In Broad Daylight (Crime Rant Classics)

by HARRY N. MACLEAN

  This unlimited right to take depositions also provided the defendant with a ready-made excuse to delay the trial by claiming that discovery hadn’t been completed. If he couldn’t locate a witness, for example, the defendant would be entitled to a continuance in order to locate him and take his deposition.

  McFadin wasted no time in starting the discovery process. On the day Judge Wilson transferred the case to Harrison County, McFadin sent Nourie a Request For Discovery, asking for any reports or statements by experts; any books, papers, photographs, or other evidence the prosecution intended to introduce; and the names and addresses of all persons the prosecution intended to call as witnesses at the trial. Five days later, Nourie responded, listing twenty possible witnesses, including Bo and Lois Bowenkamp, the four teenage boys, troopers Richard Stratton and Alvin Riney, David Dunbar, Eldon Everhart, Evelyn Sumy, and Dr. E. R. Wempe. Within days, McFadin had issued subpoenas to all the people on Nourie’s list, requiring them to make themselves available for sworn depositions. In response to the prosecution’s request for

  disclosure, McFadin replied with a list that repeated verbatim the witness list Nourie had given him. Absent from the list, of course, was the name of McFadin’s client, although McElroy would be called to testify at the trial.

  The majority of the depositions were conducted in a small room off the prosecutor’s office in the Nodaway County Courthouse. In addition to the witnesses and the attorneys, a court reporter and Ken McElroy were present at each deposition. As the four teenage boys answered McFadin’s questions under oath, McElroy stared across the table at them.

  To ensure that decisions involving life and liberty were made through the dispassionate application of principles of law to the facts of each case, the judicial process was insulated from the rest of society. An intricate set of rules and procedures had been designed to immunize the process from contamination by outside influences. The courtroom became an arena in which each side struggled to prevail, using every allowable procedure and technique in a strategy of controlled combat. The assumption was that if the fight were fair, truth and justice would prevail in the end. The judge’s job was to ensure that the fight was fair, that all the rules were observed and the procedures followed. Like the lawyers, the judge bore no moral responsibility for the outcome of the trial as long as everyone played by the rules. The jury, after watching the struggle staged for its benefit, would make the judgment of guilt or innocence, turning thumbs up or thumbs down on the defendant.

  The focus was on process, the critical assumption being that the correct substantive result would occur more often than not if the right process were followed. The purpose of this artificial environment—fair treatment for the defendant—was certainly laudable, but often the results were not. Some judges became remote authoritarians who felt no accountability to the community at large, and juries were often asked to make complex decisions on incomplete, sanitized facts. What often fell outside the constricted vision of the judge and the jury was the very cornerstone of the system—the community.

  The case of the State of Missouri vs. Ken Rex McElroy was assigned to Judge John Morgan Donelson, Circuit Judge of Harrison County. Donelson was known for being very formal and concerned with proper

  procedures in his courtroom. He showed little warmth and rarely smiled. Lawyers considered him a good judge because he was intelligent and ran his courtroom with a firm hand, but he also had a monumental ego that reacted strongly whenever he perceived a challenge to his authority. He was the judge, and you weren’t, so to speak.

  Donelson showed promise of being the perfect judge for Ken McElroy’s trial, a judge who would run the show by the book and suffer no shenanigans from the lawyers. His isolation from the community he was supposedly helping to protect would only become apparent as the case worked its way through his courtroom. His first judicial act in the case was to schedule the trial for December 5, 1980. If the date held, McElroy would be called to account for his behavior some five months after the shooting—certainly not swift justice in the eyes of the people of Skidmore, but not unconscionably slow, either. The community geared themselves psychologically for a resolution on that date.

  McElroy’s two appearances in court seemed to inflame his obsession with his enemies and to incite even more flagrant and provocative behavior.

  Corporal Stratton came home from work one day in early September to hear a strange story from his wife. The other unit in their duplex was for rent, and she had noticed a couple apparently interested in the unit sitting in the driveway in a brown Buick, staring at the building for hours.

  Stratton asked what the couple looked like. The man was older, Margaret said, heavy-set, dark with black hair, and the woman was younger, a washed-out blonde.

  Stratton didn't say what he thought—he just told her to get the license number the next time the Buick showed up.

  The following week, the car appeared in the driveway again. This time, Margaret stepped out on the deck overlooking the driveway and wrote down the license number.

  “Would you know the man if you saw pictures of him?” Stratton asked her.

  She would.

  The next day, he ran the license number through the computer and picked up five or six photos, including one of McElroy. That evening, he dropped the photos on the dining room table and asked Margaret if she

  recognized any of them. She picked out McElroy immediately.

  The brown Buick appeared in the drive again the following week, and Margaret walked out onto the deck for a closer look. Through the windshield, she could see a can of Budweiser in McElroy’s left hand and a shotgun lying across his lap. McElroy looked up, white quarter-moons glistening beneath his dark irises, and held her gaze.

