CHAPTER 11

His well-muscled upper right arm was tatooed with a flower and a girl’s name, “Fay.” On his left, another flower, a bird, a fading heart, and his own name, “Nicks.” On the night of April 23, 1968, eleven days before Cooley would do his first transplant, Clarence Nicks was sitting at the bar of the Peek-a-Boo Lounge in the East End section of Houston. He hardly seemed a man of destiny who would soon become the center of a bizarre circus of medical and legal history. Nicks was 32, his nickname “Sonny,” and he was a tough, short-tempered welder who drank beer regularly in the cheap and often perilous dives spread along Houston’s Ship Channel district. His fellow customers were hard hats, crewmen off the tankers.

On the night that would concern so many, Sonny Nicks was drinking quietly by himself when a friend named McDuffie joined him. McDuffie occasionally worked with Nicks on welding jobs. After a while, McDuffie’s estranged wife, later described by the district attorney’s office as the “femme fatale” of the evening, came in with two male escorts. McDuffie made a mild attempt at reconciliation, but according to witnesses, was rebuffed. More than an hour passed with the barmaid staying busy opening beer bottles to the accompaniment of blaring country and western music.

Suddenly a brawl erupted over McDuffie’s wife, and as many as eight men were fighting beside the bar with Nicks in the thick of the action, the barmaid screaming for them to stop. She ran around the end of the bar and pushed the bunch out the door, slammed it shut, and locked it. Someone inside called the police. Someone outside hit Nicks on the head with a metal object, perhaps a garbage can lid. When the siren of the police car was heard, the brawl stopped. Two investigating officers discovered nothing but Clarence (Sonny) Nicks, who was angry, cursing, and holding a bloody head. Did he know who hit him? Did he want to file charges? “Hell no,” Nicks told the officers. “I’ll find them bastards next week and charge them myself.…”

But because there was an obvious head injury, the officers summoned an ambulance, which took the protesting Nicks to Heights Hospital on the north side of Houston. There he was transferred by his family’s request to a smaller suburban hospital where, after a five-day period of observation, he was released on April 28 in the care of his wife and mother. On May 3, the two women had become concerned about Nicks’ condition because he “lay around the house sleeping all the time and acting strange.” They took him back to the suburban hospital, then across town to Methodist, where neurologists examined his head. At Methodist he fell into a coma, began to deteriorate, and on May 8, a Tuesday, was transferred the hundred yards across to St. Luke’s where, shortly before 2 P.M., capping a morning filled with confusion and mystery—his heart was removed and implanted into Henry Stuckwish, the hospital administrator from Alpine.

“I may have to report this operation from prison,” Cooley said as he attended to his third transplant in the recovery room. As he spoke, a storm that had been brewing all morning across the Medical Center in the basement of Ben Taub Hospital broke with fury.

The medical examiner of Harris County is Dr. Joseph Jachimczyk, whose territory is one of the largest—476 square miles—and most violent in America. Until he became examiner—or coroner—in 1956, the Houston metropolitan area had no such officer. It was the principal American city that had no modern coroner system. Violent and mysterious deaths were investigated by a justice of the peace, who was not required by law to be a man possessed of medical knowledge. When a drowning or a shooting or a traffic death was reported by police, the justice of the peace would go to the scene, be shown a body, and declare that the man was certainly dead. Often the justice of the peace was accompanied by a surgical or pathology resident from Baylor who could advise him in making a decision as to death. The residents were eager to assist for two reasons: (1) to practice autopsy and (2) to obtain sections of the aorta, which both DeBakey and Cooley were using in such huge numbers during the early and mid-1950s, sewing them into living patients before the plastic ones became available. This was one reason why DeBakey was able to report such astonishingly large series of successful aneurysm operations in that period. He could depend upon a continuing supply of reusable aortas from the violent deaths of his city. There was nothing illegal in the practice. Moreover, no one ever knew about the custom except the resident who did the autopsy, snipped out the material, and sewed up the chest before burial. Some of the aortas were used instantly, others kept in an antibiotic solution, chilled and kept up to ten days, still others freeze-dried and kept indefinitely.

