In Broad Daylight (50 page)

Baird had told the reporters that an arrest would be made immediately if the jury named the killer, and the courtroom was filled with representatives of the wire services and several major dailies, as well as the local news media. An FBI agent was also in attendance.

Deputy Kish testified first, and he described the scene he had observed as he drove into town and found McElroy in the brown and beige Silverado. Kish described the autopsy, and pointed out that the pathologist had said there were two bullet wounds and possibly four. Using photographs, Kish pointed to the wound in the top of the skull as the one that had killed McElroy.

Bartender Red Smith was the next witness. He said he was tending bar when McElroy and his wife came in. Ken ordered a beer, then fifty to sixty people came in, most of whom Red knew. A few minutes later, Ken bought a six-pack, then he and Trena left, followed by twenty-five to thirty people. A few minutes later, Red heard what he thought were firecrackers going off. When he realized that they were bullets, he hit the floor behind the bar. There was a big boom, a pause, and then a string of explosions, one at a time-BANG, BANG, BANG, BANG. When the shooting stopped, he stood up, still shaking, and served beer to several guys standing at the bar. He didn't go outside, nor did he call the law. He figured someone else would.

The next three witnesses demonstrated to the press what the investigators had been up against. Farmer Harold Kenney said that only about forty people came into the bar, and that only twelve people followed Ken and Trena outside. Kenney had followed them out, then headed west up the street without looking at Ken or the pickup. Upon hearing the shots -one big one followed by many little ones, coming from the north (across the street)-Kenney dropped to the ground between the Silverado and another pickup. He didn't look up to see who was shooting. Everyone was running up the street, and he joined them. When he finally glanced toward the Silverado, he saw that the driver's window was shattered and that the engine was steaming. Looking up the street, he noticed Jack Clement up at the door of the bank with McElroy's wife. Kenney saw no guns.

Mayor Steve Peter took the stand and testified, "I left the bar right behind McElroy. I was twelve to fifteen feet from his truck when the shooting began. I saw a side window break out, I guess from a bullet, but I didn't know if it hit him. I dropped to the sidewalk and heard maybe four shots in all." Steve couldn't tell where the shots were coming from, and he didn't see anyone with a gun.

Postmaster Jim Hartman testified he heard the shots and, after the shooting stopped, looked out the window and saw people across the street looking in his direction. The passenger door of the Silverado was hanging open, the glass in the back was shattered, and the engine was steaming and roaring. Hartman said the first shots came from the southeast and the others from west of the post office. He saw no one with a gun.

The final witness was Trena. She spoke in a soft, almost falsetto, voice, breaking down into sobs and wiping tears from her eyes as she went through her story. (Several locals described it as a great performance.) She said that fifty people followed her and Ken out of the tavern, and many of them came over to the passenger side of the Silverado. She saw some movement in the crowd, and then Del Clement emerged from the back of the crowd and walked across the street. She kept her eyes on him as he crossed the street, reached inside a maroon pickup, pulled out a rifle, and walked to the back of the truck on the driver's side. He aimed the gun, and when she turned to tell Ken, the window shattered, and the hole appeared in Ken's neck. She turned back, saw Del still holding the gun to his shoulder, and heard the second shot ring out.

"I seen him shoot my husband. I seen him do it. He hit my husband. I know it was him."

There were six witnesses, and the hearing lasted forty-seven minutes. The jury retired to deliberate and returned in twenty-seven minutes with the verdict: Ken Rex McElroy had died from a felony committed by a "person or persons unknown."

Reached by the Kansas City Times, Barbara Clement said that her son Del was serving as a master of ceremonies at a rodeo and was not available for comment. She discounted Trena's identification of Del, saying, "That doesn't mean a damn thing. The family isn't worried about her statement, because it simply isn't true." When the Times reached Del later, he called Trena "a liar."

Much of the press held Skidmore responsible for the failure of the coroner's jury to name a killer. Editorial writers saw the outcome as proof that the townspeople were a gang of vigilantes. High prose flowed on the inevitable results of such premeditated, lawless behavior. On July 23, the Columbia Daily Tribune opined that "Skidmore offers the closest thing to frontier justice that you're likely to see anywhere today." Finding the failure of any of the townspeople to identify the killer as "preposterous," the paper asked if there weren't "somebody in that throng who thinks it is wrong for a citizen to be gunned down in the street," and called Estes a "kept sheriff." Predicting that the "selective justice" would backfire, the paper called for a grand jury to discover those responsible for McElroy's "public execution."

The Joplin Globe based its reaction on the assumption that fear, anger, and frustration had provoked someone in the crowd of sixty persons to commit murder:

It is one thing for an individual to strike out in anger or fear, and quite another for a group of townspeople to conspire to kill someone because they perceive the criminal justice system as ineffective in dealing with him.

Vigilante action is tragic in its brutal violence. It also indicates a breakdown in the system itself. Unfortunately, what is dispensed by such white-sheet, night-rider mentality seldom is justice. Vigilantes who see themselves as judge, jury and executioner have no place in a society governed by laws.

In the face of such condemnation, the community flinched and withdrew even further into bitterness and resentment. A cancer had been cut out of the body, but the wound hadn't been closed properly. Now infection had set in, and nobody could do anything about it.

The national press continued to report that the town had taken the law into its own hands. The reporters ignored Prosecutor David Baird's statement that he had no evidence of a conspiracy or a vigilante action.

Producers and writers in faraway places responded to the image. "It seems like an Old West drama," said Peggy Noonan, a CBS producer with Dan Rather's office. "When a local populace takes the law into its own hands, it raises so many questions, like is the town justified?" Jules Loh, a national columnist for the Associated Press, admitted to the Forum that the attraction was the "notion of a vigilante act, whether it was or not." Mr. Loh labeled McElroy as "Attila the Hun-the terror of the county."

