Evil Among Us
by Ken Driggs
[p.142] Jury selection began on Monday, May 19, 1975. After earlier granting a defense motion to sequester the jury, Judge Blackwell surprised nearly everyone by reversing himself. Instead he imposed a gag order on the local press that prohibited journalists and reporters from naming or otherwise identifying individual jurors. The Austin media went to court to remove the order but lost. After this press accounts described jurors by occupation, age and gender, but no names or addresses. The judge saw this as preferable to “locking up” jurors in a local hotel for the duration of what everyone feared would be a long trial. The state’s witness list of forty-eight didn’t suggest a quick resolution. Initially 400 people were summoned as possible jurors, but their numbers were quickly reduced to 137 whom the lawyers would question.
Each side can make an unlimited number of challenges for cause when a candidate juror indicates a prejudice or bias about the defendant, the prosecution, or some aspect of the case which would prevent him or her from being impartial. A juror who said he would always believe the testimony of a police officer might be subject to challenge for cause. Jurors who could never vote for a death sentence or who would automatically vote for death once they decided to convict would be subject to such challenges. Jurors who had followed the case closely in the press and who had already formed an opinion as to a defendant’s guilt or innocence would be excused for cause.
In addition, the prosecution and defense each had fifteen peremptory challenges to use. A peremptory challenge is the right to excuse a juror on what amounts to a hunch. Lawyers often enter a trial with a theory, a story they want to present. Part of that strategy is a decision about what kind of jurors they want to seat—that or a strong feeling about the kind of people they did not want on the jury.
[p.143] Kleasen’s lawyers no doubt would not have allowed a Mormon to sit on the jury no matter how unbiased she said she could be. By the same token, prosecutors likely would use peremptory challenges on persons who had a relative currently being prosecuted by their office but who claimed they could still be unbiased. Prospective jurors who might insist on seeing an actual body before they could be convinced that a murder had taken place certainly would have troubled the district attorney.
The 137 men and women who survived the initial cut were called into the courtroom one at a time—“individual sequestered voir dire” the process is called. One reason for the practice is to encourage candid answers. Examining potential jurors in groups runs the risk of their hearing the kind of answers that result in other jurors being seated or excused, thus coaching them on the “right” or “wrong” response. It’s an effective procedure but it can be slow and, for the lawyers and trial court, mind numbing after a few days.
Prosecutors Robert Smith and Charlie Craig entered jury selection confidently. They didn’t feel the need to ask detailed, intrusive questions because they felt their case was strong. If jurors were going to be offended by detailed personal questioning, prosecutors were going to let defense lawyers take the heat; they figured almost any jury could be brought to the verdicts they wanted. Both men felt the facts were so horrendous that if the jury convicted they would send Kleasen to the electric chair.
The defense apparently came to jury selection without a plan. Almost from the beginning, things began to fall apart for them. The junior members of the defense team came to jury selection thinking they were there mostly to observe, but very quickly it appeared that Haley was not functioning well as lead counsel. Increasingly Ganne and Bays had to fill the growing vacuum. Surprisingly, Kleasen did not try to control his defense team at this point and was not an active participant in jury selection.
The first day of jury selection concluded with only five jurors being examined. After the examination of each individual candidate, Judge Blackwell asked the lawyers if they would accept the him or her [p.144] as a juror. If no objections were raised, he immediately swore the juror in, thus preventing either side from having a change of heart later on.
After less than an hour of questioning, the two sides had accepted the first prospective juror, Nancy Locker, a fifty-two-year-old housewife from Spicewood. After Locker, Kleasen’s lawyers used three peremptories to excuse the son of a former district judge, a young University of Texas chemistry student, and a fifty-year-old architect. Prosecutors used one of their peremptories to excuse a University of Texas philosophy professor.
On the second day they agreed to four more jurors: a twenty- three-year-old female telephone company repairman, a forty-seven- year-old Texas Railroad Commission clerk, a thirty-six-year-old mother of several children who worked in a veterinarian’s office. Richard G. Willis, a fifty-five-year-old retired Air Force colonel who once was part of the University of Texas ROTC program but now said he was looking for a job, was the third juror selected. The fifth juror, Mrs. Cynthia Bartlett, was asked about her current reading and reported a collection of short stories by Franz Kafka. His surreal book The Trial was not among them, she said.
Linda Miller, Kleasen’s Pentecostal pen pal, sat through Tuesday’s jury selection. Judge Blackwell allowed a brief visit between the two after court recessed for the day. The Austin newspaper described her as Kleasen’s “girlfriend.”
By Wednesday, after the examination of forty-one members of the jury pool, the panel reached nine members with the selection of a nineteen-year-old who would be the youngest member of the panel. A second Southwestern Bell telephone repairman, Kenneth Jones, fifty-six, was the eighth juror. A World War II veteran who’d flown B-17 bombers, Jones told the lawyers he’d read news coverage of the case. “They do a good job generally,” he said, “but I wouldn’t send anyone to the chair on what they put out.”
The 50th candidate was a twenty-seven-year-old man who said he worked in the “intelligence business.” During his examination, Kleasen, who still claimed to be a CIA veteran, was on the edge of his seat with uncharacteristic attention. The defense used their 15th pe-[p.145]remptory challenge to excuse the man. They then asked for and were given an extra peremptory challenge which they never used.
On Thursday afternoon Karen Hood, a thirteen-year resident of Travis County, mother of two children, and wife of a Texas National Guardsman, was the last candidate questioned. With her selection as the twelfth juror, prosecution and defense now had a jury. Seven women and five men, all of them white, would decide Kleasen’s fate.