The first thing Jachimczyk did when he took office in 1956 was to institute a modern and scientific examination procedure to rule on the cause of death. “There is no question in my mind that many many homicides were passed off by my predecessors as ‘coronary thrombosis,’” he once said, “when in fact the ‘thrombosis’ was caused by an ice-pick hole in the chest.” In the decade and a half that followed, Jachimczyk was frequently in the headlines, quarreling with local governments over funds he demanded to enlarge and staff his facilities, or sitting in a courtroom witness box and devouring a defense attorney who dared to challenge his findings. Quite simply, he was not a man to tamper with; Jachimczyk held both medical and legal degrees. He also courted the press of Houston, relishing, as did so many others in the city, his name in type. Since he had come to the city, he felt he had seen—and investigated—every kind of death that the mind of man could conceive and commit. But “The Case of the Heartless Corpse,” as he was to call it in a scientific paper concerning Clarence Nicks, was beyond even his imagination.

All during that first week of May, 1968, Jachimczyk had been annoyed at Cooley and his staff. “His first donor heart was from a girl who committed suicide,” he recalled later. “That girl had been brought into Ben Taub Hospital with a gunshot wound in her head. Somehow Dr. Bloodwell on Cooley’s staff heard about her being there—and she was whisked out of here before I or anybody knew it. And my office is in the basement of Ben Taub! Why was this girl taken out of this hospital in the middle of the night? What did they have to hide? No one even asked me if she could be removed.

“Dr. Milam, the pathologist at St. Luke’s, did have the courtesy to telephone me and mention that there was a possibility she might become a donor. But I learned later that the transplant was already in progress, even as we talked on the telephone.”

Jachimczyk began to feel that the surgeons were running end sweeps on him. “I’d always tried to cooperate with those guys,” he complained. “They call over and say, for example, ‘I need a piece of femur for a patient who is approximately six feet, two inches, tall, etc., etc., etc.,’ and if a body came in over the weekend that matched up, we’d cut out a piece of bone in autopsy and send it over. We did the same thing with corneas and cartilage. We always looked in a fellow’s wallet to see if he had one of those donor cards that said he wanted to give his body or any part of it to science.”

When the medical examiner arrived at work on the morning of May 8, 1968, he received an immediate telephone call from a homicide officer at police headquarters in downtown Houston. Did Jachimczyk know anything of one Clarence (Sonny) Nicks, believed to be the victim of a barroom brawl? Was he dead or alive? Jachimczyk had never heard of the man and routinely began dialing the hospitals of the Medical Center. He discovered quickly that Nicks was that very morning a patient at St. Luke’s, having been recently transferred from two previous hospitals. “They told me at St. Luke’s that Nicks was alive,” said Jachimczyk, “and I lost interest. My jurisdiction begins at the time of death.”

At mid-morning, Dr. Lind, a pathologist at St. Luke’s, telephoned the medical examiner and said Nicks was being considered as a potential heart donor. Jachimczyk’s back shot up. “I cautioned Dr. Lind against it,” he said later. “In fact, I warned him against it. I did not feel a homicide case should be used in the transplant program. Cooley and his boys had been planning to do these transplants since January and they had totally overlooked the medical examiner’s office. My office would have to be their major source of donated organs!”

At 11:05 A.M.—Jachimczyk keeps meticulous records of phone calls—he was notified by Dr. Pedro Carem, the physician who had been Nicks’ private doctor and who had accompanied him on an odyssey through four Houston hospitals, that the welder was indeed dead. “At that point,” Jachimczyk remembered, “it became my case.”

But no sooner had he put down the phone than it rang again, this time the caller being Bloodwell of the Cooley team. He assured Jachimczyk that Nicks was not dead, but was still a potential heart donor.

“I had no choice,” said Jachimczyk, “I had to believe Bloodwell. I couldn’t look askance at the word of a duly licensed physician or osteopath. But I was damn confused by this time. The press had gotten word of Cooley’s plan to use a homicide victim’s heart—if indeed there was a homicide victim—and they were clamoring to know what I was going to do. I decided the best thing I could do would be to get some ground rules laid down.”

