Evil Among Us
by Ken Driggs
[p.146] Testimony was set to begin on Friday, May 23, 1975. The trial was moved to a fourth floor room in the back of the Travis County Courthouse on Guadalupe Street. Today it is District Court 261.
The room was large and sunny with high ceilings and two walls full of windows. Behind the lawyer’s bar were fourteen rows of benches which were filled to overflowing for the biggest trial Austin had seen in more than a decade. Judge Blackwell would preside from an imposing raised bench, dwarfing the lawyers and witnesses in front of him. Two large counsel tables crowded the area between the bar and the judge’s bench. The jury box was to Blackwell’s right with two rows of six jurors each. Their backs were to the bank of oversized windows. Oak trees outside broke up the sunlight that spilled through the glass. The usual rule of sequestration had not been invoked for the Darley and Fischer families, so all were allowed to sit through the trial even though some were called as witnesses.
Just before trial, Haley refused to say if Kleasen would take the stand. He told reporters, “Defense attorneys don’t put the defendant on the stand unless it’s an exceptional case.” Smith told the same reporters he would call forty or more witnesses and expected “five or six days” of testimony. Haley refused to say how many witnesses he might call for the defense.
One juror had somehow been identified and started receiving harassing telephone calls. She asked Judge Blackwell to sequester the jury for their protection. He again declined.
The trial was actually for the murder of Fischer. In Texas individual trials are usually conducted for each victim in cases of multiple homicides, but evidence of all the killings may be introduced.
[p.147] The Fischer and Darley families were staying with the Mormon families who hosted them the previous fall. Austin Mormons didn’t want to abandon them to a downtown motel. The Fischers again stayed with Bishop McCullough’s family, the Darleys with FBI agent Bruce Yarborough and his wife.
District Attorney Smith made the opening argument for the prosecution. He was brief and to the point, telling the jury that the State’s case was entirely circumstantial. Nonetheless, he told them they would be convinced beyond a reasonable doubt. “There are no witnesses to the crime except Kleasen,” he said, and promised to prove that Kleasen had killed both young men and cut their heads up in the taxidermy shop’s band saw. To the gallery’s disappointment, Kleasen’s lawyers reserved their opening argument until the conclusion of the State’s evidence.
The first prosecution witness was Jack Paris, a Mormon “since I was eight years old.” Paris, twenty-three, was boyish and blond- headed with a mustache. Charlie Craig used him to set the stage, to tell the jury who Kleasen was and about his threats of violence. Paris told the jury he first met Kleasen in September 1974, less than two months before the murders. He and his wife had been invited by two church missionaries to join them for a deer steak dinner at Kleasen’s Oak Hill trailer. After driving the missionaries back to their apartment early in the evening, Paris had returned to Oak Hill with two more Mormon friends from Houston.
Paris described staying up late that night talking, listening really, as Kleasen spun yarns about his life of espionage, hunting, and persecutions. This, he told the jury, was when he heard Kleasen say he would shoot any policeman who pulled into his driveway, cut the body up, and spread the parts all over central Texas. He bragged that he had the skills to do that, Paris said. Kleasen also gave the three a tour of the taxidermy studio using keys he had on him.
Paris went on to describe as many as six other visits to Kleasen’s trailer home and, finally, the tense confrontation at Paris’s apartment on Wednesday, October 23, 1974. He identified pictures of the victims and of Kleasen’s trailer. He also explained what a Mormon temple rec-[p.148]ommend was. Paris’s own expired recommend was given to the jury as an example along with the photos.
David Bays cross-examined Paris but only seemed to bring out more damaging information. Paris described more of Kleasen’s CIA fantasies and said he came to regard the man as a violent person. “Other things he said frightened me. Once he held a pistol to his head and said he didn’t have much reason for living anymore and sometimes he thought he might shoot himself. That frightened me,” Paris told Bays earnestly. “All the more with him saying that with a loaded gun pointed at his head right in front of me.”
If Kleasen was such a scary guy, why did you keep visiting him? “I’m a member of the Mormon church. He is a member, and I was trying to fellowship him along with the missionaries.”
Paris also explained how he told all this to local church authorities. “The Sunday after the missionaries had come up missing, I was called into the bishop’s office at the chapel where I attend church. They asked me if I knew anything of the whereabouts of the missionaries. I said no. I told them I hadn’t seen them since the previous Sunday at church. I also talked to them the previous Sunday night. The last thing they told me was that they were going out to Mr. Kleasen’s house. Then I related the things Mr. Kleasen had told me to stake president Wright here in Austin and one of the bishop’s counselors.”
