Evil Among Us
by Ken Driggs
[p.191] By August 1975 Haley was no longer part of the defense team; Ganne and Bays kept pushing ahead. Almost out of the blue, they had received a telephone call from a sixty-nine-year-old retired eccentric named Earl M. Albrecht. He lived near Dripping Springs in the western end of Travis County and owned a large chunk of land that bordered Hayes County. He had lived in Travis County for eight years, moving there after working in Houston, Midland, and Abilene. More importantly, he had a sister who was an active Mormon and through her claimed to have known Darley for about three weeks, and Fischer only slightly. Albrecht insisted both missionaries had come by his property the morning of October 28 asking to fish in a lake there. They liked to visit his property to see all the deer, he recalled. He saw them two or three times during the day, relaxing at the lake as late as 3:00 p.m. This contradicted testimony from the trial.
The next day, October 29, he said, they were at an Exxon service station on Bee Caves Road in west Austin. This was critical because the state claimed the boys were both dead and dismembered by this point. It was about 1:30 p.m., Albrecht claimed, when he drove by the station and saw the missionaries tanking up. He slowed down, and when he was about 100 feet from them, he honked his horn and waved. “I blew my horn and they waved back, and that’s the last time I ever saw them,” he said. Albrecht was absolutely certain of the dates because he kept a kind of personal log in which he “kept daily notes of people’s goings and comings.”
Mormon FBI agent Bruce Yarborough had interviewed Albrecht in November 1974 after the missionaries first disappeared. Somehow the defense was never told of his story even though prosecutors are required to notify the defense of all exculpatory evidence they are [p.192] aware of. The agent claimed Albrecht never said he had seen the missing boys. He had dismissed the old man as an “eccentric” with information that was “interesting, but not pertinent to the case.” He told other investigators what Albrecht had to say was “either erroneous or irrelevant.”
After meeting with Albrecht in early August and getting his sworn statement, Ganne and Bays filed a “Motion for New Trial” with the 167th District Court. They argued that Kleasen’s conviction was unfair in light of this new evidence. They were well past the ten-day Texas deadline for filing such motions, and Bob Smith fought it on those grounds, but wanting to be abundantly cautious, Judge Blackwell scheduled a hearing for August 28.
The press jumped on this new twist with headlines suggesting Kleasen might soon be out from under his death sentence. Travis County deputies gathered Kleasen from his death row cell at the Ellis One Unit and drove him back for the hearing. He wore heavy belly chains; his hands were cuffed in front of him. The metal clanged as he walked. Never hesitant to talk to reporters, Kleasen told them in a voice choked with emotion, “I thank God” that Albrecht came forward. He said the two did not know each other. Reporters thought Kleasen was heavily sedated.
David Bays immediately put Albrecht on the stand to tell his story. He described how he knew the missionaries, describing Darley and Fischer as “real nice boys, always nice and friendly and they was dressed neat and clean and they spoke so well.” He produced his personal notes which were supposedly proof of the dates. “I know that was the date I saw them last. I’ll die believing that,” Albrecht insisted of his October 29 sighting. He went on to describe taking some horns to be mounted to Rathbone’s taxidermy shop on the 30th. Kleasen was there telling Albrecht and his wife about how taxidermy was done. That was the last time Albrecht said he saw Kleasen. Albrecht claimed to have called everyone he could think of with this information after hearing about the missing boys in the news, but no one took him seriously. It was weeks before Yarborough interviewed him.
It was pretty much down hill for the defense after that. Smith [p.193] cross-examined the old man, asking why Albrecht had claimed to his neighbors that he was a CIA agent, that his home contained a museum and “ancient library,” and several other strange things. At one point, when Albrecht insisted from the witness stand that he really was a CIA agent, Smith quipped, “The only CIA men I know are you and Mr. Kleasen.” The courtroom erupted with laughter.
Besides Albrecht, Ganne and Bays put five other witnesses on the stand, including Kleasen. Each limited his testimony to the defense team’s being unaware of this testimony the previous May. After that the state pounced.
Smith and Craig brought in twenty-two witnesses who each said Albrecht had a bad reputation in the community for telling the truth. It wasn’t so much that people thought he was dishonest, they just thought he was nuts. He told everyone his CIA stories and that he was in the Foreign Service. An FBI agent, Howard Riley, related Albrecht’s regular complaints against those who he believed were communist spies in the Austin area. Another witness related Albrecht’s claim that as an undercover agent he had discovered that President Franklin Roosevelt was really poisoned in 1945 by a Russian artist. Bob Smith put himself on the stand to testify that he had known of Albrecht’s claims during the trial and that he had disclosed them to the defense. He angrily accused Ganne and Bays of lying in their sworn affidavits saying they had not known about the witness.
The defense had subpoenaed one of the jurors, Cynthia Bartlett, who they hoped would testify that she would not have found Kleasen guilty had she heard Albrecht’s testimony about seeing the missionaries on October 29. After sitting through Albrecht’s testimony, however, she was not called to the stand. “I just couldn’t have testified that it would have changed my mind,” she told a newspaper reporter.
At the conclusion of the testimony, Smith argued that the new defense witness was “old, eccentric, and senile.” At the end of the four-hour afternoon hearing, Judge Blackwell ruled that Albrecht’s testimony was “just not believable” and denied the “Motion for New Trial.” He defended Ganne and Bays to reporters, saying they had [p.194] offered the testimony legitimately “because the defense has the duty to grasp at any straw.”
As soon as the hearing was over, Kleasen was loaded into a sheriff’s department cruiser and taken back to Huntsville. His return to Austin had lasted less than twelve hours. Now everything rested on his appeal.