”, who were living on a Williamson, New York farm near Rochester. He states that “Joseph Smith” had lived in the area (founder of the Mormon church) and that “people avoided me”, to which he made the association that Joseph Smith [was treated?] that way too and for that reason made his “exodus” to the west. Mr. Kleasen then tells that “I fled” the United States of America and went to Sweden and later to Europe, after the “pigs” raided his house, apparently looking for firearms. He states that he went to Sweden in order to contact his wife, a Swedish citizen, to testify on his behalf. Apparently he took his wife to “twenty-eight countries and Lebanon”, and it was there that he and his wife were allegedly fired upon. Upon his return to the United States, Mr. Kleasen states that his mother “went (off) mentally” at a time when he was taken to jail in Lyons, New York.
The problem with this description is that no one in Wayne County recalls his mother ever being at the farm.
Parlato agreed with the diagnosis of paranoid schizophrenia. He concluded: “Mr. Kleasen gives every indication of being actively psychotic, and I doubt whether he could fully understand the nature of the charges against him and whether he could assist in his defense at this time.”
Another report, dated December 16, 1974, recording the observations of psychiatric staff members, noted, “He has shown indications of a thought disorder through grandiose and paranoid ideation.” Psychotropic medications were ordered for Kleasen “only if he became agitated.” All reports agreed that because of his schizophrenic illness, Kleasen was incompetent to stand trial and probably insane at the time of the Federal Firearms Act violations.
[p.118] The recognition and diagnosis of mental illness has never been an exact science. Some mental illnesses can be connected to what psychiatrists call impairment of brain tissue function—in other words, to something physical we know how to measure—but schizophrenia in general and especially paranoid schizophrenia are not among those. It must be diagnosed based on the behavior and apparent beliefs of the patient, and a subjective judgment as to whether those beliefs are grounded in reality.
In 1968 the American Psychiatric Association tried to bring order to chaos with its Diagnostic and Statistical Manual of Mental Disorders. The second edition, or DSM II, was published in 1968 and was the basis for the diagnosis offered by Kleasen’s 1974 treatment team. The DSM II describes schizophrenia as “a group of disorders manifested by characteristic disturbances of thinking, mood and behavior. Disturbances in thinking are marked by alterations of concept formation which may lead to misinterpretation of reality and sometimes to delusions and hallucinations, which frequently appear psychologically self-protective.” “Schizophrenia, paranoid type” is called a mental illness “characterized primarily by the presence of persecutory or grandiose delusions, often associated with hallucinations. Excessive religiosity is sometimes seen. The patient’s attitude is frequently hostile and aggressive, and his behavior tends to be consistent with his delusions.” That effectively described what nearly everyone observed in Kleasen as a patient, criminal defendant, and client.
Linda Miller had been saving Kleasen’s letters. After his arrest for the murders, she agreed to talk to writers for Texas Monthly magazine. When their January 1975 issue hit newsstands, it carried the article “The Mormon Murders: Letters From The Accused.” Above a picture of a grinning, rifle-wielding Kleasen, the article began, “Along with its resident legions of premier footballers and country western pickers, Austin seems to attract more than its share of vicious, brutal murderers.” It went on to discuss Kleasen as such a killer, setting out the CIA, big game hunting, and paranoid fantasies contained in his letters to Miller.
Kleasen and the opinions of his Missouri treatment team were returned to Austin where a January 29, 1975, hearing was set regarding [p.119] his competency. Faced with the evidence of Kleasen’s mental illness, by January 15 the U.S. Attorney’s Office had concluded they could not prosecute and notified Travis County prosecutors of their decision. Assistant U.S. attorney Jeremiah Handy agreed to an indefinite postponement of the federal charges. Kleasen’s court appointed lawyers did not oppose the continuance. On January 29 Handy wrote District Attorney Smith that this was done “in order that the state murder trial may proceed in an orderly fashion to disposition.” Kleasen was brought to the Travis County Jail that same day.
