The Spicer Hearing

Let's repeat it once more, all together.

When there was a gunfight back in the days of the Old West, the winner did NOT, repeat, did NOT simply holster his gun, hop onto his horse, and ride off into the sunset. Then as now there were these pesky little things called laws, courts, and judicial proceedings.

And the law covered everyone.  And that included law officers and their deputies.

In some ways it was even more stringent than today.  Nowadays if a policeman fires his gun and plugs someone, there will be an inquiry.  But if it is clear the assailant was armed and was likely to shoot, the matter will usually proceed no further than an internal police investigation.

Not so in the late 1800's.  Without internal investigation departments or citizen review committees, an officer was likely to be arrested  - often by one of his own deputies - and held for trial.

It's particularly instructive to consider the case of John Selman.  Around 1890, John was constable in El Paso.  In the late 1870's he had also been a cold blooded murderer during the Lincoln County War where he had once killed an unarmed fourteen year old boy so he could take the kid's horses.  And like many cold blooded murderers of the old West, he naturally turned to law enforcement in his mature years.

One night while John was walking his beat, a former Texas Ranger named Bass Outlaw (that was his real name) got tanked up and decided to have some fun shooting up one of El Paso's many sporting houses.  When John tried to make him stop, Bass pulled a gun and took a shot at John's head.  Although temporarily blinded by the flash, John managed to return the fire, killing Bass.

Today this would almost certainly never have gone beyond an internal inquiry.  But here John was arrested.  The facts were pretty clear though, and the judge instructed the jury there was no evidence to convict.  So John got off.  But the point is he was arrested FIRST.  THEN he got off.

 And this wasn't the last time Old John would face trial - and as a law officer.  A little later John was again on his beat and he walked into the Acme Saloon where John Wesley Hardin was playing poker dice.  John pulled his gun and shot Wes in the back of the head, swearing it was self defense.  After Wes was on the floor, John pumped a few more slugs into him for good measure.  Of course, you just can't be too careful when it comes to self defense.

Again he was arrested, this time by his own son, John Jr. who was also a city policeman.  The facts being a bit ambiguous, the jury was deadlocked on the verdict.  Before he could be retried, though, John Sr. was killed by ANOTHER law officer, George Scarborough several months later.  As you guess by now, George was arrested and found not guilty.  And yes, George was later gunned down himself.  This time (at least) it wasn't by a fellow policeman, but by an actual bonafide bad guy.

So when Wyatt and Doc were the only ones standing after the Gunfight at the OK Corral, it's not surprising that they were arrested.  What is surprising that it took as long as it did.

Well, maybe not.  Johnny Behan was the sheriff.

How Johnny hauled Wyatt in is anybody's guess.  You'll remember that Johnny tried to detain Wyatt once before and didn't have much luck.  So when he did finally arrest Wyatt (and Doc, too) it's a sure bet he had some help.

Now the court system in Arizona at that time was actually pretty sophisticated and more or less followed the modern procedures.  If an arrest was made, the accused were taken to a judge, who could either allowed or deny bail.  Then there would be a preliminary hearing.  The judge would then either remand the case to trial or rule there was insufficient evidence for further proceedings.  Also grand juries convened from time to time to go over the docket, and they could issue indictments.  If they wanted to, they could even overrule a judge's earlier dismissal.

So Johnny finally arrested Wyatt and Doc.  They appeared before Judge Wells Spicer, who was the Justice of the Peace.  Virgil and Morgan were too seriously wounded, although in a surprisingly modern move, Virgil was suspended as city marshal.  The judge listened to the prosecutors and defense attorneys and set bond.  Both Wyatt and Doc had no problem raising the money and were set free.

The Earp Detractors say they should have stayed in jail.  After all, there was considerable testimony that Wyatt, Doc, and the rest had just gunned down three men who were in the act of surrendering.  But of course, they say, the judge was Wyatt's buddy.

Well, maybe, but the bonds posted were pretty steep: $10,000 in 1881 currency.  We're talking big bucks there.  And it was pretty certain that Wyatt and the rest weren't going to run off.

