The Bowenkamps and Sumys soon learned another quirk of the American legal system—the victim was not entitled to observe the trial of the alleged offender. If a defendant chose, he could ask the court to “sequester,” or exclude, all witnesses from the courtroom, on the theory that witnesses to the same event should testify without benefit of having heard each other’s testimony first. McElroy was not excluded, of course.
As the defendant, he was entitled to listen and observe the entire case against him, and then decide whether he wished to testify. Thus barred from the courtroom, Lois, Bo, and Evelyn spent most of the day sitting in a side room, wondering what was happening in the trial.
The possibility of a plea bargain was never raised. The attorneys for both sides felt their cases were solid, and McElroy undoubtedly thought that he had a good shot at hanging the jury. The trial went smoothly from the very beginning. No one on the jury panel, most of whom were farmers or had farm backgrounds, had heard of McElroy, and the attorneys did not challenge any potential jurors for bias. Baird struck the younger members, thinking that they might be a little less shocked by gunplay in a public place.
The only real issue was whether McElroy had assaulted Bo or had shot him in self-defense. No one disputed that McElroy had been two feet from the edge of the dock when he fired. Because the defense could place a knife in Bo’s hand at the time he was shot, the critical fact was Bo’s location. If he had been anywhere close to McElroy, the defense stood a chance of creating a reasonable doubt that McElroy had been in fear of his life.
Bo claimed that he had been in the store, and McElroy claimed that Bo had been at the edge of the dock, hovering over him with the knife. Through the testimony of the investigating officers, the use of diagrams, and the introduction of other physical evidence, Baird methodically laid the foundation for the case that Bo had been in the store. The diagrams indicated that the dock was six and a half feet wide. A pool of blood on the floor was thirty-nine inches in from the doorway. The damage to the ceiling tile was another thirteen feet in from the door. By drawing a line from the holes in the ceiling to McElroy’s position, Baird demonstrated that Bo could have been shot in the neck only if he had been standing inside, about three feet from the doorway. If Bo had been outside on the dock, the pellets would have hit the outside of the door frame, not the ceiling seventeen feet inside the building.
After establishing Bo’s location, Baird tried to prove McElroy’s intent. The prosecutor called the one boy who had not changed his story, and he testified that McElroy walked over and gave them money for pop. On cross-examination, the boy admitted that McElroy had given them money for pop before. The man at the gas station testified that McElroy had
threatened to teach the old man a lesson only a few hours before shooting him.
Bo took the stand and told his story straightforwardly and without hesitation. Not wanting to risk appearing insensitive to the elderly injured victim, McFadin went easy on Bo, asking him such questions as “Isn’t it possible that you fell backward after you were shot?” or “Isn’t it possible that you are confused about where you were standing?” Bo flatly denied the possibilities. Baird and his assistant had been rougher on Bo in their rehearsal.
Corporal Stratton had been around most of the morning, either in the hallways or in the patrol office. Still considering Trena to be dangerous, he made sure that he knew where she was at all times. Word had come to him that she had a gun in her purse, but he never saw any evidence of it, and without more he couldn’t shake her down.
Called to the stand to testify about the arrest, Stratton looked over at Ken McElroy, who was glaring at him with cold, penetrating eyes. Stratton stared back at him, and their eyes locked. As the lawyers conferred and fumbled with their papers, the two men, one on the stand in a uniform and the other at the defense table in slacks and a shirt, stayed focused in on each other. Neither man moved. Stratton was determined not to break away; if necessary, he would not answer questions until the impasse was broken. Finally, just as Baird was ready to begin the questioning, after what seemed to Stratton like the longest five minutes in his life, McElroy looked down. During the fifteen or twenty minutes that Stratton testified, McElroy did not look back at him.
Baird led Stratton through the details of the arrest, the fact that Trena was present, and where McElroy lived. Senator Webster cross-examined him, but it was brief and friendly. “Were there any guns in the pickup?” “Did McElroy give you any trouble that night?” Webster asked Stratton whether he had had trouble with McElroy before, and Stratton described the time he had caught McElroy with a truckload of hogs, and McElroy had stuck a gun in his face. Stratton did not mention the time his wife had stared down the barrels of McElroy’s shotgun on her way to church.
At the end of the prosecution’s case, McFadin made a motion to dismiss the charges, but Judge Donelson denied the motion. McFadin then called McElroy to the stand. Calling a defendant to the stand was always risky, but in this case McFadin had no choice. His whole case rested on
self-defense, and McElroy had to take the stand and explain why he was scared enough to shoot the old man in the face.
With his hands in his lap, McElroy calmly explained that he had parked his truck and walked over and given the boys money so they would go in the tavern and set up a pool table for him. When he returned to his truck, he testified, it wouldn’t start. He figured the vehicle had a vapor lock. While he was standing there waiting for the engine to cool down, Bo began yelling at him to get off his property. McElroy was about ready to get in the truck and try the engine again when he felt something behind him. Turning, he looked over his shoulder and saw Bo on the dock coming at him with a knife, as if to stab him. Fearing for his life, McElroy reached into the truck and grabbed a shotgun from the dash. He turned the gun around in the truck and fired from the hip. Intending only to scare the old man, he aimed over his head. Bowenkamp disappeared from sight, but McElroy didn’t realize he’d hit him; he thought he had just scared Bo back into the store. McElroy drove home, picked up his wife, and was on his way to St. Joe, when Stratton arrested him.
