Evil Among Us
by Ken Driggs
[p.166] Pat Ganne, pushed to the front of the defense team, gave Kleasen’s opening argument after the State rested. He promised the defense would undermine the State’s case, leaving jurors with more than a reasonable doubt as to Kleasen’s guilt. “The evidence we’re going to present is going to make you uncomfortable, it’s going to really shake the foundation of the State’s case and raise serious questions with you,” the young lawyer promised. “First of all, we will show you that the band saw was changed, was altered, the day before Mr. Kleasen was arrested. The State’s physical evidence has been focused on October 28th, but what they are relying on didn’t come into existence until a week later.”
The State’s case, Ganne argued, depended on Kleasen’s having a reliable vehicle on October 28 to haul back to the taxidermy shop the tires from where the missionaries’ car was found stripped. He promised testimony to the effect that Kleasen didn’t have such transportation. “But most important of all, you will hear from a totally disinterested party, a young lady who did know Kleasen and was not a Mormon, that she talked to the missionaries about 8:30 on the evening of the 28th,” Ganne continued. “This is going to bother you because it just does not fit.” With that promise, he called Lem Rathbone back to the witness box.
Rathbone testified briefly that he changed the plate on the band saw after October 28, replacing the metal plate with a wooden one a week or so after the murders. The implication was that the plate tested by the State crime lab was not the one on the band saw after the murder. Rathbone went on to say they kept “probably thirty or forty band saw blades out there.” When the police asked for the blade that was on the saw around October 28, he said “it was impossible to tell which [p.187] blade it was.” When they finally did find a blade to test, Rathbone said he wasn’t told, so didn’t know which one they’d actually taken.
Rathbone also testified that the teenaged Bill Buntzer was always cutting himself with a knife and bleeding. All his employees worked on the band saw, including Buntzer and his bleeding fingers. “We teased him about cutting himself all the time,” Rathbone laughed. Since the State could not type the human blood found on the saw blade, Ganne hoped to convince the jury it was really Buntzer’s, or another employee’s, and not the missing missionaries’.
Rathbone went on to say that the chicken coop where the tires had been found under a sheet of plastic was poorly maintained and easily accessible. Ganne invited the conclusion that the tires were planted there by someone other than Kleasen. People were everywhere, Rathbone told the jury. There were perhaps 125 people milling around the property the day the tires were “found.” “They took me down there and asked me if I had seen them tires before. They weren’t my tires and I had never seen them before,” Rathbone said. Finally, Rathbone told the jury that all current employees had keys to the taxidermy shop, along with another dozen former employees he’d had over the years.
During his cross-examination, Craig got Rathbone to admit one more time that Kleasen also had a set of those keys.
Ganne recalled Clay Rathbone to testify that it was Monday, October 28, or Monday, November 4, when he first noticed that the band saw was “out of adjustment.” He thought it was the Monday after an FBI agent first came to talk to him about the two missing boys. Clay was then asked how large an object could be cut with the band saw. He thought about seven inches but hadn’t measured it. Ganne also got him to say that all the out buildings near Kleasen’s trailer were in poor condition, and thus easy to get into. Rathbone also stated that his brother Jimmy Byrd often repaired Kleasen’s broken-down cars.
The third defense witness, called by Bays, was W. C. Roney, a Pentecostal church member from Lampassas. He had known Kleasen for some time and had often allowed him to stay in his home. Roney frequently volunteered to work on Kleasen’s constantly disabled car. [p.188] He told the jury the car was broken most of October, including the last week when “the motor was laid out on the sidewalk.” When asked if Kleasen could fix it himself, Roney laughed and said, “He didn’t know which end was up on it, I don’t think.”
Under cross-examination by Craig, Roney admitted that Kleasen’s car was working on November 5, the day he drove it to Burnet church services where he would be arrested that evening. He also conceded Kleasen was constantly looking for car parts to keep his vehicle operating.
With Roney’s testimony, the trial adjourned early Friday afternoon. The final defense witness, Mrs. Claudia Farmer, was too sick to testify that day, Kleasen’s attorneys said.
When they reconvened Monday morning, June 2, Farmer would be the first and last witness. Under direct examination from Bays, she said she was not Mormon but knew Elder Darley well enough to recognize his voice on the telephone. She lived in Austin and worked at the Bureau of Economic Geology, University of Texas. She said Darley had frequently visited her and her husband because of their mutual interest in motorcycles. Her husband was also a motorcycle enthusiast.
Farmer recalled that on October 28 her husband was in San Marcos. She was certain Darley had called several times that evening trying to reach him and wanting to come over to visit. She thought this was between 8:00 and 9:00 in the evening, probably around 8:30. She promptly called the investigators with this information, giving them a statement. “I don’t remember the exact date I went to the police station,” she told the jury, “but it was after I had heard on television that the missionaries were missing.”
Confident the jury would conclude Farmer was simply mistaken, Smith decided not to cross-examine her. With that the defense rested and Smith announced the State would not call any witnesses in rebuttal.
After a brief conference, Judge Blackwell reconvened the trial for final arguments. The courtroom seemed even fuller than earlier. Not an inch of bench or a patch of wall was unoccupied by spectators, [p.189] press, local Mormons, law enforcement, and courthouse gawkers. The crowd spilled into the hall, with more hoping at least to hear what they could not see.
