"Put that thing away and just calm down.”
McElroy began talking about Russ Johnson again, cursing Russ for pulling a gun on him.
“Did he pull it on you?” Dunbar asked. “Or did you pull it on him?” Dunbar had heard two different versions of the incident.
The gun swung back, and McElroy said, “Goddamn it, if I’d pulled it on him, he’d be dead right now! Let’s get in your fuckin’ car and go down there and call him out and I’ll shoot him right on his front step!”
Dunbar heard a step behind him, and his heart jammed up in his throat. David, he thought, what the hell are you going to do now?
McElroy was standing next to the open door on the driver’s side of the pickup, and Dunbar figured he could smack him with a left, knock him into the seat, and grab the gun and run. Of course, that would leave Trena still holding a shotgun to the back of his head. Dunbar’s mind whirred wildly, and his body tensed for action. Then, for some reason, McElroy seemed to calm down. Dunbar noticed some activity on the sidewalk, people walking by.
“Let’s go get a beer,” McElroy said.
Sensing a setup of some sort, Dunbar declined.
The rifle swung up again, and Dunbar pushed it away again. The only way out was to simply walk away.
“Now you just calm down,” he said. “I’m going on my way.”
Clenching his teeth, he turned and walked past Trena. She had backed up a few feet and was standing with Tammy beside the green Dodge pickup. Dunbar could see the pump shotgun lying on the seat.
“You women take it easy,” he said as he walked by.
Trena and Tammy just looked at him.
He got in his car, checked the .357 Magnum under his seat, and radioed the Nodaway County sheriff’s office. Dunbar told the dispatcher that McElroy was drunk, that he was pulling guns on people, including himself, and he was going to kill someone. More than two thousand people were in town for the Punkin’ Show, and something very unfortunate was likely to happen if the cops didn’t get McElroy off the streets, at least for the night.
“Don’t provoke him,” the answer came back over the radio. “If we arrest him, he’ll just be back on the streets in two hours. Just observe him and make sure he doesn’t kill anybody.”
“You mean you’re just going to let him run around loose tonight?” Dunbar asked incredulously, his anger beginning to rise.
“There’s nothing much we can do, marshal. Just keep an eye on him.”
Dunbar dropped the mike on its hook. To hell with it, he thought. If I’m not going to get support from the county sheriff. I’m getting the hell out of it. Dunbar had no intention of taking on McElroy alone, not for $240 a month, maybe not for anything a month.
A few minutes later, while he was sitting in the car recovering, Dunbar saw the two McElroy trucks drive by, heading east out of town. He knew that Ken McElroy had heard the entire conversation on his scanner. The law might as well have issued him a license to roam and ravage at will.
Monday morning, Dunbar walked over to city hall in the converted gas station, turned in his badge, and formally resigned as marshal of Skidmore.
News of the incident in the drive began to spread around the community on Sunday, but not until Monday morning, when word of the resignation spread, did the reaction set in: Incredulity, outrage, and fear greeted the revelations that a person out on bond for shooting an unarmed man could come to town a few days later, point a shotgun at the marshal, and threaten to kill him if he testified, and nothing happened, except that the marshal resigned.
Most people didn’t blame Dunbar. He wasn’t a trained lawman. He had been hired to keep the peace, to deal with vandalism and loose dogs and cars speeding down the main street. Nonetheless, with his badge and his gun, he had been the law. Now, nothing stood between the community and Ken McElroy, and the wait-and-see attitude of most people began to give way to feelings of helplessness and isolation.
As the date for the preliminary hearing drew near, the residents wondered how the formal judicial system would deal with Ken McElroy this time. Would the witnesses show up? If they showed up, would they change their stories? Would new witnesses appear from nowhere? Would McElroy get to the jury?
The real question was whether Bo would hold up. He was a nice old man, but was he tough enough? Could he handle McElroy harassing him outside the court and McFadin, the Kansas City lawyer who could turn
witnesses upside down, working him over in the courtroom?
McElroy also understood that Bo was the key. McFadin could probably delay the trial for at least a year—a long time for a sick, old man. Maybe he would die, or his memory would fail. Maybe he would simply move away to another town in another state. Without Bo, McElroy would have no problem.
So McElroy did not idly pass the days before the hearing. He fired no more shots, but he did plenty of cruising and glaring and staring. Lois would look out the front window of the store and see two McElroy trucks parked across the street facing the store. They would sit there for hours, Ken in one truck and Trena in the other, staring at the front of the B & B. At closing time, Lois and Bo would walk out and get in their car under McElroy’s fixed gaze. Shortly after arriving home, they would hear the rumbling engines as the two trucks, sometimes joined by a third one, rounded the corner from the south and crept by their house.