Baird knew that McElroy wouldn’t recant any of his testimony on cross-examination, so he didn’t attack head-on. He handed McElroy the diagrams and had him describe for the jury where everything was placed—the location of the dock, where his truck was parked, where the boys were standing, and so on. In his first couple of questions, Baird referred to words already on the diagram, such as store or tavern, and McElroy seemed confused and unable to locate them. Baird realized that McElroy might not be able to read or write. In order to avoid the jury’s developing any sympathy for him, Baird began asking the questions without referring to the printed words. McElroy placed Bo right on the edge of the dock. Baird showed McElroy the curved knife and asked him what Bo was doing with it. McElroy said that Bo was holding it up in the air and stabbing down with it.
The only other witness for the defense was Selina O’Connor, who testified that she had seen Bo coming at McElroy with a knife. Terrified, she had climbed into her truck and driven away. Baird spent a great deal of time cross-examining her, aware that if the jury believed her, McElroy would very probably be acquitted. Baird tried to get the jury to see her as a “created witness.” Why had she driven forty miles to get a parvo shot?
If she had never been to McElroy’s farm before, how was she able to find it as easily as she claimed? Most important, why would she, seeing her friend in mortal danger, simply get into her truck and leave? She hadn’t even bothered to call the cops. And, the critical question, why had she waited nine months to come forward with her story? She had admitted hearing about his arrest on the radio, so she knew he was in trouble. She was scared, she testified, and hadn’t wanted to get involved. She just kept hoping that the problem would work itself out.
The presentation of evidence was completed by 5 p.m., and the judge sent the jury home. That evening, the lawyers and Judge Donelson met in conference and hammered out the j
ury instructions, over which there was no serious disagreement. One instruction permitted the jury to find McElroy guilty of the lesser included offense of second-degree assault
While preparing for the trial, and during the trial itself, Baird had had the feeling that, one way or another, he was going to lose. Knowing that no prosecutor had yet obtained a conviction against McElroy, he waited for the devastating cross-examination of his witnesses, or the surprise testimony that would knock a hole in his case. The blow never came, and when he went home Thursday evening, he thought for the first time that he might actually win the case.
Friday was a big grocery day, and Cheryl stayed in town to run the store. Her husband accompanied her parents to the trial. Now that the evidence had been completed, Bo and Lois were allowed into the courtroom to hear the closing arguments.
Baird’s closing argument was factual and unemotional. He compared the physical evidence—the blood stains and the holes in the tile—with McElroy’s diagram of where people were located. The undisputed physical evidence, argued Baird, completely contradicted McElroy’s version of events, while it matched Bo’s version. “You decide whom to believe,” Baird told the jury. Holding the knife in the air, he demonstrated for the jury that a man on a dock trying to stab a man on the ground would be more likely to stab himself in the leg. Baird hit Selina O’Connor’s testimony hard: Who would leave a friend in mortal danger and then keep quiet about what she saw for nine months? She simply was not to be believed.
The defense tried a variety of approaches. Senator Webster, whose retention had delayed the trial for four and a half months, addressed the jury in good ol’ boy fashion and talked about how good it was to be back in this part of Missouri. Charles Spooner, McFadin’s associate, took the analytical approach, going over the evidence piece by piece, arguing that the prosecution hadn’t proven this element or that element. Finally, McFadin stood and made an. emotional appeal to the jury: His poor client didn’t deserve to go to prison for the simple act of defending himself.
Baird, having the final say, brought the jury back to the physical evidence, which proved that Bo was at least ten feet away from McElroy at the time he was shot.
When the jury went out to deliberate, Tim Warren was close enough to hear and observe McElroy and his women. McElroy gathered the three women in the halls, patted Trena’s purse, and said, “If it goes bad for me, you know what to do. Do it just like I told you, and everything will be okay.”
McElroy must have sensed that things were going badly for him. Tim Warren saw McFadin walk over to McElroy in the hallway and begin conferring with him. Suddenly McElroy exploded: “I don’t give a damn, I’m not going to spend one night in jail. I don’t care what it costs, or what it takes, I’m not going to jail!”
Warren heard McFadin calmly explain that there were only certain things they could do, and McElroy had to go along with it. McElroy shouted in his face, “I told you, I ain’t going to fuckin’ jail!” McFadin stood his ground and went over the various things they could do if McElroy were convicted. (McFadin later denied the entire incident, saying that McElroy was never angry with him, and was always pleased with his representation.)
McElroy was right to be worried; things weren’t going his way in the jury room. His friend Ray Ellis had not kept his promise. Although Daryl Ratliff was on the jury, Ray hadn’t approached him about McElroy’s offer of a thousand dollars to hang the jury. Ratliff was arguing strongly to the other jurors that Bo was telling the truth, and McElroy was lying.
