In Broad Daylight (37 page)

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.

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.

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 wasplaced -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 jury 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.)