After Paris, prosecutors called David Owens of the National Weather Service to present records of Austin area rainfall from October 28 to 31. Presumably the 1.76 inches of rain would have washed away much of the blood and trace evidence that ordinarily should have been around the taxidermy studio. Owens provided charts of October’s and November’s rainfall which prosecutors introduced into evidence.
Owens was followed by Clay Rathbone who told the jury how he found the first missionary name tag along with other materials around the taxidermy studio grounds. He identified police photographs of and described for the jury the dilapidated out-buildings Kleasen had used for storage as well as his homemade shooting range. He told the jury he had known Kleasen for “several years.”
[p.149] Clay had worked in his father’s business most of his life together with three brothers. He was familiar with guns and bullet holes. “I walked up to the property’s fence line to look for deer tracks. It had been raining and the ground was soft, so you could usually find tracks and other signs. Anyway, I happened to see some stuff over in a corner. I noticed the name tag and a little prayer book laying back there in the grass. I remember Darley’s name was on the name tag. The prayer book had a temple recommend in it, but I don’t remember whose name was on it.” The prayer book was actually a weekly planner with inspirational content. There was a bullet hole in the name tag as well as through the planner and the temple recommend. “The Temple Recommend hadn’t expired yet. I figured somebody had lost it and would be looking for it, so I took the stuff to my father and showed it to him. I figured he would know what to do with it. He decided it wasn’t of any value and threw it away.” Clay’s finds went into the trash which Kleasen burned every Sunday. “Robert has done that for us before, you know, on Sundays. He sometimes cleaned up the shop and burned the trash on weekends.” When he heard about the missionaries being missing on November 5, Clay again looked for what he’d found but it was gone. He assumed it had already been burned. Under Ganne’s cross-examination, Clay acknowledged that he hadn’t seen any blood on the items or the ground around them, nor were there any powder burns.
Craig called Bill Buntzer next. He was the high school boy who worked in the taxidermy studio and found Fischer’s name tag. He had known Kleasen for the past year and a half. After hearing about the missing missionaries and Clay’s find a few days earlier, Buntzer also went looking—“out of curiosity.” He told the jury how he found Fischer’s black plastic name tag, also with a bullet hole in it. He took it to the taxidermy shop and the police were called. Craig showed Buntzer the name tag, which he identified. It was marked State’s Exhibit eleven.
ATF agent Dale Littleton followed. He told the jury about their search of the trailer and Kleasen’s arrest in Burnet. Littleton made a point of telling the jury about all the weapons stashed in Kleasen’s [p.150] Rambler station wagon when he was taken into custody. “In the front seat right beside the defendant was a hunting knife about five or six inches long. Under his right leg sticking out from under the seat was a Colt .357 magnum pistol that was loaded. In the back seat within arm’s reach was an open gun case with a Walther .22 Hornet rifle with scope.”
The last witness of the day was Lem Rathbone. He had owned the Austin Taxidermy Studio since 1937 and very recently had moved the business from a South Lamar Street location to Oak Hill. Craig walked him through a description of how Kleasen came to live at the Austin Taxidermy Studio and what duties he had. He went on to the point of how after the missionaries disappeared his band saw had become fouled from misuse. “One morning I came to work and they told me they were having trouble with the band saw. It just wouldn’t work. I went back there and saw the adjustments were all out of whack on it. Somebody had fooled with it that didn’t know what they was doing. Nobody would take responsibility for it.” They had to change several parts, including the blade, to get it working again. He thought this was October 28 or 29. The band saw had been in the shop ten years or more.
Craig showed Rathbone police photographs of the taxidermy shop and grounds, asking him to describe for the jury what they were looking at. This again included the out-buildings where Kleasen used to store some of his belongings. Rathbone also testified that Kleasen was a hunter who knew how to butcher and mount animals. Craig brought out the fact that Kleasen had keys and access to the shop at any time.
Haley cross-examined Rathbone, first about how game trophies were mounted, then about the ten years he had known Kleasen. “He would come to Texas about once a year to hunt, generally in the summer, and always left his trophies with us to mount,” Rathbone explained. Sometimes Kleasen wanted Rathbone to arrange exotic game hunts for confined animals not normally native to Texas. He testified that on at least one occasion he set up an exotic hunt for Kleasen at the Diamond X Ranch, site of the buffalo kill that led to Kleasen’s being jailed for several months. “I made the arrangements for him and took [p.151] him out there. I don’t remember exactly what he killed, but I think it was an Aoudad Sheep, an Axis Deer, and a Black Buck. He killed his animals, and we came back to the shop. And he was always writing me letters. He is a note writer.”
