In Broad Daylight (Crime Rant Classics)

by HARRY N. MACLEAN

  The second boy said that although it was customary for McElroy to give them money for pop, he had always done so inside the tavern. This time, the boy said, McElroy—after talking to Bo— gave them $5 and told them to go inside. In responding to Nourie’s questions, the boy said that he had talked to McElroy since the shooting but that the conversation had been about nothing in particular.

  The third boy had previously given the police a written statement saying that he was present when McElroy gave them the money to go inside. But at his deposition, the boy claimed that he had left the group before McElroy came over to talk to them. He hadn’t heard or seen a

  thing, the boy now said. He admitted that he had had two conversations with McElroy since the shooting, and that McElroy had asked him in detail what he had and hadn’t seen, but the conversations had occurred during chance meetings.

  No deposition was taken from the fourth boy. (McFadin would later claim that he had been unable to locate him.)

  On October 2, 1980, in Bethany, Judge Donelson held the hearing on Nourie’s motion to revoke McElroy’s bond because of the St. Joe charge. No real issue was in dispute: The conditions of the existing bond explicitly stated that the bond would be forfeited if a subsequent felony charge were filed against McElroy, and there was no question that such a charge had been filed. Moreover, his bond required him to “keep the peace” and “be of good behavior,” which obviously precluded his running around St. Joe with a loaded shotgun. Forfeiture of the bond should have been ordered on the spot. Inexplicably, Donelson refused to rule on the motion and instead set the matter for another hearing twelve days later. The authoritarian judge, who supposedly ran a tight ship and maintained control of his docket, was spending more than a month disposing of a routine motion on a clear-cut violation of a bond condition—a matter that should have been resolved within a few days.

  On October 14 Donelson issued an order finding the inevitable— that Ken McElroy had violated his bond by having a felony charge filed against him. Donelson ordered the $30,000 bond forfeited and a new bond set in the amount of $40,000, but McElroy did not have to spend a day in jail or pay any money. The only inconvenience was that his mother and brother had to sign a new promise to pay an additional $10,000 if he failed to appear for trial.

  Donelson added two conditions to the bond: McElroy could not carry firearms on his person or in any vehicle; and he could not travel outside of Nodaway, Atchison, Holt, Leavenworth, and Harrison counties, except that he could go to Buchanan County for medical treatment in St. Joe. The first condition, prohibiting firearms, should have been imposed in the first bond, and the second condition would have been laughable had it not been so serious. By restraining McElroy to Nodaway and adjacent counties, the court was ordering the fox not to stray from the hen house. Ken McElroy must have chuckled all the way from Bethany to Skidmore.

  The interests of the town of Skidmore had again slipped through the cracks in the judicial process as the prosecutor from Maryville, the judge from Bethany, and the defense lawyer from Kansas City, all doing their narrowly defined jobs, overlooked what their courtroom moves and countermoves meant to the small community of 437 people.

  Donelson also committed an error, undoubtedly unintentionally, that would give McFadin the opening he needed to delay the trial: The travel restrictions prohibited McElroy from going to McFadin’s office, which was in Clay County, to confer with him in preparing the case.

  McElroy kept up the pressure on Skidmore. He patrolled regularly, creeping down the street in front of Dunbar’s house, Warren’s house, and Bowenkamp’s house. Gary Walker, a local farmer and seed dealer, drove through town early one evening and saw four McElroy pickups parked side by side in front of the tavern. Each truck had a gun rack holding two or three rifles. Women sat behind the wheels of the trucks. To Gary, it looked like the McElroys had come for a war. He called the sheriff’s office, but, as usual, the cops did nothing.

  29

  Charlie had grown up on a farm a couple of miles south of the McElroy place. In his youth, Charlie had hunted coons and traded dogs with Ken, although he couldn’t say the two of them had been friends. In those days, Charlie had gotten into more than his share of trouble drinking, fighting, and carousing as a bona fide member of the lowlifes. Then he fell into the ways of the Baptist church and was born again. To him, this meant accepting God as a God of love and Jesus Christ as the only perfect being. Charlie also believed that God had a plan of salvation for every human being, and that if a man accepted Christ, he was obligated to spread the word and try to save others from sin.

  Charlie lived with his wife and kids on a farm outside Clearmont, Missouri, and worked weekends in a gas station. Although he had been hearing about McElroy’s troubles for a long time, Charlie didn’t give a whole lot of thought to the subject until he heard that McElroy had shot the grocer and was firing guns over people’s houses. Charlie realized that McElroy was living in sin and could use some help. Charlie had counseled prisoners at the county jail and the state prison, relying on his own background to help him understand their situations and help him point the way. He knew what McElroy was feeling: You see two people standing on a street corner talking, and you know they’re talking about you; you hear a person walking behind you, and you wonder if you’re going to get clipped. McElroy needed a friend, thought Charlie, and he

  could be that friend. He would convince McElroy to change his life.