A customer at Sumy’s station was startled one afternoon, when he looked up and saw four McElroy trucks cruising up the main street. McElroy backed his truck into a space directly across from the grocery store, another truck parked in front of the bank, the third parked about thirty yards south in front of the hardware store, and the fourth parked twenty or thirty yards south of McElroy on the same side of the street. Carrying a shotgun, McElroy got out and walked to the front of his truck. When he pointed the gun at the front door of the grocery store, the customer figured that McElroy was going to blow the place to pieces. McElroy stood there for about five minutes, got back in his truck, and pulled out, heading south. The other three trucks fell in behind him.
The pressure began to wear on Bo and Lois. Business at the store continued to drop off; as long as McElroy’s truck was parked near the store, nobody would come in.
Although her parents tried to be understanding, Cheryl Brown was less forgiving. The terror she had felt since the day McElroy shot her dad continued to affect every moment of her life. If her husband went to sit with Bo and Lois, Cheryl was nervous about being alone with the kids. Sometimes, when she was planning to visit her dad, her mother would call to say that McElroy was parked out front, and she shouldn’t bring the kids to town. More than once, she looked in her rear-view mirror and saw the green Chevy following at a distance. Every sound in the night
would jerk her bolt upright in bed, and she would grab a shotgun and prowl the house. And watching the physical and emotional strain on her dad wrenched her daily.
Whenever anyone blamed the Bowenkamps for inciting McElroy, Cheryl would snap, ‘‘OK, we’ll move back to Nebraska, but we’re not taking him with us.” That seemed to put matters in a different light for them.
McElroy didn’t let up on Dunbar either, even after he resigned. The phone would ring at Dunbar’s home, and McElroy would say, “Dave, why don’t you come over to the house? I’ve got some friends here from Kansas City I’d like you to meet.” Dunbar didn't know whether it was a joke or a setup. Sometimes, he would be sitting in his front yard at night, and the trucks would come by. First, he would hear them, then he would see them creeping along with their lights out, guns silhouetted in their rear windows, McElroy in the lead, the women following behind. On those nights, nobody spoke a word.
27
The preliminary hearing began on the afternoon of August 18, 1980, at the Nodaway County Courthouse in Maryville. McFadin was there to represent McElroy, and Robert Nourie was the prosecutor. Presiding was Judge John Fraze, the man who five years earlier had been ready and anxious to prosecute Ken McElroy for rape, child molestation, assa
ult, and arson. Now, the alleged victim of three of those crimes sat in the first row, wife of the accused and mother of three of his children. On the other side of the aisle sat Lois, Bo, Evelyn Sumy, Cheryl, and Cheryl’s sister. They were nervous and scared, but they were there. A state trooper had spent most of the previous night parked in the Bowenkamps’ driveway.
The purpose of the preliminary hearing was to determine whether a crime had been committed and whether there were reasonable grounds to believe that Ken McElroy committed it. Bo’s presence in the courtroom, unless he were to repudiate his former statements, made the outcome of the hearing predictable, because an eyewitness identification normally provided reasonable grounds for believing that the defendant had committed the crime.
The preliminary hearing would also give McElroy his first real look at the prosecution’s case. McFadin would have his first opportunity to try to wear Bo down, to shake him up, and to develop inconsistencies to use against him at the trial. Because of McElroy’s Fifth Amendment right not to incriminate himself, he would not be required to testify or make any statements to the prosecution. The prosecutor would hear
McElroy’s story for the first time —if he heard it at all—at the trial.
The only two witnesses were Bo and Sheriff Estes. Nourie called Bo to the stand and explained to the court that because of the injury to Bo’s neck, his voice might sometimes be difficult to hear. Several times during the course of the hearing, Nourie and McFadin had to ask Bo to speak up or repeat his answer. Once, the effort brought him close to tears.
In response to Nourie’s questions, Bo told about sitting in the chair on the loading dock, waiting for the repairman, and noticing McElroy in the Chevy pickup across the street. Shortly after 8 p.m., Bo said, McElroy drove up to the dock in his truck, then got rid of the boys standing around and came back to the dock. Bo walked into the store to get a knife to cut up the boxes and turned around to see the shotgun: “The only thing I know is I was looking down two barrels, and I was debating with myself, is he going to scare me or is he going to shoot. As I studied it over, and I run in my mind he might shoot, I fell sideways, and he got me right here.”
Under Nourie’s questioning, Bo repeated that he had been standing about three feet inside the door and fell to his right to avoid the blast. McElroy had been standing about eight feet away. Bo also identified the shotgun blast as the cause of the scars on the left side of his neck.
On cross-examination, McFadin tackled the two vulnerable parts of the prosecution’s case—the knife and Bo’s location. Bo described the knife as a long-bladed butcher knife used only for cutting cardboard. McFadin came back time and again to Bo’s location.
“Isn’t it possible you took two or three steps backward after you were shot?”
Bo held firm. “No, I was two or three feet inside the door.”
Bo admitted telling McElroy that the drive was private property and to get off it. He also acknowledged that he didn’t actually see what McElroy gave the boys or hear what he said to them.
Estes’ testimony was brief. He recounted his investigation of the scene and stated that he had recovered seven or eight pellets from the ceiling. The pellets had penetrated the ceiling tile in a two-foot-wide pattern about seventeen feet inside the doorway.