Rathbone recalled that it was during the 1972 deer season—the second Saturday in November through the end of the year—that Kleasen showed up looking for a place to live. Other records suggest it was probably early 1973 when Kleasen returned. This was always a busy time for Rathbone’s business, often demanding seven-day work weeks from all of his employees.
Haley asked Rathbone to tell the jury of the jobs he knew Kleasen had taken while living at the taxidermy studio. “He had a lot of different jobs, I don’t even know about them all. He worked for the Texas Explosives Company for a while. He had several construction jobs. I believe he worked at a boat place for a while.”
What was the band saw used for? To cut white pine for mounts and for the horns on some animals.
How about Kleasen’s visitors? “I wouldn’t say he had many, just a few. They were either church people or from the construction jobs that he worked on. I saw some church people there a number of times and met them. He would bring them into the shop and introduce them. There was a preacher from Burnet. And I think he had a boy down there with him one time from church.” The boy was probably Caleb West.
Haley brought the questioning around to gutting and mounting animals. Rathbone said most of his customers gutted their kills in the field. His business did not dress the meat but would wrap it in brown paper so customers could take it elsewhere to be processed. He thought it usually took less than ten minutes to skin a deer.
Rathbone was the last witness called that first week. Judge Blackwell recessed the court for the extended Memorial Holiday weekend, until Tuesday morning. Jurors went home to their families.
The prosecution picked up on Tuesday morning with a series of witnesses describing the theft of the trailer Kleasen was living in and how police found some of the missionaries’ teaching materials in it.
[p.152] James Jenkins, a Mormon from Nephi, Utah, next took the stand. Nephi is the name of an ancient prophet in the Book of Mormon and is one of a number of distinctly Mormon names that dot the map in areas pioneered by the church more than 150 years ago. Jenkins had completed his church service, but in 1974 had been Darley’s missionary companion in Austin for three months. He and Darley had sometimes visited Kleasen at the trailer.
About two weeks before being released from his mission, Jenkins had given Darley two religious instructional filmstrips and accompanying audio cassettes—Man’s Search for Happiness and Meet the Mormons. This was about the time of Darley’s birthday, around September 29 or 30, Jenkins thought. (Darley had actually turned twenty on September 27, 1974.) Jenkins recognized the materials found in Kleasen’s trailer as the ones he had given Darley because his initials—JRJ—were still on them. These were missionary materials, not something given to a new convert like Kleasen.
Next the jury heard from Texas Parks and Wildlife lieutenant Frank Henzy on how he found the blood spattered fatigue pants and jacket in front of Kleasen’s trailer. He was followed by sheriff’s sergeant Robert Nestorff who testified about his identification of the trailer as having been stolen from Christian Mobile Homes in Oak Hill.
Conrad Hardcastle, a Mormon missionary then in his twenty- second month of church service, next told the jury about spending the day with Darley and Fischer on October 28. He recalled Darley telling him about their dinner appointment with Kleasen and inviting Hardcastle and his companion to come along. “We wanted to go with them, but before we left we realized that we had an appointment and couldn’t come.” He then described the frantic search for the missing young men that first week of November. Craig had him identify several of the paper items connected with the missionaries which were collected from the taxidermy grounds.
Each Mormon missionary carries a ministerial certificate signed by the church president. In 1974 the president was Spencer W. Kimball. At the top of this certificate was printed “The Church of [p.153] Jesus Christ of Latter-day Saints” in a unique type style. While crawling through the grass, Hardcastle had found a burned paper fragment with the word “The” on it in that distinct type style. He had a deputy bag and mark the discovery which he now identified for the jury. He also identified a burned page from Darley’s weekly missionary planner found in the grass. Hardcastle had received so many letters from Darley he immediately recognized his handwriting on the page.
Ganne cross-examined Hardcastle. They had talked briefly in the courthouse hallway moments before, the only time Ganne had a chance to prepare for this witness. Hardcastle told Ganne and the jury that Darley explained their regular meals with Kleasen as “not just eating with him, but fellowshipping the man as well, trying to help him out.”
Homicide investigator Albert Riley took the stand briefly to list the items he had inventoried from Kleasen’s trailer during the search. These included fake identity papers, the letter from Darley and Fischer confirming the October 28 dinner commitment, blood-flecked watches that belonged to the victims, Hardcastle’s filmstrips, keys that started the victims’ car and opened their apartment, and what would become State’s Exhibit 26, a typed manuscript entitled “My Thousand Whitetail Deer,” by John T. Williamson.
