In Broad Daylight (16 page)

"I haven't got time to talk to any cops," Ken said casually, and stepped on the gas.

When they came to a bridge, Ken said, "Here's where we lose them." He stopped the pickup in the center of the bridge and backed the trailer up at an angle until it blocked the road. He jumped out, unhooked it, and off they drove in the pickup, leaving the deputy, who was too far behind to see the license or the occupants of the truck, stuck on the other side of the trailer. Ken chuckled about it, continued driving south unconcernedly for a few miles, then hopped on the interstate. He got off at the Oregon exit and drove to a phone booth across from the courthouse. From there he called the highway patrol and the Andrew County sheriff's department and reported his horse trailer missing, saying that somebody must have stolen it from his farm. He dropped Nick off at the closest bar and headed home.

The next day, McFadin's investigator retrieved the trailer from the Andrew County sheriff's department and returned it to its rightful owner, Ken McElroy.

Romaine Henry was a typical Skidmore farmer. Forty-one years old, about medium height, with thinning hair and a pot belly, he was a quiet man with a steady-as-she-goes philosophy. Farming was Romaine's way of life; he worked from sunup to sunset and beyond. Born and raised in the area, he lived with his wife and three kids on a 1,000-acre farm accumulated over the years since 1952, when he had bought the first acreage.

About two and a half miles before Route V hits the edge of Skidmore, Route 22, a decent blacktop, cuts off and runs south to Graham. At the third curve, a gravel road turns off to the left and passes Romaine's farm about a quarter-mile further on. Down 22 another mile and a half is the Valley Road, which leads to the McElroy farm.

In the late afternoon of July 27,1976, Romaine had just returned from having new tires put on his truck in Skidmore, and was working in the shop, sharpening a sickle, when one of his sons came in and told him he had heard gunshots. The boy said it sounded like a shotgun, and that it seemed to have come from down the gravel road alongside their property. Romaine got in his 1974 GMC pickup and drove over to investigate. As he approached the area, he recognized Ken McElroy's green Dodge pickup parked along the right side of the road, and decided to keep going and forget about whatever was going on. As he swung out to pass, Ken McElroy stepped into the middle of the road, directly in front of Romaine, holding a shotgun in the air. Romaine braked, and as he did so, he noticed another man, younger, behind the wheel of the green Dodge. The man looked him squarely in the face, then ducked out of sight.

Romaine hoped that whatever was happening was something innocuous-maybe McElroy wanted to go on his land to get a rabbit or squirrel he had shot. McElroy jerked on the GMC's passenger door, but it was stuck. Romaine reached over and opened it for him. McElroy leaned in and stuck the shotgun about three inches away from Romaine's face.

"Were you the dirty son of a bitch over at my place in a white Pontiac?" McElroy demanded.

Confused and scared, looking down the barrel of the gun, Romaine said he didn't know anything about a white Pontiac.

"You're a lying son of a bitch!" snarled McElroy. He lowered the barrel and fired the shotgun. The blast tore a big hole in Romaine's stomach, smattered blood and pieces of flesh against the driver's door, and ripped holes in the panel. Romaine tried to move, but McElroy quickly pumped another shell into the chamber, thrust it in Romaine's face, and fired again. Romaine ducked just as the gun went off, but he felt a stinging as the pellets tore a huge gash in his forehead and cheek.

By now, Romaine was moving. He jumped from the pickup and crouched alongside the front fender, intending to take off across the fields and head for home. He heard the gun fire again, but felt nothing. He had gone about ten feet when he heard the sound of Ken working the gun and swearing. Those guns only hold three shells, Romaine thought, and he must have jammed it reloading. He turned back, jumped into his truck, slammed the gearshift into first, and stomped the accelerator.

"Get the hell out of here!" yelled McElroy. "I don't want to see you again!" Looking in the mirror to see if the Dodge was following, Romaine noticed blood streaming down his face and neck. The green pickup, with McElroy at the wheel and a shotgun hanging out the window, was coming after him.

