In Broad Daylight (Crime Rant Classics)

by HARRY N. MACLEAN

  Trena talked about how Ken always had a lot of money, and how life with him was so different from the way it had been at home, where they never had anything. He had lots of vehicles and furniture and guns, always lots of guns. When Ginger asked how he got the money, Trena said, “He would steal cattle, grain, anything that wasn’t nailed down and he could haul off.”

  Ginger’s two girls spent a lot of time with Trena, and after a few months, she became almost a member of the family. The Clement girls were going to high school dances and ball games, and they were learning to put on makeup and fix their hair, they would sit in front of the mirror after school for hours and talk about boys and try on eye shadow and lipstick. Trena confided in them that she was thinking about going back to school and having a normal life— getting married and having babies. She

  even began fixing up her hair and wearing makeup around the house.

  Sometimes, one of her daughters would bring a boy or two home after school, and afterward Trena would talk about what they were like. Once the two girls had a party for some of their school friends. Trena met a boy she liked, and the two of them talked and danced along with the other kids. He began coming over every now and then in the afternoon, and he and Trena would talk and watch television together. The visits seemed so good for Trena that Ginger asked the social worker if the two of them could go somewhere together, perhaps to a ball game. The social worker said no.

  15

  In November 1973, the court held a preliminary hearing on the charges of rape, flourishing a deadly weapon, and arson. Because he incidents had occurred in Nodaway County, and the charges tad been filed there, the normal procedure would have been for the local magistrate to conduct the hearing. But in this case, as in all cases involving Ken Rex McElroy, Magistrate (later circuit judge) Montgomery Wilson disqualified himself.

  Monty Wilson grew up in Skidmore, where his father worked as in officer at the bank. After obtaining his law degree, he served as city attorney of Maryville before becoming magistrate. Wilson developed a reputation as a weak and indecisive judge. According to one deputy sheriff, Wilson “had less force in his voice than an eleven-year-old girl—he had absolutely no guts at all.” He seemed to be in a constant state of vacillation—should I or shouldn’t I—on even the simplest matters in front of him. He agonized over basic objections, mumbling and holding his head in his hands. He seemed overly worried about being reversed on appeal. Many locals perceived him as being unable to crack down on criminals—he would hand down a stiff sentence and then suspend it, giving the defendant one more chance. Some lawyers thought Wilson was smart enough, while others thought he wasn’t very bright. As one lawyer put it, “The last one to argue in front of him usually won.”

  Wilson’s fear of Ken McElroy was well known. He admitted to one prominent citizen that “I don’t want anything to do with that man, or I’ll get killed.”

  Monty Wilson certainly didn’t want anything to do with the three felony charges against Ken Rex McElroy. On November 9, he issued an order disqualifying himself from conducting the preliminary examination, and sending the matter to Magistrate Clark Gore in adjoining Atchison County.

  The hearing was held in front of Gore on November 15, 1973, some five months after the crimes had occurred.

  In addition to the rape and arson charges, at which Trena was the primary witness (Alice Wood denied having seen McElroy burn the house), Magistrate Gore heard evidence on the charge of flourishing a deadly weapon.

  Russ Johnson, Skidmore city marshal and special deputy sheriff, and Trena’s uncle, testified that on June 11,1973, at approximately 11:30 p.m., he was with Ronald McNeely and Wayne Johnson when Ken McElroy approached them with a gun.

  Fraze.: O.K., did the defendant have a gun with him at that time?

  Johnson: Yes, sir.

  Fraze.: What did he do with the gun, did he point it at anyone?

  Johnson: He pointed it at me.

  Fraze.: What did he say to you?

  Johnson He told me that he was going to blow my damn brains out, that he was going to start at my feet and work up.

  Fraze.: Was this done in the presence of these other people?

  Johnson: Yes, sir.

  On cross-examination, McFadin pointed out that Deputy Johnson did not immediately arrest Ken McElroy and take him into custody for threatening to kill him, but waited four days before signing a complaint.

  McFadin called Ronnie McNeely on behalf of the defendant.

  McFadin: Now, at the time this alleged incident took place, where were you?

  Ronnie McNeely: Well, I’m not sure, I just can’t quote, but I was back some.

  McFadin: Did you ever see him take a gun and point it at Mr. Johnson?

  McNeely: I can’t say I just exactly seen it, no.

  McFadin: All right. Now did you ever see him take a gun out of the car?

  McNeely: No, I can’t say that I actually seen him take one out.

  McFadin Did you see him put a gun in the car?

  McNeely: No, not actually.

  McFadin: Did you ever see him threaten Mr. Johnson?

  McNeely: Well, no, I was standing back a ways, I can’t be sure what went on.

  For each of the three charges, the magistrate found substantial evidence that a crime had been committed and that Ken McElroy had committed it. He therefore bound McElroy over for trial.