  On a dreary fall morning, Charlie finally summoned up his spiritual courage to try to save the soul of Ken McElroy. Charlie was afraid to go, afraid of getting shot, and afraid of getting cussed, but McElroy was in a state of sin. The local pastor had planned to go with Charlie, but at the last minute the pastor remembered he had something else to do that day. Just as well, thought Charlie. Now I can talk to Ken man to man.

  Charlie had not been on the Valley Road in a long time, maybe twenty years, and he wasn’t dead sure which was the McElroy place. When he got to about where he thought the McElroy house was, Charlie saw a large man standing motionless at the end of the driveway.

  “Do you know which house is Ken McElroy’s?” Charlie asked, leaning out the window. He figured the man, who was watching him intently but without expression, was probably Ken.

  “That’s it right there,” the man said, pointing to the farmhouse at the other end of the drive.

  “Do you know where Ken McElroy is?”

  “I’m him,” the man said, looking neither friendly nor unfriendly.

  “Well,” said Charlie, reaching down inside himself for the strength to get out of the car, “you probably don’t remember me. I used to hunt coons with you when we were kids. Had a black-and-tan bitch, good hunter. Name’s Charlie.”

  Nodding as if he vaguely remembered, Ken relaxed his stance a little. Charlie got out of the car and shook Ken’s hand.

  “Well, Ken,” Charlie said, trying to sound confident, “I’d like to talk to you about life and death and what’s going to become of your soul.”

  Charlie told Ken about his life, explaining how he had been a fighter and a drinker but had finally straightened up. A couple of Ken’s kids wandered up and asked if they could go hunting.

  “OK,” McElroy said, “but stay on our property.”

  Charlie found that strange, because most local people had permission to hunt and fish as a matter of course on their neighbors’ property. But he also knew that hunting in the day was a good way to spot farm machinery and animals for stealing in the night, so the neighboring

  farmers might not welcome any McElroys on their property.

  A light drizzle materialized as Charlie and Ken talked. Gradually, the sprinkle picked up, turning into a shower and then rain. The two men stood in the downpour, talking about salvation, and Charlie kept waiting for McElroy to invite him into the house. Finally, Charlie said, “Ken, I’d like to talk to you some more. Let’s sit in my car.”

  “Sure,” said McElroy, with a smile on his face, and t
hey climbed into the car.

  Charlie picked up his Bible, opened it, and read a passage about God’s plan for salvation and then a passage about how God would allow evil to go only so far before He cut it off and smashed it. “Yes,” Charlie said, “lives could be cut off before their intended time of death, if the sinner didn’t change.”

  The rain began to fall harder. Every now and then, the steady patter of drops on the roof would be interrupted by a sheet of driving rain that would pound the roof like a clattering of marbles for a minute or so and then let up, leaving a stillness inside the car.

  Charlie reached up and turned on the overhead light. Listening attentively, Ken looked over at the Bible while Charlie read from it.

  Finally Charlie closed the Bible and turned to Ken. “Tell me something, Ken. Do you think there are some things in your life that are not quite how they should be?”

  McElroy shrugged and said, “I guess so.”

  “Well, Ken, God has a better way for you, if you’ll just open your heart to Him.”

  McElroy shook his head and smiled. “I guess I’ll change one day, but I’m not ready yet. I’m not a hypocrite like all those farmers who sit in church when they don’t mean it.”

  Ken explained that he was poor as a kid and didn’t have good clothes to wear to school. School had been tough for him—the older kids picked on him, teasing him and pushing him around, and in the fourth grade, when they found out he couldn’t read, they made fun of him.

  And you’ve been pushing back ever since, Charlie thought.

  Ken seemed to be opening up, and Charlie felt good. God had prepared the way for His messenger.

  “I just felt I had to warn you, Ken, about how God punishes unrepentant evil.” Ken nodded, then turned away, and stared silently

  through the rivulets of water on the window.

  Charlie tried to soothe him by explaining that everyone failed, that Jesus was the only perfect one. A sinner was saved through grace, not words.

  As they sat in the car, the windows steamed up, and the air became stuffy. They talked for half an hour, and although Ken agreed with much of what Charlie said, Charlie realized that he couldn’t change Ken in one day. God would work the changes in His own way, in His own time.

  Finally, Ken opened the door to leave. Charlie offered his hand to him, and Ken took it. “I’m glad I got a chance to visit with you,” Charlie said.

  Ken nodded, gave a little smile, and heaved his bulk from the car. Charlie watched as the large form moved off in the rain, walking down the drive toward his house. In God’s own time, Charlie thought, in God’s own time.

  30

  During this period, the townspeople began to lose sympathy for Trena. Many people had known her from their own school days, or their children’s school days, and had always thought of her as a shy blond girl, not terribly smart, but nothing out of the ordinary. They had watched helplessly as she fell into McElroy’s clutches and her parents abandoned her. When she married McElroy and the rape charges were dropped, some thought, Well, she’s made her choice now. From that point on, for many people, she became a McElroy.

