A Kiss Before Dying
Betty Williams was a fast girl from the wrong side of the tracks. Mack Herring was a handsome football player with all the right friends. When he broke up with her during her senior year at Odessa High School, her world fell apart. But she asked him for one last favor: to kill her.
(Page 4 of 5)
WHEN THE STATE OF TEXAS V. JOHN MACK HERRING got under way on February 20, 1962, a guilty verdict seemed to be an all but foregone conclusion. Mack’s own confession painted a picture of a methodically planned murder; before driving Betty half an hour out of town and shooting her, point-blank, in the head, he had, by his own admission, procured lead weights, rope, shotgun shells, and even a miner’s helmet to light his way so he could submerge her body in the stock tank. In the presence of lawmen, he had shown little emotion for his victim. (While in custody, Mack reportedly told a deputy sheriff, “I feel toward her like a cat lying in a muddy street in the rain.”) “It looked, to most people, like a case that was impossible for the defendant to win,” says writer Larry L. King, who had left Midland a decade earlier but still followed the case. “I mean, the defendant had admitted he kissed the girl, then blew her away, weighted her body, and buried it in the pond: What else did the state need?” So King was confounded when his good friend Warren Burnett, an Odessa defense attorney, decided to take the case. “I asked Burnett why and he said, ‘Church ain’t over till they sing.’”
At 34, Burnett was already considered one of the finest trial lawyers around, having earned the sobriquet “the boy wonder of the West.” An ex-Marine who, at the age of 25, had been the youngest prosecutor in Texas, Burnett always brought a sense of theater to the courtroom. In his melodious baritone, he peppered his arguments with Shakespeare and Scripture and won over jurors with his down-home charisma, so much so that no jury had ever sent a client of his to prison. In the Kiss and Kill case, he hatched a plan that he hoped would prevent Mack from ever standing trial for murder, using a defense strategy that had never, to anyone’s recollection, been used before. Under Texas law, if jurors found a defendant temporarily insane—that is, insane only when he committed the crime—he would walk free. Citing this statute, Burnett argued before district court judge G. C. Olsen that before any trial was to take place, jurors should first have to evaluate Mack’s sanity at the time he pulled the trigger. If they determined that he had been temporarily insane, he should not have to stand trial for murder. Burnett’s line of reasoning flouted legal precedent; sanity hearings are supposed to take up only the narrow question of whether a defendant is competent to stand trial. But to the astonishment of courthouse observers and over the strenuous objections of the prosecution, Judge Olsen granted Burnett’s motion for the pretrial hearing. Jurors would not determine Mack’s guilt or innocence; they would only render a decision as to whether he had been insane at the time of the crime. Mack, in effect, would have a chance at acquittal before his murder trial had even begun. When flummoxed prosecutors requested a 24-hour delay to prepare their case, Burnett expressed his surprise, “since insanity is the only possible explanation for this tragedy.”
Because the murder had occurred just across the Ector County line, the hearing took place in Kermit, an oil-patch town 45 miles west of Odessa, where the smell of petroleum hung in the air. The jury pool was the largest that had ever been called in Winkler County; the last murder to get much attention—a stabbing at a hotel in Wink—had happened in 1947. Teenagers filled many of the 160 seats in Judge Olsen’s courtroom, at times spilling over into the aisle and out the door. “It was a carnival,” says former Winkler County clerk Virginia Healy. “The defendant was a good-looking boy, and all these clean-cut girls came out from Odessa to ooh and aah over him.” Nicknamed “Mack’s girls,” they made up only a fraction of the spectators whose sympathies were with the defendant. Betty’s parents, lost in their grief, were her only visible supporters; her father occasionally leaned forward so as not to miss a word of testimony, dabbing at his eyes with a white handkerchief. Mack sat behind the defense table in a dark suit, his head often bowed. The strain of the proceedings sometimes showed, as when he laid his head in his hands during jury selection; otherwise, he was impassive. Arguing for the state was 32-year-old district attorney Dan Sullivan, an earnest, if not particularly seasoned, lawyer who was out of his depth; in his sixteen months in office, he had prosecuted mostly oil-field theft cases and DWIs. It was Burnett, with the sleeves of his suit jacket pushed up to his elbows, who commanded the courtroom.