Later Tuesday the jury heard the brief but dramatic testimony of Jill Darley. She told of meeting Kleasen in the jail when he lectured her for suspecting that her son was already dead. She squeezed a handkerchief tightly between her hands as she testified. Her voice broke several times. She would drop her head and pause long enough to regain her composure. She explained her son Gary’s regular and predictable letter writing home. The last time she spoke with her son was on his twentieth birthday, September 27, 1974—“a month and a day before he was, uh, killed.” Prosecutors asked if she had had any communication from her missing son since October 28. “I only wish I had,” she replied, choking back her emotions.
She was followed by her husband, David, and the missing missionaries’ eighteen-year-old girlfriend, Kerrie Hampton, who also lived in Simi Valley, California. She told the jury how she saved [p.154] “quite a bit” of Darley’s hair after his mother gave him a pre-mission haircut in the family kitchen. A reporter covering the trial wrote of Hampton’s “own blond hair gently curling against her flushed cheeks” while she testified. Hampton had sealed the hair in a plastic bag which she kept with other keepsakes until Gary was reported missing. It was this hair that was given to Texas criminologists to match with samples gathered at the crime scene.
Hampton was followed by Gary’s father, David. Charlie Craig asked him to briefly describe their family and missing son. “The last time I saw Gary was in Salt Lake City when we left him at the Mission Home,” he said. “I think that was on March 2, 1974.” He noted the regular correspondence with Gary throughout his son’s time in Texas. “I would receive a letter almost weekly from him. Usually on Mondays he would write a letter to me. Monday was their free day to write home and take care of personal things.” He went on to identify his son’s watch, State’s Exhibit 28, which was found in Kleasen’s trailer. “Kelle wore this watch for several years, and then he gave it to Gary just before Gary left to go on his mission.” Finally, Craig had Darley explain how he collected dental and medical records, as well as the haircut clippings from Kerrie, for investigators in Texas.
On cross-examination Pat Ganne asked about Gary’s motorcycle. “Well, he was certainly interested in motorcycles and had one of his own before he left for the mission field,” David replied, “but I would not say that that was his primary interest.”
After Kerrie Hampton and the Darleys testified, Smith picked up the manuscript typed on yellow paper. State’s Exhibit 26 had been seized by Investigator Riley during the search of Kleasen’s trailer. “Your honor, I’d like to read to the jury some of what was written by the defendant here in his ‘My Thousand Whitetails, a Poacher’s Notebook.’ It’s by John T. Williamson whom we now know is really the defendant.”
Haley and Ganne jumped to their feet to object but Blackwell denied the objection.
Smith began by reading a section of the twenty-page manuscript where Kleasen boasted of slaughtering deer at a creek where they [p.155] came to drink. The courtroom crowd was hushed and leaning forward as Smith’s booming voice began to read aloud.
I just kept firing until it was too dark to shoot. I lost count of how many I killed, but I knew they were all laying within thirty feet of the creek which stretched out for about 200 yards. When I finished I loaded twenty-eight deer in my pick-up truck. And when I counted my empties I had 28 empty cases so I thought I did OK.
The beauty was that at that range the sound of the Wasp rifle was so little that the deer did not sense the danger. I killed with each shot thus none of the animals gave an alarming cry.
Smith paused here for emphasis, then moved to the section he believed answered the question of what Kleasen had done with the remains of Darley and Fischer.
One may say Wow, 28 deer, where did he put all the meat. The meat you get from these small deer is about 35-40 pounds each if you weigh the bones. This can be reduced even more with boning. The whole deer can really be cut up to fit a very small space. And as I like some parts better than others I give some to my dog and whatever is left away as fast as I shoot them. I assure the reader that nothing worth while is wasted. Even the guts are used in potato sacks in baiting for catfish. This is sown with large rocks and sent to the bottom of a near lake by the sack full. And the very best fishing is to be had over my “dumping ground” …
Afterwards Haley stood again to renew his objection. “I wish the jury would be reminded that there is no evidence that this was written by Mr. Kleasen.” It wasn’t so much an objection as a comment for the jury.
With that Blackwell recessed the trial for the day. He now recalls that it was this manuscript which convinced him of Kleasen’s guilt. “It was a confession,” he observes.