The jurors talked and argued some, and reviewed the facts and the law as the judge had told them to do, developing various theories of what had really happened. The jurors accepted the prosecution’s theory that Bo was inside the store when he was shot, and thus there was little doubt that they were going to convict McElroy. The only questions were what crime to
convict him of and what penalty to set. When the jurors took a preliminary vote, several people favored second-degree assault and a two-year sentence, while others sought a four-year sentence. After more discussion, they took a second vote, and reached a consensus on second-degree assault and two years. According to one juror, the reason they didn’t give McElroy five years was because he wasn’t charged with trying to kill his victim.
The jury foreman, a farmer, gave the verdict to the clerk, who stood and pronounced the defendant guilty. McElroy showed no reaction. The judge excused the jury and announced that the defendant would have thirty days to file a motion for a new trial.
McFadin wasn’t entirely displeased with the verdict. His client had been facing life imprisonment and had received only two years. Even then, with luck and good behavior, he could wind up serving less than eight months.
Several peculiarities in the Missouri criminal law regarding the functions of the juries work to the benefit of defendants like McElroy. One rule of the Missouri Supreme Court required the jury to “assess and declare the punishment” within the range set for the crime of which the defendant had been convicted. The maximum sentence for second-degree assault was five years; for first-degree assault, life imprisonment. A second rule allowed the court to reduce the punishment if the judge found “that the punishment [was] excessive.” The judge could not raise a sentence that was too light, however. The only option was to reduce a sentence, presumably where the jury had been carried away by emotion.
The bias in favor of the defendant results from the fact that the jury had to declare the sentence with absolutely no information about the defendant’s criminal history or personal background. In many states, before a sentence was imposed, the judge or the jury reviewed the defendant’s criminal record, background, and other information that might have bearing on the appropriateness of the sentence.
In Missouri, however, the jury’s decision was deliberately uninformed. Without hearing anything other than the specifics of the crime in question, the jury could only presume that this was the first and only crime committed by the defendant. Even if the defendant had been convicted of rape and murder the previous month, the jury would be unaware of it. In
reviewing the jury’s recommendation, the court might learn of the prior conviction, but then the judge could only reduce the sentence, not raise it.
In this case, as it turned out, the jury assumed that McElroy and Bo had had a dispute over the use of the driveway, and that in the course of the argument McElroy had lost his temper and shot Bo. Seeing the shooting as a singular, isolated incident, like a confrontation between two drivers, the jury felt that two years was appropriate.
But what if the jury had heard testimony in a pre-sentencing hearing about the candy incident in the grocery store and the incidents in which McElroy had threatened and intimidated the Bowenkamps, Tim Warren, David Dunbar, Margaret Stratton, and others? Would the jury still have prescribed the minimum sentence? Much of the derogatory information about McElroy might not have been allowed before the jury, but certainly the jurors would have heard enough to disabuse them of the notion that the defendant was a simple hog farmer from Skidmore who had happened to be in the wrong place at the wrong time.
Shortly after being released by the court, two deputies told them who McElroy was and gave them a thorough run-down on his past. The jurors felt deceived and misused, and a few of them were downright mad. Many regretted not having given McElroy at least five years. The anger the jurors felt over having been forced to make a decision in the dark was nothing compared to what they felt when they learned that McElroy had walked out of the courtroom a free man.
Missouri law allowed the defendant twenty-five days in which to file a motion for a new trial, setting forth the reasons why the judge should overturn the jury’s verdict. This provided an opportunity for the judge to correct any mistakes he or she might have made and to develop a record for an appeal to a higher court. In Missouri, the jury verdict was not final until the court entered a judgment, and the judge could not enter a judgment until after disposing of the motion. Although the motion
had to be filed within twenty-five days, months might pass while the lawyers filed briefs and made their arguments, and while the judge made findings and filed a written decision. If the motion was denied, only then could a defendant be considered guilty. Until that time, he walked the streets a free man, as if the jury had not spoken. Even after entry of judgment and
imposition of sentence, a defendant in Missouri had the absolute right, except in capital cases, to remain free on bond while appealing his conviction.
On the Friday afternoon after the trial, Gary Walker headed into town to find out what had happened in court. Having seen the result of the Romaine Henry trial, he half expected Ken McElroy to walk away from this one. When Gary spotted the Silverado parked in front of the tavern and the back-up Chevy across the street, he figured that’s what had happened. Finding Red Smith and Ken McElroy alone in the tavern, Gary asked McElroy what had happened.
“The jury convicted me,” he said, “and they gave me two years. But I’ll tell you what, I’ll never go to jail. I’ll appeal it and get off.” McElroy seemed almost to be bragging about the conviction. “I been fighting prosecutors since I was thirteen years old and I’m almost fifty. I’ve been arrested for over fifty-three felonies and this is the first one I ever lost.
In Broad Daylight (Crime Rant Classics) Page 29
