Ladies and gentlemen of the jury, we are gathered here today not to assess whether these men, Richard Hickock and Perry Smith, are guilty of their crimes; they have confessed and there is overwhelming evidence against them. No, today we are here to determine how they will pay for taking the lives of four innocent people, the Clutter family. My role here is to argue that these men should pay for their crimes with their lives. This is not merely a matter of opinion; this is what should be done according to the law of the great state of Kansas. Using evidence that the criminals themselves have provided, I shall prove to you that these men deserve to get the death penalty as retribution for their sins. I suppose I should begin my argument by going over the specific laws regarding the death penalty in Kansas. The death penalty is given as punishment for capital murder with 8 aggravating circumstances. The defendants are guilty of several of these aggravating circumstances, and I will go through each one using the evidence gathered. Let’s start at the top of the list, shall we?
“The murder was especially heinous, atrocious, cruel, or depraved (or involved torture).” You may be thinking that this does not apply to them, because as you heard in his testimony, Mr. Smith told us that he “didn’t feel that [he] ought to ask [Mr. Clutter] to stretch out on the cold floor, so [he] dragged the mattress box over, flattened it, and told him to lie down” (241). Indeed, this does show sympathy and caring on the part of Mr. Smith because he wanted Mr. Clutter to be comfortable. In addition, “as [Perry] was leaving [the room], [Mr. Clutter] had a coughing fit, so [Perry] stuffed a pillow under his head,” further demonstrating care for the late Mr. Clutter (242). However, these two acts of kindness do not change the fact that the murders were psychologically cruel in the cases of Nancy, Bonnie, and Kenyon, and physically cruel in the case of Herb. Mr. Smith, the same man who made sure Mr. Clutter was comfortable, also slit the man’s throat. Smith said, “[he] didn’t realize what [he’d] done until [he] heard the sound. Like somebody drowning. Screaming underwater” (244).
Smith even said it himself, the man was screaming from fear and agony while choking on his own blood. Shortly after, Perry shot him because “the man had the strength of ten men – he was half out of his ropes, his hands were free” (244). If slitting a man’s throat is not an especially cruel way to murder a man, I do not know what is. Perry didn’t shoot him afterwards to ease his pain either; he only shot him because he was afraid he would break free and attack them. At this point, the family had obviously heard the shotgun blast that killed Mr. Clutter, and was terrified. Their worst fears had come true – that they would actually use the shotgun. One-by-one Smith and Hickock made their way through the house and shot each family member in the head, despite Kenyon’s “murmur of muffled pleadings” and Nancy saying, “‘Oh no! Oh, please. No! No! No! No! Don’t! Oh, please don’t! Please!’” (245).
These poor children were obviously terrified, knowing that their deaths were imminent, especially Nancy, who was experiencing psychological trauma, as evidenced by her plea. In addition, Bonnie was under such mental distress that “having heard all she had, [she] welcomed their swift approach” (245). Bonnie actually wanted to die because she was so traumatized from having to hear the shotgun blasts that slaughtered her entire family. According to Detective Dewey, “they had experienced prolonged terror, they had suffered” (246). While the murders were not physically cruel to anyone but Herb, they were indeed mentally cruel to the rest of the family. Okay, number two: “The defendant knowingly created a grave risk of death for one or more persons in addition to the victim of the offense.”
The wording of this one is tricky, because it assumes that there was only one victim, when in this case there were four. Well, the defendants did know that they were risking the lives of more than one person, and as Smith said, “[Hickock] thought we ought to be ready to handle up to a dozen,” which means it didn’t matter to them how many they had to kill, as long as there were no witnesses (37). So yes, they did knowingly create a grave risk of death for others. Moving on to number three: “The murder was committed for pecuniary gain or pursuant to an agreement that the defendant would receive something of value.” This one is easy. They came to the Clutters’ home with the sole purpose of taking whatever is in their safe, and they do not deny this. One of the first things they said to Mr. Clutter was “‘All we want you to do is show us where you keep the safe’” (237). The only thing they were originally interested in was money.
