July 12, 2015
Fifty years before the Nebraska Legislature eliminated the death penalty, Iowa accomplished the same feat in 1965. The final two executions ordered by the state of Iowa occurred in 1962 after trials in southwest Iowa.
The infamy for the 29th and 30th hangings in Iowa’s history was reserved for the “Mad Dog Killers” – Charles Noel Brown and Charles Edward Kelley – who went on a three-state killing spree in February of 1961 that ended in Council Bluffs.
Koehrsen let the men and their female companion into his car and unknowingly drove to his death. The Mad Dog Killers were caught that same night in a roadblock on I-29 near the road to Big Lake and the Pottawattamie County Jail.
The “Mad Dog Killers” committed murder together, were captured together and were booked together. Their ill-fated pairing ended here, for their trials were separate – and they took completely different paths to their ultimate appointment with the Fort Madison gallows.
Every young lawyer in Council Bluffs circa 1961 knew the drill. Since there was not yet a Public Defender Office, they all knew they had to take turns defending people accused of crimes who could not afford attorneys.
Perhaps the lawyers’ only solace was in knowing that at least they would not have to worry about defending capital crimes in peaceful Council Bluffs. That comforting thought ended with the Mad Dog Killers, who only happened to come to the area, hopping on the first bus out of town while fleeing Minneapolis. The luck of the draw.
Similarly, it was the luck of the draw or the spin of the wheel that determined the lawyers assigned to the Mad Dog Killers. Charles Noel Brown received proper counsel, was convicted of the Koehrsen murder, and was hanged at Fort Madison on July 24, 1962.
Charles Edward Kelley would suffer the same fate but in a much more newsworthy manner due to the impassioned defense of his appointed attorney, Robert C. Heithoff.
Two authority figures in Mills County would be directly impacted by Heithoff’s unexpectedly vigorous defense of Kelley. Sheriff Ed Barkus and Judge Leroy H. Johnson were thrust center stage for this case when Heithoff successfully filed for a change in venue, citing that Kelley could never get a fair trial in Pottawattamie County.
Barkus was now the sheriff of record who would have to escort Kelley to Fort Madison if convicted and, by law, must witness the hanging. Johnson of Shenandoah, serving his normal rotation to Mills County, began presiding over the jury trial, unaware of the final role he would have to play.
In 1961, Heithoff was an attorney of some prominence, since he began practicing law in Council Bluffs in 1951. But his change of venue strategy outraged the city.
His insanity defense for the 20-year-old Kelley, who had already signed a confession, did not go over well either. Heithoff virtually had no case to begin with, and then literally had no case when Johnson threw out the insanity defense.
That is when the trial took another surprising turn. Heithoff’s closing arguments to the jury were not for Kelley’s innocence – but for his life.
“I will not discuss the evidence,” began Heithoff to the three men and nine women of the jury. “I will discuss the punishment.”
Citing historical data from Iowa, Heithoff mentioned that Iowans typically do not sentence to death someone of Kelley’s youthful age and that a trend was growing statewide to eliminate the death penalty. Lastly, Heithoff reluctantly turned to the Bible.
“Almighty God did not invoke capital punishment upon Cain. He branded him with a mark. That was the judgment of God, and I submit that it is exempt from any possibility of error. … We do not want Kelley released. He should be isolated from society. I ask for his life.”
The jury voted 10-2 for first-degree murder conviction and the death penalty. The lack of a unanimous verdict created a hung jury, and a retrial was imminent. Heithoff again confounded the legal community and public by instructing Kelley to now plead guilty, hoping to capitalize on the momentum at hand to save Kelley’s life.
The unorthodox move meant that Johnson must now solely decide Kelley’s fate. Johnson called for a special hearing on May 25, 1961. At this hearing, Heithoff did not let up, bringing in new evidence of a possible history of epilepsy with Kelley.
And he continued his theme of mercy to the judge: “The easy thing and perhaps the popular thing is to hang Kelley. Many people would applaud you. Some would rejoice. But later, after consideration and thought, people would not gain in any acclaim of death. All life is worth saving, and mercy is the highest attitude of man.”
The judge announced that two weeks would be needed for his decision, a surprising delay that added to the growing tension and media frenzy. On June 7, 1961, in front of a packed courthouse in Glenwood, Johnson informed the defendant that he would be taken to Fort Madison, where “you will be hanged by the neck until dead.”
Heithoff would appeal, using the same lines of reasoning to the Iowa Supreme Court, summarized best by his comment: “I still believe only God giveth and God taketh.”
The Iowa Supreme Court upheld the death penalty for Kelley in a split decision. Charles Edward Kelley became the last person put to death by order of the state of Iowa on Sept. 6, 1962.
Serial killers like Kelley are immortalized by their three full names in American crime lore; Heithoff was a mere footnote in history whose legal career in Council Bluffs was jeopardized after months of tension, unwelcome media attention and harassing phone calls at home.
Even losing the case did not soften the criticism; Barkus would give Heithoff hell for years whenever their paths crossed for making the sheriff witness the hanging.
As the ripple effects of the case swirled around the key individuals involved in the proceedings and extended past Council Bluffs into various legal circles throughout Iowa, the least affected was Heithoff. He was not on a crusade against the death penalty; his only real agenda was to advocate for his client as best he could.
Heithoff used this same approach as he returned to private practice and won back his adopted hometown of Council Bluffs. Heithoff had another 45 years of a successful law career with countless grateful clients, including the Council Bluffs police and fire unions. His death in 2007 was front-page news in The Nonpareil.
And Heithoff proved to be prophetic about the trend in Iowa away from capital punishment. The final push for repeal came from law enforcement officials themselves, who no longer wanted to witness the hangings. Three years after Kelley was hanged, Iowa eliminated the death penalty.
So did Iowa’s last death penalty case directly cause its elimination? There is no obvious evidence of this link, and Heithoff himself would never take such credit, believing that only the client mattered. But out of his belief system came powerful persuasiveness, including these last words from Heithoff heard by the Kelley jury:
“Where is the human heart that would not be satisfied that year after year, behind gray stone walls and hostile guards, this man would live out his life?”