Charlie Craig rose first to address the jury. He began by going through the jury instructions on circumstantial evidence. He then emphasized just how reliable the victims were. “These are not a couple of irresponsible teenagers who might just up and run off,” he said. “These were very responsible, religious young men who had given up two years of their lives to serve their faith. They were devoted to their calling. They were close to their families and their friends. They stayed in close communication with those they were close to. But that predictably regular communication just stopped on October 28th, 1974.” Craig then summarized the testimony establishing that Darley and Fischer were heading to Kleasen’s trailer when last seen. “Both Gary Darley and Mark Fischer are dead,” he assured the jury, then confidently ticked off the circumstantial evidence that their lives had simply stopped on October 28, 1974.
“Leslie Smith of the State Crime Lab found the material in State’s Exhibit number 64, the band saw,” Craig continued, pointing to the hulking gray machine positioned inches away from the jury box. “He examined a great deal of that material and he found human tissue, cartilage, and the head hair of the victims.” “Dr. Jachimczyk also examined that material,” he went on. “He found human tissue, hair follicles, sweat glands, and head hair that belonged to Gary Darley.” And if that were not sufficiently convincing, there was the human blood and the victims’ hair found on Kleasen’s clothing.
“Kleasen has told us what happened in his own words,” the young prosecutor said, moving to the defendant’s statements and writings. There were Kleasen’s jail meetings with the mothers of the missing missionaries, his statements that they were not alive, and that he would probably be dead soon too. Craig went on to recount Kleasen’s threats to Jack Paris about killing and dismembering law enforcement. And there was the poacher’s manuscript found in Kleasen’s trailer. “Even if you don’t believe he wrote it, he certainly read it. Certainly there is the idea of how to dispose of bodies, how to get rid of them without [p.170] getting caught,” Craig said. “Where do you put them? You spread them around. You don’t put everything in one place. You put them in the dirty clothes, you put them in the trash, you place them in a number of packages, you saw the long bones if you have to. The rest you can just cut up with a knife.” The courtroom was silent, its attention rapt.
Craig concluded by listing all the victims’ property found in and around Kleasen’s residence. The car parts and tires, the license plates, the missionary materials, the watches, none of which had been explained by the defense. He finally sat down after telling the jury there was only one reasonable interpretation of the evidence, that the missionaries had been killed and that Robert Kleasen had killed them.
Without a pause, young Pat Ganne stood. The air was hot and stale but no one moved. By this point, Ganne, at least, appreciated that a conviction was inevitable. The defense had not, could not, rebut the State’s evidence. If there was hope for his client, it was for the jury to convict him of simple murder where the death sentence was not a possibility. That meant arguing these were simply homicides, not murders committed in the course of a robbery.
“Ladies and gentlemen of the jury, I have sort of mixed emotions as I stand here addressing you. I’m tired. I’m exhausted. This really has been trial by ordeal. I don’t know how else to describe it and it really has got me down. But what really bothers me is that there has been a certain amount of intellectual dishonesty applied to you as this trial has progressed,” Ganne said. He then attacked the State’s theory that this was a murder in the course of a robbery, while also saying they don’t know how the murders took place. “You can’t have it both ways. Either you have a death that occurs during the course of a robbery, or you have a death by means unknown. They want you to believe that a murder was committed for two used watches and four used tires. That’s ridiculous. It’s unbelievable. It doesn’t make sense,” he challenged. “What they are trying to do is stampede your mind. They’re trying to show you that if the murder—if it occurred, it was too gruesome—can you conceive of a person being run through a band saw? The gruesomeness of it. And it is gruesome. And they are trying to tell you: Well, we think that’s what happened. That’s why they found [p.171] hairs on the band saw. Therefore, if a murder occurred, it’s not good enough. He must have been stealing tires and hubcaps and—tires during the course of the murder.” And where were the fingerprints? If Kleasen had handled all this property with so little concern for concealment, why weren’t his fingerprints on the license plate, the tires, the watches, or any of the other recovered property?
After reading the jury charge on simple murder, he told them, “Now, reasonable doubt is not defined for you, but I believe that all of you are reasonable. A reasonable doubt is a doubt that you can articulate. It’s a doubt that nags you. It bothers you, it’s something that sticks in your craw.” Ganne then sat down and turned the argument over to Haley whose role in the defense had seemed to diminish day by day. Kleasen had silently fumed during Ganne’s argument, recognizing it as an admission that he was guilty of murder but not capital murder. He pointedly refused to speak to the young lawyer once Ganne sat down at counsel’s table. In contrast, Haley gave the argument Kleasen wanted to hear.
Haley challenged Paris’s testimony, asking the jury to wonder why he kept returning to Kleasen’s trailer if he found him such a threatening man. “Robert Elmer Kleasen from the testimony of even Mr. Paris was opening up his heart, was opening his mind, and was telling the missionaries and this church how much he needed their help. … This is a church-going man,” he went on. “When his car doesn’t work, he walks to church.” You must conclude that Kleasen simply didn’t do it, he told the jury. When Haley sat down, Bob Smith made the final arguments for the State.
The seven-woman, five-man jury was out less than two hours before returning a guilty verdict. When the foreman signaled the verdict with a knock on the jury room door at 3:44 p.m., a resigned Ganne sighed and told Bays, “Nothing good comes quick.” Kleasen reacted emotionally. His face was still flushed red with the excitement of the day’s testimony. When the verdict was read, his face blanched and he dropped his head into his hands. He sobbed softly, “But I didn’t do it, I didn’t do it,” while Haley stroked his arm in consolation. With the verdict read, the jury was escorted to a downtown hotel to spend the night. [p.172] The punishment phase of their deliberations would begin the following morning.
Out on the courthouse steps, Haley told the assembled reporters, “We were all shocked by the rapidity of justice here.” The Darleys also spoke to reporters. Gary’s father, David, said, “Justice is done.” His wife, Jill, found it “an empty victory.”