Evil Among Us
by Ken Driggs

Twenty-One

[p.126] Robert O. Smith was a career prosecutor, the kind of man you didn’t want drawing a bead on you in the courtroom. Stationed at the now closed Bergstrom Air Force Base outside Austin during World War II and the Korean War, he decided to stay in town. After his discharge, he attended the University of Texas, taking his B.B.A. in 1951 and his law degree in 1954. In addition to some private practice, he moved through a series of prosecutor positions with the county attorney, the district attorney (where he was a senior prosecutor), and the state attorney general. He was finally appointed to fill a vacancy as Travis County attorney.

In October 1968 District Attorney Tom Blackwell, who later presided over the Kleasen trial, was appointed to a vacancy on the 167th District Court bench by Governor John B. Connally. Smith had been a top assistant under Blackwell and was appointed by Connally as county attorney. Both then ran for and were elected to their offices in November 1968. Blackwell and Smith were not close personal friends but were much alike and had enormous respect for each other.

Smith served two four-year terms, gaining enough respect among his peers to be elected president of the Texas District and County Attorney Association in 1973. He gave up the District Attorney’s Office to run unsuccessfully for district judge in 1976. The Kleasen trial came late in Smith’s second term.

The district attorney was 6’3″, a powerfully built man who worked on his ranch and built furniture as a pastime. He was never without a cigar bouncing up and down in his mouth under thick rimmed black glasses. To this day friends who tell Bob Smith stories pick up a pen and use it as the ever-present cigar in their tales. He was emotional and [p.127] intense about the cases and defendants he prosecuted. That emotion was often close to the surface in the Kleasen case.

At the time of the Kleasen prosecution, there were nine or ten assistant district attorneys in Smith’s office. His personal office was the first one you passed in the district attorney’s suite. His door was always open where visitors would see him leaning back, feet on his desk, a big cigar in hand.

He was a teacher and mentor for his assistants. Charlie Craig was one of many former assistants who became fiercely loyal to Smith. Lawyers and judges came to rely on his almost encyclopedic knowledge of Texas criminal law. He knew everything that was going on in his office. Smith handled a lot of cases; it would be unusual for him not to be actively involved in a major prosecution. His personal prosecution of Kleasen was very much in character. And he was good in the courtroom, forceful and aggressive, a bulldog. He was not a glad hander, not a good politician. Smith said what was on his mind and could be gruff at times. He often prosecuted state legislators and other government officials for corruption. Smith didn’t win many powerful friends that way.

Mormon bishop Frank McCullough, for one, could not have been more satisfied with how Smith handled the case. He felt Smith fought every effort by the defense to put the LDS church on trial. There were some real concerns about this, given the involvement of Mormon law enforcement officers, not to mention the investigation initiated by local church leaders while there was still hope of finding the missionaries alive.

In addition, defense lawyer David Bays called Smith, Craig, and David Spencer “the A team,” the best the Travis County district attorney’s office had to offer.

The Kleasen trial was unusual in almost all respects. It was watched closely by every district attorney and defense lawyer in Texas because it was one of the first to be tried under a radically new Texas death penalty statute. In the landmark 1972 decision Furman v. Georgia, the U.S. Supreme Court threw out every death penalty statute in the country. Among other things, the court found that the death pen-[p.128]alty had been largely reserved for blacks and/or for the killers of whites. This occurred because juries were given unbridled discretion in sentencing those convicted of capital murder. They were given no guidance or direction to overcome the influences of race, class, and other prejudices. The problem was compounded by the routine exclusion of racial minorities from criminal juries.

In Texas 510 people had been sentenced to death between 1923, when the state adopted centralized execution by the electric chair, and the Furman decision. Some 378 of these people (74 percent) were sentenced for murder, another 118 (23 percent) for rape, and fourteen (3 percent) for armed robbery. Of the 510, only 361 (71 percent) had actually been executed, but of this number, two-thirds were black. Whites, Hispanics, and a single Native American comprised the remaining one-third. Approximately 80 percent of the victims in capital crimes had been white.