Because he was heading away from home, Romaine had to make a series of right-hand turns along section lines to get back on 22 and the gravel road to his farm. Shaking and spattered with blood, he drove as fast as he could. McElroy hung right on his bumper, and at each turn Romaine figured McElroy would take the angle and fire at him. After the third turn, for some reason Romaine would never understand, the green Dodge dropped back and gave up the chase. The pain in Romaine's stomach sharpened and he came close to losing consciousness before he turned into his drive.

Finally, he stood in the doorway of his house, blood streaming from his face and stomach, and told his wife, "I think we better get me to the hospital."

At the hospital in Maryville, doctors found a gaping tear from the first gunshot, running eight inches to the left from his navel. He had powder burns, and x-rays revealed seven pellets in his abdominal wall. A doctor cut away the damaged skin, placed a drain in the wound, and closed it. No pellets had penetrated the skull, so the lacerations in his forehead were cleaned and sutured. The doctor dressed the wounds and admitted Romaine to the hospital for continued treatment, which lasted a week. (The pellets were removed later. The wound became infected, and the doctors eventually had to go back in and clean it up.)

McElroy was arrested the next day, and Prosecuting Attorney Fraze charged him with feloniously assaulting Romaine Henry with the intent to kill him or do him great bodily harm.

McElroy's defense was simple from the very beginning: He wasn't there, and he didn't do it. Romaine Henry had obviously been shot, but he was mistaken about who had shot him.

Five people, other than McElroy and Romaine, initially claimed to have knowledge of McElroy's whereabouts at the time of the shooting: Three people placed him on the roads in the vicinity of Romaine's farm, and two swore he was at home.

Short Linville, the man who drove McElroy, Trena, and later McElroy's kids to school, lived in Graham in a house right across the street from a stop sign where 22 dead-ended into Route A. A friendly man with a huge gut, Short happened to be in his yard around 5:30 that July afternoon. He looked up to see Ken McElroy's green Dodge come barreling down 22 about 50 miles an hour. Ken was driving and a young man wearing a felt hat was hanging on to the dash. McElroy barely slowed as he hit the corner, and the Dodge went into a four-wheel sideways skid that ended about half a foot shy of the ditch. Short, who had been standing only a few feet from the ditch, jumped back in alarm. "Goddamnit, Ken," he swore to himself, "you knew that corner was there. What the hell's wrong with you?" The instant before the truck came to a stop, Ken downshifted, hit the gas, and roared out in a screeching fishtail.

Danny Kinder, a hand on Romaine Henry's farm, lived with his wife and kids about a mile away from Romaine. Kinder was driving home at 5:30 after the day's work, heading west on Route A, when Ken McElroy passed him in a green Dodge going east faster than hell. There was no question in his mind that it was McElroy's truck and that McElroy was behind the wheel.

Two farmers who lived close by Route 22 also saw Ken McElroy around 5:30 that afternoon, traveling east at a high rate of speed on 22.

But Maurice O'Connor and Alvin Smith told a different story. Both men were from Bedford, Iowa, a small town over the Iowa border and a favorite hangout of Ken McElroy and other coon hunters. They claimed that they were at Ken McElroy's farmhouse doing carpentry work the afternoon of July 27, and that McElroy had been there from shortly after 5 until 6 p.m.

Lawyer McFadin, with one of his best clients in trouble again, set about methodically constructing a defense. First, he took Romaine's deposition, spending considerable effort nailing Romaine down as to the exact time the shooting had occurred. Romaine couldn't say what time he left home, but he was very clear on the time he returned: "Well, all I know is when I got home I looked at my watch and it was twenty-five minutes till six and so from the time I left home until I got back home I wasn't gone over five or six minutes."

McFadin had him repeat time and again that he was positive he arrived home at twenty-five to six. Under McFadin's questioning, Romaine acknowledged the incident could have occurred fifteen minutes earlier, thus setting in concrete the time period for McElroy's presence from 5:20 to 5:35.

McFadin also asked Romaine a routine question: Had he ever been convicted of a felony? No, Romaine answered, he had not.

