Murder in Tombstone: The Forgotten Trial of Wyatt Earp

A Most Merry and Illustrated Book Review

 

Murder in Tombstone: The Forgotten Trial of Wyatt Earp, Steve Lubet, Yale University Press (2004)

 

Yes, yes, we know that for western history buffs the title is doubly misnamed. First, Wyatt Earp did not go to trial after the also-misnamed "Gunfight at the OK Corral". He was arrested, yes, but the case only went to the pretrial hearing. Secondly, the hearing was under the gavel of Judge Wells Spicer and is among the most famous courtroom dramas ever to take place. OK (no joke intended), now at least we've gotten that stuff out of the way.

Thankfully, Murder in Tombstone: The Forgotten Trial of Wyatt Earp by Northwestern law professor Steve Lubet is not just another of those never ending "what-really-happened-at-the-OK-corral" spittle flinging diatribes that leave everyone guessing as much as ever. What really happened in the vacant lot on Fremont street on October 26, 1881 is really unanswerable given the contradictory testimony.

Instead Professor Lubet addresses the other question that also has resulted in spittle flinging diatribes for nearly a century and a half. Were the Earp brothers and their friend John Henry "Doc" Holliday just cold-blooded murderers who shot down men begging for their lives? Or were they honest upright lawmen and deputies defending themselves in the course of legitimate duties? Professor Lubet takes aim at the problem and comes up with an answer that is certainly as good as any and better than most.

So were the Earps guilty of murder? The answer in a nutshell is probably not. But manslaughter, very likely.

Now to the laymen the definition of manslaughter seems vague and at times contradictory. Manslaughter does not depend upon definite and objective provables - premeditation, malice aforethough, and the like. Proof of manslaughter instead relies heavily upon establishing subectives - like the state of mind of the individual and the whether his judgment was unreasonable in the action that lead to the death. Rendering a verdict is not easy.

Since the hearing had to deal with the charges as filed, Judge Spicer had to rule if there was enough evidence to proceed with a murder trial. Evaluating the possibility of a manslaughter charge was not part of the hearing. And in fact, Judge Spicer evidently believed - and hinted strongly - that the case could have proceeded to trial if the charge was switched from murder to manslaughter.

For those who have studied newspaper accounts and the hearing transcript, Murder in Tombstone give a clear explanation of the legal strategies of the attorneys which seem odd and even irritating to the reader. What seems like pointless questions - and which elicit answers that appear damaging to the defense - were actually sound strategies in light of the legal system of the time.

For instance, everyone who has read the testimony knows that Johnny Behan and others testified the first shot was from a "nickel plated pistol"/ So if Doc Holliday favored a nickel plated pistol - which is what people thought - then the conclusion was Doc fired first.

Tom asked Johnny wasn't it true that Doc Holliday's first shot really came from a shotgun? Johnny said no. It was a nickel plated pistol.

Tom went on to more questions for Johnny to deny. Following the gunfight, Tom asked, did not Johnny visit Virgil at his bedside (Virgil had been shot in the leg) and tell Virgil that he, Virgil, "did exactly right?" Again, Johnny denied he ever said any such thing. This kept goin on and the reader wonders why Tom was wasting the court's time asking questions he knew would elicit nothing but a string of denials.

But Tom's strategy was sound. He was asking a witness questions that the witness would deny, but which could be discredited through evidence or other testimony. The later evidence would effectively ruin the witness.

At the OK Corral there was no doubt that Doc was carrying a shotgun as he and the Earps approached the cowboys. It was also conclusively established that "cowboy" Tom McLaury was hit with buckshot. It was also established that toward the end of the fight Doc shot Frank McLaury with a pistol. So for Doc to fire his nickel plated pistol first, he would have had to juggle with the shotgun, draw and fire his the gun, reholster the gun, then fire the shotgun (a two handed weapon), throw aside the shotgun, redraw his pistol and then shoot Frank. This also went against what everyone knew - a real Old West gunfighter would not first fire with a pistol if he also had a shotgun.

If Johnny's tale of Juggling Doc didn't lower his credibility enough, his denying he told Virgil that he, Virgil, had "done exactly right" did. At least it did after Tom called in witness W. S. Williams. Williams claimed he was in the room when Johnny said the words to Virgil.

Of course there has always been much discussion of the bias of the witnesses. So clearly Williams was just one more pro-Earp flunky, right?

Au contraire as they might say in Tombstone. Williams's job was assistant to Lyttleton Price, the prosecutor in the case. So the most likely reason Williams would testify against his own boss's case is he was under oath and so testified what he heard. Williams' connection to the prosecution is something that is often lost in the various discussions. But it certainly was not lost on Judge Spicer.