Charlie Craig began Wednesday’s testimony with Kelle Darley, Gary’s older brother who had also served a Mormon mission in Texas and now ran a small motel in Santaquin, Utah, while attending Brigham Young University. Kelle was extremely nervous. Craig [p.156] showed him State’s Exhibit 28, Gary Darley’s watch which was found in Kleasen’s trailer. The Voumard watch was a family Christmas present given to Kelle in 1968. Kelle testified it had been damaged during an auto accident in 1969 and had been taken to a jeweler to be repaired. Then he’d worn the watch on his mission, where the humidity had caused a green growth to appear on the watch face. He explained that he had tried to wipe the growth off but had accidentally removed part of the words “17 Jewel” as well. The jury could see that the watch found in Kleasen’s trailer reflected all of this unique history.
Ganne cross-examined Kelle on the day-to-day life of a missionary but made no attempt to challenge the history of the watch.
Bob Smith presented the next witness, crime lab technician Fred Rymer. He explained at length the ballistics testing on the missionary name tags. Smith moved the tested tags into evidence and they were passed down the jury box during Rymer’s explanations. He displayed for the jury Fischer’s recovered name tag which had been marked as State’s Exhibit 11.
After a brief argument over whether Rymer would be required to turn over his written report to the defense, Pat Ganne began a lengthy cross-examination. He got the ballistics expert to acknowledge that he could not say for sure what kind of firearm had produced the hole in the Fischer name tag. “I had no basis for that,” Rymer conceded.
On redirect examination Smith brought Rymer back to that point. “The purpose of my examination was not to match a specific weapon with the bullet hole in the name tag. My idea was just to get some idea on what we are dealing with.” It would not be possible to match the bullet hole with a specific weapon or brand of firearm, Rymer explained.
Ganne tried again on recross examination: “So the only thing that you’ve told us is that maybe a .22 poked a hole in that particular name tag?” “Well, as I said in my testimony, it was closer to a .22 than any other,” Rymer answered. Both men continued to duel for the remainder of Rymer’s testimony on just what he said about the hole, whether it was definitely a bullet hole or merely looked like one but was perhaps something else.
[p.157] Jim and Cathy Fischer, Mark’s parents, testified next. Craig examined both. They presented for the jury a picture of a deeply religious, loving family. “We aren’t embarrassed by telling each other how much we love each other,” his mother said. They also testified to their missing son’s regular communications which stopped on October 28.
Catherine Fischer’s visit with Kleasen at the jail only came out in Bay’s cross-examination. “Didn’t you visit Mr. Kleasen at the jail?” he asked. He probably regretted giving her the opening. “We talked. He cried for a good part of the time that I was there,” she told the jury. “He said he didn’t think the boys were alive. And he told me if it was any comfort that he would be dead too.” She also recounted Kleasen’s boasting about what a good shot he was. He offered the explanation that the bullet hole in her son’s name tag could have come from someone just horsing around and shooting it on a flat surface.
“At any time during the conversation did you give him a Book of Mormon?” Bays asked. (Mormons embrace both the Bible and the Book of Mormon as scripture.) “Yes,” she answered, explaining how she had left her name and address in it so the two could correspond. “I also had bought him some banana bread and cookies from one of the Relief Society sisters, but I wasn’t allowed to bring them to him.”
If anything, the cross-examination generated even more sympathy for the Fischer family.
After Mark’s parents, prosecutors presented his cousin Susan Fischer. She told the jury about the pre-mission haircut she had given Mark two days before he left Milwaukee for Salt Lake City. His girlfriend Barbara Bakewell followed, telling how she saved the cuttings as mementoes of their romance. She talked about the Seiko watch she’d purchased for Mark as a farewell gift when he departed for his mission. She’d bought it at a Milwaukee area J. C. Penney store and still had the receipt. She identified State’s Exhibit 27 as her gift, one of the blood-flecked watches taken from Kleasen’s trailer. She recognized it because Mark’s wrists were so small she had had to have some extra links removed from the metal wristband. The seized watch had the same number of links removed.
[p.158] After the family members’ testimonies, Craig presented police sergeant A. P. Lamme to explain how he’d stumbled across the missionaries’ car while on drug surveillance at the Inwood Apartments. Ganne’s cross-examination brought out more details regarding the find, but nothing relating to how the American Motors Hornet ended up on cinder blocks in a south Austin apartment complex parking lot.
Jim Fischer, Mark’s father, followed Lamme to testify for the second time. Craig asked him to describe taking his son to Salt Lake City at the beginning of his mission. There they bought a ten-pack of common black Bic pens at the University of Utah book store. “Mark said they preferred black in the mission home,” his father told the jury. Craig then showed him State’s Exhibit 19, the shattered Bic pen found in the grass of the taxidermy grounds near the recovered papers and name tag. The prosecution placed the pen into evidence and it was passed down the jury box.
