LBJ

by Phillip F. Nelson

  Meanwhile, Doug Kinser had been pressing Josefa to enlist Lyndon’s help in getting a loan to pay off and consolidate business debts and to fund start-up operational expenses for the new pitch and putt golf course he and his brother were in the process of opening. Josefa had broached the subject with Lyndon; however, he inferred from it that the request was a not-so-subtle blackmail attempt. The more Johnson and his Austin partner Ed Clark found out what was going on, the more upset and angry they became. Clark was worried as much or perhaps more than Lyndon over what both saw as an emerging scandal that threatened Lyndon’s political career and therefore the future of Clark’s own business of brokering LBJ’s influence and siphoning from the cash flow pouring into his fund-raising operations. Johnson’s political fortunes were the basis of both of their amazingly high-flying careers, and the threat posed to both of them by the “love triangle” developing in Austin in the summer and fall of 1951 was simply unacceptable. Johnson was determined to achieve his goal and would let nothing get in his way. As described fully by Barr McClellan, a former attorney in Ed Clark’s law firm, the relationship between Clark and Johnson became so close as to make them almost inseparable; there was only one circumstance that would cause their relationship to be terminated, and that was if it became necessary in order to protect Lyndon’s political future; it was tacitly agreed that, if Lyndon Johnson ever became directly threatened because of the crimes he had facilitated, Ed Clark would become the final fall guy.78 This made it all the more critical for both of them to abide by other maneuvers to keep themselves several steps removed from the criminal acts, to ensure that there were two to three more men in between themselves and the operations which they might initiate.

  Mac Wallace had long been upset with his wife’s acting out her sexual fantasies—starting within days of their marriage. She was, likewise, not happy to find that he was comparatively rather prudish and not interested in exploring the outer edges of marital bliss. Practically as soon as they tied the knot, their marriage entered the rocky stage usually reached by people discovering “irreconcilable differences” after at least several months or a few years of frustration. When Ed Clark called Malcolm Wallace in October 1951 regarding the emerging rumors about his wife having a lesbian affair with Lyndon Johnson’s sister and the simultaneous straight affair with Kinser—and their activities as a threesome—he was hardly surprised by then. His anger had already been festering for four years and had caused her to seek a divorce several times for his abusive behavior. Clark told Mac that he needed to do something immediately to stop this scandal before it got any worse, risking Lyndon Johnson’s family reputation because of Josefa’s involvement. Clark told him that he, Mac Wallace, the distraught husband of this lesbian tramp, was in the unique position of being able to end this nightmare quickly; hell, even if he was caught, reasoned the estimable lawyer, it would be easy to persuade a jury of a man’s natural rights to control his deranged wife, especially in south-central Texas, circa 1951. Clark told him that he had discussed it with Lyndon, who also promised him his support and urged him to terminate Kinser and thereby contain their problem.

  Mac Wallace took an immediate vacation from his job at the Department of Agriculture in Washington—which he had gotten as a result of LBJ’s influence—and drove to Dallas to obtain a gun from an FBI agent friend of his, Joe Schott. He then drove on to Austin, spending several days talking to Mary Andre and separately to her mother, Mrs. Roberta D. Barton, trying to persuade Andre to become a more conventional wife. Mrs. Barton told Texas Ranger Clint Peoples that Mac had told her, “‘She was a homosexual and a whore. He said that Andre had slept with men and women both since he had been married to her.’ Addressing Mrs. Barton, Wallace accused Andre of having ‘had an affair with a man and [he] asked me who it was.’ Wallace stated that he would get the man’s name.”79 The next day Wallace took his two children to Dallas for a visit with their grandparents. On the evening of October 21, he brought them back to their maternal grandmother in Austin. Mrs. Barton tells what happened on the morning of October 22:80

  Mac talked to me and explained to me that he had told Andre that in spite of everything he was going to leave his insurance to her, and that he wanted her to invest it in my real estate. That if anything happened to him that he wanted Andre and I to know that. I told him that nothing was going to happen to him and he kinda laughed it off and said that you could never tell.

  Right after that conversation, Wallace got into his blue Pontiac with the unusual (for South Texas) Virginia license plates and proceeded to drive into Austin and south on Lamar across the Colorado River to West Riverside Drive and the Butler Park pitch and putt golf course. Despite the presence of several golfers close by, he then proceeded into Doug Kinser’s golf shop and began shooting him point-blank multiple times. In June 2000, the murder scene was summarized on the fiftieth anniversary of the golf course, in the Austin American-Statesman:81

  Midafternoon on Oct. 22, 1951, a man entered the clubhouse where Douglas Kinser was working and shot him five times, killing him. Shortly after, according to newspaper reports, police picked up Malcolm E. “Mac” Wallace, a former student body president of the University of Texas. Evidence included witnesses, a bloody shirt and spent cartridge found in Wallace’s car, the fact that the blood on the shirt and blood at the scene matched, and paraffin test evidence that Wallace had recently fired a gun.