The defenders of the cowboys have made much of Judge Spicer's bias in favor of the Earps. He was their friend, and a Republican with northern sympathies who would not look favorably on Democrats with their pro-Southern stance. Proof of his bias, we hear, is that he let Wyatt read a written statement and not undergo crossexamination.

But as Professor Lubet points out, by the laws of the territory Wyatt was entitled to make "narrative statements" in his behalf and specifically to do so without cross examination. This strategy was also a mark on Tom Fitch's legal astuteness. The law was actually a legal anachronism that was written in a day when defendants could not testify on their own behalf during a trial. But a law was passed in 1871 allowing defendants to take the stand, and today it's considered a virtual right. But the "narrative" statement law was still on the books in 1881, and Tom was within his rights to use the statue to his advantage.

But was reading from a written statement - certainly prepared in close cooperation with (and probably actually penned by) the defense counsel - permitted? Or was this just another bias of Judge Spicer?

Now according to the statute it was clear the law gave instructions for the accused to make the statement verbally and have it written down. He could then review it, have it amended until he was "comfortable" with the wording. He would then sign it. There was then nothing to prohibit the defendant from reading the signed and approved document.

But can't we say that Spicer could just as easily have ruled the law clearly intended the statement to be verbal and required Wyatt to tell the story in his own words? But Professor Lubet argues Judge Spicer was not biased so much as influenced - like everyone else - on past experience. Seven years earlier, Attorney Wells Spicer had defended Moromon elder John D. Lee in the "Moutain Meadows Massacre" trial. This was the incident - a very mild term - when a group of Mormans stopped a wagon train traveling through Utah and killed every man and boy over six years of age. The official story was Brigham Young had even ordered the wagon train to be allowed to pass but John Lee ordered the killings. Attorney Spicer, though, thought this was a case of prosecutorial colluions to protect higher ups. So when Spicer heard the doubtful "nickel plated pistol" story - sworn to by more than one witness - and testimony like that of W. S. Williams that credibly contradicted the prosecution, Judge Spicer was probably very suspicious that the story had been cooked up beforehand and would have been wary of taking the testimony at face value.

But in dismissing the murder charge, Judge Spicer clearly knew what the proper charge should be. Everyone knows Judge Spicer chaffed Virgil's for deputizing Doc Holliday who from a description from his friend Bat Masterson was a man with a "mean disposition and ungovernable temper and under the influence of liquor [which was most of the time] was a most dangerous man."

When you get down to it, Doc was the real cause of the gunfight. The night before he had gotten into an argument with Ike and challenged him to a gunfight. That sent Ike to wandering around town "looking for" the Earps. Without Doc and Ike's confrontation, the gunfight would never have happened. Virgil should have picked someone else.

Selecting Wyatt for help was also unwise, said the judge. The very day of the gunfight Wyatt had had a run-in with Tom McLaury where he clobbered Tom on the head. Virgil should have thought twice before asking for help from his quick tempered brother. But again, Judge said, selecting the deputies may have been unwise but it was not unlawful.

That Judge Spicer knew manslaughter should have been the correct charge is clear. In his ruling criticizing Virgil, Judge Spicer called Virgil's actions "injudicious and censurable". This is, Professor Lubet points out, almost a verbatim quote from the territorial law defining manslaughter. The language was too close to be coincidence and Judge Spicer was clearly throwing a bone to the prosecution.

A charge of murder, he was saying, - and certainly first degree murder - was not tenable and could not be demonstrated beyond a reasonable doubt. However, manslaughter was a perfectly valid charge and one that could easily have prevailed at a full trial. But rather than take the hint, Ike and Will McLaury - Frank and Tom's attorney brother - were obsessed with prosecuting the murder case. After the hearing, they refiled for the more serious crime at another court. But they were told that the case - the case of murder, that is - had been ruled on by Judge Spicer and there was no new evidence to contradict the earlier ruling.

There is another point which CooperToons has always wondered about. Should another eyewitness have been called? The fact that the witness - Billy Clanton - was dead really provided no real obstacle. Instead it is related to the use of the dying declaration, long accepted in court as an exception to the hearsay rule.

A dying declaration is a statement made by a person who is aware they are dying. If the person does indeed die, then the statement can be made in court by a third party (usually a law officer) to whom the statement was made. A dying declaration is accepted as testimony under oath. The rationale - controversial and uncertain, though it is - is that a dying person will not lie. A subject of television shows (such as "Adam-12" where the victim did lie) the use of dying declarations is not consistent.