Now the next step was to check on the evidence.  Although Judge Spicer didn't have the authority to preside at a full trial, he could rule whether there was enough evidence to proceed further.  Which he did.

In looking at the court records of the days of the old West, it's sometimes hard to tell if a proceeding was actually a trial or just the first pass hearing.  Modern attorneys like to say that's because the "layman" (which includes most historians and humorous writers) can't tell the difference.  No doubt there is some truth to this, but it's also true that the judges back then might have been a little vague on the matter too.

But what is clear is that the proceedings that began on October 31, 1881 in the case of Arizona vs. Wyatt, Doc, Virgil, and Morgan were a hearing and not a trial.  But it had pretty much everything you want:  a judge, prosecutors, defense attorneys, defendants, witnesses, inconsistent testimony, faulty memories, evasive answers, and out and out perjury.  And you can add sex if you count Ike talking about all the "bosoms".

Now Judge Spicer WAS a friend of Wyatt's and Virgil's, no doubt about it.  But it also appears he was a man of pretty high integrity and knew the laws.  And he could put personal feelings aside.  Once  the honorable Alder Randall, one of Tombstone's sleazier mayors (whom Judge Spicer couldn't stand) was charged with malfeasance.  There's no doubt the mayor was involved in shady deals and abusing his office, but Judge Spicer pointed out what was done was not a malfeasance but a nonfeasance.  And furthermore the territorial legislature had forgotten to make either one of them a crime.  So somewhat bitterly Judge Spicer let the mayor go.

But it's also clear that when the issues were cloudy he'd give the benefit of doubt to the elements of law and order.  Usually that meant those-who-are-not-the-cowboys.  And since he was a city judge (not county) he could give a wee bit more benefit of the doubt to the city officers.  Which happened to be Virgil, Morgan, Wyatt, and (arguably) Doc.

One of the first witnesses called was Billy Allen, the same fellow who told Frank McLaury about Tom getting buffaloed by Wyatt.  He said he saw how the Earps and Doc walked up to the Clantons and McLaurys and blew them away in a cold blooded act of murder.  He was followed by Billy Clairborne, Wes Fuller, and later in the trial by Johnny Behan, who all said the same thing.

The defense attorneys were allowed to cross examine the witnesses.  And as modern lawyers do, they spent a fair amount of time attacking the credibility of the witnesses rather than dealing with the facts.  They'd ask how much the witness had been drinking, had they ever been arrested, and how the heck if they were so smart they stood literally counting the shots while the bullets were flying around their heads.  They even asked Billy Clairbone how much taller he had grown in the last year.  Billy said nearly two feet.

The lawyers also liked to lay in loaded questions of the "have you stopped beating your wife" genre.  Did you see Tom McLaury with a gun, one might ask.  No, the witness would respond, he did not.  Well, do you know where he got the gun?  This sort of thing.

Usually they didn't get very far with that.  There was a lot of objecting by the opposing attorneys on the grounds that a question "assumed facts not yet established or statements not testified to by the witness".  Judge Spicer usually sustained such objections whatever side tried it.  When he did overrule an objection (which he also did frequently) the attorneys would ask for his reasons.  Judge Spicer, citing the law in polite legal language, would tell them to take a hike.

Thirty witnesses were called.  But when you get down to it, four were pretty much what decided the case:  Ike Clanton, H. F. Sills (the railroad engineer), Addie Bourland (a dressmaker), and Wyatt Earp.

The attorneys for the prosecution figured their star witness would be Ike Clanton.  After all, he had been there (sort of) and he had seen (and participated) in most of what led up to the fight.

But that was a pretty bad move.  Ike didn't come off too well.  For one thing he swore on the Bible (literally) that he had NOT been out gunning for the Earps.  Now the whole town, for crying out loud, had SEEN him wandering the streets for six or more hours toting his rifle and telling everyone he was going to have it out with the Earps and Doc.  But good old Ike steadfastly maintained the contrary.  Not only did he contradict virtually ever witness who had seen him out and packing his guns, it went against what Ike testified himself at the coroner's inquiry.  There he had said he hadn't made any worse threats against the Earps than they made against him.  Which was the one of the few true statements made by either side. 