Out went urgent messages to the district attorney’s office, prominent physicians, lawyers, hospital administrators, and city and county officials. A meeting was to be held under emergency conditions for 1 P.M. that day. In between the flood of calls, Cooley himself telephoned Jachimczyk—an hour before the scheduled conference. Sonny Nicks was still alive, said Cooley, but his brain waves were flat. For all intents and purposes, the surgeon said, the man was dead.

“Nonetheless, I strongly urge you not to use this man’s heart,” snapped Jachimczyk, his temper barely in check. “This is a homicide situation. Do you understand that?”

“This is also a desperate situation,” answered Cooley in an emotional appeal. “I have a recipient (Stuckwish) waiting, and prepared. We cannot turn down this man’s chance at getting a heart.”

Exasperated, Jachimczyk repeated what he had been saying so strongly all morning. He reminded Cooley that a meeting in less than an hour would lay down ground rules to avoid future dilemmas.

“Well,” Cooley said, “I’m glad you’re having the meeting, but I feel I’ll probably have to go ahead with what we have planned.”

Jachimczyk paused. He did not want to get in the way of medical progress. He merely wanted his rules followed. “If it will help any,” he said, “I won’t press charges against you. But I cannot guarantee that nobody else will.”

The meeting began at 1 P.M. While the committee discussed the legal issues of transplantation, Bloodwell was removing Sonny Nicks’ heart and carrying it across the hall in a steel pan where Cooley implanted it into Stuckwish. “I foolishly wondered at the time why Denton did not attend our meeting,” said Jachimczyk.

Throughout the year that followed, the medical examiner tilted with Cooley. Jachimczyk made formal pleas to both Cooley and to DeBakey—who had not yet begun transplantation—urging them not to use homicide hearts. DeBakey quickly agreed; Cooley declined, saying he would use any and all donor hearts if an emergency situation presented itself. His primary consideration, he said, was for the living, not the dead.

“I think I must hold the world record for heartless corpses at autopsy,” Jachimczyk said ruefully as the year neared its end. “After the third one, it really began to upset me. And I wasn’t the only man in my field with the problem. My counterpart in Los Angeles telephoned me long distance and complained that Cooley had flown a body to Houston and was using its heart. I told him, ‘That’s not my bother, you shouldn’t have let your corpse get out of town.’”

The district attorney’s office spent more than six months investigating the death of Clarence Nicks and in January, 1969, obtained a grand jury indictment against two young laborers who were charged with murder. The indictment charged that Robert Damon Patterson and Alfred Lee Branum “… with malice aforethought did kill Clarence Nicks by beating and striking him with fists and a can and by kicking with their feet and by such other means, instruments, or weapons unknown to the grand jury.” No action was brought against Cooley or any member of his staff.

Almost two years later, in the autumn of 1970, the case had not yet come to trial. Attorney Hal Hudson, representing Patterson, was eager for trial. He was a young, ambitious lawyer who had caught lightning in a bottle. “My client, Mr. Patterson, is a good kid,” he told a visitor in the summer of 1970. “He has no previous felony convictions or misdemeanors involving moral turpitude. I will claim in my defense that Clarence Nicks, not my client, instigated the argument which led to the fight at the Peek-a-Boo Lounge.”

The lawyer had a stack of medical books and scientific papers on his desk. He had been reading up on heart transplants. He had, in case the self-defense theory failed, a sensational backstop.

“I will also ask the question, ‘What is death?’” he said, “and, perhaps more relevant, ‘When is death?’ Clarence Nicks was pronounced dead twice, perhaps three times the morning of May 8, 1968.

“I wonder if Clarence Nicks might still be alive today if his heart had not been cut from his chest. I have seen movies of a heart-transplant operation. The way the surgeons tell it, the donor heart is barely palpitating. But the way I saw it, and the way a jury will see it, the heart is beating like a bass drum! Whomp! Whomp! WHOMP! You gonna tell me that sum bitch is dead when his heart is a-whompin’ away like that? You show that whompin’ heart to a jury and you think for one minute they’ll consider this to be a murder victim?”

Attorney Hudson paused and smiled. Then he frowned. He leaned forward and addressed an imaginary jury:

“I don’t think we’ve gotten to the point where doctors can declare somebody a vegetable and then drop the executioner’s ax on him!”