O'Connor's and Smith's affidavits rebutted the time periods perfectly, although they contained some slight inconsistencies. On September 29, O'Connor signed a handwritten affidavit stating that on the day in question he had been working as a carpenter at Ken McElroy's house and that Ken McElroy was "at his home from 5:10 p.m. and left with Alvin Smith and myself at 5:55 or possibly 6 pm Mr. McElroy was driving his own station wagon." After his signature O'Connor added that he remembered the time because they started picking up their tools a few minutes after 5 p.m. On November 9, O'Connor executed another statement, this one typed, in which he stated that McElroy arrived around 5:10 in his green Dodge truck and asked them to fix a flopping tailgate. He and Smith talked to McElroy, fixed the tailgate, and all three left around 6 pm Smith's statement, also signed on November 9, said the same thing, adding only that his record book indicated that they billed McElroy for services from 8 am until 6 pm

Next, McFadin, looking under every stone, found that Romaine had been convicted of common assault some twenty-four years earlier. The charge stemmed from an adolescent fist fight, and Romaine had paid a $10 fine. He had completely forgotten about it.

To no one's surprise, Judge Wilson disqualified himself from the case on his own motion. Wilson told a prosecuting attorney in another county that McElroy had threatened to burn his barn down, and that not very long after the threat, the barn had burned down. Wilson was terrified of McElroy. In a previous case, before Wilson had disqualified himself, deputies had brought McElroy into the courtroom for a hearing and left him alone. Wilson motioned a lawyer over and said in a panic, "He's in here all by himself! Where are the deputies?" Wilson scurried from the bench, and in a minute the courtroom was crawling with bailiffs and deputies.

With the defense in relatively good shape, McFadin, relying on the tried-and-true principle that delay would always benefit the defendant, sought to have the trial continued. He succeeded in having the case transferred to Gentry County and the original trial date of February 14 continued to April 25. That date was continued again to August 2, 1977, when it finally went to trial.

McElroy used the time to go after witnesses. When the visits first began, Romaine didn't know what to expect; he spent several nights sitting in his bathroom with a rifle in his lap, waiting to shoot McElroy if he came through the door. The Henrys' bedroom faced out on the road, and many nights after the family was in bed, Romaine and his wife awakened to find a bright light flashing around on their bedroom walls. Romaine would peek out the window and see the green Dodge with a hand-operated spotlight parked on the side of the road. Sometimes Romaine or his wife would look out the door in the middle of the day and see McElroy down the road a hundred yards, standing alongside his pickup, fooling around in the back or under the hood. Suddenly, the truck would start up, the engine would race, and McElroy would tear out in a spray of gravel. Other times, the truck would just cruise by the farmhouse very slowly, several times in a night, the lights off and the engine rumbling loudly. McElroy might come around every day for a week or stay away for ten days at a time. The Henrys' closest neighbor, who lived three-quarters of a mile away, grew accustomed to the sound of scrunching gravel as McElroy drove back and forth in front of Romaine's house.

Romaine estimated that McElroy visited him on at least one hundred separate occasions. He figured McElroy was trying to provoke him into doing something foolish, such as coming after him with a gun, or to intimidate him into not testifying. Romaine never considered backing down. He complained to the sheriff, who said he would talk to McElroy. The sheriff did drive by a couple of times, but never when McElroy was there.

One morning, a week or two before the trial, Romaine couldn't start two of his tractors. On investigating, he determined that someone had put sugar in the gas tanks. He called the sheriff, who sent the fuel niters to the lab, which confirmed the presence of sugar. But without proof that McElroy had put it there, the sheriff said he couldn't do anything.

Danny Kinder, who had told his story to the prosecution, feared for his life and the lives of his wife and children. Several times, he saw McElroy drive slowly by his house with a shotgun hanging out the pickup's window. Kinder also got word from various sources that if he testified at the trial and McElroy was convicted, he was a dead man. When he was working, he worried about his wife and kids at home. He asked for police protection but was told that it would be impossible. Nobody came around and asked how he was doing or whether he needed any help; he was on his own. Eventually, deciding that he couldn't stand up to McElroy alone, Kinder took his family and moved to Florida.