Because the burden of proof fell on Burnett to prove that Mack was insane when he pulled the trigger, the hearing began not with witnesses for the state but for the defense. The first person Burnett called to the stand was Mack’s father, O. H. Herring, who told the jury that on the day of his son’s arrest, Mack had handed him a letter Betty had written. The letter, which the Texas Department of Public Safety had authenticated and which Mr. Herring read to the jury, held that Betty alone was to blame for her death. “You might say she has become a witness for the defense,” Burnett quipped. Nine character witnesses—including Odessa High’s head football coach, Lacy Turner—spoke on Mack’s behalf; many of them concurred that Mack must have been temporarily insane at the time of the crime. Three classmates testified that Betty had also asked them to kill her. But the most compelling testimony came from Marvin Grice, an Odessa psychiatrist who had examined Mack three days after the murder. The former football player had been “dethroned of his reasoning” by Betty’s pleadings, Grice said, and, in his estimation, had been temporarily insane when he put the shotgun to her head. “He became so mixed up and so sick that he felt pulling the trigger was what he should do for her,” Grice testified. “He was deprived of the power of applying logic.” However, the effects of this “gross stress reaction” were temporary. “He can be trusted to lead a normal life,” Grice assured the jury.
Sullivan put on the best case he could given the extraordinary limitations he was working with. Judge Olsen had denied his motion to have Mack evaluated by a psychiatrist for the state, having agreed with Burnett that the defendant’s current state of mind was irrelevant. Sullivan tried to establish jealousy as a motive by calling to the stand Bill Rose, the popular football player whom Betty had parked with when she was dating Mack. But Bill testified that he had spurned Betty’s advances when they had parked in a secluded spot. Besides, Bill maintained, the incident had not had much of an effect on Mack. “We talked a while and agreed our friendship was more valuable than an argument about her,” Bill testified. “We shook hands and forgot the whole thing.” Sullivan pushed on, focusing on classmate Howard Sellers’s comment that Betty’s dramatic note attempting to exonerate Mack had been “conceived in a joking atmosphere.” But the district attorney could not establish a motive. “The entire proceeding was a perversion of the law,” says Sullivan, who is still a practicing lawyer in the nearby town of Andrews. “The jury never heard the indictment read or learned how the crime was committed. None of the facts of the case came out.”
Moments after Sullivan rested his case, Burnett rose from his seat and thundered across the crowded courtroom, “Stand up, Mack Herring! Go around and take the witness chair.” It appeared that Burnett was calling his client to the stand for rebuttal, but no sooner had Mack been sworn in than Burnett, for further dramatic effect, roared, “Pass the witness! Answer the questions they have for you, lad.” If he had hoped to throw the prosecution off balance, he had succeeded, though Sullivan tried to make the most of the opportunity. In his cross-examination, the district attorney pressed Mack to explain at what moment, exactly, he had decided to kill Betty. “I don’t know,” Mack stammered. “I can’t remember . . . I can’t explain.” He had difficulty understanding it all himself, he told the jury in a halting voice. “I have stayed awake at night trying to think so I could explain it to other people,” he said. “Sometimes now I think it was a dream. Sometimes I think it was real. Sometimes I think I am watching someone else.” As he sat in the witness chair, he appeared solemn and contrite. Though other classmates had believed that Betty was joking when she had asked them to kill her, Mack maintained that her pleas had had a profound effect on him. Betty had “talked about heaven a lot,” he said, and had made it appear “like a place you could reach out and touch.” He explained that on the night he killed her, he had believed he was doing the right thing. In retrospect, he told the jury, “I know that everything about it was wrong.”
My Library