Billy Clanton lived about an hour after the gunfight. He was shot in the wrist, stomach, and chest. His chest and stomach wounds were particularly painful. As he lay "hallooing with pain" the doctor was summoned and after injecting him with morphine told Billy that he would not live. "They have murdered me," Billy said. "Go away and let me die."

But "murder" is a term used freely and often with propagandist intent. "The wartime bombings murdered hundred of thousands of civilians" is not really necessarily using the precise legal definition of the term. Similarly Billy cannot be considered to be rendering a legal definition regarding issues like intent and premeditation. But it can be and probably should be considered showing that Billy felt he was shot down without provocation. This means Billy at least was not wanting to fight.

A modern police officer investigating the crime would probably have tried to obtain a statement from Billy. What happened? Who shot first? Did you do what the marshal ordered? There were deputies - such as Andy Bronk - who were not involved in the fight and should have asked such questions. Instead the person who did the best investigation was the reporter for the Tombstone Nugget, one of the two local papers. He clearly interviewed Johnny Behan - the county sheriff who was not friends with Wyatt - and possibly Wyatt. The story that came out was by no means anti-Earp and said Wyatt and Doc fired only after Frank McLuary made a "move for his gun." It must have been a shock for the reporter to hear Johnny and Wyatt both testify contrary to his actually quite unbiased report.

All of which brings us to the never ending but endlessly fascinating question of what really happened at the OK Corral. Professor Lubet points out that Wyatt may have been so angered by Ike's parading after his brother and Doc with a gun followed by his violent confrontation with Tom McLaury that this affected his actions. So when Virgil called for the "cowboys" to give up their guns, Wyatt simply may not have given them adequate time to surrender or worse, he and Doc may have been hankering more for revenge. In fact one of the most impartial witnesses - a local housewife - said she heard one of the Earps tell Doc, "Let them have it." (Explanations that this was a fragment of conversation such as "[If they pull their guns"], let them have it" does not seem to be the case on a close reading of the testimony.)

Another point that is not mentioned is Virgil did not follow sound protocol at least by today's standards. Today no officer would tell an armed suspect - much less three to five - to hand over weapons. Instead an officer makes sure a peretrator cannot hand over a gun (having the individual lay prone and then removing any weapon himself). Even today an individual reaching for a weapon is reason for an officer to defend himself.

Of course, if Frank McLaury (or Billy Clanton) indeed made a "move for his gun" that is exactly what they would have had to do in order to obey the marshal's command. Of course, they would have also done that if they were pulling out their guns to fight, and it was up to Wyatt and the others to determine what the gesture meant. But if his anger made him too quick on the trigger or if he was spoiling for a fight, Wyatt would have been legally cuplable.

So in the end there is a good case against against both Wyatt, Virgil, Morgan, and Doc. But it would be for manslaughter, not murder. If Ike and Will had purused this couese, it very well could have gone to the jury.

What would have happened then.

We have to be honest and say there were less stringent standards for self-defense in those days. We can see that if we consider the case a few years after the OK Corral which involved an assistant marshal of Dodge City, Mysterious Dave Mather.

You see Mysterious Dave got voted out of office and was replaced by a fellow named Tom Nixon. Shortly after the election Tom took a shot at Dave, who got off with nothing more than a splinter in his finger. Tom was arrested and charged with attempted murder.

Now it seems strange that Tom was the one to take a plug at Dave and not the other way around. But there were some bad feelings between the two men above and beyond the assistant marshal's job. For one thing, the two men had interests in rival saloons, and Dave was selling his beer at less than half the rate of Tom's. It was also said that Dave was fooling around with Tom's wife. Whatever the cause, Mysterious Dave was evidently in a forgiving mood because he declined to prosecute.

Well, if Dave thought that to forgive was divine, Tom sure as heck erred if he thought all was well. A few days later Dave walked up behind Tom and softly called, "Tom, oh, Tom!" Before Tom could turn Dave shot him in the back. Now it was Dave's turn to get arrested. This time for murder.

Plea? Self-defense.

Verdict? Not guilty!

Even as late as 1908, you had the same sort of thing, and it involved none other than Pat Garrett, the man who shot Billy the Kid. Pat was in his late fifties then and had settled down to a not too profitable ranching venture outside of Las Cruces, New Mexico. He was going into town with a young man named Wayne Brazel who had leased part of Pat's ranch. At one point Pat got a bit nasty with Wayne about the details of the arrangement. Wayne was riding his horse alongside Pat's buckboard and later when Pat got down to take a pee, Wayne shot him in the back. Pat died almost immediately. Wayne, who said that Pat had "threatened him", was arrested.