Mormon FBI agent Bruce Yarborough followed several brief chain-of-custody witnesses. Craig walked him through his own investigation, including responding to Lamme finding the car and his visit with Ed Guyon to Kleasen’s trailer. Yarborough told the jury he’d shown Kleasen his FBI credentials when they first met.
On cross-examination Ganne asked if Yarborough had authority from his superiors to work a routine missing persons case or was he a Mormon trying to use his FBI status to look into a church problem? The agent replied that he had been directed by his bosses “to determine if the FBI had jurisdiction in the disappearance.” Yarborough acknowledged that he didn’t have a search warrant but that Kleasen had never asked for one. In answer to Ganne’s questions, he described asking Kleasen if he could look in the trailer but was only allowed to look in the windows. “He went in and got something out of a shelf first and stuck it under his carpenter’s apron, then he came back out.” Kleasen then talked to Guyon about church business while Yarborough looked through the glass. He didn’t see anything helpful. The two left after about fifteen minutes.
Craig introduced mission president Loveland as his next witness. Loveland described himself as a “licensed journeyman plumber and [p.159] fitter” serving in a voluntary church calling. “I preside over the two hundred-plus missionaries in South Texas,” he explained. He went on to tell the jury about church ownership of the automobiles driven by missionaries and how they were used. “The vehicles are assigned depending on the size of the area they are to cover as missionaries. This particular area is quite large so a car was assigned.” He explained the mileage limits imposed on missionaries with cars. “A zone leader has a mileage limit of 1,500 miles a month; a district leader 1,250; and a regular missionary 1,000. Elder Darley was a district leader so he had 1,250 per month allowed for his car.” Those limits were what Fischer and Darley meant when they wrote to Kleasen on October 19 that “we are running short of miles,” then confirmed their October 28 dinner commitment.
Under cross-examination by Haley, Loveland explained the young men’s service in a mission area that “roughly covers from Brownsville, Texas, westward to the Mexican border just south of the Big Bend Country, eastward to the Louisiana border and south to Mexico.” His missionaries worked full time “contacting people about the Gospel, sometimes door to door.” He went on to say that missionaries were instructed not to stay more than an hour to an hour and a half when dining with members. “That is a rule imposed by Salt Lake City,” he testified. Haley seemed surprised when Loveland said he’d never met Kleasen before. The mission president saw him for the first time that day in court.
After Loveland, prosecutors moved through a series of Austin police officers describing their investigation and the gathering of evidence. Harold Bilberry and Colon Jordan described how they had seized a key ring from Kleasen’s trailer and how those keys had fit the recovered car, the missionaries’ apartment, and a bicycle lock. They described searching the taxidermy shop grounds on November 6, 1974, and the recovery of the tires and license plates.
Judge Blackwell recessed for the night before Bays was able to get far into his cross-examination of Jordan. Bays briefly returned to his cross-examination the next morning. One point he tried to drive home was that fingerprints could have been lifted from the watches [p.160] and other evidence found at the trailer but were not. Such prints, he complained, could have been clues as to who planted the items in Kleasen’s trailer.
The prosecution presented more law enforcement witnesses on the recovery of evidence and establishing a chain of custody, setting the stage for crime lab testimony. Austin police officers Ruben Fuentes and Patrick Roth, Texas Ranger Wallace Spillar who had seized the band saw, and Travis County deputy sheriff John Barton, who first questioned Kleasen about the disappearances, all testified. It was Spiller who identified the missionaries’ automobile license plates as State’s Exhibit 50, Darley’s blood-flecked Voumard watch as State’s Exhibit 28, samples from the missionaries’ haircuts, and other physical evidence.
During a pause Smith moved a number of written items into evidence. First was the grand jury indictment of Kleasen for capital murder, then death certificates for both Darley and Fischer. The death certificates were issued by Justice of the Peace Jim McMurtry after Kleasen’s January inquest. The certificates listed the deaths as occurring on October 28, 1974, as the results of “unknown” injury.
Haley objected to the death certificates as hearsay. The defense had reason to fear their admission because they contended there was no proof the young men were even dead. The lawyers argued over their admission, and finally Haley agreed that Judge Blackwell should read the jury a state statute on the authenticity of such documents. State’s Exhibits 53 and 54 then went to the jury. Charlie Craig thought Haley had just been snookered, that armed with the death certificates the jury would be satisfied the two missing men were dead.