  Prosecuting Attorney Fraze, a somewhat laconic but intelligent man in his mid-thirties, was determined to convict Ken McElroy of something. After Trena passed a lie detector test, and after the motel attendant confirmed that a man matching McElroy’s description had rented the room, Fraze filed eight additional charges of child molestation against him. Not only would each charge increase the chance of a conviction, but molestation charges would be easier to prove. Fraze was a little uneasy about the likelihood of success on the rape charge with a rural jury, mainly because the victim had been staying with the defendant and, by her own admission, had had intercourse with him previously on numerous occasions. But anyone who took indecent or improper liberties with a person under the age of eighteen was guilty of child molestation, whether the child consented to the act or not.

  The new charges, filed in February 1974, alleged that on eight separate occasions during 1971, 1972, and 1973, Ken McElroy “. . . did then and there willfully, unlawfully and feloniously detain and divert one Trena Louise McCloud, a minor of the age of fifteen years with intent to indulge in degrading, lewd, immoral and vicious acts and practices and take indecent and improper liberties with said minor by diverting and transporting said minor from Nodaway County, Missouri, to the City of St. Joseph, Missouri, with the intent and purpose of: having sexual intercourse with said minor; exposing his private parts to said minor in an

  obscene and indecent manner; and by language suggesting a lewd and indecent act, to wit: sexual intercourse and fellatio, and thus and thereby did annoy and molest said minor, contrary to the form of the statute in such cases made and provided . .

  Had the criminal justice system dealt with these twelve felony charges at all expeditiously, Trena might have held. But it didn’t. First, on the motion of the defendant, the cases were transferred to other counties—the rape, arson, assault, and weapon cases to Gentry County, and the molestation charges to Platte County. There they languished. At least three different trial dates were set for the various cases, and each time the court granted continuances. Finally, the first four charges were set for trial on October 24, 1974, some seventeen months after the alleged crimes, and the molestation charges were set for November 25, 1974, some two and three years after the alleged crimes.

  In 1974, when Trena had been with the Clement family for about a year, the social worker called Ginger and said that Trena would be leaving. The woman didn’t say why or where, but Trena told Ginger she was going to her grandmother’s house, and Ginger suspected the trial might be getting near. Trena assured Ginger that she didn’t want anything more to do with Ken McElroy, bu
t Ginger was apprehensive. Although the girl seemed to be getting stronger and was beginning to laugh and relax like a normal teenager, Ginger had a feeling that she wasn’t quite ready to leave, that she really needed to stay with them a little while longer.

  Trena’s grandparents had come to Maryville seeking to take Trena home with them. They convinced the welfare department and the judge to allow her to return with them to Whiting, Kansas. But Trena wasn’t happy in her grandparents’ home. Without her mom and dad, her brothers and sisters, or her friends, Trena felt as if she had no one to turn to. After a couple of months, feeling very alone, she called Ken and asked him to come get her. He gladly complied.

  Lawyer Gene McFadin was sitting behind the desk in his well- appointed law office in Kansas City one morning that summer when he felt a presence in the room. He looked up and was startled to see the bulk of Ken McElroy standing by the wall, not more than ten feet away, looking at him. He buzzed his secretary: “Ken McElroy is in my office,

  which is OK, but you know nobody is supposed to come in unannounced.”

  “But, Mr. McFadin,” she protested, “we haven’t seen Mr. McElroy this morning.”

  “How do the cases look?” McElroy asked, getting right to the point.

  “They’re tough cases,” McFadin replied. “Going to be hard to

  win.”

  “What happens if I marry Trena?”

  “Well,” said McFadin, “then she can’t testify against you and they would have no case.” McFadin thought for a second. “But you got a problem, Ken—you’re already married.”

  A few days later, Sharon McElroy came to see McFadin. “Ken will give me a divorce,” she said, “and I want you to handle it.” McFadin considered for a moment whether he had a conflict of interest, decided he didn’t, and set to work.

  McFadin obtained Sharon’s divorce in Richmond, Missouri, freeing McElroy to marry. The question was where? First choice was a little town in Oklahoma, but the judge there refused to perform the ceremony because Trena was only fifteen. McFadin suggested Las Vegas, but McElroy said he couldn’t fly because his head injury left him susceptible to serious nosebleeds. The marriage would have to be in Missouri.

  “Ken,” McFadin said to him, “Trena’s underage in Missouri. She’ll have to have her parents’ consent to marry you.”

  On October 20, Treva McNeely showed up in McFadin’s office and explained that she would consent to her daughter marrying Ken McElroy. McFadin had Treva write out and sign a notarized statement giving her consent to her daughter’s marriage. Treva also signed a notarized statement that there was no coercion involved, and that she was voluntarily agreeing to the marriage.

  McFadin had located an elderly judge in Plattesburg to perform the ceremony, and on the same day, October 20, Ken and Trena were married. McFadin witnessed the ceremony.

  Prosecuting Attorney Fraze was sitting in his office on that day four days before the rape case was due to be tried, when he received a phone call from McFadin. Wrinkling a piece of paper close to the mouthpiece, McFadin said, “Hear that? It’s a marriage license for Ken McElroy and Trena McCloud.”