Kleasen was now in the Texas state courts. One federal official told a reporter he doubted that the Federal Firearms Act charges would ever be prosecuted now that Kleasen had been turned over to local authorities. Meanwhile a justice of the peace inquest and the Travis County grand jury took up the case of the two missing missionaries.
On January 23 Justice of the Peace Jim McMurtry heard two hours of testimony, while Kleasen sat impassively, scribbling notes on a yellow legal pad with a pencil. Detective Colon Jordan, Ranger Wallace Spillar, and Texas Department of Public Safety crime lab scientist Leslie Smith were the only witnesses. Spillar told McMurtry he believed the missionaries were dead based on five pieces of evidence: the two watches found with human blood on them in Kleasen’s trailer, the human substances found on the band saw in the Austin Taxidermy Studio, Kleasen’s clothing found with human blood on it, evidence that the missionaries’ last known meeting was with Kleasen, and the five tires from the missionaries’ car found near Kleasen’s trailer. “All the people in connection with the missionaries from the Mormon Church have all been contacted; people that they had appointments with after the date that they were reported missing, hasn’t [sic] shown up to any of their—no knowledge of their whereabouts,” he said on the witness stand. He felt suicides would have been impossible given the evidence they found. What became of the bodies, McMurtry asked. They’d been dismembered, Spillar said, then “deposited in a dumpster, trash barrel type commercial garbage dumpster, or possibly put in a fishing hole in a burlap bag.” McMurtry ruled that Darley and Fischer had died “at the hands of another,” officially homicides. More [p.120] importantly, he issued death certificates for both young men which would later cause Kleasen’s defense considerable difficulty at his murder trial.
The grand jury heard evidence on January 21 and 22. In addition to witnesses who testified in the justice of the peace proceeding, the grand jury heard about the results of neutron activation analysis undertaken at the FBI lab in Washington, D.C. Investigators told reporters the tests had positively identified tissue samples found on the band saw as belonging to Mark Fischer.
“If the grand jury finds the evidence legally sufficient enough to indict,” Smith told reporters, “we will place a hold on him and wait to see what happens on the federal charges and the mental competency hearing.” Everyone still regarded Kleasen’s competency to stand trial as an open question.
The grand jury did indict Kleasen on two counts of capital murder. A few days later, assistant U.S. attorney Handy asked that Kleasen be remanded to Travis County authorities. By January 29, Kleasen was in the Travis County Jail. That same day a justice of the peace formally notified him of the charges, informed him of his rights, and set bail at $100,000.
At a hearing the next day, Judge Tom Blackwell appointed two more psychiatrists, Drs. Stuart Nemir and Roger McCary, to examine Kleasen for competency. Prosecutors retained Dr. Coons to examine him as well. Coons was one of a small platoon of prosecution-oriented experts who testified often for Texas DAs on the controversial prediction of “future dangerousness” in capital trials. (Among others, the Nevada Supreme Court found this so strange it later commented in a published opinion that “an industry has developed supporting psychiatrists who specialize at this task” [Redman v. State, 108 Nev. 227, 828 P.2d 395].)
Armed with the federal mental health evaluations, Kleasen’s lawyers began to develop a defense centered on his psychological illness. On February 4 they asked the 167th District Court for a trial to determine Kleasen’s competency. By late February 1975, they filed pleadings to secure New York records of Kleasen’s prior hospitalize-[p.121]tions and to depose people who had treated him. Kleasen lawyer Glen Wilkerson described the federal proceedings in his motion to Judge Blackwell and attached the reports of the Missouri treatment team.
Mental illness exists on a long, fuzzy continuum. The majority of mentally ill people never see the inside of a hospital or significant treatment. Yet courts and lawyers look for that bright line dividing the legally competent from the incompetent, the legally sane from the insane. A defendant may be seriously mentally ill and difficult to represent without being considered to be incompetent and insane.