That brought the prosecution to their most sensational scientific evidence, beginning with seventeen-year Department of Public Safety Crime Lab veteran Leslie Smith. He described himself as a “chemist and toxicologist,” but in fact had done just about every kind of scientific investigation during his long career. Craig confidently walked him through his testing of the battery cables, the car tires and brake drums, the car jack, the tires and laundry soap, Kleasen’s blood-stained clothing, and his analysis of the hair samples taken from [p.161] the taxidermy shop and compared to those from the missionaries’ haircuts. Smith matter-of-factly identified State’s Exhibits 62A, 62B, and 62C as packets “containing material that was removed from the band saw at the taxidermists [sic] shop and carried back to the labor- atory for analysis.” Some of that material was what remained of Gary Darley and Mark Fischer.
The most damaging exhibit of all was the band saw. It was over five feet tall, gray and slightly rusted, squat and menacing. There was a large circular housing on the top of a thin neck for the blade. Bailiffs had set it directly in front of the jury box where it seemed to glower at the witness in the box an arm’s reach away. The front row of jurors could have touched the circular housing by leaning forward in their chairs. A small circular white paper tag hung from tiny strings on the base identifying it as State’s Exhibit 64. Worst of all was the encrusted substances that could be seen around the blade and housing, substances that Smith would soon identify.
Sitting at counsel’s table, Pat Ganne knew that the band saw’s physical presence was having a far greater effect on the jury than any words coming from the mouths of witnesses. He watched the jurors’ troubled glances at the band saw and feared what they were thinking.
Craig asked Smith about the tests he conducted on hair removed from the band saw. “There was some animal hair on the saw. So the first test was to separate the hair as to either human or animal. I didn’t try to identify what kind of animal hair there was but I recognized some from deer,” Smith began. “The human hair was then separated out and compared to the known hair samples of human hair submitted by Mr. Darley and Mr. Fischer.” This was from the pre-mission haircuts. “There was a number of hair that had all the characteristics of Mr. Darley’s hair and a number that had all the characteristics of Mr. Fischer’s hair.” In Smith’s opinion, it was the victims’ head hairs on the band saw. “No human hair was found inside the saw that was not consistent with either Mr. Darley or Mr. Fischer.”
Smith went on to explain that these were all “fragments of hair. None of the hair I compared had a root structure on them. Most of it was cut. At least one end of almost all the hair had a broken or splint-[p.162]ered appearance rather than a clean cut.” (In 1975 DNA evidence had not yet been used in court, but such testing of hair would not have been possible without the root or bulb.) “They appeared to have been cut or broken by a rather blunt type of instrument,” he continued. “The distribution of the hair was completely around the full circumference of the blade area of the saw. I would have to assume that this hair was held rigidly enough for the saw to get a good bite in it to carry it that far around.”
Craig asked where Smith had found the hair on the band saw. “Not from the actual blade. I collected it from the wheels which transport the blade and from the areas through which the blade pass.”
About this time Cathy Fischer left the room. She could not bear to listen to any more testimony about her son.
Asked how the hair could have been splattered around the housing, Smith explained, “It would have to be attached to something rather than simply having a handful of loose hair thrown in the saw blade.”
Smith testified that there was relatively little human blood on the band saw. Craig asked for an explanation. “In the first place, the type of hair would not have come from a finger.” There are physical differences between head, body, and pubic hair which can be determined on close examination. “The amount of blood I found was consistent with the muscle and fatty tissue I found in the saw.” Smith believed that the only body parts cut in the band saw were the victims’ heads. “There just didn’t seem to be that much tissue to allow for cutting through large muscles. That and the fact the only hair I found was head hair, not body or pubic.”
At this point Craig asked Smith how a human body was held together, whether it could be disassembled without the use of the band saw. Ganne jumped up to object that the question was well outside Smith’s area of expertise. Blackwell sustained the objection.
Craig circled back and asked Smith about his training and if any of it concerned human anatomy. Smith replied that he had audited physical anthropology courses at the University of Texas to help him identify skeletal remains. Craig again asked about human anatomy, Ganne [p.163] again objected, but this time Blackwell allowed the testimony. “The bone assembly of the human body is such that when the connecting tissues are removed the bones can be separated from each other. All except the plates of the skull could be pulled apart from each other.”
Craig finished by asking Smith if the human materials found on the band saw and Kleasen’s clothing were of common origin and of the same type of material. Smith said they were. Craig returned to the prosecution’s table, and Ganne stood to cross-examine.
Ganne wanted to know about the tests used to identify the blood. “Determining whether or not a specimen is human or not is based on chemical tests for blood tissue,” Smith explained. “This is called a precipitant test, here using an anti-human precipitant serum in which a saline extract of the protein sample is tested. If there is a reaction where they come into contact this indicates the protein which the test is designed to detect. A positive result on this test means the material is human. The same test is available for various animals.” Ganne then asked about the blood on Kleasen’s clothing and was told “there are several spots of both human blood and deer blood, but the human blood spots are a little larger.” Ganne’s cross-examination probably cleared up a few questions, but it didn’t undermine the State’s case.
