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By Root 423 0

to go to trial with a juror whose state of mind was the same as yours?" Dunnan said yes, he would; and Shultz then said, "Do you recall being asked whether or not you were averse to capital punishment?" Nodding, the witness answered, "I told them under normal conditions I would probably be averse to it. But with the magnitude of this crime I could probably vote in favor." Tangling with Tate was more difficult: Shultz soon realized he had a tiger by the tail. Responding to questions relevant to his supposed intimacy with Mr. Clutter, the judge said, "He [Clutter] was once a litigant in this court, a case over which I presided, a damage action involving an airplane falling on his property; he was suing for damages to - I believe some fruit trees. Other than that, I had no occasion to associate with him. None whatever. I saw him perhaps once or twice in the course of a year . . ."Shultz, floundering, switched the subject.

"Do you know," he asked, "what the attitude of the people was in this community after the apprehension of these two men?"

"I believe I do," the judge told him with scathing confidence. "It is my opinion that the attitude toward them was that of anyone else charged with a criminal offense - that they should be tried as the law provides; that if they were guilty they should be convicted; that they should be given the same fair treatment as any other person. There was no prejudice against them because they were accused of crime." "You mean," Shultz slyly said, "you saw no reason for the court on its own motion to grant a change of venue?" Tate's lips curved downward, his eyes blazed. "Mr. Shultz," he said, as though the name was a prolonged hiss, "the court cannot on its own grant a change of venue. That would be contrary to Kansas law. I couldn't grant a change unless it was properly requested. "But why had such a request not been made by the defendants' attorneys? Shultz now pursued this question with the attorneys themselves, for to discredit them and prove that they had not supplied their clients with the minimum protection was, from the Wichita lawyer's viewpoint, the hearing's principal objective. Fleming and Smith withstood the onslaught in good style, particularly Fleming, who, wearing a bold red tie and an abiding smile, endured Shultz with gentlemanly resignation. Explaining why he had not applied for a change of venue, he said, "I felt that since the Reverend Cowan, the minister of the Methodist church, and a man of substance here, a man of high standing, as well as many other ministers here, had expressed themselves against capital punishment, that at least the leaven had been cast in the area, and there were likely more people here inclined to be lenient in the matter of the penalty than perhaps in other parts of the state. Then I believe it was a brother of Mrs. Clutter's who made a statement that appeared in the press indicating he did not feel the defendants should be put to death." Shultz had a score of charges, but underlying them all was the implication that because of community pressure, Fleming and Smith had deliberately neglected their duties. Both men, Shultz maintained, had betrayed their clients by not consulting with them sufficiently (Mr. Fleming replied, "I worked on the case to the very best of my ability, giving it more time than I do most cases"); by waiving a preliminary hearing (Smith answered, "But sir, neither Mr. Fleming nor I had been appointed counsel at the time of the waiver"); by making remarks to newsmen damaging to the defendants (Shultz to Smith: "Are you aware that a reporter, Ron Kull of the Topeka Daily Capital, quoted you, on the second day of the trial, as saying there was no doubt of Mr. Hickock's guilt, but that you were concerned only with obtaining life imprisonment rather than the death penalty?" Smith to Shultz: "No, sir. If I was quoted as saying that it was incorrect"); and by failing to prepare a proper defense. This last proposition was the one Shultz pedaled hardest; it is relevant, therefore, to reproduce an opinion of it written by three Federal