In Broad Daylight (9 page)

McElroy said he was on his way to St. Joe.

Stratton examined the hogs in the back of the truck-two red and two black, squeezed in tight-and asked McElroy, "Whose hogs are those?" McElroy gave an evasive reply, so Stratton asked him straight out, "Did you steal those hogs, Ken?"

McElroy's face darkened and his eyes seemed to get blacker, until Stratton felt as if they were piercing his mind.

"Goddamn it," McElroy said, "you're just like everyone else around here-you think I steal hogs for a living!"

As McElroy started to reach behind him, Stratton realized the deal was going bad. Turning back to the window, McElroy dropped the barrel of a 12-gauge shotgun in Stratton's face, his finger curved around the trigger. McElroy said nothing, but his dark eyes glittered in anticipation. Stratton had been caught flat-footed, out of position without a weapon drawn, and he knew it. The only thing he could do was back off and hope he didn't get his face blown away. He had no doubt that if he went for his pistol, or tried to grab the shotgun, McElroy would shoot him.

"OK," said Stratton, "this time is yours. But the next time we meet, I'll be ready for you. When I come for you, I'll get you." He walked away, and it was over.

The incident stuck in Stratton's gut. He was a rookie, young and cocky, and he had been careless in the way he approached McElroy. From that night on, he began keeping book on the man; he learned who he ran with, where he hung out, the names and descriptions of his various women, and the makes and models of all his vehicles. Through informants and other sources, he tried to keep track of him-where he was and what he was up to. He never passed up a chance to stop him; over the years he pulled him over at least twelve times for speeding, invalid registration, dragging muffler, faulty head lamp, and other infractions. Sooner or later, Stratton knew, there would come a time to even things up.

In late 1969 or early 1970, McElroy went on a spree of violence and stealing that would result in nineteen separate felony charges being brought against him: two in St. Joe, five in Savannah, and twelve in Maryville. He would demonstrate his ability to defeat the criminal justice system, if there were any doubt, by the application of two simple rules, one following the other: If you delay a case long enough, a witness may disappear or forget what he saw, and if there is no witness, there is no case.

Rather than getting better, as Alice had hoped, her life with Ken deteriorated after they moved to the farm outside of Skidmore in 1969. Ken was seldom home, and when he was around, the beatings were worse and more frequent. His sexual activity in the area was rampant; young girls and other men's wives took up a lot of his time. Some of the stuff she saw and heard about almost made her sick.

Mabel and Alice were close, and Mabel could see what was going on. Several times she talked to Ken, hoping to persuade him to stop abusing Alice, but the talks did no good. Ken's only reaction was to get furious with Alice for telling his mother, although Alice didn't have to say a word because the evidence was written in bruises on her face.

Finally, Alice had had enough. She grabbed Juarez, who was by then three years old, and took off for St. Joe. On April 10, 1972, Ken called Alice and told her he was coming for both of them, and Juarez was going with him, whether she came or not. This threat-he would take Juarez and never allow her to see him again-was really the only one that worked anymore. But this time, Alice told him no, she wasn't going with him, and she wasn't giving up Juarez. She took Juarez and went to her mother and stepfather's house and got a .32-caliber pistol from the bedroom, determined to protect herself and her son. If Ken tried to carry out his threat, she told herself, she would shoot him as he walked through the door. Alice sat down at the kitchen table and began trying to load the pistol. In the process, the gun accidentally discharged and a bullet tore into her hip. She was taken to Methodist Hospital and was admitted to intensive care. (Alice stayed in the hospital for a week, but the bullet was never removed.)

McElroy called the house that same night, looking for Alice and Juarez.

"She's in the hospital," Otha told him.

"Well, I'm coming for Juarez," McElroy said, "and I'll shoot anybody that stands in my way."

"The hell you will!" Otha replied.