  Stunned to hear that his only witness, his victim in eleven felonies, had

  married the accused, Fraze said simply, “I can’t believe it.” McFadin assured him it was true and promised to send him a copy of the certificate.

  Both McFadin and Fraze assumed that eleven of the felony cases —all but the flourishing-a-deadly-weapon charge—collapsed when McElroy married his victim. As a matter of law, that assumption was not necessarily correct. Like most states, Missouri recognizes the husband-wife privilege, which provides in general that a person may not testify in a court of law against his or her spouse. But Missouri, as most states, also recognizes several exceptions to this rule: One of them provides that a spouse is not prohibited from testifying about crimes committed by the other spouse against him or her.

  Thus, theoretically, Fraze could have continued to prosecute the cases. But his real problem was practical, rather than legal. What would the jury think when the victim got up and testified that she had been raped by the defendant, but had married him a year later?

  Fraze could have explored other avenues to save his cases. He could, for example, have filed a motion for a hearing, brought the circumstances to the attention of the court, and asked that a guardian ad litem be appointed for Trena; then he could have attacked the validity of the marriage, arguing that it was a continuation of the crime itself, that McElroy was attempting to conceal the crimes by marrying the victim. Under this argument, the judge could have invalidated the marriage as a blatant fraud on the court, entered into solely for the purpose of defeating the criminal action.

  Such an attack would have been difficult, and what probably made it impossible was a statement executed and sworn to in McFadin’s office by the victim-wife, in which she said:

  I do not wish to engage in any criminal or legal actions against Kenneth McElroy; that any and all accusations that I made against any improper or criminal conduct between Mr. McElroy and myself were made because of my feelings of frustration and jealousy toward Kenneth McElroy; that all such accusations were untrue. That I fully understand the consequences of my acts, but said accusations were made when I was under considerable mental anguish and I do not feel I was fully responsible for said accusations. This statement is

  100 Harry JV. MacLean

  true. I do desire that the charges against Mr. McElroy

  in which I am the prosecuting witness be dropped.. The above

  statement is true to my best knowledge and belief.

  Trena L. McCloud

  As Alice Wood and Marcia Surritte had done in the Savannah cases, Trena claimed, in recanting the felony charges, that her motivation in bringing the charges had been jealousy and frustration.

  Fraze was baffled by Trena’s turnabout, but did not in good conscience feel that he could proceed with the prosecutions. On October 24, 1974, he filed papers dismissing the eleven felony charges. The twelfth one—flourishing a weapon—went to trial some time later in Gentry County. A key prosecution witness could not be found for the trial, and McElroy was acquitted after trial by a jury. McElroy’s rule—no witness, no case—had been elevated to the status of a criminal commandment. At this point a total of nineteen felony charges—occurring in Buchanan, Andrew, or Nodaway counties between 1970 and 1973—had been dismissed or resulted in an acquittal because the primary witness declined to prosecute, changed his or her story, or became unavailable for one reason or another.

  Once the rape, arson, and child molestation charges had been dropped, the prosecutor and the juvenile officer washed their hands of the whole matter. In their view, they had tried to protect Trena as best they could, and if she chose to run off and marry McElroy, that was her business, and so was whatever happened to her afterward.

  Ginger Clement felt bad when she heard about the marriage. Remembering Trena’s descriptions of what Ken had done to her, she could only wonder what he had done to get her to marry him. Ginger would never believe that this was what Trena really wanted, and she often felt things might have turned out differently if she had only been able to keep her a little longer.

  Shortly before the marriage, Ken explained the situation to Alice: He had to marry Trena to avoid going to jail, and Trena had made him promise that she would be the only woman living at the house. He knew Alice was going to be mad about it, but there was nothing he could do. But Alice wasn’t mad; whatever love remained had vanished when he

  split her face open with a gun barrel. In fact, she was beginning to wonder why she had stayed around as long as she had. If anything, the drinking, the violence, and the obsessive streak in him had gotten worse. “You go your way and I’ll go mine,” she told him genially.

  Alice left and moved to Maryville with the two kids, and took up hairdressing as a means of support. On September 20, 1975, eleven months after Ken and Trena were married, Alice gave birth to Ken, Jr. So
me things were apparently easier said than done.

  McElroy’s triumphs shook the three small towns of Skidmore, Graham, and Maitland. For the first time, it had been their system going after him—their cops, their prosecutors, their judges—and for whatever reason, the system had failed.

  16

  Ken McElroy was a thief by profession. He stole everything he could get his hands on: pigs, cattle, dogs, grain, chemicals, antiques, tools, parts, and guns. His friends and family claimed he made a living raising hogs, growing corn, and buying and selling antiques. But most people never took that story seriously, and they probably weren’t meant to. Any farmer in the area could tell you that the McElroy farm wasn’t a true crop-producing farm: The land hadn’t been cleared right or terraced where it should have been. He always had a few hogs on the place, but aside from their questionable origin, never enough to support a family. Ken McElroy wasn’t a farmer, and he surely would have cringed at the image of himself as a farmer. Ken McElroy hated farmers.