Against the Law Reviews? Readers Respond to Posner
Wyatt Earp Takes the Stand By John Swansburg
Fireside Chat of the Century By Iain Currie
Against the Law Reviews By Richard A. Posner
Wyatt Earp Takes the Stand
Was the quintessential American lawman guilty of manslaughter for his role in the gunfight at the O.K. Corral?
ONE OF THE MOST PECULIAR GAMES in the history of poker was convened on the evening of October 25, 1881. The players were Johnny Behan, Ike Clanton, Tom McLaury, John Holliday, and Morgan, Virgil, and Wyatt Earpmen who would face off the next morning in the most famous gunfight in the history of the West. By the evening of the 25th, the suspicions, rivalries, and grudges that would spark the next day's violence at the O.K. Corral were already well established. It seems that was no reason, however, that the men couldn't sit down to a game of cards.
The hands were dealt at the Occidental Saloon in Tombstone, a booming mining town not far from the Mexican border in what was then the Arizona Territory. Like many frontier outposts, Tombstone was a town divided. On one side was the business establishment, invested in stability and law enforcement. These men tended to vote Republican and read the Tombstone Epitaph.
On the other side were the men who'd come to town with dreams of making quick money, leaving behind a dark past, or both. These men tended to be distrustful, if not plain disrespectful, of the law, they usually supported Democrats, and they had a newspaper of their own, the Tombstone Nugget.
Both sides of Tombstone were represented at the Occidental's poker table. Ike Clanton and Tom McLaury were Cowboys, a term describing not benign drovers but a loosely federated band of cattle rustlers, many of them Confederate veterans. Johnny Behan was the Democratic county sheriff, but he was more a politician than a policeman and was well disposed toward the Cowboys, who voted Democrat and were known to encourage others to do the same.
Across the table from Behan and the Cowboys was a trio of Republicans, the Earp brothers. Virgil, the eldest, was serving as a deputy U.S. marshal and Morgan had served under him. Wyatt had been a peace officer in Wichita and Dodge City, two of the West's roughest cow towns, where he'd earned a reputation as a staunch lawman. In the aftermath of the gunfight the next day, he would become a symbol of the American brand of law and order, morally upstanding, yet brutally effective when necessary.
There is no record of who prevailed in the poker game that night, but the smart money is on the final player at the table, John "Doc" Holliday. Raised a Southern gentleman on a Georgia plantation, Holliday attended a dentistry program in Philadelphia and made his name in the West as a gambler and a killer. Evidence of murder never seemed to catch up with him, however, and his allegiance in Tombstone was to the lawman Wyatt Earp, with whom he had forged an unlikely friendship back in Dodge City. (Holliday is said to have saved Earp's life, but there is no more evidence of this than of the many killings attached to his name.)
After the last player folded and the game broke up, whatever civility the two sides had mustered quickly evaporated. The Earps and the Cowboys differed over a lot more than their choice of newspaper, and now the enmity that had been simmering for months threatened to boil over. In January 1881, Behan and Wyatt had faced off in an election for county sheriff. Behan promised his rival that he would appoint him deputy if Wyatt dropped out of the race, but then reneged on his half of the bargainperhaps to get back at Wyatt for stealing the affections of a woman to whom he had proposed. Ike Clanton, meanwhile, had recently quarreled with Wyatt over a plan the latter had hatched to bring some stagecoach robbers to justice. Wyatt was sore at Ike's little brother Billy for trying to steal his horse. Tom McLaury was angry that Virgil Earp had shown up at his ranch looking for some stolen Army mules. Virgil was none too pleased with McLaury when he found them there.
After leaving the Occidental, Ike Clanton spent the morning hours in a liquor-fueled rage, walking about town waving a Winchester rifle and telling anyone who would listen that he intended to kill Doc Holliday and the Earp brothers. That behavior soon earned him a visit from Virgil and Morgan, who promptly pistol-whipped him. (Frontier lawmen much preferred "buffaloing" a man to shooting him.) Tom McLaury would suffer the same fate a few hours later, at the hands of Wyatt. Soon after, Clanton and McLaury made their way to the O.K. Corral, where they were joined by their respective brothers, Billy and Frank. There they continued making threats, which traveled down the Tombstone streets to Hafford's Corner Saloon, where the Earp brothers had gathered.
Standing in the O.K. Corral, the Cowboys weren't breaking any laws. But when they crossed into the adjacent lot where the (misnamed) gunfight would actually take place, the Cowboys violated a town ordinance that prohibited the carrying of firearms on the city streets. It was then that Virgil Earp decided it was his duty to disarm the Cowboys, after Behan made a half-hearted and unsuccessful attempt to disarm them himself. With his brothers and Doc Holliday acting as his deputies, Virgil and his posse began their storied walk to the O.K. Corral.
