In Broad Daylight (Crime Rant Classics)

by HARRY N. MACLEAN

  In April, when Nourie spoke to Baird about accepting an appointment as prosecuting attorney, the two of them reviewed the existing caseload. When they came to the McElroy case, set for trial only two months away, Nourie suggested that because Baird was new, he might want to ask the state attorney general’s office to try the case. Baird didn’t consider the possibility for a moment. If anything, he anticipated the challenge and welcomed the opportunity to try a major felony case right out of the gate.

  Baird had run into McElroy and McFadin before when, as a legal intern, he had assisted Amy Davis in the prosecution of the Romaine Henry shooting, doing legal research and preparing witnesses. He had been absolutely amazed when the jury acquitted McElroy. The two cases were very similar in that the prosecution’s case rested entirely on the testimony of one key witness. If that jury had not believed Romaine, maybe this jury wouldn’t believe Bo, either. Baird compensated for his lack of experience in criminal cases by meticulous preparation. He re-interviewed all the witnesses, studied the transcripts, visited the crime scene several times, and ordered charts and diagrams of the scene drawn up for presentation to the jury.

  Objectively, the prosecution had a strong case. If Bo maintained his story, and nothing untoward happened, they should have had a decent chance for a conviction. Then the call came from McFadin; he had a witness, a woman who had actually seen the incident, and he intended to call her at trial. He would send Baird a copy of the handwritten statement she had made in his office on May 8, 1981.

  In her statement, Selina O’Connor said that she lived in Blockton, Iowa, about forty miles from Skidmore. She and her husband, a coon hunter, had seen McElroy off and on at coon-dog meets, and her husband had done some work for him in the past. On July 9, 1980, she had driven to McElroy’s home to see about a parvo shot for her dog. Upon learning from his wife that he had gone into Skidmore, Selina drove into town. As she passed the tavern, she noticed Ken McElroy’s pickup in the alley. She turned around at the intersection, parked in the street, and walked toward

  the alley.

  “When I went around the corner,” she wrote, “I saw a white, tall and thin older man holding a knife in his hand. The knife appeared to be a very large knife at least a foot-and-a-half long. The other man was shouting at Ken McElroy, who was standing beside his pickup. I turned around and left the area.”

  O’Connor’s statement startled and concerned Baird. He knew that McElroy’s cases often involved allegations of jury tampering and last-minute witnesses, and he was concerned that the defense had “created a witness." The testimony of a credible third party supporting McElroy’s version of events could easily create a reasonable doubt in the jurors’ minds.

  Her statement contained some obvious holes: Why had she left when she saw Bo coming after McElroy with a knife? And why had she waited this long before coming forward? On May 22, Selina O’Connor produced a sworn statement, typed in McFadin’s office, in which she stated that the older man had been angry and “coming toward him [McElroy] holding a very long knife in his upraised hand." She had become frightened and left the scene hurriedly. She had not come forward earlier because she didn’t want to get involved. When she ran into McElroy later, she told him what she had seen and he asked her to testify.

  The name O’Connor didn’t ring a bell for Baird. If it had, and he had looked into it, he would have discovered that Selina O’Connor’s husband, James, was the son of Maurice O’Connor, one of the two alibi witnesses for McElroy in the Romaine Henry case.

  Baird took O’Connor’s deposition and explored in detail why she had waited from July 8, 1980, to May 8, 1981, to come forward. He managed to turn her explanation into mish-mash. At first, she said that she had seen McElroy a couple of weeks later and they had not discussed the incident at all. Then she modified the statement and said she had told him she had been there, but he told her it was no big deal. She said she had run into him again “a long time later,” and he had asked her then if she would be a witness. She had thought about it and decided “it would be the only right thing to do.”

  Baird asked her when her last conversation with McElroy had occurred, and she said, “Oh no, this was like winter, fall, you know winter and spring thing.”

