Evil Among Us
by Ken Driggs

Twenty-Nine

[p.200] Unlike most states, Texas has a two-track appellate system. Since 1876 the Texas Supreme Court has limited itself to civil matters while the Court of Criminal Appeals handles criminal cases. Among Texas lawyers, the criminal court is known as the CCA. The actual number of judges and the way in which they consider cases before them have changed over the years, but the two-track appellate system was a well established fact of Texas judicial life by the time Kleasen’s appeal came along.

Teague’s brief is still legendary among Travis County lawyers. It ran into hundreds of pages. Folklore in the legal community holds that the Kleasen brief finally got the CCA to introduce a rule limiting how much lawyers could file. It argued over a hundred points of error, many of which targeted the death penalty’s still uncertain status and specific legal problems with the new Texas statute. Most claims had stacks of attached transcript excerpts, copies of relevant court opinions, and sometimes short essays setting out information that appeared nowhere in the trial record.

From the beginning Teague had seen the search of Kleasen’s trailer as the issue which would win a new trial for his client. The argument was that the affidavit provided the federal magistrate by ATF agent Dale Littleton was inadequate to support a search warrant. It did not set out sufficient “probable cause,” the legal buzz word for adequate suspicion, for the magistrate to decide if a search was justified. Consequently, it was argued, Judge Blackwell should have granted Kleasen’s Motion to Suppress the “fruits” of the search.

The district attorney countered by arguing that Kleasen had no right—called “standing”—to challenge any search of the trailer because it wasn’t his. You may only complain about the search of a place [p.201] where you have a legally recognized personal expectation of privacy. Kleasen lived in a trailer which he either stole or knew was stolen, prosecutors argued. His mere occupation of the trailer for over a year did not alter its character as stolen property. The only person who had a reasonable expectation of privacy in the trailer was the legal owner, Odell Bowen, or the Allstate Insurance Company which had paid his claim after it was stolen. They also noted that Kleasen did not own any of the surrounding land and structures. Taxidermist Lem Rathbone did, and he had given permission for the searches. Much of the most damning evidence had come from areas under Rathbone’s control. When a property owner gives police permission to search, a warrant is not needed. The damning band saw had been secured with Rathbone’s permission.

The CCA issued its opinion on November 23, 1977. It was a bombshell. The court discussed only one issue, the search of Klea­sen’s trailer, and reversed the conviction on a finding that the warrant lacked probable cause. After summarizing the evidence, the court observed that the search had produced “Mormon bibles, a Seiko watch identified as belonging to the deceased, a key ring and keys which opened locks to the car and apartment of [Mark Fischer] and [Gary] Darley, and a manuscript which detailed the means of disposing of the carcasses of illegally killed deer.”

As the court saw it, the determining question was whether Kleasen had “standing” to claim a right to privacy in the trailer. If the record established he had stolen the trailer, or had knowledge of its stolen character, then he could not complain about the search. In denying the Motion to Suppress at trial, Judge Blackwell had written that “there is no question in the Court’s mind that the trailer house was stolen. The defendant did not have the consent or permission from the owner to be in it or to use it, irrespective of who stole it. That’s immaterial. He has no standing to complain about the search.” Teague did not dispute that the trailer was stolen in April 1973. Instead he argued that Kleasen did not know it was stolen or, at least, that the prosecution hadn’t proven this. The CCA agreed: “There was no evidence adduced tending to show how appellant acquired [p.202] the trailer, or that he was in any way connected to the theft of the trailer.” In a footnote the court wrote that Kleasen had testified during his punishment phase “that he had bought the trailer from a former work associate.” Judges did not comment on the seemingly incredible nature of Kleasen’s story.

The court went on to say that in order to challenge the search Kleasen had to show “a possessory interest in the trailer.” They seemed impressed that he had lived in it “for nineteen uninterrupted months.” In order to defeat Kleasen’s claim of a “protected possessory interest,” the court seemed to say, prosecutors would have to prove Kleasen stole the trailer, which they had not done. Consequently, the defendant “had a reasonable expectation of privacy sufficient to warrant protection by the 4th Amendment.”

From there the court moved to the federal magistrate’s November 5, 1974, search warrant. In order to be lawful, the warrant would have to be adequately supported by the law enforcement affidavit submitted to the magistrate at the time. Agent Littleton had provided the two-paragraph document. After describing the trailer, its location, and the .22 Browning rifle Littleton expected to find there, the affidavit said only that he had been informed of the rifle’s presence “by a reliable citizen who lives near ROBERT KLEASEN that he has seen KLEASEN shooting a firearm of this same general description on the premises …” Kleasen could not lawfully have purchased or possessed the weapon because of his outstanding New York charges and prior psychiatric hospitalization, but in a critical omission the affidavit failed to set that information out.

This was far from adequate, the court said. “The affidavit is based upon the hearsay statement of an unnamed informant. There are no facts in the affidavit from which the magistrate could have determined the informant’s reliability. The informant was unnamed. There is no allegation that the affiant investigated the reliability of the informant or why the affiant considers him trustworthy. A mere statement that the source of the hearsay is reliable or credible offered the magistrate no substantial basis for crediting the hearsay.” Judges went on to note that the affidavit on its face “shows no probable cause” because it did [p.203] not allege any facts to say that Kleasen had committed a crime by possessing the rifle.