According to witnesses, Virgil informed the Cowboys that he'd come to take their guns, and he ordered them to put up their hands. What happened next is unclear. Earp sympathizers believe Billy Clanton and Frank McLaury cocked and started to draw their pistols. Earp detractors believe the Earp brothers, or more likely Holliday, shot first, with some even contending that they fired on men who were raising their arms in surrender. Whoever drew first, a volley of gunfire rang out.
Unlike the poker game, which had lasted all night, the gunfight took less than 30 seconds. Billy Clanton and Tom and Frank McLaury were fatally shot. Holliday and Virgil and Morgan Earp were wounded. Ike Clanton fled. Only Wyatt Earp was left standing, unscathed. "The 26th of October, 1881, will always be marked as one of the crimson days in the annals of Tombstone," the Nugget wrote the next day, "a day when blood flowed as water, and human life was held as a shuttlecock."
In the movies, that is typically that. The gunfight is the unfortunate (maybe) but necessary (clearly) denouement to the conflict between the Earps and the Cowboys frontier justice served. But even in the Old West, and even when lawmen were the shooters, killings had consequences. Five days later, on October 31, Ike Clanton pressed first-degree murder charges against the Earp brothers and Doc Holliday. If you were to watch every Wyatt Earp movie from Law & Order (1932) to Wyatt Earp (1994), you'd see a lot of riding off into the sunset led by the legendary Wyatt, the lawman who tamed the West. What you wouldn't find is a scene depicting what actually happened in the aftermath of the gun battle: Wyatt hauled to a cell in Johnny Behan's county jail, where he sat awaiting trial for a capital offense.
Even the films that don't show Earp as a paragon of law enforcementthink Burt Lancaster in Gunfight at the O.K. Corral (1957)stop short of imagining him as a murderer. Tombstone, the 1993 film based on history as well as myth, portrays Earp as an opportunist more interested in money than marshaling. But the Cowboys are still the bad guys, and there's little to suggest that the shoot-out was anything but a fair fight.
Yet Earp not only went on trial for the shootings, he easily could have been convicted. In his new book Murder in Tombstone, a careful study of the legal proceedings that followed the gunfight, Northwestern Law School professor Steven Lubet argues that the prosecution held the better hand. But they didn't play it. "The prosecutors probably had a winning case," Lubet writes, "but it was not the one they ended up presenting." Lubet's book shows how badly the prosecution played its cards and how well the defense played theirs. Given the peculiarities of justice in the Arizona Territory, the winner of the trial would be the side whose counsel best sized up the players and best exploited the house rules. According to Lubet, that lawyer was Tom Fitch, counsel for the Earps. Along with the prosecution's miscues, Fitch's maneuverings saved Wyatt Earp and his brethren from being hangedand helped give birth to a legend that otherwise might have died on the gallows with its would-be hero.
THE TRIAL OF WYATT EARP wasn't really a trial at all. It was a preliminary hearing before a justice of the peace named Wells Spicer. The purpose of the hearing was to determine whether a crime had been committed and whether there was "sufficient cause" to believe the four defendants were the ones who committed it. It seemed assured that they would be forced to stand trial. With Sheriff Behan willing to testify that the Earps and Holliday had fired on men who were trying to surrender, "the hearing before Wells Spicer could well have been a quick and tidy matter," Lubet writes. But the hearing in Spicer's court proved to be anything but. Instead, the preliminary hearing turned into the longest in Arizona history, with 30 witnesses testifying in as many days. Both sides decided that it was in their interest not to hold anything back. "As befit a bunch of Arizona gamblers," Lubet observes, "everyone decided to go for broke."
The prosecution, led by Tombstone's chief prosecutor Lyttleton Price, adopted a strategy of pinning Holliday as the first shooter, hoping in turn to indict Virgil Earp for allowing the notorious gambler to join his posse. The Earps all had law enforcement on their résumés, and there was no shortage of character witnesses willing to attest to their integrity. The defense submitted a petition signed by 62 citizens from Dodge City and Wichita attesting that Wyatt Earp "was ever vigilant in the discharge of his duties, and while kind and courteous to all, he was brave, unflinching, and on all occasions proved himself the right man in the right place." No former dental patients stood up to attest to Doc Holliday's bedside mannerand he had his reputation as a killer to reckon with. The prosecutors' theory was that Holliday started the shooting with the nickel-plated pistol he is said to have favored because it was small enough to conceal in his vest during a poker game.
