Kansas will have to cough up more than $168,000 in legal fees over its attempt to prevent the publication of investigative files related to the 1959 Clutter murders.

The Kansas Court of Appeals last week ruled the state owes the legal fees because of its conduct six years ago when it sought to block the sale of private notebooks kept by one of the lead investigators in the case, the late Harold Nye of the Kansas Bureau of Investigation.

“I’m delighted with the decision,” said O. Yale Lewis Jr., the Seattle lawyer who stands to reap most of the legal fees. “The state’s position was that you could invoke the power of the judicial system and then, if the court concluded the injunction was wrongful, say, ‘Oh, we’re sorry, we’re protected by sovereign immunity.’”

Lewis represented Ronald Nye, the son of Harold Nye, and Gary McAvoy, a literary memorabilia dealer in Seattle. The KBI and Kansas Attorney General Derek Schmidt sued the pair six years ago to prevent Nye and McAvoy from selling or publishing Harold Nye’s notebooks.

They argued the material belonged to the state because Harold Nye was a state employee. Ronald Nye said he recovered the notebooks from a wastepaper basket after his mother tried to throw them away.

Shawnee County District Judge Larry Hendricks initially granted the state’s request for a temporary order blocking the sale or publication of the notebooks. But he reversed himself 20 months later after concluding their sale and publication were protected by the First Amendment and the Kansas Constitution.

Hendricks subsequently awarded attorney fees and costs to Ronald Nye and McAvoy. The Kansas Court of Appeals upheld that ruling, along with ordering the state to pay legal fees Nye and McAvoy incurred in connection with the state’s appeal.

Even though Harold Nye was promoted to assistant director and eventually director of the Kansas Bureau of Investigation, McAvoy said that during the litigation, “the state argued that he was a liar and thief … In that process, they said many nasty things about him that were completely untrue in order to swing the court in their favor.”

“For me, it’s not about the money,” McAvoy said in a phone interview. “It’s the righting of an injustice. They dragged Harold Nye’s good name through the mud in the process. Not only was it wrong and unfair, it was almost like win-at-any-cost on their part.”

A spokesman for the Kansas Attorney General's office said it had no comment on the Court of Appeals decision.

As it happens, McAvoy published his book about the Clutter murders just a few weeks ago. Drawing in part on Harold Nye’s notebooks, the book, “And Every Word Is True,” purports to contain new disclosures about the Clutter murders and suggests they were contract killings and not, as has generally been thought, a robbery gone bad.

Nearly 60 years after the murders of Holcomb's Clutter family — Herbert, his wife, Bonnie, and their teenage children, Nancy and Kenyon — the case continues to fascinate, largely because of Truman Capote’s book “In Cold Blood." The book has sold millions of copies and never been out of print since its publication in 1966.

The killers, ex-cons Richard Hickock and Perry Smith, were arrested six weeks after the murders. The two were found guilty of binding and gagging the Clutter family members and killing them by shotgun blasts at close range. Hickock and Smith eventually were executed.

Not long after the crimes, Capote and his childhood friend Harper Lee (famed author of “To Kill a Mockingbird”) traveled to Kansas to research the case.

In ordering the state to pay Nye’s and McAvoy’s attorney fees, the Court of Appeals agreed with Hendricks that the fees all stemmed from the wrongfully issued injunction sought by the state.

“Judge Hendricks’ decision clearly and, I think, articulately found that the right to publish the material was protected under both (the U.S. and Kansas) Constitutions,” said Lewis, Nye’s and McAvoy’s lawyer. “That’s an extremely important decision because one might look back and say, ‘Well, of course.’ But that’s not the way it all started out.”

 

Dan Margolies is a senior reporter and editor at KCUR.