  As the calls and appearances continued, Margaret grew increasingly upset. Stratton became concerned as Margaret’s anxiety increased. He thought about filing a formal complaint with the prosecuting attorney alleging intimidation of a witness, but wondered whether he could prove the charge. McElroy always came when Stratton was away and left before he got home. It would be their word against his.

  On the first Sunday in September, Tim Warren was outside playing ball with his son, when the phone rang. Warren ran inside to answer it.

  “I’m tired of warning you and telling you,” said the familiar male voice. “I’m going to come over and castrate you, and then I’m going to cut your little boy up in pieces and feed him to you while you’re laying there bleeding from the castration, we’re going to send you pieces of your wife’s body in an envelope, and you’re going to know that we’re killing her bit by bit. It’s too late now, you fat son of a bitch, you pushed me too far.”

  “You’re so brave on the phone,” Warren practically yelled. “And I’m tired of your threats. If you’re so brave, I’m going to set my little boy and my wife on the porch right now, and you come on and try and get them. You want to use knives, we’ll use knives, you want to use guns, we’ll use guns. But I tell you what, you’re not going to walk away alive if you show up!"

  No one came and the calls stopped, for a while.

  Word of the Stratton and Warren incidents made it to the cafe and the tavern, and from there to the families and the farms, causing new fears to ripple through the community.

  On September 13, Ken and Trena McElroy loaded six of his best hounds into the cages in the back of the green Chevy and headed out to a meet in Bruckner, Missouri. After stopping for lunch in St. Joe at the Dinky Diner, Trena was backing the Chevy out of the parking lot onto 6th Street, when an old Dodge swerved to avoid hitting them. A young woman was behind the wheel, and in the passenger seat her ex-husband held their six-month-old son. Their two-year-old daughter sat in back. The woman honked her horn, yelled “asshole!” out the window, and gave Trena the finger. As the Dodge sped away, the Chevy took up the chase and tried to cut it off several times. After four or five blocks, Trena stopped the truck, and McElroy came around to the driver’s side and climbed in behind the w
heel. The pickup flew down the street and pulled ahead of the Dodge and swerved into it, bashing its left front fender.

  McElroy came out of the truck and headed for the man in the Dodge. Trena headed for the woman and began swearing at her. When the man emerged from the car, McElroy went back to the truck, brought out the shotgun, and strode back to the car. By this time, the police were on the way.

  Sergeant Jake Rostock, the officer who had answered the call when McElroy fired a shotgun into the floor of the tavern to terrorize Otha Embrey, was only a few blocks away when he got the call about a man with a shotgun threatening people in the street. When Rostock pulled up, he recognized the driver of the truck as Ken McElroy and the passenger

  as McElroy’s wife. Rostock could see the weapon, a model 916 Eastfield 12-gauge, sawed off to nineteen inches, lying on the dash, the barrel pointing out the driver’s window. Knowing that McElroy was fully capable of picking up the gun and blowing him away, Rostock pulled out his .357 Magnum, aimed it right in the middle of McElroy’s forehead, and approached the pickup in a crouch, his heart thumping in his ears.

  “Kenny, you’re under arrest, and if you touch that gun I’ll blow your fuckin’ head off!”

  Rostock reached in the window and grabbed the shotgun, keeping his pistol leveled on McElroy’s forehead, then backed off a few feet and waited for help to arrive. After McElroy had been cuffed and put in a patrol car, Rostock checked the shotgun. The safety was off, one round of 00 buck was in the chamber, and three rounds of 00 buck and one round of deer slugs were in the magazine. Under the seat of the Chevy, he found a large corn knife and a bottle of Jack Daniel’s.

  Next, Rostock talked to the man in the Dodge. He was small— about 5 feet 5 inches and 135 pounds. He shook as he told Rostock what had happened. “The guy told me he was going to blow my fuckin’ head off!”

  The woman was hysterical, telling Rostock that the lady in the truck had been yelling and screaming that she was going to “whip her ass.”

  “He pointed a gun at us,” the woman told him. “He said he was going to kill us. My children were in the car, and that’s not right! Who is going to pay for fixing my car?” She went on and on, crying.

  Rostock thought they looked like poor folks, welfare types, and he doubted they would stick to their guns. He wouldn’t be surprised if their stories changed before the day was out.

  After being arrested, McElroy seemed to worry most about his four expensive coon hounds. He demanded that they not be put in the pound, where they might catch a disease, and he insisted that they stay in the truck parked in the shade and be watered every couple of hours.

  Rostock drove McElroy to the station, and Trena drove the truck. While waiting for McElroy to be processed, Rostock noticed Trena becoming acquainted with the victims and heard her apologizing to them for McElroy’s behavior.

  A felony complaint was filed that afternoon charging McElroy with violating state law by “exhibiting a deadly weapon, to wit a shotgun, in a rude, angry and threatening manner.” If convicted, McElroy would face five years in prison. McElroy could also have been charged with carrying a loaded weapon in public, a violation of a St. Joe ordinance, but he was not. The magistrate released him on a $10,000 bond that afternoon and set the preliminary hearing for the following Monday. At the time, the officials were not aware that McElroy was already under a $30,000 bond in Nodaway County.