This theory has occupied scholars for over a hundred years, offering a glimpse into the depth and fractiousness of the scholarship devoted to the Tombstone legend. There seem to be as many theories about how Doc Holliday may or may not have touched off the fracas as there are historians who have delved into the subject. It's hard to read the work of, say, Paula Mitchell Marks, author of And Die in the WestThe Story of the O.K. Corral Gunfight, without smiling at the notion of her facing off against other historians over whether Doc Holliday might have started the fight with his signature pistol and then switched to the shotgun he was seen carrying to the fight mid-melee. That's Marks's stand. Others have suggested that Holliday held on to the pistol while firing the shotgun one-handed. Given a shotgun's kick, that seems unlikely, particularly since Holliday moved to the West in part to nurse his tuberculosis.
Lubet doesn't wade too deeply into these debates, preferring to remain within his bailiwick, the court of law. That doesn't exempt him from having an opinion about how the events in Tombstone unfolded, of course. He clearly doesn't put much stock in the revisionist theory offered by Ike Clanton's grandson, among others, which argues that the Cowboys were defending Tombstone from the encroachments of the federal government personified by the Earps. But Lubet isn't an Earp partisan, either.
If Lubet has a cause, it's the counsel for the defense. In the author's retelling, Tom Fitch takes a place in the pantheon of Tombstone's heroes. Wily legal strategist and champion cross-examiner may sound like odd attributes for a Western hero, even in a story that stars a dentist-turned-shootist. But Lubet, who is an expert in trial advocacy, makes a surprisingly compelling argument for the importance of Fitch's contribution. The book is more impressive still for its readability: Lubet essentially presents a case study in advocacy, but his storytelling skills and his obvious affection for the subject keeps his nuanced consideration of Fitch's legal craftsmanship from feeling arcane.
Lubet explores Fitch's work at the level of strategy and of tactics, with particular attention given to the latter. He believes that Fitch's skill as a cross-examiner may have made the difference in the case, and he reads those portions of the transcript with special attention. Lubet argues that Fitch had a knack for using a witness's own words against him, luring one after another into assertions they couldn't substantiate and so undermining the authority of their entire testimony.
The cross-examination of Billy Claiborne offers a good example. A friend of the Clantons and McLaurys, Claiborne witnessed the gunfight and testified that he saw Morgan Earp shoot Billy Clanton at point-blank range. On cross, Fitch asked Claiborne if he saw any powder burns on Clanton's corpse. The question put Claiborne in a pickle. If the witness said there were no powder marks, he would be contradicting his own claim that Morgan had fired at close range. If he said there were powder burns, he'd be running afoul of the coroner, who'd testified there were none. Cornered, Claiborne said lamely that he couldn't remember.
NOT ALL OF THE EXAMPLES LUBET OFFERS UP demonstrate Fitch's aptitude as clearly and convincingly. Occasionally, the author stretches to establish his hero's lawyerly chops, reading the lines of the trial transcript too closely, and reading between the lines too loosely. Yet Lubet also takes note of factors outside of Fitch's control that contributed to his success, giving space to serendipity as well as skill.
Tellingly, the career paths of Fitch and Spicer had crossed before. The judge had worked as a lawyer in Utah before coming to Tombstone, taking part in what was probably the most closely followed trial of the 19th century, the prosecution of John D. Lee for his role in the Mountain Meadows massacre. Lee was the only person brought to trial for the attack, in which a band of Mormons dressed as Paiute Indians ambushed a wagon train heading to California and killed more than a hundred innocents.
Spicer served as one of Lee's lawyers and, Lubet contends, the experience made a lasting impression on him. It's now widely accepted, at least outside the Mormon Church, that the conspiracy stretched all the way to Saints leader Brigham Young, who was eager to prove his strength to a federal government trying to rein him in. But at the time Lee was offered up as a scapegoat by his other, church-appointed lawyers, who cut a deal with the prosecution to protect Young and others. That left Spicer to fight a losing battle against perjured testimony and a rigged jury. Lee was executed by a firing squad, and Lubet suggests that his fate made Spicer "inclined to look long and hard at evidence, taking seriously his duty to protect the rights of defendants." Fitch guessed this about the judge because Fitch had also spent considerable time among the Utah Mormons, at one point doing legal work for Young. He seems to have felt he could rely on Spicer to give his clients a chance to tell their side of the story. He was right.
An Arizona statute on the books at the time of the Earp hearing allowed a defendant to take the stand and offer testimony without being cross-examined. It was the perfect chance for the defense to present its version of the events uninterrupted, and Fitch seized it, calling Wyatt Earp to the stand. After answering a handful of perfunctory questions about his age (32) and profession (he said he was a "saloon keeper at present. Also have been deputy sheriff and also a detective"), Earp began reading from a written manuscript. The prosecution objected vociferously, but the statute didn't specify whether it was legal for a defendant to read his statement, and Spicer allowed the testimony to go forward.