McFadin moved to dismiss the charge against his client, but Judge
Fraze denied the motion and found that there was reasonable cause to believe that McElroy had committed the crime of felony assault in the first degree. The judge ordered McElroy bound over for trial, continued the bond, and set the next court date for September 5.
Nourie, citing the strong possibility of intimidation, asked the judge to order McElroy not to have any contact with either of the Bowenkamps. Judge Fraze granted the request after being assured by McFadin, “as an officer of the court,” that there would be no intimidation by his client.
When Trena and McElroy walked down the aisle, the Bowenkamps remained seated, and six troopers stood like a shield between the two families.
That day provided one of the few heartening moments for Bo and Lois. With the next court date less than three weeks away, perhaps the system would finally work.
The next order of business, from McFadin’s point of view, was to get the case transferred out of Nodaway County. Accordingly, three days before McElroy was due in court to enter a plea, McFadin filed a motion for a change of venue.
Venue, the Latin word for “place,” meant the location in which the trial would be held. In criminal law, venue normally lay in the county or district where the crime occurred. One obvious reason for this was that the community where the crime took place had the most direct interest in seeing the matter brought to trial and justice done.
At the same time, the Sixth Amendment granted the defendant a right to a trial by an impartial jury—a jury that would decide the case strictly from the facts presented at trial and not from bias or prejudice. The courts in many jurisdictions had held that where pre-trial publicity was so egregious and inflammatory as to prevent any twelve jurors from being able to put aside their opinions and decide the case only on the facts, the defendant’s right to a fair trial would be violated. But these courts had cautioned that neither pretrial publicity nor widespread knowledge of the defendant’s criminal past was sufficient, in and of itself, to render a trial unfair. If the defendant could show that a “circus-like atmosphere” had developed to such an extent that no juror could be unbiased or fair, the case would have to be moved to another jurisdiction.
The law in most jurisdictions thus attempts to strike a balance between
the interests of the offended community in administering justice and the interests of the defendant in receiving a fair trial. In Missouri, however, the law regarding venue created a tremendous imbalance in favor of the defendant. By statute, in counties of fewer than 75,000 people, if a defendant filed a petition supported by affidavits of “five or more credible, disinterested citizens residing in different neighborhoods of the county” saying that a fair trial would be impossible, the judge had to grant the change of venue. Even if no affidavits were attached, a judge who believed the allegation to be true could grant the request without any actual proof.*
McFadin filed his motion for a change of venue on September 2, 1980, and argued it in front of Judge Wilson on September 5, the day that had been set for a plea hearing. The motion was simple and straightforward. Ken McElroy swore under oath that he could not receive a fair trial in Nodaway, Atchison, Holt, Andrew, DeKalb, Grundy, or Clinton counties, because the inhabitants of those counties were biased and prejudiced against him. The motion did not mention pre-trial publicity, of which there was very little, nor did McElroy state why the citizens of a seven-county, 250-square-mile area were biased or prejudiced against him. No affidavits by “disinterested citizens” were attached to support the request.
Based on McElroy’s allegation, Judge Wilson, probably with relief, granted the request and transferred the case to Bethany, the Harrison
* In 1982, the Missouri Supreme Court went even further, adopting a rule that in communities of 75,000 or fewer inhabitants, a change of venue would be granted automatically to any defendant who asked for it. “The defendant need not allege or prove any reason for change. The application need not be verified and shall be signed by the defendant or his attorney.” Thus, the court delegated to the criminal defendant the absolute right to move the location of the trial. By simply filing a slip of paper, the defendant could deprive the community of the opportunity to judge and punish its own offenders. The state supreme court also adopted a rule allowing the defendant to obtain a new judge merely by asking for one. The defendant did not have to state any reason why the judge should be disqualified. To avoid a judge who, for example, had a reputation for meting out tough sentences, the defendant need only to file a written application. Thus, the defendant controlled not only where the case was heard, but who heard it. The community had no say in the decisions.
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sp; County seat, some eighty miles east of the community where the crime had occurred.
The third tilt in favor of McElroy lay in the discovery procedures allowed by law in Missouri. By statute and state supreme court rule, the defense could issue subpoenas and take the oral deposition of “any person” in accordance with the rules of civil procedure. The defendant, however, was protected by the Fifth Amendment from being compelled to testify against himself, and thus the prosecution was not entitled to take his deposition. The state, upon permission of the court, could take depositions of persons other than the defendant and his spouse, but only for the purpose of preserving the testimony of witnesses who might be unavailable at trial. If depositions were allowed, the court had to enter orders guaranteeing that the rights of the defendant would not be violated in the process. Finally, the state was required to pay the travel expenses of the defendant and his attorney incurred as a result of the state’s depositions. One result of these one-sided discovery procedures was that the defense was in a far superior position to uncover the prosecution’s case (and devise ways to rebut and impeach it) than the prosecution was to learn the defendant’s case.
In Broad Daylight (Crime Rant Classics) Page 22