As far as what happened at the gunfight, Ike stuck by the claim Billy and Tom and Frank were trying to surrender.  As usual he did mention a "bosom" when he described Morgan shooting at Billy.

But where Ike really ran into trouble is when he gave his version of the stage hold up.  This was deemed relevant since it's what precipitated Doc's and Ike's quarrel.  Which was, after all, what caused the gunfight in the first place.

Well, Ike said, he knew the whole story about that.  He didn't want to tell it, but by golly, here he was under oath.  And as a loyal American he had sworn to tell the truth.  So be it!

So with an enthusiasm that belied his stated reluctance, Ike then detailed how the stage robbery had been engineered by none other than (you guessed it) - Wyatt Berry Stapp Earp.  Oh, his brothers and Doc were involved too, but that ne'er-do-well Wyatt was the brains behind it all.

But what about Leonard, Crane, and Head?  And Wyatt's attempts to capture them?

Oh, that was nothing more than a ruse, Ike said.  You see, Wyatt had "piped off" a thousand or so dollars from the strong box BEFORE the stage made its run.  So the stage robbery itself was really just a diversion to cover up the theft.  Yep, Wyatt was in cahoots with the stage robbers.

So how did Ike know all this?

Why, Wyatt told him, of course.   The "deal" between him and Wyatt to capture the stage robbers was really an attempt to get them to some secluded area where Wyatt could murder them so they couldn't squeal.  Naturally, Ike said, he would have nothing to do with such a dastardly cowardly deed.  But rest assured, the stage robbery was all due to Wyatt Earp.

So swore Ike Clanton, and some people believe it to this day.

The defense attorneys had a field day during cross examination.  For one thing there the little discrepancy that none of the money was missing from the strong box (remember the stage never stopped).  How could Wyatt have piped off the money and all the money still be there?  Maybe the stage stopped on the way to Tombstone and the Earps slipped the money back without the (surviving) driver and (surviving) passengers noticing it?

Even more dubious was Ike's claim that Wyatt would have confessed all this to him.  Well, said the defense, why stop there?  Maybe others had confessed to Ike that they were murderers and stage robbers too.  How about James Earp who spent most of his time tending bar?  No?  Well, maybe Marshal Williams had confessed he was a murderer and stage robber too?  Hm?  Judge Spicer overruled those questions, but then the defense really hadn't expected Ike to answer them anyway.  When Ike left the stand he did so with dignity, but not much more.

After a few more witnesses, some who supported the Earps, some the Clantons and McLaurys, some neither, and some both, Wyatt Earp took the stand.  After giving his occupation as "saloon keeper at present," he was asked to state any facts that would tend to his exculpation.

Obviously that was quite a lot.  So Wyatt pulled out a sheaf of paper and began to read.

Naturally the prosecution objected.  He shouldn't be allowed to give testimony from a manuscript "without limits to its relevancy" or being "subject to cross examination".

Judge Spicer overruled them and Wyatt began to read.  And read.  And read. And read.

A lot has been made about this.  To some this is proof that Judge Spicer was totally biased in favor of the Earps.  To others (and some lawyers) all this means is that the proceedings were NOT a trial, but just a preliminary hearing.  And that there was nothing in the statutes that prevented this type of stuff.

That Wyatt gave a long winded speech is not in dispute.  Why he escaped cross examination isn't so clear.  There's nothing in the record, though, to show that the opposing attorneys went much beyond their first objection.  And there's no indication that they asked for cross examination after the statement was finished.

Wyatt's version differed a bit from Ike's of course.  He said (among other things) that Frank and Tom had sworn earlier they were out to kill him (unlikely), Ike had been threatening him and he was tired of it (probably true), and that it was well known to those in law enforcement that Ike was "sort of" the head of an outlaw gang (whatever that means).

As far as the stage hold up went, he took the high road and didn't even dignify Ike's claims with a comment.  What he did was imply that one of those involved in the hold up was none other than - (drumroll, maestro!) - Joseph Ike Clanton!

How would Wyatt know this?  Well, they often stopped at his ranch, didn't they.  Even Ike admitted that, so what more proof do you need?  And that was his undoing.  Since Ike was "sort of" the leader of an outlaw gang, he was the perfect man to betray his comrades for a greasy, sleazy buck.  And THAT's why Wyatt struck the deal with Ike to capture Leonard and his friends.