Indeed, throughout Wyatt's testimony, Spicer gave him wide latitude to tell his story, despite further objections from the prosecution. Wyatt started at the beginning, describing the series of confrontations that led up to the gunfight. Having summed up a year's worth of threats by the Cowboys, he concluded: "I believe I would have been legally and morally justified in shooting any of them on sight, but I did not do so, nor attempt to do so.... I did not intend to fight unless it became necessary in self-defense and in the performance of official duty."
Wyatt's statement bears the mark of Fitch's influence. As Lubet notes, the lawman was smart, but men in his profession didn't typically speak legalese, and Wyatt probably wouldn't have written a phrase like "morally and legally justified" on his own. But more important than the precision of Wyatt's narrative was the care he and Fitch took to justify his actions. "There was no doubt that the Earps killed the three Cowboys, but the question was whether it amounted to a crime," Lubet writes. "Tom Fitch realized, far better than the prosecutors, that what happened was less important than why it happened." Lubet argues that in Wyatt's testimony, Fitch gave Spicer an answer the judge could find palatable: Tombstone's citizens and its economic prospects were under attack by the Cowboys. Far from being murderers, the Earps had acted to defend the town from a group of armed and dangerous outlaws.
PERHAPS BECAUSE OF ITS NAME, perhaps because of the imperatives of frontier life, Tombstone had a nonchalant attitude toward death. The Epitaph ran a regular column called "Death's Doings." The actual epitaphs in Boot Hill, Tombstone's graveyard, were in the same blithe spirit. One infamous inscription read:
Here lies Lester Moore,The city had not taken the deaths of Billy Clanton and the McLaury brothers lightly, however, as even pro-Earp chroniclers had to admit. Spicer clearly understood the gravity of the case before him, and the mixed public opinion. It could hardly have escaped his notice that nearly the whole town had turned out for the Cowboys' funeral, an event that even the Epitaph called a "saddening sight." Yet after taking scarcely a day to write his opinion, Spicer returned to the courtroom with a decision in favor of the defense.
As Spicer recounted the events leading up to the gunfight, he reprimanded Virgil Earp for having called on Doc Holliday to disarm the Clantons and the McLaurys. Spicer said Virgil acted "incautiously and without due circumspection." Still, it was clear that whatever Virgil had done, the judge had accepted Tom Fitch's explanation of why he had done it. "When we consider the condition of affairs incident to a frontier country; the lawlessness and disregard for human life," Spicer wrote, "I can attach no criminality to his unwise act."
Lubet of course credits Fitch with laying the groundwork for Spicer's decision, while at the same time acknowledging that the prosecution dug its own grave by refusing to consider a lesser charge of manslaughter. Lubet guesses that the prosecution was influenced by William McLaury. The eldest McLaury brother was a Texas lawyer who rode to Tombstone after the deaths of his brothers and joined the prosecution team in the first week of the trial. Letters he wrote during his stay make clear that he wanted vengeance more than justice, and Lubet believes that he may have pressured the other prosecutors into insisting on charging the defendants with a capital offense.
Whatever the rationale, the failure to bring a lesser charge was an egregious error. In Lubet's hands, the evidence presented at trial strongly supports a manslaughter finding. What's more, Lubet offers proof that Spicer himself might have found the Earps and Holliday guilty of that crime. In a nice piece of close reading, he notes that the judge's reprimand of Virgil Earp for having acted "incautiously and without due circumspection" might well have intentionally paraphrased the Arizona manslaughter statute, written to punish killers who acted without "due caution or circumspection."
Intent on a hanging, however, the prosecution had tried to get the Earps by leveling the weight of its case against Holliday, just as Frank McLaury had leveled his pistol at him in the back of the O.K. Corral. ("I have you now," the doomed McLaury is said to have told Holliday. Holliday's response is the stuff of legend: "Blaze away," he replied. "You're a daisy if you do.")
Lubet's efforts notwithstanding, Tom Fitch is probably not the stuff of legendthe next Tombstone movie won't be a courtroom drama. But Lubet does establish that without Fitch there might not have been a Tombstone legend in the first place. The lawyer's cagey work saved the Earps and Holliday from a death sentence. And not just that. As the earliest attempt to cast the gunfight as a parable of order imposed upon lawlessness, Wyatt's testimony might be said to be the ur-text of the Tombstone myth. It would take several decades and a series of articles and books to bring the myth to the masses. But one of the most influential of those texts, Stuart Lake's hagiography Wyatt Earp, Frontier Marshal, relied heavily on Wyatt's testimony in establishing Wyatt as the quintessential Old West lawman. The first author of the Wyatt Earp legend, then, might be said to be Tom Fitch.