A friend of Smith and Hickock’s, Floyd Wells, “told [Hickock] he did [keep a safe],” and this was enough to get Hickock to start “talking about killing Mr. Clutter” for his money (161). The fact that these murders were for monetary gain is undeniable. The next circumstance applies not as much to Smith as it does to Hickock. It reads, “The defendant caused or directed another to commit murder, or the defendant procured the commission of the offense by payment, promise of payment, or anything of pecuniary value.” Hickock, although he did not physically murder any of the Clutters, manipulated Smith into killing the family. According to Mr. Smith, “[Dick’s] literalness, his pragmatic approach to every subject, was the primary reason [Smith] had been attracted to him, for it made Dick seem, compared to himself, so authentically tough, invulnerable, ‘totally masculine’” (16). Hickock was able to use this to his advantage, often referring to Smith as “honey,” to appeal to his attraction (15).
Hickock was the one who wanted to rob the Clutters originally; he was the one who obtained the information, albeit false, from Floyd Wells. Smith was persuaded later to help out, most likely by Hickock promising him a hefty sum from the job. Later, at the Clutters’ abode, Smith told Hickock, “‘these people are telling the truth. The one who lied is your friend Floyd Wells. There isn’t any safe, so let’s get the hell out of here,’” but, “He said he wouldn’t believe it till we searched the whole house,” and then, “says Dick, after we’ve found the safe, we’ll cut their throats” (239). Smith preferred not to kill them, and told Hickock he wanted to leave, but he refused to leave and insisted that they should continue searching and then kill them. Hickock directed Smith to murder the Clutters, which according to the wording of the law, proves he is guilty of this aggravating circumstance.
The fifth aggravating circumstance reads, “The murder was committed to avoid or prevent arrest, to effect an escape, or to conceal the commission of a crime.” Ladies and gentlemen of the jury, I feel that this one is fairly evident. Hickock and Smith are not the kind of criminals who murder people for fun. According to Mr. Smith’s testimony, “[Hickock]’d said it over and over, he’d drummed it into me: No witnesses” (245). They did not murder the Clutter family for pleasure, they murdered them because they wanted to eliminate any eyewitnesses of the robbery and prevent anyone from tracing the crime back to them. Although it obviously didn’t end up working, this was the purpose of the murders. I do not find either of the defendants guilty of the sixth, seventh, or eight circumstances, which are “The defendant has been convicted of, or committed, a prior murder, a felony involving violence, or other serious felony,” “The murder was committed by a person who is incarcerated, has escaped, is on probation, is in jail, or is under a sentence of imprisonment,” and “The murder was committed against a witness in a criminal or civil proceeding to prevent the witness from appearing.”
Hickock has previously been sent to prison for check fraud and Smith for breaking and entering, but neither of those crimes involve violence or are considered serious felonies. They were released from prison and on parole when they murdered the Clutters, but that is not a factor. The victims were not witnesses in a criminal or civil proceeding, although they would have been had they lived, and this effectively did prevent them from appearing. Still, I do not believe them to be guilty of any of these last three circumstances. As I have already shown you, these men, Richard Hickock and Perry Smith, are guilty of first-degree murder with four aggravating circumstances, five in the case of Hickock. However, giving them the death sentence is not as simple as that. In addition to the aggravating circumstances that can qualify one to receive the death penalty, there are mitigating circumstances that can, but not necessarily will, disqualify one from receiving the death penalty as well. I will go through these, as I did the aggravating circumstances, and dissect each of them and show you that they do not apply.
First, “The defendant has no significant history of prior criminal activity.” Both of these men have criminal records. They met in prison, which they both spent around 5 years in. They hatched their scheme to rob and murder the Clutters while in prison. As I mentioned earlier, Smith was convicted of breaking and entering and Hickock was convicted of check fraud. They do indeed have a significant history of criminal activity. Next, “The crime was committed while the defendant was under the influence of extreme mental or emotional disturbances.” The psychologists have made the case that Perry Smith “appears to have lapsed into a dreamlike dissociative trance from which he awakened to ‘suddenly discover’ himself assaulting the victim” (299). Let’s just say that this is true.
Let’s assume that Mr. Smith did indeed have no physical control of himself while he slit the throat of Mr. Clutter. Okay, well what about the rest of the family, whom he killed with a shotgun? Was he in a “dissociative trance” while he “aimed the gun” and “the room just exploded” (244)? No, he was completely conscious while he killed the other three. In fact, he was actually conscious while he killed Mr. Clutter as well, because he killed him with a shotgun after he had his trance and slit his throat. He was not under the influence of extreme mental or emotional circumstances while he killed at least three of the family members. The third mitigating circumstance does not apply at all. “The victim was a participant in or consented to the defendant’s conduct.” Considering that all four of the family members begged them not to hurt them, and that Nancy pleaded “‘Oh no! Oh, please. No! No! No! No! Don’t! Oh, please don’t! Please!’” this was not consensual at all (245).