In the aftermath of Furman, most state legislatures raced to reenact their death penalty statutes, especially Southern States in what has come to be known as the “death belt.” But the Supreme Court offered little guidance as to what kind of statute would be constitutional. Half a dozen different models emerged, ranging from mandatory death sentences in Louisiana and North Carolina to schemes that sought to balance lists of aggravating and mitigating factors. In Georgia punishment-phase juries balanced aggravation and mitigation then had to arrive at a unanimous recommendation of death. Florida had a similar system, but juries could recommend death by a majority vote.

The Texas legislature meets once every two years, so it was 1973 before they acted. The new law under which Kleasen was prosecuted took force June 14, 1973, and was unlike that adopted by any other state. First, it limited the death penalty to defendants seventeen years old and older who killed in the course of a list of specific felonies such as robbery, rape, burglary, or kidnapping. If the jury returned a verdict of guilty of capital murder, the trial moved into a punishment phase. There the jury heard additional testimony, then answered two, sometimes three, “special issues” about the defendant. Did the killer act de-[p.129]liberately in the death of the victim? Was the killer likely to be violent in the future? Did the victim do something to provoke or encourage the murder? “Yes” answers to the first two and “no” to the third brought a death sentence. Such verdicts had to be unanimous. Trial judges had no discretion in sentencing life imprisonment when faced with such unanimous “yes” verdicts. An appeal to the Texas Court of Criminal Appeals was mandatory under the new statute whether the condemned wanted one or not.

There was considerable speculation that the U.S. Supreme Court might throw out all these new statutes as well, and finally rule that the death penalty under any circumstance violated the Eighth Amendment’s prohibition on cruel and unusual punishment. Furman had been a 5-4 decision, raising as many questions as it answered. It wasn’t until Gregg v. Georgia in 1976, the year after Kleasen’s trial, that the Supreme Court answered that question. It said that as long as certain guidelines were followed, the death penalty was constitutional. Jurek v. Texas was decided the same day as Gregg and the court expressly approved the Texas statute enacted after Furman.

Today the U.S. Supreme Court has more or less abandoned most of those guidelines and allowed states to drift back to death penalty practices that are nearly pre-Furman. Today the Texas death row is less than 40 percent white and more than 60 percent minority.

Executions did not begin nationally again until Gary Gilmore was shot to death in Utah in 1976. He was a “volunteer,” stopping his appeals and asking to be executed. Florida executed John Spenkelink and Nevada executed another volunteer, Jesse Bishop, in 1979. Texas was the sixth state to begin executing again when Charlie Brooks became the first person ever to die by lethal injection in 1982.

But there remained many unanswered questions about the details of a death penalty trial under the Texas statute. How do you prove future dangerousness? Were you dangerous if you wrote bad checks or drank heavily? And dangerous to whom? Other inmates and prison guards? What kind of evidence would be permitted and what would be considered out of bounds? Future dangerousness was unlike any question other criminal juries were asked to answer so there was little past [p.130] experience to consult. Defense lawyers had to weigh whether handicaps such as mental illness or retardation should even be presented to the jury because they would also lead to a yes answer on the critical questions.

As Kleasen’s spring 1975 trial approached, no one was sure what the rules were. The Texas Court of Criminal Appeals hadn’t even ruled on the new statute until just days before the Kleasen trial began. It was practicing death penalty law in the dark.

Kleasen’s various defense lawyers filed several motions challenging the death penalty in general along with particular aspects of the new Texas statute. At a hearing six weeks before, trial judge Blackwell reminded the defense team that three cases involving the same challenges were pending in the Texas Court of Criminal Appeals. “We should expect a decision from them in the near future as to whether capital punishment is constitutional,” he told the lawyers. “If they rule it is constitutional, your motions will be overruled. In the event they rule it’s unconstitutional, then the motions will be granted.” As it turned out, the Court of Criminal Appeals issued its decision in Jurek v. State, approving the new death penalty statute just before the trial.

One legal problem Smith and Craig had was specific to their case. They had charged Kleasen with murdering two young men but they didn’t have bodies, at least not in the usual sense. A body not only convinces the jury that the victim is in fact dead, but it often provides evidentiary information on when the murder happened, how the killing took place, and often something about the killer. This investigation had produced no such evidence. Smith and Craig were confident that Kleasen had killed Fischer and Darley, but all they had to show for their deaths was perhaps a laboratory test tube full of human blood and biological material. Most of that they could not say with absolute certainty came from these two victims. All they had to speak to identity was a small amount of head hair found on the band saw and Kleasen’s clothing, a common substance which in and of itself did not say a person was dead. There was enough circumstantial evidence to convince them they had the right man, but there was no smoking gun.