Plea? Self-defense.

Verdict? Not guilty!

With these type of standards, you could have had a trial for manslaughter. And the Earps and Doc Holliday probably would have still walked out of court free men.

But in the end we will never know what really happened and we should close with the words of historian Robert Utley about another controversial character, General George Armstrong Custer. Who Custer is, Robert said, depends on who we are. If we believe he was a brave and bold soldier, courageous and daring, we will find in his actions all what we need to support our claim. If we think he was a reckless, insensitive, glory hunting martinet, all the evidence will be there to prove that, too.

So it is with Wyatt Earp. If you believe he was brave, courageous, and bold, a lawman who tamed the West, and (to quote Charlie Chaplin who once met Wyatt), "drove out the baddies", we will find his actions to be brave, courageous,and bold, and those of a lawman who tamed the West and drove out the baddies. If we believe he was a pimping and lying two-bit con artist and gambler, who would murder men begging for their lives and who saw the law as just another tool for realizing personal profit, we will indeed find plenty of evidence for a pimping, lying two-bit con artist and gambler, who would murder men begging for their lives and saw the law as just another tool for realizing personal profit

But that is the fun of studying history.

 

References and Other Reading

Books

Murder in Tombstone: The Forgotten Trial of Wyatt Earp, Steve Lubet, Yale University Press (2004). There is a companion article in the University of Colorado Law Review (online at http://tarlton.law.utexas.edu/lpop/etext/lubet/earp.htm). As we said, the author is a professor of law at Northwestern University. He also cites the Nugget story as objective and balanced.

The O.K. Corral Inquest, Alford Turner (Ed.), The Early West Series (1992). The transcript of the coronor and inquest record, or rather the records as copied by newspaperman Pat Hayhurst. It's been shown by historians that Pat edited a bit in favor of the Earps and omitted some statements that support the claim Tom McLaury was armed. The original transcript has disappeared.

All in all Alford did a decent job of editing but some of his footnotes are opinions, such as it was Morgan who said to Doc "Let them have it" as they walked to the vacant lot. No one really knows which Earp made the statement. Also Alford said the "ambidextrous" Doc Holliday could fire from both the pistol and the shotgun. There's no evidence Doc was ambidextrous or that he was even a particularly good shot. Most of his gunfights - including the OK Corral were - shooting from a few feet.

This seems now to be a volume rather hard to find. CooperToons once lent his out and the son-of-a-[gun] never returned it. Fortunately on a visit to Tombstone itself, a copy was found in a local bookstore.

Wyatt Earp: The Life Behind the Legend Casey Tefertiller, John Wiley and Sons (1997). Considered the definitive biography.

Inventing Wyatt Earp: His Life and Many Legends, Allen Barra, Carroll and Graf (1998). Another biography of Wyatt but with added material on the rise and manner of the Legend of Wyatt Earp.

 

On-Line References

Despite the spittle flinging diatribes so often voiced by CooperToons, there is much (good) information about Wyatt and the Gunfight Near the OK Corral. But as usual, be wary!

Tombstone History Archives at http://www.tombstonehistoryarchives.com/. Primary documents including the Nugget and Epitpah articles published the day after the fight. This is also accessible from the well-known BJ's Tombstone Historical Discussion Forum at http://disc.yourwebapps.com/Indices/39627.html.

"Gunfight at the O.K. Corral: Did Tom McLaury Have a Gun?" http://www.historynet.com/gunfight-at-the-ok-corral-did-tom-mclaury-have-a-gun.htm. An article appearing in Wild West Magazine on October 2006, where author Lee Silva shows how historians have to sift through evidence, testimony, and disparate statements. All in all, Lee makes a strong case that Tom did have a pistol, although CooperToons still has nagging doubts.

 

Interviews

One point of controversy is if Doc fired nearly simultaneously with Wyatt, then he probably fired with his shotgun (in his hand and concealed under his coat) and only later pulled his pistol. But others testified the shots - whether Doc or from someone else - were from a pistol. So CooperToons decided to interview a firearm expert - or at least a firearms enthusiast - and asked if it would be possible to confuse the sound of a shotgun with that of a pistol. The answer was an unequivocal no.

Unless, the expert added immediately and with no prompting, (and pardon us if we shout) BOTH SHOTS WERE FIRED NEARLY SIMULTANEOUSLY. Certainly there's still room to debate, but for now at least, CooperToons still goes with the Nugget account.

Close Window

Return to Wyatt Earp and the OK Corral

Return to Wyatt Earp Caricature

Return to CooperToons Caricatures

Return to CooperToons Homepage