The Court of Criminal Appeal cited only one prior case as a basis for their ruling, the 1964 U.S. Supreme Court decision called Aguilar v. Texas. Once the court determined that Kleasen had a reasonable expectation of privacy in the trailer, the facts of his case seemed almost identical to Aguilar. There two police officers sought a search warrant from a state magistrate to look for drugs. The officers presented affidavits, but all they contained were the claim that they had “reliable information from a credible informant,” who was not otherwise identified, that drugs would be found. The Supreme Court threw out the conviction, saying the results of the search could not be introduced against the defendant.

Without additional analysis, the Court of Criminal Appeals reversed Kleasen’s conviction and sent the case back to Travis County. The court did not direct that Kleasen should be set free, but said he must be retried without the use of evidence seized in the trailer search.

Local Mormons and the families of the murdered missionaries were stunned at the decision. Kelle Darley, Gary’s brother who had testified at trial, was furious. He told an Austin American­-Statesman reporter: “The man has killed, he has a history of it, and he will kill again.” The reporter had tracked down twenty-six-year-old Darley in Santaquin, Utah, seventy miles south of Salt Lake City, where he ran a small motel. “My only feeling is he was obviously guilty. You can definitely say I’m sorry the death penalty wasn’t carried out. It would not be a matter of revenge, but protection of society. I feel sorry they didn’t execute him right away.” Like most lay people, Darley couldn’t understand the reversal. “The bulk of the evidence, I thought, was not generated from that trailer. I don’t know how they got into the taxidermy shop, which is where they found the blood and the hair on the band saw,” he told the reporter.

Austin area Mormons who did not understand how the law worked feared that Kleasen would be released immediately. Many worried that he would then track down individual church members, especially those who had testified against him, and take revenge.

[p.204] Reporters interviewed attorney Pat Ganne. “Personally, I find it comforting to realize that everything I did, I did correctly and properly,” he said. But Ganne also told reporters that he had “mixed emotions,” that he felt “kind of ambivalent about the whole thing.” Ganne had stayed in touch with Kleasen during his time on death row. “I could not believe what death row has done to him,” the young lawyer said. He described the forty-four-year-old Kleasen as looking like a man in his seventies. His thick black hair had gone completely white. He’d seemed to shrivel up, to have lost all his vitality.

Judge Blackwell, whose decision on suppressing the trailer evidence was reversed by the Court of Criminal Appeals, was tight lipped. He called the decision “very unfortunate. I don’t criticize it, but it is unfortunate.” He added: “There ought to be some other way to ensure the defendant’s constitutional rights while guaranteeing that guilty persons are not set free on technicalities.”

Back in Buffalo, Dick Murphy was as stunned as anyone. Now working as an investigator at National Fuel, a public natural gas utility, he contacted the Erie County district attorney’s office and urged them to dust off their 1972 firearms prosecution against Kleasen. He was told too much time had elapsed, Kleasen would never stand trial.

The Travis County district attorney’s office was noncommittal when they first learned of the CCA’s decision. Smith had been succeeded by Ronald Earle in 1976. Earle had left the state legislature to run for district attorney when Smith ran unsuccessfully for judge. Charlie Craig had also left the DA’s office. Assistant district attorney Charles Hardy, who had handled the appeal, told reporters, “We’re going to do our best not to let him walk.” Earle promised to retry the case “if we can. But we can’t retry a case if there isn’t any evidence.”

A team of prosecution lawyers was assigned to file a motion for rehearing. There was some hope of changing the court’s mind, as well as buying some time to consider their chances at retrial. In a strident eighteen-page motion, four government lawyers tried to show that there was circumstantial evidence Kleasen stole the trailer and that they were not required to prove he was the thief in order to defeat his claimed right to privacy in it. They stressed that Kleasen had failed to [p.205] register the trailer as required by Texas motor vehicle law, evidence that he probably had not acquired it honestly.

The new district attorney assembled the interested parties to discuss the situation, among them Mormon bishop McCullough and departed prosecutor Charlie Craig. Earle also assigned Richard Banks and a deputy sheriff to reinvestigate the case. Banks had come from the Dallas DA’s office and had a reputation as a bulldog. One Austin defense lawyer said of him, “He is ruthless in the pursuit of a conviction. He is smart and uncompromising. If anyone could have put the Kleasen case back together and gotten a new death sentence it was Richard Banks.”

Banks had a theory that Kleasen had disposed of the body parts in a vacant lot next to the old Lamar Avenue location of the taxidermy studio. Kleasen likely had keys to the old, vacant building. He could have stored the tires there until he could retrieve them. Banks and a deputy dug up a good portion of the lot without finding anything. He also tried to secure infrared aerial photographs of the rural areas searched by hand back in November 1974. Banks hoped that buried and decomposing bodies could be detected. It was eventually determined that too much time had passed to hope for results.

The Court of Criminal Appeals closed the book on the first trial when it denied the DA’s motion for a rehearing on February 8, 1978. The court did not address the DA’s motion for rehearing, although one judge dissented and two other newly elected judges did not participate.

Earle immediately announced there would be no retrial, saying he would dismiss the charges within a week. He felt he lacked sufficient evidence to secure a conviction. Smith, by then in private practice in Austin, stormed over to the DA’s office to protest. He was adamant the case could be retried. His protests fell on deaf ears.

Kleasen was free.