  Under McFadin’s questioning, her version of what she had seen became more dramatic and more beneficial to McElroy’s claim of self-defense. Now she said that the old man had been holding the knife in front of him at about the top of his head and pointing it in McElroy’s direction and talking in an angry voice. She had left hurriedly, she said, because, “I was scared. I had my kids with me and stuff.”

  Would the jury buy it?

  By the second week in May, the corn stood about three inches tall in the hill country, and nearly half a foot in the rich bottom land near the Nodaway River. A slightly overcast morning sky spread an even, bright light over the fields, and the thin rows of plants glittered a rich green. The soil was dry, and the recently planted beans needed a light, soaking rain to germinate. The sky cleared, and by late afternoon the trails of dust left by tractors crossing the dry earth were back-lit a hazy yellow-orange by the falling western sun. Large green rolls of newly cut hay lay in even rows, curving over the hills into the blue sky. The radio called for a 30 percent chance of rain that evening, but the northwest horizon was clear and bright and empty.

  During the last week of May, Gallatin, Missouri, about twenty-five miles south of Bethany and fifty miles east of St. Joe, hosted an annual dog meet, which drew coon hunters from Missouri, Nebraska, Iowa, Kansas, and Arkansas. The Gallatin meet was always one of McElroy’s favorites. He had been hunting and trading dogs with many of the men who came there for fifteen or twenty years. He always brought four or five hounds, one or two of them usually champions. The meet was a social gathering as well as a contest with plenty of storytelling, dog trading, and betting, and Ken McElroy was always in the middle of it—a happy man with his dogs and his women and his coon-hunting buddies.

  The meet was held in a park just outside of town. The parking lot at the top of the hill was jammed with pickups—some new and some battered—with wood cages in the back containing a variety of hounds: red bones, walkers, black and tans, blue tick, English red tick. Some of the hounds were tied to trees, and a few managed to sleep in the midst of the incessant barking. The hill sloped down to a few sheltered picnic tables and beyond to a lake about the length of a football field. In the shelters, the owners had

  their dogs up on the tables for show, stretching the dogs’ back legs out and raising their muzzles for the judges.

  One owner, a typical timber dweller with a long, scraggly beard, stood by his dog, waiting for the judge. The man’s body was thick, with short stubby arms, and his head seemed to sit directly on his torso. A couple of his teeth were missing, the remaining ones were yellow, and his nose was short and bent to the side. His eyes were beady and didn’t track each other. A grease-stained baseball cap sat on matted, tangled hair, and strings dangled from the shoulders of his denim shirt where the sleeves had been ripped away. A white circle on his lower right jean pocket outlined his tin of chewing tobacco. He communicated in grunts to a friend as the judge came by, pad in hand, to evaluate the structure and form of his dog. The judge examined the dog’s muzzle, checked its posture, popped its nipples, then grabbed the animal’s balls and held them in his hands for a few seconds, before scratching on his pad and moving on to the next table.

  Down the hill, closer to the water, a cage containing a coon was hanging from a rope slung over the lower branches of a tree. A name was called, a dog was released, and the cage was lowered by means of a pulley to within eight or nine feet of the ground. The dog was supposed to strike the tree—run to it, stand up against it, and bark at the coon. The number of barks would be counted and the dog was supposed to hold the tree until released by its owner. The first dog, a red bone, walked over, sniffed the bottom of the tree, and didn’t bother to look up. The coon looked down at him curiously. The own
er cursed, and pulled his dog away.

  About twenty yards to the right of the lake, at the top of a small rise, was a picnic table and a shade tree. McElroy’s Chevy Silverado was parked under the tree, and he stood alone beside the truck. Trena and another woman were at the back of the truck, watering the dogs.