A short time later Otha looked out the living room window and saw McElroy approaching the house with a rifle in his hand. Otha went into another room and got a shotgun, but when he came back, McElroy had disappeared. After a while, Otha put the gun away. As he walked back into the living room, a rifle shot shattered the window and tore into his left thigh. He saw McElroy run to the pickup with the rifle in his hand and drive away. Otha went to Methodist Hospital, where he was treated and released that night.

McElroy later told his lawyers that he had stood across the street from the house and yelled at Otha to come out. He then hid in his truck, and upon seeing Otha standing in the window with a gun, shot him with a .22-caliber rifle.

Three months later, the Buchanan County prosecutor filed a felony assault charge against McElroy, alleging that he had shot Otha in the leg with a rifle with intent to do great bodily harm. Originally, McElroy retained a St. Joe attorney to represent him.

Life for Otha and his family was hell after the assault charge was filed. McElroy called Otha at least once every day or night, threatening to shoot him on the way to work, kill his wife at home, or shoot his child on the school playground. McElroy drove by the house repeatedly and followed Otha in his car. His wife and child became scared to leave the house, and Otha began carrying a gun for protection. Several times McElroy demanded that Otha step out onto the lawn so they could have it out man to man. Finally, after a couple of months of harassment, Otha figured what the hell, and walked out onto his lawn with a rifle. Nobody showed up, but a little later McElroy called and said he had seen Otha standing out on the lawn.

McElroy was no stranger to Otha, and Otha knew what was going on; McElroy was becoming obsessed with him.

"McElroy was a bad dog. He'd sit and talk to you and smile and be as friendly and charming as he possibly could, but the minute you turned your back, he would shoot you if he felt like it. He used to tell me that when he got a bad coon dog, he would hook him onto the trailer and drag him behind the pickup until he was dead. With Ken, everything was always your fault. If he shot you, and you prosecuted him for it, you were the bad guy. He would beat up Alice, beat her silly, she would complain, and then she was the bad person because she was complaining. He shifted the fault onto the victim, and then the victim became responsible for his pain."

Otha, the source of his pain in this case, was terrorized, convinced that McElroy meant to shoot him again. Otha agonized as the assault case was delayed repeatedly. Several times he got a subpoena for a court date and showed up, only to be told that the case had been continued again.

Finally, on January 10, 1973, ten months after the shooting, McElroy came out of the shadows to deal directly with Otha. Otha was drinking at Garland's Tavern in St. Joe, a popular bar that attracted people from surrounding towns and was a favorite hangout of Ken McElroy's. McElroy walked in and pulled a corn knife on Otha.

"I'm going to cut your guts unless you swear not to testify," McElroy said.

Otha pulled a chair between them, and insisted he wouldn't back down. McElroy left, but returned ten minutes later in a burning rage, carrying an automatic 12-gauge shotgun. He locked the doors behind him and yelled at the owners to close the place down.

"Nobody's leaving here," he bellowed. "Nobody's even going to the goddamn bathroom!"

He walked over to Otha and stuck the barrel of the shotgun in his face.

"I'm going to kill you," McElroy said, "unless you swear not to testify." He raised the gun in the air, then dropped the barrel in Otha's face again, pulling the hammer back and resting his finger on the trigger.

"I'm going to start at your feet and shoot all the way up until there's nothing left of you," he said.

No one else in the place moved, and the room fell silent. Believing that McElroy was going to pull the trigger, Otha prepared to die. The gun went up into the air, then swung back into Otha's face.

"I'll blow your goddamn head off if you testify!" McElroy swore. McElroy repeated his threat several times, then pointed the gun at the floor and fired. A crashing boom resounded in the tavern and the frightened patrons jerked in their seats. The pellets tore a hole in the wooden floor a few inches from Otha's feet.

McElroy backed out the front door, gun pointing in the air, cursing Otha.

Sergeant Jacob (Jake) Rostock, a thirty-seven-year-old stocky ex marine and veteran of the St. Joseph Police Department, responded to the disturbance call at the tavern that night. By the time he reached the bar, everything was over-several customers and a black bartender remained, but none of them, except Otha Embrey, had seen or heard a thing.

McElroy was arrested and released on $1,500 bond. Within a few days prosecutors filed a charge alleging that Ken McElroy did "willfully, unlawfully by menace attempt to deter a witness, to wit: Otha W. Embrey, from appearing or giving evidence in a criminal proceeding, to wit: the prosecution of the said Ken McElroy for the felony crime of felony assault, by threatening to kill the said Otha W. Embrey."

On March 2, for some unexplainable reason, the state dismissed the felony charge and refiled it as a misdemeanor, Attempting to Bribe a Witness Not to Testify. At that time, misdemeanors in Missouri were heard first by a magistrate. If found guilty by the magistrate, the defendant had an absolute right to a new trial in the circuit court, by a jury if he chose.

In February, Richard (Gene) McFadin, a Kansas City trial lawyer, took over the defense of both cases. McFadin had been in Savannah on another matter when McElroy approached him about representing him. He didn't know McElroy, nor had he ever heard of him, but at first glance he didn't look like the sort who could afford his services. He listened to the story anyway and told McElroy the fee would be $3,000 for both cases, with $1,000 up front. McElroy paid cash on the spot. This was the beginning of a long, mutually beneficial relationship: McElroy constantly needed a lawyer, always paid cash, and never complained about the fees; and McFadin always (or almost always) got him off.

The second case was tried before a magistrate on April 27, 1973. Otha testified that McElroy had threatened to kill him if he testified in the assault case. The bartender, who was originally going to testify that McElroy had threatened to kill Otha, changed his mind and swore he hadn't seen what had happened. In his testimony, McElroy admitted he had a shotgun with him in the bar, but said he was showing it to someone in hopes of selling it to him. McElroy forgot the gun was loaded, and it accidentally went off. Appearing as a character witness in favor of Ken McElroy, Alice Wood told the court that Ken was a fine person and outstanding citizen. Nevertheless, the magistrate found McElroy guilty of the charge and sentenced him to six months in prison.

This was McElroy's first conviction, but it didn't stick. On May 4, McFadin filed a notice of appeal to the circuit court, which would automatically have resulted in a new trial. Mysteriously, however, the files in the clerk's offices were sealed one day later, on May 5. Under Missouri law, records must be sealed in cases where the defendant is acquitted or the charge is dismissed by the prosecuting attorney. In McElroy's case there was no acquittal (the case couldn't have been tried in the circuit court the day after the appeal), so the prosecuting attorney must have dismissed the charges. The only legitimate reason for a prosecutor to dismiss a case under such circumstances would be the loss of a critical piece of evidence -such as a key witness. Neither of the two prosecutors involved can recall either this case or the underlying assault case.

Otha never knew what happened to the bribery case, but the underlying assault charge was dismissed when he finally told the prosecutor that if after two years, he wasn't going to try the case, he should drop it, since he couldn't handle the harassment any longer. Otha never heard another word about the case.

Reid Miller was elected sheriff of Andrew County, which lies just to the south of Nodaway County, for the first time in 1969. A tall, lanky, easygoing type, Miller enforced the law with the help of only one deputy in those days.

When Miller took over, he had heard that Ken McElroy was a dangerous character who loved guns and hated lawmen. The first time he encountered him was in 1970, when he got a call from the highway patrol that Alice Wood had reported that Ken had gone crazy and had been shooting at her. She had fled in her car, and he had followed her and run her off the road into a ditch. She had escaped on foot to a neighbor's house to use the phone, and now she was afraid to leave.

On his way to the house, Miller saw the yellow Cadillac convertible, with the top down, barreling down the road. That's him, he said to himself, and flipped a U, hit the siren and lights, and ran him down. McElroy pulled over. Miller pulled the .357 Magnum from its holster and aimed at the driver's door.