Moving on to the next circumstance, “The defendant was an accomplice in the crime committed by another person, and the defendant’s participation was relatively minor.” Well, Smith shot four people in the head, and that Hickock pushed Smith to stay and said, “we’ll cut their throats,” so neither of their crimes is “relatively minor” (239). In addition, Hickock “[held] the flashlight, [and focused] it” so that Smith could get a clear visual of his targets (244). He was fully complicit with the murders and helped Smith accomplish them. The fifth one is similar to the second one, which I already dealt with. It reads, “The defendant acted under extreme distress or under the substantial domination of another person.”
The mitigating circumstance is not referring to someone who was convinced to kill someone and does it out of his or her own will. This is referring to someone who killed someone else while threatened or being controlled somehow. Smith was completely in control of his own actions and was not being threatened by anyone. Smith even “asked [Hickock] for [the knife], and he gave it to [him]” (244). Smith asked for the tool that used to kill Mr. Clutter. He was not pressured at all into doing it. The sixth circumstance says, “The capacity of the defendant to appreciate the criminality of the defendant’s conduct or to conform the defendant’s conduct to the requirements of law was substantially impaired.” This mitigating circumstance only applies if the person is mentally handicapped or disturbed, or if he or she is on drugs that impair his or her ability to make judgments. According to the psychologists, “Mr. Hickock did know right from wrong” (294).
Regarding Mr. Smith, the psychologists “[had] no opinion” “as to whether he knew right from wrong at the time of the offense” (296). Perry may have been unable to determine whether or not what he did was wrong or right as he slit Mr. Clutter’s throat, but for at least several months he and Dick had planned on killing the Clutters, and he was in his right mind then. In addition, he was able to tell right from wrong as he killed the rest of the family because he was not in any sort of trance. The seventh circumstance is completely inapplicable. It reads, “The age of the defendant at the time of the crime.” This is only applicable if the defendant is a minor. Neither of these men are minors. Eight, “At the time of the crime, the defendant was suffering from post-traumatic stress syndrome cause by violence or abuse by the victim.”
Considering that neither of the defendants had ever met Mr. Clutter, this is physically impossible. Smith even said, “I didn’t want to harm the man. I thought he was a very nice gentleman. Soft-spoken” (244). Lastly, “A term of imprisonment is sufficient to defend and protect the people’s safety from the defendant.” You may be thinking that a prison sentence is sufficient to protect people from them. However, while in prison, Dick was caught “making [a weapon]: a ‘shiv,’” that he was going to use to kill a prison guard and escape (263). This shows that Dick clearly is a violent person and isn’t even safe to keep in prison.
Regarding Perry, he may have another trance where he kills someone. If you think, “well, he’s in prison for life so it’s probably safe,” you’re wrong. “Persons sentenced to life imprisonment actually serve, on the average, less than fifteen years” (258). If you, the ladies and gentlemen of the jury, choose not to sentence these men to death, they will eventually come back onto the streets. What would stop them from killing again? I have proved to you, without a shadow of a doubt, that these men, according to Kansas law, should receive the death penalty. Now it’s up to you to make the right decision regarding the fate of these men. Thank you.
The purpose of this essay was to demonstrate to what extent Dick and Perry were guilty and why they should receive the death penalty on a legal basis. I wanted to put the reader in the juror’s shoes and make him feel as if the decision of whether or not to execute the criminals was up to him. The tone I was going for was one of factualness and simplicity to make it convincing but at the same accessible to the audience. I chose some words specifically to evoke sympathy toward the Clutter family or make the reader hate Dick and Perry to strengthen my argument with pathos. I used phrases such as “screaming from fear and agony” to show how cruel the murder was, as well as quoted Nancy’s terrified plea to elicit an emotional response.
However, for the most part, I remained factual and stuck to analyzing the specific aggravating and mitigating circumstances, using text to support my argument. In addition, I used deferential language while directly referring to the jury, but informal language occasionally as well to keep my argument from sounding dry and to keep it relatable. No figurative language was used, as one would expect from a prosecuting attorney. I believe that I succeeded in persuading the audience that Dick and Perry should be executed, as well as sounding like a lawyer and making the situation believable.
Courtney from Study Moose
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