  In the afternoon, the water races were held. At the far end of the lake, four hounds waited in cages at the edge of the water. Overhead, the coon sat in a cage, waiting to be pulled across the lake on a steel cable. As the coon moved slowly out over the water, the cages opened and the dogs tore into the water, barking and splashing. The first dog to reach the far side would win one category, and the first dog to strike the tree where the coon sat in its cage would win the second. Frequently, the same dog won both categories. The air was filled with cursing and yelling and the yapping of

  excited dogs.

  McElroy’s women ran around the lake, leashes in hand, to capture their dogs at the end of the race. The weather was hot and handling the dogs was hard work. The large figure remained in the shade of the truck and watched the performance with interest.

  To McElroy’s friends, his behavior seemed strange. His water champion had been doing well in the races, and he should have been in the thick of things, cajoling and joking and betting and trading. But he kept to himself, watching as his women worked the dogs. After hearing stories about Ken for so many years, the men at the meet had come to believe them. They knew he had shot the old grocer in Skidmore, although conceiving of such a thing was difficult because he was such a gentleman around them. Now, they saw him on the grassy rise, aloof, and they left him alone.

  The hunt was held in the evening. The men and dogs went out in groups with judges, roaming the timbered countryside in search of coons. A dog had to be able to run the track, smell it, and follow the scent to the tree. The first dog who “opened,” or barked, on the track, and the first dog to hit the tree would win points. If a dog hit the wrong tree, or if it did not hold the tree until its owner arrived, points would be subtracted. A coon hunter could recognize his dog’s bark, and most could tell whether the dog was jumping a fence, running flat out, or had the coon in the tree. Some could even tell from the sound of their dog how high up in the tree the coon was.

  McElroy didn’t participate in the hunt that night in Gallatin. A hunter had to follow his dogs across fields and through timber, crossing fences and streams and battling through thorn bushes. Perhaps McElroy had gotten too fat and couldn’t move fast enough, or maybe the old coon hunter’s drive had faded. In any event, he loaded up and headed out shortly after the water races.

  Ken McElroy wasn’t just sitting around waiting for his trial to happen. He appeared one day in early June at the home of his friend Ray Ellis, outside Gilman City. Usually, the two men stood outside and talked about dogs and maybe traded one or two. If Ken went into the house for a beer, Trena stayed outside and tended to the dogs or just sat in the truck. But this time, Ken brought Trena inside with him; she sat quietly in a chair

  IN BROAD DAYLIGHT 249

  and didn’t say a thing. Ken didn’t mention dogs. Instead, he told Ray about his upcoming trial and explained why he had shot the grocer.

  “He was coming at me with a knife,” McElroy said vehemently. “I had to shoot him or he’d have killed me. I had no choice.”

  Ken had a piece of paper with a list of names on it. These were the possible jurors in the case, he explained, and he was going around to dog meets finding out who knew people on the list. Someone had told him that Ray knew one of the potential jurors, Daryl Ratliff.

  Ray said that Daryl was an old friend who lived in Gilman City and ran a garage there.

  “Could you do me a favor?” McElroy asked.

  “If I can,” Ray responded.

  “Could you talk to him about hanging that jury for me? I’ll give him a thousand dollars and fix it so nobody ever will have to know. He’ll find it in his mailbox one day, and that’ll be it.”

  “Sure, I’ll talk to him about it,” said Ray.

  McElroy showed Ray the list. “Is there anybody on the list that I should get rid of?”

  Ray pointed to one name and said, “Get rid of him. If he gets the chance, he’ll hang you for sure.”

  During this period, two extremely agitated teenage boys showed up on Corporal Richard Dean Stratton’s doorstep one evening and claimed that McElroy had offered them money if they could get hold of some rattlesnakes. At first they had agreed to do it, but when he told them they would have to put the snakes in mailboxes belonging to the jurors at his trial, the boys had backed out of the deal. They wanted Stratton to know how it had happened, in case he heard about it.