  After Bo was shot, Trena definitely became one of the enemy. By trying to help McElroy escape that night, she became a partner in the crime. She was no longer a child but an adult, no longer a captive but a willing participant, no longer a victim but a tormentor.

  The police had neglected to take Bo’s knife into custody on the night of the shooting. When McFadin discovered this during depositions, he thought he smelled a rat—an attempt to destroy evidence that was beneficial to McElroy’s defense. However, Bo testified in his first deposition that he still had the knife and was using it at the store. Pursuant to McFadin’s subpoena, Bo brought the knife to his second deposition.

  If Bo stayed alive and held his ground, the knife would be the only possible defense. In Bo’s second deposition, McFadin tried again to

  shake Bo’s story, coming at it from several angles, and got nowhere. Finally, McFadin attacked head-on.

  mcfadin: Did you in fact pick up this knife and attack Mr.

  McElroy with it?

  bowenkamp: No sir.

  mcfadin: That’s what you’re saying under oath?

  BOWENKAMP: That’s right.

  When this deposition was over, McFadin had had three shots at Bo. If the strategy was to wear him down or intimidate him, it wasn’t working. If anything, Bo was getting stronger. He knew where he had been and what had happened, and nothing would change his mind. McElroy, the expert on techniques of fear and intimidation, had overlooked one important point: If you push someone hard enough, if you corner him, his fear will turn into hate, and hate, a powerful emotion, can be a source of strength.

  The Sixth Amendment to the Constitution provides that in a criminal prosecution “the accused shall enjoy the right to a speedy and public trial . .” Like most of the other amendments in the Bill of Rights, this one was designed to protect the individual from a corrupt, incompetent or overzealous state. The Sixth Amendment prevents the state from charging someone with a crime when the state is not prepared to proceed with the case and prove the charges. The remedy for the violation of a defendant’s right to a speedy trial is dismissal of the charges.

  The victim, however, has no right to a speedy trial. No law or constitutional amendment says that the injured party has the right to have his assailant brought to trial within a certain time. Only the defendant has a right to a speedy disposition of the case, and if he wants to waive that right by seeking continuances or causing other delays, that is his privilege.

  Because the state has the burden of proving its case beyond a reasonable doubt—and because the defense need not offer any evidence—fading memories or missing witnesses usually work to the advantage of the defendant. For the victim and the community in which the crime occurred, justice delayed is justice denied.

  The law in Missouri required that a defendant be brought to trial within 180 days of being charged, unless delays beyond that period were

  occasioned by the defendant. Because the entire case against McElroy would stand or fall with the testimony of a seventy-year-old man with a heart condition, McFadin’s job was to occasion those delays.

  On November 24, 1980, four days after taking Bo’s second deposition, McFadin and his associate, Charles Spooner, filed a motion asking that the trial be continued from December 3 to some future date. The motion alleged three grounds for the continuance: first, teenager Steve Day, the first person to see Bo after he was shot, had not responded to subpoenas; second, the defendant sought to take the depositions of the two ambulance drivers and the electrician and had been unable to locate them; and third, the bond conditions had prevented McElroy from traveling to Kansas City to confer with his attorney.

  The first two grounds were weak. The lawyers stated that Steve had been served with a subpoena to appear on October 2 for his deposition, but had failed to appear. Although McFadin knew Steve was in Des Moines, Iowa, they had been unable, despite their “best efforts,” to arrange to take his deposition in the intervening six weeks. Also, despite their “best efforts,” they had been unable in four months to determine the names of the two ambulance drivers. And, although McFadin and Spooner had learned the name of the electrician on November 7, they had not yet taken his deposition. (McFadin apparently forgot that Bo had given him the name and address of the electrician at the preliminary hearing on August 18.)

  The travel restrictions in McElroy’s bond condition provided the strongest ground for the continuance. McFadin had discovered the inadvertent error within a few days of Donelson’s October 14 order. McFadin conferred with the judge and Nourie, and they agreed that the order should be modified. The defense and prosecution signed a stipulation to that effect, and on October 18 Trena mailed it to the clerk of the court in Harrison County, where it languished for nearly a month. After several phone calls, McFadin finally received the stipulation on November 19, only to find that the judge had negl
ected to sign it, so it had to be returned. Finally, seven weeks after the order was brought to the judge’s attention, a corrected, signed order was issued. During that time, according to their motion for a continuance, McFadin and Spooner had been extremely busy, and they had not been able to travel to

  Skidmore every time they wanted to confer with their client.

  The judge’s initial error, compounded by his lengthy delay in signing the modification, gave McFadin sufficient grounds for a continuance. The restriction had prejudiced the right of the defendant to effective counsel, a fact that would undoubtedly be raised on appeal and, perhaps, exposed in a published opinion. Much better for the judge to avoid public chastisement from a higher court by simply granting the continuance.

  Donelson had no trouble scheduling this motion for an immediate hearing, nor did he have to take it under advisement. The motion for continuance was filed on November 24, and heard and granted the next day.