  Notice of the arrest appeared in the Sunday St. Joseph Gazette. By Monday morning, the incident was cafe talk in Skidmore. Although the details were skimpy, the farmers knew that McElroy had been busted for pulling a shotgun on someone in St. Joe and had been out on bond before the sun had set. They debated the implications: Would this cool him down or only make him worse? Could he go to jail for violating his bond in the Bowenkamp case?

  Assistant County Attorney Dean Shepard was assigned to prosecute the St. Joe case. By midmorning on Monday, he knew he was in trouble. He had heard that McElroy had told the couple in the Dodge that any person who would testify against a friend ought to have his house burned down. And McFadin had sent his investigator around to talk to the victims on Sunday afternoon.

  On the day of the incident, the woman gave the following statement:

  He [McElroy] jumped out of the truck and came over to the passenger side of my car where my husband and baby were. He started cussing and pointing his finger at us. A white female came out of the passenger side of the pickup and came over to the passenger side of my car. The girl and the man were cussing at us. My ex-husband Pat got out of the car and the man and Pat were yelling. The man started walking toward Pat and Pat was backing away from him. The woman came over to my side of the car. She told me if I had anything to say to get out of the car. I kept asking her why did you hit my car. Then the man went back toward the pickup. I didn’t watch him to see what side of the truck he went to, but when I saw him he was walking toward my car from the truck. He was carrying a rifle-type gun in his hand. He was holding it in

  both hands above his hip and he had it pointed directly at Pat, my ex-husband. The man stopped in front of Pat about four or five feet from him. He still had the gun pointed at Pat’s stomach.

  In his statement, the man said that when McElroy came at him with the gun, he backed off, saying he didn’t want any hassle. While McElroy hadn’t pointed the gun directly at him, he had waved it around in the air.

  At the hearing on Monday, both of the victims testified that they had not been scared by McElroy; he had not intimidated them, nor had he approached the vehicle in an angry manner. The woman testified that she had not seen McElroy point the gun at her ex- husband, and the man said McElroy had been holding the shotgun with the barrel pointing down. Nevertheless, because of Rostock’s testimony, the judge bound McElroy over for trial and a date was set for December 12, 1980.

  The felony complaint in St. Joe was transmitted to Nodaway Prosecuting Attorney Nourie on September 19, and Nourie filed a motion in Judge Donelson’s court to revoke McElroy’s bond. The hearing was set for October 2, almost two weeks away.

  Meanwhile, the pot was boiling in Skidmore. McElroy came to town every day and usually stopped at the tavern, leaving at least one backup outside, engine running. He would sit at the bar, drinking and talking about what he was going to do to Bo: The next time, McElroy said, he was going to do it right; he was going to kill Bo, and there would be no witnesses. The tavern would empty in a few minutes, leaving McElroy alone with bartender Red Smith. McElroy would sit and stare at Red, drilling holes into his mind, and Red would wonder what McElroy was going to do next.

  In desperation, Lois wrote to everyone she could think of, seeking help. Her state representative, Truman Wilson, forwarded her letter to the Missouri Department of Public Safety. The department’s executive director, F. M. Wilson, wrote back that McElroy had a record of arrests dating back to the 1950s, but that he had never been convicted. Wilson offered no assistance. Senator Eagleton sent Lois a letter stating that the problem was a matter for state law enforcement, and that he did not intend to interfere in the affairs of the state attorney general. The attorney general responded that his office had no jurisdiction, that McElroy’s actions were a matter for local law enforcement. Governor Teasdale

  didn’t bother to respond at all.

  One night during this period, a thief broke into a feed and chemical store in Tarkio, a small town about forty miles northwest of Skidmore, and took chemicals worth about $20,000. In the report over the police radio, the highway patrol identified McElroy as the chief suspect. In an angry letter to the patrol, McFadin complained about his client’s name having been broadcast on the air in connection with a burglary, and he demanded an apology. The patrol sent an ambiguous letter to McFadin stating that it wasn’t aware of the incident but would call his letter to the attention of all patrolmen. McElroy took the patrol’s response as an apology and was proud of the letter; he carried a copy with him everywhere and showed it around. In the tavern, he would wave the docum
ent in the air and brag and laugh about the great highway patrol apologizing to him. “See this?” he would say. “The patrol says I ain’t done nothing, that I been a good boy!”

  To the townspeople, he was becoming invincible, untouchable, like some creature in a nightmare or an ancient myth. Their fear made him even stronger.

  McFadin was busy taking depositions and preparing for the Bowenkamp case. He focused on the four teenagers because their testimony supported the element of premeditation in the shooting and undermined McElroy’s claim of self-defense. The first boy, frightened that McElroy would come after him, changed his story. Under oath at his deposition, he said he had been fetching a bicycle tire from behind the pool hall and had not been there when McElroy approached the other boys.