One important aspect of mental illness is that the sick person often refuses to acknowledge his illness. He considers his state normal; it is the rest of society who is somehow mentally off. Acknowledging that Kleasen was mentally ill neither cured nor controlled it, and in the absence of a judicial determination of his incompetence, he retained the right to direct many aspects of his case. No matter what was done, he would remain difficult to work with.
Texas law states that a defendant is incompetent to stand trial if he does not have sufficient ability to consult reasonably and rationally with counsel, or does not reasonably understand the proceedings against him. Every accused person is presumed to be competent, and if he raises the issue the burden is on the defendant to prove otherwise.
When a Texas defendant’s competence is called into question, a jury is selected to hear evidence and render a verdict of sane or not sane. This is not the jury which will sit on the charged offense, and they are not supposed to know what crime is at issue. If the jury finds a defendant sane, he proceeds to trial before the next jury. If they find him to be insane, they can direct him to the state hospital in Rusk, Texas, for further treatment. Once a trial judge has reason to question the competence of a defendant, such a trial must be held, even if the accused insists he is okay.
While everyone around him questioned his sanity, Kleasen and his paranoia seethed and finally exploded. Realizing that his three attorneys were preparing an insanity defense and would attempt to establish that he was mentally ill, temporarily avoiding the actual murder [p.122] trial, Kleasen rebelled. The result was that a workable attorney-client relationship no longer existed.
By March 13 Bob Gibbins filed a “Motion to Withdraw” on behalf of himself, co-counsel Sal Levatino, and Glen Wilkerson. The motion asked to be released “for the reason that irreconcilable conflicts have developed between the said attorneys and the Defendant … as to the mode and manner of the defense … making it impossible for said attorneys to continue to represent the defendant …” In court that day Gibbins told Judge Blackwell, “I don’t get along with Mr. Kleasen”—as if anyone could—“we’ve reached an impasse.”
Kleasen did not want to undergo the competency trial, and by then was just as anxious to fire his lawyers as they were to quit. He and Gibbins began to argue in court, with Kleasen insisting he was sane and that their problems really had to do with his inability to pay their $30,000 fee. Kleasen continued to stress that he had wealth but “it’s tied up in New York” as part of the harassment he experienced because of his anti-Vietnam War politics. “I have no hard feelings with my attorneys, but the amount of money …,” Kleasen said, letting the statement trail off.
During the hearing Kleasen kept referring to the judge as “Gen. Blackwell—the only general I see in the room.” Blackwell was a general in the national guard. Some years later Kleasen would begin saying that Blackwell had been a general in Vietnam responsible for many atrocities, and that he rigged a conviction in order to silence Kleasen who knew about his activities through his CIA experiences.
The day after Kleasen fought with his attorney in court, he wrote a notarized letter to Blackwell which, in effect, fired his lawyers. “According to article six of the ten original ten amendments to the constitution I am entitled to the assistance of counsel in my jury trial,” Kleasen wrote. “When the counsel I have—counsel who is not assisting me and/or my cause I ask they be discharged as my counsel and that I be allowed enough time to retain another.” As this was not done at the previous day’s hearing, he demanded that the capital murder charges be dismissed.
In a second notarized letter of the same date, which Kleasen called [p.123] a writ of habeas corpus, he complained that he was not being given access to legal materials, “with any attorneys who may represent me in the future,” and “only limited access to the courts” by his jailers. He again insisted that his charges be dismissed.
Also at the March 13 hearing, Kleasen asked to be appointed co-counsel in order to control every aspect of his defense. Blackwell “reluctantly” granted his request, then thought better of it by the following Monday after hearing Kleasen testify at a motion hearing. He withdrew the order.
But Blackwell wouldn’t let Kleasen or his lawyers off the hook. “There’s no problem in allowing you to withdraw on a trial on the merits, but not on a trial on the competency hearing. If I did, then we’ll be in the same boat further down the line,” he said. Blackwell felt bound by recent U.S. Supreme Court decisions requiring that competency questions be resolved. Blackwell likely could see for himself that Kleasen was functioning other than normally.