The last prosecution witness was chief Harris County medical examiner Joseph A. Jachimczyk. His questioning, though relatively brief, was devastating to Kleasen. Jachimczyk, who had as much experience testifying for the prosecution as Smith had prosecuting, had been in the Harris County medical examiner’s office since 1957. He was a University of Tennessee Medical School graduate, had a law degree from Boston College, was a member of the Texas bar, had attended and was a teaching fellow at Harvard, and had extensive experience as a forensic pathologist, including as an assistant state medical examiner in Maryland and as a Massachusetts state pathologist. He was certified by the American Board of Pathologists in pathologic anatomy, clinical pathology, and forensic pathology. Equally important was Jachimczyk’s forceful, authoritative manner.
On May 9, 1975, Travis County assistant district attorney Bobby Williams had traveled to Houston and delivered to Jachimczyk four [p.164] cylinders for testing. They contained hair samples from Kleasen, Fischer, and Darley. The fourth was labeled “sample from band saw” and contained what the medical examiner described for the jury as “a crumbly tan-gray material” filling about three-quarters of an inch of the tube. The sample also contained short bits of hair.
Jachimczyk had arrived for court early enough to inspect the band saw. He had observed on the wheels and housing material similar to what he had tested, including visible hair. Jachimczyk began his testimony by telling the jury that a forensic pathologist was “one who concerns himself primarily with the problem involving death and death causation.” He testified that after mounting the band saw substances onto slides, he performed an anti-human precipitant test which confirmed the presence of human proteins. Such a test would have responded to blood, muscle, or any other human tissue present in sufficient quantities, he said, even if it were blood soaked into sawdust. He then examined the substances under a microscope “for the histologic appearance; that is, the microscopic anatomy appearance of whatever this material or tissue might be. It turned out that they were portions of bone, of cartilage, of muscle, of hair follicles, of sweat glands, and fat tissue.” After some description, he told the jury, “This was human tissue.”
Over an objection from Ganne, Jachimczyk testified that in his opinion the human or humans these samples had come from were dead. As to the hair, he testified that he compared it with samples from himself, Kleasen, Darley, Fischer, and his own cat. He concluded that hair found in his sample was only similar to Gary Darley’s. He did not find Fischer’s head hair in his sample.
On cross-examination, Ganne brought out that Jachimczyk found no brain matter present which the medical examiner had seemed to expect. “The average brain of a male will weigh around 1,400 grams, and volume-wise that would occupy most of the cranial cavity,” he explained. This was not especially troubling as brain matter was “one of the more rapidly deteriorating tissues in the body,” quickly becoming unidentifiable. Brain matter begins to break down twenty-four to forty-eight hours after death at room temperature, more quickly in [p.165] heat and humidity, he told the jury. “We had a study in Baltimore a number of years back where we took a fresh brain and placed it on the rooftop of the morgue as an experimental procedure. After approximately ten days there was no recognizable tissue there,” he said, “it was just mush.” Jachimczyk also noted that the average nineteen- or twenty- year-old male’s head would be “somewhere between six and seven inches in various diameters depending on which way the head is positioned.”
With Jachimczyk’s testimony, the prosecution abruptly rested after calling forty-five of the forty-eight witnesses it had under subpoena. They elected not to call FBI expert Michael Hoffman but turned his written report over to the defense. The expert was held in reserve by the State as a possible rebuttal witness. Prosecutors had concluded not to call Hoffman earlier in their trial preparation, but left him sitting in the witness area with his notes and exhibits as a decoy. They wanted the defense thinking they would have a lengthy cross- examination of the expert before they could begin putting on their case. The strategy worked perfectly, no one was more surprised by the State’s resting than those at the defense table who had anticipated having to deal with Hoffman’s neutron activation testimony and only then begin presenting their case.
A satisfied Smith told reporters during a break, “You quit when you’ve got enough. When you strike oil you quit drilling.” Assistant district attorney David Spencer said, “We just didn’t need Hoffman.” He felt the State had solid testimony from its other witnesses and the jury could have no doubt that the remains found on the band saw were all that was left of the two victims.
“I don’t know why they didn’t call Hoffman,” a stunned Ganne told the same reporters. “We talked to Hoffman and his testimony was solid for the State.” There was no time for the defense to regroup. Haley, Ganne, and Bays had to scramble to begin their case.