[p.131] Until earlier in 1974, Texas law carried a statute, Article 1204, which required that a body, “or portions of it,” be found before a murder conviction could be had. With a 1974 legislative rewrite of the criminal code, the statute was removed and death could now be proven with circumstantial evidence. Still, prosecutors fretted over whether they had enough of a body to convince both the jury and subsequent appellate courts that murders had taken place. And they had to prove it beyond, and to the exclusion of, all reasonable doubt. In fact, the Court of Criminal Appeals had held that in order to prove what criminal lawyers call the “corpus delicti,” the prosecution had to establish that someone was dead and that the death was caused by the defendant. This takes more than a strong suspicion or an especially unsavory defendant like Kleasen.

The issue presented to past Texas appellate courts usually involved a body but ambiguous proof as to how the death came about. Only three cases from the Court of Criminal Appeals seemed to provide guidance for a “no body” case. In 1901 the court reversed the murder conviction of cowboy Gib Gay in the killing of his partner in a cattle venture. The partner just disappeared in the summer of 1897 with a lot of money in his possession. The normally poor Gay then turned up spending freely in town, bringing suspicion on himself. But the only proof of the “corpus delicti” was a small amount of what were believed to be human remains found at an old fire site on Gay’s mother’s ranch. The court ruled that human teeth, toe and hand bones, strands of hair, and pants buttons sifted from the ashes and never positively identified as belonging to the disappeared partner were not sufficient to prove a murder. Gay was set free.

In 1942 the court reversed the murder conviction and twenty-five- year sentence of Helen O’Keefe. She had been convicted of murdering her boss at a small loan company from which she had been embezzling money. O’Keefe had been trying to hire men to break her boss’s legs but making it clear she did not want him killed. Then one day the boss’s car was found engulfed in flames with what looked like a body in it. O’Keefe and her soldier boyfriend had been seen in the area. By the time the fire was put out, there were perhaps twenty-five pounds of [p.132] human flesh and bones remaining. Several personal possessions belonging to her boss were found with the body, a single human tooth along with some false ones, and portions of hip and leg bones. The testimony of doctors and dentists as to whether these came from the disappeared man was sharply divided. Most telling for the Court of Criminal Appeals was testimony by morticians that it would take considerably more heat than this fire could have generated to consume all the human materials that were not present after the fire was put out. The court set O’Keefe free.

In a third case decided about the time of Kleasen’s crime, the court affirmed the conviction and life sentence of Michael Lloyd Self in the murder of two girls. Skeletal parts, including a skull from which dental work was positively identified, along with a victim’s necklace and crucifix wrapped around a jaw bone, were dredged up out of a bayou. However, that case was simplified considerably when Self confessed. His conviction was affirmed.

But with Kleasen there was no confession. Nevertheless, Smith and Craig believed their circumstantial evidence was so substantial that they would prevail. Plus they had the benefit of scientific testing that was not available in these older decisions.

The week before the Kleasen trial began, Craig traveled to Houston to sit in on jury selection in another death penalty case, that of Ronald Clark O’Bryan. Craig wanted to see how Harris County prosecutors handled voir dire before picking his jury in Travis County. O’Bryan had come to be known as the “Candy Man” for poisoning his eight-year-old son Timothy on Halloween 1974, just three days after the Mormon missionaries had disappeared. O’Bryan laced his son’s Halloween candy with cyanide in an effort to collect insurance money. He was sentenced to death on June 4, 1975. One of O’Bryan’s defense lawyers was Houston attorney Marvin O. Teague who would later come into the Kleasen case. By the time Craig returned from Houston for the final preparations, both he and Smith were as prepared and confident as they could be.

Travis County had not had a capital conviction since a man named Lee Belo Brooks was sentenced to death in 1970 for rape, and his sen-[133]tence was commuted to life in the aftermath of Furman. The last actual execution on a Travis County conviction was another man sentenced to death for rape in 1959, Samuel M. Holmes. The prosecution team against Kleasen entered the courtroom confidently, but knew they had a lot to prove in the course of the trial.