After the March 13 hearing, perhaps trying to placate his client, Gibbins said Kleasen “is one of the most interesting people I’ve ever been around. He’s a brilliant man with an interesting background, riddled with tragedies—and some injustices.” Gibbins told reporters he would like to try the case because the state’s evidence seemed so weak, but that he just could not get along with Kleasen.
A nine man, three woman jury was selected and began to hear testimony on March 18. What they heard was one-sided as Kleasen had “instructed” his lawyers not to ask any questions or undertake any defense. In the hall Kleasen and Gibbins had another heated argument. “You’re going to need that insanity defense,” Gibbins said. “I understand that, but I also understand that I’m sane,” Kleasen shot back. “What you’re trying to do is wrong.”
Drs. Nemir and McCary both testified that Kleasen was mentally ill. Nemir felt Kleasen was not competent for trial. Kleasen was “delusional and persecutorial,” Nemir said. “He sees the charges against him as part of a conspiracy of larger governmental agencies to do him in. I think he gets confused,” he told the jury. McCray also said Kleasen was not competent but could become so. Gibbins and his [p.124] co-counsel did not ask any questions of these witnesses.
Dr. Coons, who had been retained by the district attorney, testified differently. “He has a personality disorder. He does not have a severe mental illness.” Among these disorders is anti-social personality disorder, or, as it used to be called, sociopathic personality. These are not people who garner much sympathy from the public or the courts. Coons believed Kleasen could assist his lawyers in defending himself.
Gibbins did cross-examine Coons, telling the court, “I am pursuing cross-examination against the wishes of my client.”
But Kleasen then insisted on taking the stand himself against the advice of his frustrated lawyers. Before he did so, Gibbins asked that the jury be excused and the courtroom cleared. “You want to be found competent so you can hurry on to trial and the electric chair, don’t you?” Gibbins then said to Kleasen. “I’m anxious to face trial because I’m innocent,” Kleasen shot back. “I know for a fact I didn’t kill anybody. I don’t even know if anybody has been murdered.” Kleasen also said he wasn’t afraid of any evidence the state may have, suggesting officers “planted” it at his trailer. When the jury returned, Kleasen was the most closely listened to witness of the proceeding.
District Attorney Smith asked Kleasen if he was the same man here charged with two murders. “If there were any murders, I guess that’s a fair statement,” Kleasen answered. Answering other questions, Kleasen told the jury who he was, where he was, why he was there, and insisted he was sane. He said he was anxious to stand trial and wanted a speedy one. He also testified that he had been denied access to law books in the Travis County Jail and began shooting questions at his lawyers. When Gibbins responded that he was the one who would ask the questions, Kleasen turned to Judge Blackwell and said, “Put him under oath or do something with him.” Blackwell ordered the jailers to give Kleasen access to law books in the future.
Gibbins, again under orders from his client, did not make any closing argument to the jury, leaving the persuading to the district attorney. The jury was then instructed that they had to decide if Kleasen had “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding of the proceedings against him.” [p.125] Kleasen and every other defendant is presumed to be competent unless the jury is persuaded otherwise “by a preponderance of the evidence,” meaning 51-49, a considerably lower standard than “beyond reasonable doubt.”
The jury, which no doubt had observed the bickering between Kleasen and his lawyers, deliberated for only five minutes before returning a verdict of “sane.” Kleasen told reporters he was “pleased” with the result and anxious to get on with the trial. “I have nothing to hide,” he said. “I want to be perfectly fair with the jury and the judge and the people of Texas.” He was on stage again.
Gibbins told reporters, “I would like to have brought out that he’s been in mental institutions ever since he was eighteen years old, has claimed CIA activities, and all these other weird things. He thinks this is part of a government effort to get him because he was a member of the CIA.” “It is an intolerable burden to try a case when your hands are tied,” he said, then left the case with his two co-counsel.
One ironic twist was that the movie One Flew Over the Cuckoo’s Nest, a story of one man’s attempt to prove his sanity in a mental hospital, had walked away with several Academy Awards shortly before the Austin jury ruled Kleasen was sane.