  Wallace, an economist with the U.S. Department of Agriculture, was found guilty of murder with malice Feb. 27, 1952. But he was given an astounding five-year suspended sentence. There were rumors then, and there are rumors now, about Wallace’s motives, about his connection to men of high influence, about why a man convicted of first-degree murder was virtually let off. (emphasis added)

  A customer heard the shots and saw Wallace running out of the shop and to his car, which led to Wallace’s arrest. Had he not neglected to remove or switch its Virginia license plates with a stolen set before making the hit, he might have escaped entirely. The police were looking for his distinctive car almost immediately, and he was arrested shortly thereafter. The sloppiness of his MO would be repeated many times in later years, but would not cause him undue worry since he knew he had effectively been given a “license to kill.” As promised, Ed Clark arranged for bail immediately through business friends M. E. Ruby and Bill Carroll (whose wife was then hired as a lawyer by Clark). Also, Clark arranged for his criminal attorney, John Cofer, to represent Wallace. Clark’s many years of political and judicial corruption ensured that both the district attorney and the presiding judge were under his control.82 Ed Clark and Lyndon Johnson were in absolute control over the entire proceeding; they had reassured Wallace that he would be protected, and his confidence in their ability to protect him would be apparent throughout the trial. On February 1, 1952, Wallace resigned from his government job at the request of Johnson, in order to put some distance between the two; his trial began seventeen days later. Wallace did not testify as his attorneys knew that would not be necessary. Johnson recognized that he would be able to use his friend Wallace in the future if he could help him to keep out of prison now. He therefore took time out from his Senate duties back in Washington and rented a room near the courthouse; to avoid appearing personally interested in the outcome, he did not attend the trial but had runners keep him updated constantly on the testimony and trial proceedings.

  The Trial That Left a City in Shock

  The trial commenced with two of Ed Clark’s best criminal lawyers, John Cofer and Polk Shelton, first interviewing the potential jurors. They emphasized one concern throughout these sessions, which was each juror’s attitude toward the “suspended sentence laws,” as though that was to be of utmost importance in their deliberations on Wallace’s guilt or innocence of first-degree murder. Indeed, that issue did take precedence over everything else at the end of the trial. They presented no evidence of extenuating circumstances or other rationales to defend Wallace, nor did they allow him to testify. Th
e reason for this lackluster defense and tepid prosecution was that both sides were skating around the underlying scandal because both were so instructed by Johnson: The lack of a motive being presented was due to the need to keep the Johnson family name out of the proceeding.83 Cofer filed a one-page motion for an instructed verdict, based upon the premise that the state had no solid evidence to find him guilty. District Attorney Robert Long likewise conducted a very perfunctory prosecution and never attempted to rebut Cofer’s motion. The jury took only two hours to find Wallace guilty “of murder with malice aforethought.” Prosecutor Long apparently could not wait to get out of the courtroom, even leaving as the verdict was still being read.84 A contemporaneous account of the final moments of the trial, as reported in the local newspaper, revealed the leavening of tension as the verdict was read:85

  Thirty-year-old “Mac” Wallace stared intently at each of the 12 jurors as they filed into the still-as-a-tomb courtroom. As the solemn-faced men, weary from nine days of confinement and strain, took their seats in the jury box for the last time, bright sunlight flashed from Wallace’s dark, horn rimmed glasses. If there was tension within him when Court Clerk Pearl Smith cleared her throat to read the verdict, Wallace kept it out of sight. No trace of feeling crossed his face as the clerk read the verdict of the jury: guilty of murder with malice in the October gun slaying of Golf Professional “Doug” Kinser. Still no expression when the sentence was read: five years in the State Penitentiary. Then came the recommendation—suspended sentence—and for a fleeting moment Wallace’s mask broke. A faint smile played about the corners of his mouth… . [emphasis added, to point out the obvious: as he thought to himself, ‘By god, they—Johnson and Clark—did it!—ed.]. Judge Charles O. Betts had warned that there would be no demonstration of any kind when the verdict was read. There was none; only a low “hum” in the half-filled courtroom.

  It is clear from this contemporaneous newspaper description that the reason Mac Wallace was so ambivalent about his situation during the entire course of the trial was that he had been assured that the “fix” was in and that there was nothing to worry about. During the deliberations, eleven of the jurors had been insisting on a guilty verdict, but one juror insisted on an acquittal verdict and threatened to cause a hung jury. A compromise was reached wherein the jury would return a guilty verdict but recommend the sentence be suspended, probably because the other jurors assumed that the judge would overrule such an absurd result and at least lock the man up for several years. According to author Day, the judge did not have that discretion: “Presiding Judge Charles O. Betts of the 98th District Court had no choice, under law, but to accept the jury’s recommendation. Judge Betts announced a sentence of five years’ imprisonment, then immediately suspended the sentence and put Wallace on five years’ probation instead. What the sentence meant was that Wallace would not go to prison unless he committed a felony or misdemeanor during the next five years. At the end of that period he could appear at court to swear that he had not broken the law and the verdict would be set aside.”86

  Researcher/author Glen Sample stated that someone who had been one of the former jury members on the Malcolm Wallace murder trial had confirmed that they were all threatened:

  He had carried with him a burden of guilt because of the outcome of the trial, but explained that the jury members, each one, had been threatened. Describing the period of time during the trial, he said that one evening during dinner, he and his wife were interrupted by two well dressed men who knocked at his door. As he responded to the callers, he noticed that one of them held a shotgun in his hands. After cocking the gun, the visitor pointed the weapon at the man and pulled the trigger. Click. The weapon was empty. “This gun could just as easily have been loaded” warned the visitor. “Be very careful about your decision” And then the men were gone. These kinds of men were plentiful, and Johnson had the knack of finding them and keeping them loyal.”87 (emphasis added)

  Thirty-five years after the crime, in a March 31, 1986, Dallas Times Herald interview, Mr. D. L. Johnson admitted being the juror who forced the others to recommend the verdict and suspended sentence. He admitted being a cousin and good friend of one of Wallace’s defense attorneys; it had been juror D. L. Johnson whom District Attorney Bob Long had referred to when he later stated, “I lost it because I let a sinker get on the jury. He worked for the telephone company. I didn’t like him because he had a little moustache (this was 1952), but I was down to three challenges and let him get on.”88 Prosecutor Long claimed to be as perplexed by the situation as Ranger Peoples; Long was to say that it was unlike any other case he had ever handled in all his fifty years of law enforcement experience.89 According to Bill Adler of the Texas Observer, several of the jurors telephoned Kinser’s parents to apologize for being a part of the suspended sentence, but said they went along with it only because threats had been made against their families.

  Much additional information eventually became known, ironically, because of Lyndon Johnson’s efforts to secure classified security for his murderous protégé. A full decade after Douglas Kinser’s murder, a Naval Intelligence security investigation conducted in 1961 uncovered significant additional information about the circumstances of the murder that had been suppressed at the original trial. The investigation came about as a result of Johnson’s continued patronage of Malcolm Wallace, specifically his requests for the placement of Wallace in positions of trust within the defense industry; it was clearly an obligation that he felt toward Wallace to repay him for all the favors received. The worst part of this paradox was that, despite the ONI’s unanimous decision against granting Wallace a security clearance, Johnson overruled the denial and forced them to grant him his classified status. This was simply a continuation of Johnson’s actions begun ten years earlier to protect this murderer, his own personal hit man, thus giving him a “license to kill.” Researcher/author Larry Hancock, writing on the Education Forum, described and excerpted additional background information that provides context to the situation—a condensed summary of which appears below—regarding Malcolm Wallace and the murder of Douglas Kinser:90

  The defense attorneys were very concerned about the possible appearance on the stand of Wallace’s wife and mother-in-law. Both were sworn in as witnesses, the wife by the defense and the mother-in-law by the prosecution. However, the wife’s testimony had been limited by the defense to that of character witness and if she had been called the prosecution could only cross examine on points raised with her by the defense. The prosecution had not challenged this position. In addition, after both were sworn in, defense requested and was granted a private conference with the mother-in-law. In the end, neither relative was called to the stand nor was Malcolm Wallace himself. The Naval Intelligence investigators contacted the two prosecution investigators, Texas Ranger Clint Peoples, the prosecutor and other sources including Wallace’s wife Andre, who acknowledged having a sexual relationship with Douglas Kinser. The prosecutor went even further, revealing for the first time an association between Kinser and Josefa Johnson, Lyndon Johnson’s sister.

  The Naval Intelligence investigators—ten years after the fact, just as Wallace was suddenly becoming active again in a whole series of murders—finally uncovered facts that were hidden in the 1951 trial because of the efforts of Lyndon Johnson and his legal team of Ed Clark, Don Thomas, and John Cofer. Among these revelations, as discovered and described by Larry Hancock,91 were the following:

  • Andre Wallace was a self-acknowledged bisexual; Malcolm had figured this out shortly after their marriage. Her lesbianism and a history of “deviant” sexual activities with both women and men had been documented in 1951 by the Austin police and Ranger Clint Peoples.

  • Malcolm Wallace was violently opposed to Andre’s first pregnancy and tried to force her into an abortion. This caused her to leave him in New York, where he was doing graduate work at Columbia University, and return to Austin to stay with her mother.

  • In the summer o
f 1950, she separated from Malcolm when she became pregnant for the second time and returned to live with her mother in Austin. While she was staying in Austin, she met Douglas Kinser and began an affair with him.

  • Another incident in 1950 occurred when Wallace went to Austin and told Andre that he wanted her to take him to the golf course and point out Kinser so he could “bash his face in.” Wallace then told her that if she came back to Virginia with him, he would forget about the episode. Andre returned to Virginia to live with Malcolm, but while there he beat her, sending her to the hospital.

  • Andre’s mother gave a detailed description of a visit from Malcolm Wallace upon his arrival in Austin from Washington in October 1951, immediately before the murder of Kinser. She described Wallace calling Andre a sexual pervert, of how she slept with other men and women since their marriage, of how she continually embarrassed him.

  • The prosecutor in 1951, District Attorney Bob Long, told the naval investigators that the original investigation had turned up an individual who had tried to date Andre and, when she rejected him (or her), Malcolm Wallace—by then a “Johnson man” in Washington DC—received a letter detailing her affair with a local man in Austin.