On Sunday, August 2, the AP story by Jules Loh was carried in newspapers across the country. With its publication, the media machine cranked into high gear. "McElroy Struck Fear into the Residents," cried the Forum; "Brute of Nodaway County: Chilling Remembrances," said the Kansas City Star; "Skidmore Put End to Bully's Scare Tactics," announced the Nevada Herald; "Skidmore Residents Feel New Terror Grip Town After Shooting," headlined the St. Joseph Gazette. It was good stuff, and there was an insatiable desire for it.

Loh repeated the fiction that when McElroy was a boy, he had fallen off a hay wagon and had a steel plate implanted in his head. "Some wondered if that was what made him so mean." Loh compared McElroy to Jesse James, "who also met his maker just south of here." Loh claimed that McElroy had been acquitted in the Romaine Henry shooting because the witnesses had had faulty memories. The townspeople, according to Loh, referred to the killing as "the incident."

Surprised by the failure of the coroner's jury to name Del Clement, Baird now had to decide on his next move. In considering whether to file criminal charges, Baird normally reviewed the admissible evidence to determine whether it would be sufficient to establish the guilt of the proposed defendant beyond a reasonable doubt. In this instance, he could easily file the charges on the basis of Trena's testimony and the absence of any contradictory evidence. But one thing gave him serious pause: Twelve jurors from the same pool of people who had heard the same evidence he would introduce at a subsequent trial had decided not to name Del Clement. Moreover, the coroner's jury had to determine only that there was "reason to believe" that a person committed the crime, whereas a trial jury has to find guilt "beyond a reasonable doubt." If Baird couldn't establish "reason to believe" that Del Clement had committed the crime, what were the chances of his establishing it "beyond a reasonable doubt"? The most prudent course, in Baird's judgment, was to present the evidence to a grand jury, and let the jurors decide. A grand jury would have to find "probable cause" to believe that Del Clement had committed the crime, a lesser standard than "beyond a reasonable doubt." If twelve people couldn't find probable cause, then there was no basis on which to file the charge.

A few days earlier, Baird had in fact formally requested that Judge

Wilson impanel a state grand jury to hear the matter. He was awaiting the judge's response.

"The McElroys have feelings, too," was the reaction of some residents to the plight of the nine or ten McElroy brothers and sisters and their numerous children and grandchildren who lived in the area. Everyone thought well of Mabel and most had liked old Tony to one degree or another, or had at least tolerated him. Ken's brothers and sisters were farmers, nurses, clerks, or housewives and were considered to be a pretty decent bunch, with one or two exceptions. Few of Ken's siblings stuck up for him while he was alive.

Although the residents in Skidmore wanted the McElroys to know that no one was holding Ken's sins against the whole clan, the people weren't surprised when the family closed ranks.

Within a few days of the killing, the McElroys came one by one into the Skidmore bank and withdrew their money. Most of them simply closed their accounts, saying little if anything, but they insisted on having Sherril Herner wait on them. Trena had told them that the other two cashiers had mistreated her and tried to take her into the back room, and none of the family wanted to deal with them.

Harold Hoyt, one of Ken's brothers-in-law, who farmed west of Quitman, came into the bank and gave a long, bitter speech, saying that the people of Skidmore were jerks for what they had done to Ken, that Skidmore was a bad place, and that the people there were all rotten. The bank employees said nothing, letting him rage until he finished. Hoyt, who was married to Ken's sister Pauline, also wrote a letter to the Forum, published on August 16, in which he described the killing as a cold-blooded murder by someone afraid to face McElroy. He condemned the people of Skidmore for feeling no remorse and complained about the failure of many friends to call or visit or send cards. Hoyt described seeing the hurt in his wife's eyes when a truck backfired three times and someone yelled, "Ken McElroy must be in town." He said somebody in Skidmore was selling T-shirts that said on the front, "Who shot KR?" and on the back, "Who cares?"

Tim was probably the most popular McElroy around. A decent, soft-spoken man, he was renowned for his athletic ability and the way he could follow his dogs through the timber. To many in the town, Tim had always seemed somewhat embarrassed by Ken's activities and had tried to disassociate himself from Ken. A month or so before the shooting, Kermit Goslee told Tim that if things kept up the way they were going, something was likely to happen to Ken. Tim shook his head, saying that he didn't understand why Ken did those things, and that he knew what could happen.

But Tim's feelings changed after the killing. "There's no use telling the inside story," he said to a reporter. "Nobody will believe it. He and I, that's how it was. The other kids were married and gone. He and I looked after each other. I was attached to him."

Tim gave a bitter version of the killing day in the same article. "Someone had told Ken he was going to be shot. That was a couple of weeks before it happened. He had even told his kids, told them to make plans about where they would go to if something happened to him.

"The first thing I knew, the banker called me and said, "Can you come to town? There's been an accident and Trena needs a ride home." So I said, "Sure." When I drove into town, I saw his truck up on the hill by the bar. When I got closer I saw the windows were shot out and his head was bowed down. He had always told me that if something happened to him in his truck, not to go near the vehicle, so I didn't. I went straight to the bank, where Trena was just crying her eyes out. Nobody stopped to help her. The bank was full of people. And everybody was going about their business like nothing had happened. Now that's cold-hearted, wouldn't you say? Just going about their business, making deposits and withdrawals. If that ain't heartless, what is? There he is, dead."

A published statement by Scott Clement, one of Del's younger brothers, answered Tim: "Want to know why nobody checked and nobody' called? It was because everybody was willing to let him stay like that. That was how we felt about him."

Another friend of McElroy received a note in the mail and gave it to the sheriff, claiming that it proved the existence of "some kind of vigilante group." The note read: