In Broad Daylight (38 page)

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 rundown 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. "I'll tell you what," McElroy continued. "My fuckin' lawyer better get me off. I've already paid him $30,000 and now he wants another $20,000 for an appeal."

Word of McElroy's return spread through town. Some people had heard about the verdict; others had seen the two trucks in town. After disbelief came shock: What the hell had happened? The man had been found guilty by the jury; what was he doing back out on the streets?

After the guilty verdict, Baird could have made a motion to increase McElroy's bond on the grounds that the likelihood of his fleeing had increased because of the verdict. Such a motion might have been a futile gesture-unless the new amount were really high, McElroy probably would have been able to meet it-but he might have had to spend a few days in jail, and the motion would at least have indicated that the jury verdict wasn't a worthless piece of paper. Baird might have had more luck -and provided a greater service to the community-if he had sought to have McElroy prohibited from entering the town of Skidmore as a condition of his bond. Such restrictions were clearly permissible under Missouri law, and Judge Donelson had previously restricted McElroy's ability to travel after the St. Joe incident. If grounds were needed to support such a request, Baird could have sought a hearing to present evidence on McElroy's harassment of Skidmore residents. Baird, however, made no such request, and Donelson simply ordered that the bond be continued as it was.

Many people in Skidmore felt that it would have been better to acquit McElroy rather than convict him, tell him he was going to jail, and then send him back into the town. The community felt exposed and unprotected.

One housewife remembered it this way: "The last few weeks were pretty scary. Nobody would come to the business area because they didn't want to run into McElroy or confront him. Somebody would see his pickup downtown and the word would spread. My biggest fear was for my kids. Kids are pretty much allowed to run free, playing all over town, with a few rules about coming home for meals and chores. But, after he was turned loose, I kept my kids at home, and I know most other mothers did too. If he went on a rampage, I wanted them in the house."

Cheryl Brown: "Day after day, he sat on the street in front of Mom and Dad's house. The town emptied out every time he came to town. Everyone was so uncomfortable and scared. The guys down at the pool hall didn't like to be around when he was in town, I suppose because they were nervous and scared too. You just couldn't be sure what was going on in his mind. To wake up every morning afraid, be scared and nervous all day long, and terrified when the dark came and you couldn't see him, and every time there was a noise in the night, to prowl the windows and to wonder if everything was okay in town. That's how it was for me."

The townspeople weren't the only ones in shock that Friday afternoon. Ken McElroy had spent his life creating an image of invulnerability, and now the image had been cracked. McElroy could see the effect of the community's little victory: While he was not allowed to carry a gun, more and more of the farmers were carrying weapons in their trucks, and he knew they were talking in the tavern and on the street corners about taking care of him.

In the late afternoon clouds began to move in from the northwest, and by evening the sky roiled with deep blue-black thunderheads. In the middle of the night, the rain fell and the farmers rose to the surface of their slumber and absorbed the sounds and smells of a long, hard rain that would soak the earth and rise through the roots of the plants to the veins in the tips of their leaves. The rain continued through the night and in the morning, the fields were muddy and impassable, the dirt roads treacherous mud slicks. In town, pickups were splattered brown, and the main street of town was littered with chunks of mud.

By 6:30 a.m." the tables at the cafe were filled with farmers, and the floor was muddy from work boots and galoshes. The cafe was noisy with the ritual bragging about whose rain gauge showed the most moisture, and as usual the first liar was in the worst shape-if he said one and a half inches fell on his land, the next guy claimed two inches fell on his.

The rain slowed in the afternoon and stopped altogether around dinnertime, but still the dark clouds hung in the sky. The morning of the following day the sun rose hot on the eastern horizon, and by noon the countryside was a shimmering mosaic of vibrant greens and golds. Vast dark green seas of corn rose and fell with the rolling land. Fields of winter wheat, their golden stalks heavy with grain, danced and swayed in the wind. Long parallelograms of light green soybean plants, on the verge of blossoming, merged with the pale blue sky. A doe, dark and lustrous this time of year, pranced up the viridescent hillside, pausing every few steps to look carefully about. Her black eyes glistened in the sunlight.

The corn was five feet tall in the hill country and seven feet on the bottoms; the stalks were sturdy and the leaves were wide and long. The wheat would be ready to harvest within a few days. As soon as the fields were dry, the red, green, and yellow combines would come rumbling out of their sheds and roam over the golden fields, devouring the ripened grain with their whirring blades.

The world seemed to be slowly closing in on Ken and Trena McElroy. They became convinced that the townspeople were planning to get rid of Ken. The son of a neighboring farmer had come to the farm and told Trena that some men were going to pay him if he'd shoot Ken. Trena saw a shotgun and a pistol on the passenger seat of the man's truck. She told Ken about the visit, and later that night, when the man came back in his truck with the lights off, Ken confronted him and told him to stay off the property. He never came around again.

A few days after the trial, Ken and Trena were sitting in the D & G Tavern when a farmer they knew sat down beside them and said that the townspeople were circulating a petition to ban Ken from Skidmore, and that everybody in town was signing it. Del Clement and Red Smith were standing behind the bar, and Red Smith made a face at the farmer. Another time, Del told Ken not to come in the tavern anymore, because whenever he came in, the tavern lost money.

Ken told Trena that Sheriff Danny Estes had pulled him over one day and told him that "he was going to catch him one of these days on a gravel road and shoot him and say that he had resisted arrest." One night not long afterward, when Ken and Trena were driving home, a car parked off the road shined a spotlight on them as they passed. Rounding a curve, they looked back and recognized the sheriff's car.

Another time, Ken and Trena pulled up to a stop sign by Birt Johnson's gas station and noticed a group of people standing on the corner. One of them looked at Ken and Trena and hollered, "We don't want you in this town!"

McElroy's loss of face and the prospect of going to jail caused wild swings in his behavior. Sometimes, he bragged and laughed it off. Two or three days after his conviction, he walked into the tavern and poured a sackful of bills on the counter. "There's more than $20,000 there," he said. "I'll bet anyone here that I won't spend one day in jail." No one took him up on it.

Other times, he seemed to sense his power slipping away. In the Shady Lady one night, as he talked with two women about the people who had testified against him at his trial, his mood grew increasingly foul. "I'm going to get 'em," he said menacingly.