After a High-Profile Interrogation in Seattle, Kansas Steps In To Stake a Claim

Part 4 excerpted from “And Every Word Is True” A Sequel to Truman Capote’s “In Cold Blood”

November 15, 2019 marks the 60th anniversary of the 1959 Clutter family murders in western Kansas, and in a nine-part series of excerpts appearing exclusively on Medium, author Gary McAvoy presents compelling new details of a murder investigation that continues to fascinate readers of Capote’s masterwork, adding new perspectives to the classic tale of an iconic American crime.

Continued from Part III — Cohorts

Search & Seizure

O n September 11, 2012, my lawyer and I walked into the decorous offices of the Washington State attorney general in Seattle, summoned there by the attorney general of Kansas, who had demanded a formal accounting of every document consigned to me by Ron Nye, one of my business clients. Such reciprocal courtesies are apparently accorded attorneys general in other jurisdictions, but I was none too happy to be there.

After signing in at reception, we were buzzed through the fortified glass doors shielding the main offices. An escort appeared, leading us down long wide hallways, the solemn faces of previous attorneys general peering down from their frames on the walls lining the route to our destination.

On arrival we entered a large, well-appointed conference room, where thirteen state officials sat around an enormous U-shaped table furnished with pencils and pads, laptop computers, cell phones, and water glasses. On the wall facing the table, two formidable video conferencing monitors and cameras stared down silently on the group.

Leading this official cluster was an assistant attorney general for the State of Washington, along with his senior counsel and several more state lawyers, at least three forensic investigators, a court reporter, audio/video specialists, and what may have been a few interns or possibly just curious personnel from other offices.

Apparently, the videoconferencing equipment wasn’t an option, so an assistant placed a phone call to the Kansas attorney general’s office. Once connected, through a strategically positioned speakerphone names and titles were offered up as introductions went around the table in Seattle. Then a disembodied voice from Kansas called out their own cast of attendees 1500 miles away: an assistant attorney general, the director of the KBI, various attorneys and special agents — seven people in all (or so they said) were present and accounted for in Topeka.

My lawyer and I were seated at one end of the table, somewhat taken aback by the startling number of people (now at least twenty) assembled for what we had presumed would be a simple review of documents.

Only then did it hit me: This was a big deal for a lot of people. The leather messenger bag slung over my shoulder contained something every person in this room wanted to see, which likely meant the same eagerness pervaded the opposite room in Kansas.

All eyes turned in my direction as I withdrew a hefty six-inch stack of historical documents from my bag: copies of reports yellowed with age from various agencies; mug shots and fingerprint cards of the killers; personal and official correspondence; various photos; and finally, Agent Harold Nye’s personal notebooks comprising in detail his cryptic investigation notes, the reason we were here.

Everything was sealed in clear Mylar sleeved packets, numbered 1 through 22, which I had previously organized as best I could, given the diverse nature of the collection which, as Ron mentioned in the Foreword, had survived the dreaded shredders of Oklahoma. The whole historical heap was reverently passed down to the assistant AG at the center of the conference table. Then the tedious litany began.

Unsealing the first packet, the assistant AG inspected the first of hundreds of document pages yet to go. But just as he was about to start reading to the group, one of the vigilant investigators across from me interrupted his boss and, in a firm voice aimed at the phone, posed a simple question: “Kansas, are you recording this?” After a 3-beat pause, a thin, metallic voice from the speaker uttered a faintly tense, “Yes.”

All around me to a person, eyes rolled, and a few pencils flew in the air. Some groaned, a few sighed. This was proving to be more entertaining than I’d expected.

Recovering his composure, the now-irritated assistant AG stoically announced, “Kansas, Washington is a two-party consent state. Standby, we have to go around the room here…”

Which he then did with every person present, asking if each of us consented to having our conversation recorded in Kansas, by who knows who and for what purposes. For a moment I flirted with objecting just to be poke the bear but assumed they would probably record it anyway.

Over the next four hours — as Kansas presumably followed along, matching the stack of copied documents I had provided them to the set under review here in Seattle — the assistant AG removed sheet by single sheet of paper from the topmost packet, flatly describing each in surprisingly fussy detail:

One page stationery, a logo at the top reading “State of Kansas, Office of the Kansas Bureau of Investigation, Topeka;” typewritten on one side of what appears to be an onionskin carbon copy; beige in color, a single staple mark in the upper left corner, with the imprinted word COPY centered vertically one inch from the left margin; dated 25 January 1960, this is a report by Harold R. Nye, Re: HICKOCK, Richard Eugene & SMITH, Perry Edward — Suspects, the Herbert Clutter Family Murder; signed at the bottom in black ink by Harold R. Nye, Special Agent.

After describing each page, the assistant AG passed it to the person on his left, who in turn reviewed it, silently concurred with a nod that the description was accurate, made some notes on his pad, and passed it on to the next person on his left. Around the room it traveled, each person distinctly aware they were holding something of historical magnitude. And at the tail end of that gauntlet, two people took photocopies of each document for the record.

And on it went, for another four hours. No wonder the room was mobbed. This kind of show-and-tell had to beat the drudgery of dealing with the state’s common everyday criminals.

From time to time a discarnate voice from Kansas would pipe in, asking for particular details on one or another of the pages being described. I took careful notes as to the objects of their interest, for later review.

Prosecution

On September 27, 2012, sixteen days after that torturous inquisition at the Washington State Attorney General’s offices, the Kansas attorney general obtained a temporary restraining order:

“IT IS, THEREFORE, BY THE COURT CONSIDERED, ORDERED, ADJUDGED AND DECREED that…the Defendants…be and they hereby are…restrained from any sale or distribution, replication or publication of any portion of the KBI crime file related to the Clutter Murders and the investigation thereof…including but not limited to any digital images or copies thereof…”

Within days, both Ron and I personally, as well as my company — along with Ron’s sister, who had nothing at all to do with the matter, and his infirm mother who was confined to an assisted-living home in Oklahoma — had been served with a summons, shutting down the auction until the Court could review the merits in a formal hearing.

The temporary restraining order eventually became a preliminary injunction, and so began the four-year odyssey that has consumed thousands of hours at no small expense, and which suspended our efforts for two years, until November 2014.

Claiming that its interest was solely in the preservation of Nye’s physical records themselves, the State requested and obtained a “gag order” from the Court as part of its temporary injunction, then fought tooth and nail using various bizarre tactics — including a refusal to comply with discovery orders demanded by the Court itself — to maintain the gag order.

Among the more spurious claims pressed by the State was: “Any possession of Clutter Investigative Records by Harold Nye other than work related would accordingly have been the result of his wrongdoing or a default in the performance of his duties as a special agent of the KBI,” an oddly bogus claim, as will be shown.

It quickly became clear, however, that simply seeking legal advice for the escalating events now facing us would be insufficient. Ron and I were anguished at the prospect of being dragged into court over half-a-century-old documents that were acquired legally by his father, and which, at the time they were written, were deemed routine and of little importance. But given the emerging David and Goliath magnitude of what lay ahead, we had two choices: capitulate to the State’s demands and avoid a long and costly court battle; or stand our ground and take our chances.

Since we had already taken the high road, we stayed our course.

Neither of us had the resources for what would likely be a costly and tedious crusade, but we knew we were on the right side of the law. The auction was one thing, but the book we’d planned to work on together, highlighting Harold Nye’s investigative work on the Clutter case, would be based largely on his personal notes. Losing access to these would not only cloud our vision but infringe on our rights protected by the First Amendment.

Sharing that vision, persuaded that we could win, the Seattle law firm Hendricks & Lewis agreed to take our case. Ron and I were elated, confident we had the right team. But with me based in Washington and our adversaries in Topeka, we would also need a member of the Kansas State Bar to handle local matters there, if it came to that. And if it did, I wanted a pit bull.

As luck would have it, we got “a real bulldog,” the lusty attribution former Kansas Attorney General Stephen Six gave to his then-staff attorney, Tai J. Vokins.

Tai, a young lawyer from Lawrence, Kansas, was for several years an assistant attorney general for the State before going into private practice. He and his wife Krystal specialized in litigation helping ordinary people who are treated unfairly in a system that hopes they will lose their grip and fall. Even in those early weeks, I had little doubt Kansas would be hell-bent on us losing our grip, but game for a challenge in a state bureaucracy he knew well, Tai found the prospect appealing. The bulldog joined our team.

Thus began our coordinated resistance to a vigorous campaign of suppression and intimidation by the State, whose political machine had signaled an ambition to win at any cost. Kansas v. Nye, McAvoy et al landed on the Shawnee County District Court’s docket in October 2012, the Honorable Judge Larry D. Hendricks presiding.

Owing in part to some residual hostility toward Truman Capote’s book (and very likely toward the author himself), any news related to the Clutter murders can be counted on to rile the good citizens of Kansas.

Keenly aware of this, Kansas newspapers rarely fail to sniff out fresh stories on the old topic, whipping up frenzy anew. Then come the reader comments. As the saying goes, everyone has a right to his own opinion but not his own facts. To that end, I offer clarity.

In the wake of each new article, Ron and I were disparaged for all manner of heinous acts. Headlines such as “Judge Blocks Use of ‘In Cold Blood’ Files” … “Clutter Case Documents Should Go to the State” … “Company is Auctioning Off Documents from Murder Case” … appeared on front pages throughout Kansas and elsewhere. And beneath each article readers weighed in, with even measures of support and indignation, most of the latter largely uninformed as to the actual merits of the lawsuit. So, to set straight the record and quench any residual mania, here are the facts:

• The well-publicized centerpieces of the auction were Truman Capote’s signed books and handwritten letters. The rest of the materials, including the Nye notebooks, were included for historical association.

• The KBI investigation documents in Agent Nye’s possession were copies of official reports that he had written or received, consistent with his official duties. At the time, nothing in Kansas statutes prevented agents from keeping copies of their reports, which many officers rely on should they later be called to testify in court regarding cases they’ve worked on.

• As mentioned, the crime scene photographs were delivered to the KBI voluntarily, presumably resolving the KBI director’s main concerns he expressed at our first meeting.

• Contrary to the attorney general’s wild assertions accusing Harold Nye of theft of official case files, Nye never stole a thing, as later affirmed by the Court.

Harold Nye’s personal papers and reports held nothing confidential, and as also later held by the Court, no privacy issues were at stake, despite the State’s repeated assertions to the contrary.

As for the charge of making money off crimes, and especially the Clutter murders, that was a moot point, since my company, like many trusted dealers, routinely handles the sale of important memorabilia on behalf of collectors worldwide. And had it not been for Kansas intervening, this book would have been an altogether different kind of project.

That said, writing about crimes — and the Clutter murders in particular — has been a well-traveled path for decades. One former director of the KBI even published a true crime memoir featuring a chapter on the Clutter murders (using In Cold Blood as his only source material, as its author acknowledged to a reporter).

Americans have a seemingly insatiable appetite for the sensational, legalistic, and forensic details in the true crime genre, and until human nature attains some form of enlightenment diminishing that interest, such an appetite is not likely to vanish.

Since its publication in 1966, In Cold Blood routinely appears in Top 100 bestseller lists every year, and a May 2017 article that appeared in Publishers Weekly even ranked it #1 in a Top 10 List of true crime books. The Guardian has ranked it #84 on its list of the 100 Best Novels in English. And of all books available on Amazon.com, In Cold Blood regularly ranks in the Top 10 of all relevant categories — True Crime, American History, Social Sciences, Biographies & Memoirs, and Criminology — as well as moving in and out of its Top 100 lists in Literature & Fiction (since lists are updated hourly).

Beyond sales of the book itself, fans of In Cold Blood flock to theaters for more. In 2005 the blockbuster film Capote grossed $30 million in its box office run alone (against a $7 million production budget), earning the late Philip Seymour Hoffman an Academy Award for his role playing the title character.

In addition to Capote, to date there have been four other films or documentary series’, numerous theatrical productions, graphic novels, countless magazine and newspaper articles, and, as of this writing, at least two documentary features are in the works by prominent studios.

For better or worse, the Clutter murders and In Cold Blood’s legacy have energized a cottage industry of its own, one that shows no signs of letting up. And this book surely won’t be the last on the subject.

Continue with Part V — Discovery. Follow me on Medium (Gary McAvoy) where you’ll find additional book excerpts as they are published, along with other articles.

From And Every Word Is True by Gary McAvoy (Literati Editions, 2019). Copyright © 2019 by Gary McAvoy. All rights reserved.