  By mid-June, all the seed was in the ground, and everything that was going to grow had popped up, including the weeds. The corn was now twelve to eighteen inches high, and the bean plants were full and green. This was the early growing season, a time of nourishment. In the fence rows, the plum, mulberry, gooseberry, and elderberry bushes were bright with fruit. Marijuana plants, known derogatorily as Missouri ditchweed because of their impotence, grew in clumps five and six feet high along the road. Red-winged blackbirds, killdeer, and mourning doves nested in the timber by the river. A gray-brown great homed owl flapped off his

  perch in a cottonwood tree in a great commotion. Cliff swallows darted along

  the riverbanks in the quiet dusk. A red-tailed hawk swooped onto the field and

  clutched a long black snake in its talons. As the bird rose, the snake caught on

  the barbed-wire fence and hung there, wriggling on the sharp barbs. The hawk

  swung around from behind and, raring back, sank its talons deep into the snake,

  snatched it into the air, and wheeled off with a triumphant shriek.

  PART

  FOUR

  34

  Prosecutor David Baird made two strategic decisions. First, he decided against introducing the candy incident or any of the subsequent incidents of harassment in the trial. Although the evidence might have been admissible under Missouri law, and would have shown a motive for McElroy’s attack and demonstrated what a malevolent character he was, such testimony would also show a history of ill will between the two men and lend credence to the theory that Bo was attacking McElroy with a knife. Baird was worried about the long butcher knife—he knew it would be presented to the jury—and he didn’t want any support for McElroy’s claims that Bo had come after him with it. Baird wanted the jury to see Bo as the elderly victim of an unprovoked attack.

  Second, Baird amended the complaint to delete the language that McElroy had “attempted to kill” Bo. The complaint now read only that McElroy had “knowingly caused serious physical injury to Ernest Bowenkamp” by means of a deadly weapon. The charge remained first-degree assault, and the penalties remained the same, but this amendment allowed the jury to convict McElroy without finding that, at the moment he pulled the trigger, he intended to kill Bo.

  Both of these moves were conservative decisions aimed primarily at obtaining a conviction. Baird was trying to close any of the doors that might allow McElroy to walk out of the courtroom a free man. The important thing was to get a conviction, and to get one that would stick.

  Two nights before the trial, Baird and his assistant brought Bo into the courthouse for a dress rehearsal. Bo sat up on the witness stand, and David led him through direct examination, then Baird’s assistant cross-examined him hard for more than an hour. Bo didn’t budge. Baird was impressed.

  June 25, the day of the trial, was a Thursday. Cheryl stayed in Skidmore to run the store. She had decided not to go to Bethany. Watching McFadin work her dad over at the preliminary hearing had been painful, and she had no desire to see it again. Lois and Bo made the hour-and-a-half drive to Bethany with Evelyn Sumy. Their support consisted of Tim Warren and Cheryl’s husband, who drove over together. Alice Wood and Trena came in the green Chevy, and Ken McElroy drove by himself in the big Silverado.

&nbs
p; The welcoming sign on the edge of Bethany, a farming town of about 2,500, read “Tomorrow’s Town Today.” The courthouse, a large cement structure, sat in the middle of the town square like a bunker. The floors and walls were marble, and on the first level hung a black and gold plaque honoring the men of Harrison County who had died in America’s battles. In the courtroom, the benches, counsel tables, jury box, and railings were made of polished blond oak. The walls and columns and ceiling were pink, the floors gray-and-black linoleum. Hanging from the ceiling were gaudy glass-and-brass chandeliers. The building was not air-conditioned, and although the windows were wide open, the hot June air was motionless.

  The offices of the county sheriff and the highway patrol were down the hall from the courtroom on the second floor, and the officers had alerted the other courthouse personnel to the notoriety of the defendant in this case. They all watched as the players in the game gathered in the courtroom. The observers chuckled at the notion of two Kansas City lawyers and a state senator representing a Skidmore farmer on an assault charge. Sitting at the counsel table, wearing expensive suits and carrying leather briefcases, the three defense attorneys looked like gangsters.