And of course no one at the hearing - not Ike, Wyatt, Johnny, or anyone else - mentioned the obvious fact that if anyone sitting in the courtroom was a friend of Billy Leonard and was tied in with the hold-up, it was Doc.

When it came to the actual gunfight, Wyatt swore that after Virgil said "Throw up your hands" Billy and Frank drew their guns and started shooting.  The first two near-simultaneous shots, said Wyatt, were Billy shooting at him and he shooting at Frank.  He said he believed Tom was armed and shot over the horse's back.  But he seemed less sure of this and conceded Tom might not have been armed.

After ending up by handing over a written testimonial from some of the outstanding citizens of Dodge City (even if they did say so themselves), Wyatt left the stand.

By this time, though, a new member of the prosecution team signed up.  And one that must have made the Earps and Doc a bit nervous.  It was Will McLaury, the brother of Tom and Frank, fresh from Fort Worth where he practiced as an attorney.

Will wasn't there to handle the civil aspects of disposing of Tom and Frank's estate either.  A recent widower, he had left his small children with friends and had come to Tombstone for one reason and one reason only:   To make sure Wyatt, Virgil, Morgan, and Doc got strung up.  "I think we can hang them," he cheerfully wrote back to his family.

Now after living a good part of his life in the big city, there was probably a lot he didn't care for when he got into Tombstone.  It was pretty rustic to be sure and like in most mining towns the hotel charges and cost of living were pretty high.  But at that time Fort Worth had some pretty rough places too and living there probably cost more than residing in Judge Roy Bean's hometown of Langtry.

But what Will REALLY didn't like was seeing Wyatt and Doc wandering about the streets.  That the cold blooded killers of his brothers had the run of the town was too much.  So using his not inconsiderable skills as an attorney (and probably his not inconsiderable bank account as well), Will put on a few legal moves that sent Doc and Wyatt back to the slammer.

Back at the hearing, one of the more important witnesses was testifying.  This was Addie Bourland, a dressmaker, whose shop was across the street from the gunfight.  She was pretty unbiased, but like most of the other witnesses that didn't have a particular ax to grind, she wasn't too definite about what happened.  What she did say was that no one had their hands in the air when the shooting started.  Judge Spicer later stopped by her house and asked her for more details.  Then he recalled her to the stand and questioned her again whether she would have been able to tell if the cowboys had raised their hands.  About all she could add was that she thought she would.  Despite the vagueness of her answers, Judge Spicer seemed to give a lot of weight to what she said.

But it was H. F. Sills that really saved the day for Wyatt, Virgil, Morgan, and Doc.  When put on the stand he told how he heard the Clantons and McLaurys threaten to kill Virgil and shoot them "all" on sight and how he warned Virgil.  More to the point he testified that it really was Wyatt and Billy who fired the first shots.  And keep in mind that Mr. Sills testified AFTER Wyatt.  

The last point says it all for some of the Earp Champions. I mean if the most unbiased disinterested witness testified under oath that he saw Wyatt and Billy fire the first shots and that's what Wyatt had said earlier, then what's to dispute?

Actually, quite a lot.  More on that later.

The prosecution tried to discredit Mr. Sills but didn't have much luck. He had never met anyone involved until he spoke to Virgil and had no ax to grind one way or another.  The prosecution didn't have much dirt on him, either, and had no idea of how much he had been drinkin', cussin', belchin', and spittin' the day before.

But what made Mr. Sills testimony stand out was that he was sure of his facts.  He didn't hem and haw about what happened and showed a confidence that many other bystanders lacked.  

At one point, though, the prosecutors did ask him if he had talked to anyone about the case.

"I haven't told anyone direct what I know of the difficulty," he said, not saying if he had told someone indirect. "The first word I spoke of it to anybody was to Jim Earp I believe."

What?  Jim Earp?  Mr. Sills talked to Jim Earp?  Well, you can be sure, the prosecution would have pounced on this and ask him what he told Jim Earp.

