Who killed Nick Rice? Part 7: Pocketing the bullet

The narrative surrounding Nick Rice’s death in the days, weeks and months afterward was filled with conflicting public statements that quickly began to dominate the public discourse.

The full Kansas Bureau of Investigation report, recently obtained by Nick’s brother, Chris Rice, and shared with The Lawrence Times, reveals that a single used bullet was recovered hours later from in front of the Gaslight Tavern, the scene where Nick had been killed.

And although it would eventually be disclosed that a bullet was found, its exact location — and the fact that the captain of the Lawrence Police Department took the bullet into his own possession for nearly a week and made an alteration to it — was never revealed to the public.

The Lawrence Daily Journal-World reported on July 24, 1970, that no bullet was recovered from the scene of Nick’s death — and the paper didn’t appear to have asked any of the questions that would follow such an assertion, such as, “Where is the bullet that killed him? Was it found in the autopsy? How is it possible that no bullet was recovered?”

A few weeks after the killing, after concluding its investigation, the KBI did announce that one bullet fired on the night of July 20 had been recovered. It came from a .30-caliber police carbine.

The Daily Journal-World report on July 24 that no bullet had been recovered was technically accurate at the time. As far as local officials and the KBI knew, a bullet had not been recovered from the scene.

In a KBI interview, Lawrence police Officer Donald Donoho, who said he’d checked the area around the Gaslight to “see if he could find anything,” was asked by a KBI investigator if he knew of “any other object that was picked up by anyone that might be considered as evidence in this case?”

His response seemed odd. “I’d rather not say if it’s, if it’s all – I mean, because I, I just rather not. I don’t, I don’t know what it was or whether anything was – but I’d just rather not say … and well, this other, I think it might have been shell fragments; but I don’t know, that was …” Donoho said.

Donoho-sworn-to-KBI

At this point, the interview was cut off, and Donoho asked to speak with the KBI agents off the record.

Three days later, on July 27, the KBI described the off-the-record portion in a report. It said Donoho had told the agents that a carbine-caliber bullet was found around 2 a.m. on July 21 while he and other officers were searching the area.

Donoho told the KBI that Lt. Virgil Foust found the bullet and handed it to Capt. Merle McClure, who then scratched his initial on the butt end of the bullet and kept it as evidence. This, of course, would have broken any evidentiary chain of custody and was likely to have contaminated any evidence that could have been gathered from the bullet.

KBI investigators then interviewed Foust, without disclosing they knew he’d found the slug. In that interview, Foust claimed that he had the “best eyes on the force” and was forthcoming about the other pieces of evidence he’d found – given that he’d already turned them over to KBI investigators. But he repeatedly denied picking up anything else, such as a bullet.

The next day, Officer Lawrence Good confirmed in his own KBI interview – after first denying that he was near the evidence collection area – that Foust found “some type of cartridge.”

“I’m not sure what it was. I’m not even sure where he found it, but I’m not even sure what it was,” Good said, before conceding “It was some, it was lead, a bullet.”

McClure, who took the bullet, was the highest-ranking law enforcement officer to give the KBI a sworn statement – he’d been on the force for almost 19 years at the time Rice was killed. McClure immediately implicated Foust in the interview, saying that his lieutenant “said he had picked up some ammunition, spent rounds of ammunition.” Those rounds, McClure said, were “three or four shotgun shells and possibly three or four rounds of M-1 carbine.”

After further questioning, however, McClure revealed Foust had found “a slug.” McClure first denied knowing the caliber, and then said it appeared to be in the carbine category. He also denied having scratched his initial into the butt end of the bullet, as Donoho had testified, but confirmed he had the bullet in his custody.

McClure “put it in (his) pocket so it would not get lost,” he told the KBI in a sworn statement. Why hadn’t he turned over the bullet or the matches he’d found? McClure said it was because “no one has asked me for it; and so, as soon as they ask me for it, I’ll be glad to turn over everything I have.”

McClure-statement

Following the interview, McClure turned over the spent bullet and a Coors match packet with eight unused matches and nine burned matches to Harold Nye, the director of the KBI. It’s unclear exactly where those matches came from, but testing revealed they were not similar in composition to a book of matches Nick had on his body at the time of his death.

McClure died in 2000 and Foust died in 2015. Donoho seems to be the only officer who collected evidence that night who is still alive. He did not respond to requests for comment from the Times.

After McClure’s interview, Foust met with the KBI on July 25 to correct his statement about finding the bullet, which he said was discovered six feet north of a Budweiser sign near the Gaslight and three feet east of the arch-shaped sidewalk. Based on geographic descriptions of where Nick fell, the bullet was discovered almost exactly where he was shot.

KBI laboratory testing released 50 years later also revealed that the bullet, found almost exactly where Nick Rice lay, was fired from the gun of Officer Jimmy Joe Stroud.

The KBI’s report on Foust’s interview ends with a striking conclusion, despite the fact there is no evidence McClure suffered any adverse consequences for tampering with evidence:

“(Foust) was trying to cover for another person and got caught,” KBI agents Ray Emmons and James Malson wrote in a July report.

In an August 1970 interview with the KBI, McClure said he carried the slug in his pocket for about two hours until he got home. He then put it in a jewelry box without cleaning or washing it. In September, Donoho corroborated McClure’s account and said the flattened slug looked clean and didn’t have blood or other visible indications of human tissue.

The bullet, eventually given to the KBI but long past any admissible evidentiary function in a court of law, tested negative for human serum and negative for tissue cells. There was a white material that had adhered to the bullet, which tests confirmed to be plastic. A shaving from McClure’s key fob was tested against the material and came back inconclusive because of an insufficient amount of material present to compare. No residue remained on the bullet after the tests were attempted. The KBI said it decided against asking McClure to take a polygraph test.

How exactly the bullet came to lie near where Nick Rice fell on the night of July 20, 1970, will never be known. But the KBI never informed the public that it had been tampered with as McClure pocketed it and took it home rather than following proper evidentiary procedures.

In the end, the KBI used the lack of confirmation from the lab reports to say that was proof the bullet could not have killed Nick Rice.

Nye, the KBI director to whom McClure gave the bullet, revealed to the public a month after the killing that despite being damaged, the slug “gave no indication that it had passed through a body.”

And though Foust confirmed to investigators the exact location where he had picked up the bullet, Nye, who died in 2003, never said publicly where the bullet had been found.