Truman Capote’s In Cold Blood was published in 1966, which suggests that the 60th anniversary is good time to revisit it. The novel (a “nonfiction novel” in Capote’s estimation) was a subject of discussion in our Legal Philosophy seminar at Texas A&M University School of Law earlier this semester, and we found some of the seminar participants’ observations worth sharing.
The underlying story is well known. Two habitual petty criminals, Richard Hickock and Perry Smith, murdered a prosperous western Kansas farmer, Herb Clutter, along with his wife and two of his children in 1959. Robbery motivated the pair to travel from a Kansas City suburb to the small town of Holcomb, although they were misinformed as to the existence of a safe filled with cash, and they left with less than $100 in cash and goods.
In a 1966 New York Times review of the book, Conrad Knickerbocker observed, “The tragedy was existential. The murder was seemingly without motive, [and] the crime confronted the townsfolk with their own isolation.” Given this psychic disruption, it’s not altogether surprising that Hickock and Smith were tried on a fast track: The murders happened in November, the two were arrested at the end of the year, and the trial began less than three months later in the county seat.
The trial took place before a defendant-friendly line of cases appeared later in the 1960s (e.g., Gideon, Miranda, Sheppard, Mapp and Escobedo), most of which turned on issues relevant to Hickock and Smith’s situation. Sheppard v. Maxwell, which held that excessive pretrial publicity can unconstitutionally taint a trial, seems particularly on point in light of Capote’s observation of how steeped the citizens of Finney County were in the circumstances of the murders.
Both of your authors are from small towns (one in western Kansas, one in the Texas Hill Country), which set us to wondering whether there are important, inherent differences between urban and rural justice systems, and, if so, whether those differences could be outcome determinative in a case like the Clutter murder trial.
The salient facts of the case were mostly conceded, although Smith, in an original confession, had only accepted blame for two of the four murders. As such, the real issue was whether the two would receive the death penalty. In recounting the voir dire, Capote draws our attention to the response of a particular venireman when asked his opinion of capital punishment: “Ordinarily I’m against it. But in this case, no.” Nonetheless, he was seated, and we think Capote is slyly asking us to assume that this man and his sentiments are representative of the community.
Modern data-driven analysis bears out Capote’s intuition that high-profile crimes present particular challenges for the justice system in small communities. For example, rural communities have fewer lawyers, fewer courts and less access to the legal process as a whole. According to the Legal Services Corporation, “About ninety-four percent of civil legal problems in low-income rural households go unresolved each year.” Obviously, legal issues do not cease to exist the further you get from cities, but the ability to resolve those issues does (or at least severely diminishes). The largest exacerbators of this issue include lack of attorneys, inescapable bias and lack of specialization.
Our problem begins with the numbers. There simply are not enough lawyers in rural areas to serve the community. The American Bar Association has noted that there are “legal deserts.” Harvard Law School has mapped these legal deserts, which under their model are communities in which there is “less than one lawyer per 1,000 people.”In Texas, there are approximately 40 counties that are considered the most severe kind of desert — a “critical legal desert.” Critical legal deserts are mapped to have about 0.2 lawyers per 1,000 people.
This mapping shows the likelihood that, in places like West Texas and the Texas Hill Country, there are very few practicing lawyers. For example, in Mason, Texas, there are really only three attorneys that regularly practice in the area. One is the county attorney. One mostly does title work and works in house for local businesses. One practices in a few areas—personal injury, contract disputes, criminal defense, family law, and wills and estates. Interestingly, Harvard Law School considers these three lawyers in Mason to be sufficient, because there are about 1.5 lawyers per 1,000 individuals. But, in the surrounding counties, the numbers are worse. Two bordering counties, Llano and Kimble counties, are in much worse shape. Kimble County is a critical legal desert, and Llano County is an urgent legal desert (meaning there are 0.3 lawyers per 1,000 people). And, even in places like Mason, which are not technically legal deserts, many other issues arise.
One of the principal foundations of the law is its impartiality. In rural communities, however, the familiarity that comes from business, school, religious and family relationships stands as an impediment. This is to say that everyone knows everyone, so impartiality in the strictest sense is impossible. This can happen in a couple of different ways. First, an attorney may not be enthusiastic about representing you in the first place. Perry Smith’s attorney is representative of this mindset: “I do not desire to serve,” he told the judge. “But if the court sees fit to appoint me, then of course I have no choice.” And even if such a lawyer were willing to serve, chances are he probably — by the nature of small-town law practice — would lack the experience to handle a capital case.
Second, bias can arise from the courtroom process itself. This is to say that the nesting of relationships in small towns renders notions of neutrality and objectivity illusory. Capote highlights the depth of the problem when he notes that four of the members of the Hickock-Smith jury were “acquainted” with Herb Clutter and all were “family men,” “seriously affiliated with one or the other of the local churches.” This is not to say that this type of juror can’t try to keep an open mind, it is just that he can’t purge himself of context that may subtlety push him in one way or the other.
The jury system of course arose in the context of villages and small towns, and the fact that jurors knew the trial participants and perhaps even the matter under litigation was seen as a salutary feature. But in the modern era, a convention has arisen in favor of juries without personal knowledge of the parties or the facts. That feature is more easily accomplished in urban rather than rural areas. The difference is usually of no moment. But in a death penalty case like that of Hickock and Smith, in which, as Capote argues, “the environs of the trial had been ‘saturated’ with publicity prejudicial to the accused,” the wiser course may be a change of venue.
Randy D. Gordon is the founding partner of the Dallas and Fort Worth offices of Duane Morris. He is an executive professor of law, history, and performance, visualization & fine arts at Texas A&M University.
Grace Chapman graduated summa cum laude in May from the Texas A&M School of Law. This fall, she will join the Austin office of Norton Rose Fulbright as an associate.