But they didn't.  Which makes you think the lawyers were pretty much nincompoops.  But that's not the case.  They were (really) some of the finest there were.  Not only in the West but in the country.  But it still looks like they screwed up royally or had their heads up their legal backsides.

Now whenever someone points out that what a lawyer does doesn't make sense or it looks like they screwed up, other attorneys will put on their lawyer's hats and gleefully point out that it only SEEMS that way because, by golly, you ain't a lawyer. Now if you HAD a law degree, you uneducated moron, you'd KNOW that it was just your ignorance of legal technicalities and judicial proceeding that made it look that way. Lawyers not make sense? Lawyers make mistakes? Nonsense.

But still to the "uneducated laymen", it seems they should have followed that question up a bit.  Just a wee bit .

Toward the end of the hearing, Virgil had recovered enough to take the stand.  His testimony was pretty brief, though. He said he didn't know who fired the first shots but he was definite that Tom McLaury had a gun. At the time of the opening volley, he said, he held nothing but Doc's cane, and drew his gun only after the shooting started.

And a few more relatively ineffectual witnesses and thirty days, the hearing was over. Judge Spicer retired to review the more than ample evidence, facts, and more than obvious perjury.

Finally on November 30, 1881, he sat down to read. Depending on whether you're an Earp Champion or an Earp Detractor, it was either a carefully reasoned and skillfully crafted legal opinion or a blatant and shameless whitewash of an open and shut murder case.

Judge Spicer first pointed out that there was a lot of contradictory testimony which came from witnesses of credibility (you wonder if he smiled when he read this).  So he had to go on the testimony of the witnesses who were not involved in the fracas or where there was (to use the high falootin' legalism) a large "preponderance of evidence."

First, he said, it was without doubt that Ike was wandering around town, armed and looking for the Earps and Doc.   He seemed to blow off the fact that Doc started it all and didn't seem to think Ike's toting the guns around was legitimate self defense.

But he did call Virgil to task of calling in Doc to help him. Not many people disagree with that.  After all Doc really started the whole thing, and an officer really shouldn't call in a man who threatened to kill someone he's trying to arrest. Then Judge Spicer blew off his criticism by saying, well, Virgil needed some help, after all, and there was no "criminality" in this "unwise act" anyway

What seems to get glossed over by a lot of Earp Champions (and everyone else), though, is that Judge Spicer also trashed Virgil for asking help from Wyatt (!).  Again a responsible law officer doesn't ask assistance from someone who had assaulted a man you want to detain.  The judge at least seemed to remember that Wyatt did NOT, repeat DID NOT, at that time hold any official law enforcement position outside of his "special" appointment in a bar room. Now if this had been "The Gunfight at Wyatt's Faro Table in the Oriental Saloon" maybe that would have been OK.

He also addressed the issue of whether Tom was unarmed by saying it didn't matter.  If Tom didn't have a gun, he WAS one of a party of men who did.  And you ain't supposed to carry guns in town.  So tough luck, Tom.

As the judge read on he gave a lot of weight to Mr. Sills' testimony and he accepted his and Wyatt's version of who shot first.  And he bought Addie Bourland's story about no one having their hands in the air. Both of these people were unbiased, and they pretty much supported the Earps.

So the long and short of it was Wyatt, Virgil, Morgan, and Doc got off.  And at the end Judge Spicer passed the buck a bit by saying if the current grand jury that was in session disagreed with his findings they could, after all, return indictments on their own authority.

Ike decided to take up Judge Spicer's advice before the grand jury did and immediately refiled murder charges before Judge Williams - not in Tombstone but in Contention City.  Judge Williams just as promptly told Ike not to waste his time without new evidence.  Then Ike tried AGAIN (back in Tombstone) and filed charges before Judge J. H. Lucas, who ironically had been one of the last witnesses at the Spicer hearing (he saw the shootout from his office).  But the third time was NOT the charm, and Judge Lucas told Ike to forget it.

So that would be that, except for a few more murders, ambushes, revenge killings, and a writer who could spin a pretty good yarn about a former frontier lawman as long as he kept away from the facts.

But first, would't you REALLY like to know what happened at the OK Corral?