Authors: Harry N. MacLean
Under Nourie's questioning, Bo repeated that he had been standing about three feet inside the door and fell to his right to avoid the blast. McElroy had been standing about eight feet away. Bo also identified the shotgun blast as the cause of the scars on the left side of his neck.
On cross-examination, McFadin tackled the two vulnerable parts of the prosecution's case-the knife and Bo's location. Bo described the knife as a long-bladed butcher knife used only for cutting cardboard. McFadin came back time and again to Bo's location.
"Isn't it possible you took two or three steps backward after you were shot?"
Bo held firm. "No, I was two or three feet inside the door."
Bo admitted telling McElroy that the drive was private property and to get off it. He also acknowledged that he didn't actually see what McElroy gave the boys or hear what he said to them.
Estes' testimony was brief. He recounted his investigation of the scene and stated that he had recovered seven or eight pellets from the ceiling. The pellets had penetrated the ceiling tile in a two-foot-wide pattern about seventeen feet inside the doorway.
McFadin moved to dismiss the charge against his client, but Judge Fraze denied the motion and found that there was reasonable cause to believe that McElroy had committed the crime of felony assault in the first degree. The judge ordered McElroy bound over for trial, continued the bond, and set the next court date for September 5.
Nourie, citing the strong possibility of intimidation, asked the judge to order McElroy not to have any contact with either of the Bowenkamps. Judge Fraze granted the request after being assured by McFadin, "as an officer of the court," that there would be no intimidation by his client.
When Trena and McElroy walked down the aisle, the Bowenkamps remained seated, and six troopers stood like a shield between the two families.
That day provided one of the few heartening moments for Bo and Lois. With the next court date less than three weeks away, perhaps the system would finally work.
The next order of business, from McFadin's point of view, was to get the case transferred out of Nodaway County. Accordingly, three days before McElroy was due in court to enter a plea, McFadin filed a motion for a change of venue.
Venue, the Latin word for "place," meant the location in which the trial would be held. In criminal law, venue normally lay in the county or district where the crime occurred. One obvious reason for this was that the community where the crime took place had the most direct interest in seeing the matter brought to trial and justice done.
At the same time, the Sixth Amendment granted the defendant a right to a trial by an impartial jury-a jury that would decide the case strictly from the facts presented at trial and not from bias or prejudice. The courts in many jurisdictions had held that where pre-trial publicity was so egregious and inflammatory as to prevent any twelve jurors from being able to put aside their opinions and decide the case only on the facts, the defendant's right to a fair trial would be violated. But these courts had cautioned that neither pre-trial publicity nor widespread knowledge of the defendant's criminal past was sufficient, in and of itself, to render a trial unfair. If the defendant could show that a "circus-like atmosphere" had developed to such an extent that no juror could be unbiased or fair, the case would have to be moved to another jurisdiction.
The law in most jurisdictions thus attempts to strike a balance between the interests of the offended community in administering justice and the interests of the defendant in receiving a fair trial. In Missouri, however, the law regarding venue created a tremendous imbalance in favor of the defendant. By statute, in counties of fewer than 75,000 people, if a defendant filed a petition supported by affidavits of "five or more credible, disinterested citizens residing in different neighborhoods of the county" saying that a fair trial would be impossible, the judge had to grant the change of venue. Even if no affidavits were attached, a judge who believed the allegation to be true could grant the request without any actual proof
McFadin filed his motion for a change of venue on September 2, 1980,
"In 1982, the Missouri Supreme Court went even further, adopting a rule that in communities of 75,000 or fewer inhabitants, a change of venue would be granted automatically to any defendant who asked for it. "The defendant need not allege or prove any reason for change. The application need not be verified and shall be signed by the defendant or his attorney." Thus, the court delegated to the criminal defendant the absolute right to move the location of the trial. By simply filing a slip of paper, the defendant could deprive the community of the opportunity to judge and punish its own offenders. The state supreme court also adopted a rule allowing the defendant to obtain a new judge merely by asking for one. The defendant did not have to state any reason why the judge should be disqualified. To avoid a judge who, for example, had a reputation for meting out tough sentences, the defendant needed only to file a written application. Thus, the defendant controlled not only where the case was heard, but who heard it. The community had no say in either of these decisions.
and argued it in front of Judge Wilson on September 5, the day that had been set for a plea hearing. The motion was simple and straightforward. Ken McElroy swore under oath that he could not receive a fair trial in Nodaway, Atchison, Holt, Andrew, DeKalb, Grundy, or Clinton counties, because the inhabitants of those counties were biased and prejudiced against him. The motion did not mention pre-trial publicity, of which there was very little, nor did McElroy state why the citizens of a seven-county, 250-square-mile area were biased or prejudiced against him. No affidavits by "disinterested citizens" were attached to support the request.
Based on McElroy's allegation, Judge Wilson, probably with relief, granted the request and transferred the case to Bethany, the Harrison County seat, some eighty miles east of the community where the crime had occurred.
The third tilt in favor of McElroy lay in the discovery procedures allowed by law in Missouri. By statute and state supreme court rule, the defense could issue subpoenas and take the oral deposition of "any person" in accordance with the rules of civil procedure. The defendant, however, was protected by the Fifth Amendment from being compelled to testify against himself, and thus the prosecution was not entitled to take his deposition. The state, upon permission of the court, could take depositions of persons other than the defendant and his spouse, but only for the purpose of preserving the testimony of witnesses who might be unavailable at trial. If depositions were allowed, the court had to enter orders guaranteeing that the rights of the defendant would not be violated in the process. Finally, the state was required to pay the travel expenses of the defendant and his attorney incurred as a result of the state's depositions. One result of these one-sided discovery procedures was that the defense was in a far superior position to uncover the prosecution's case (and devise ways to rebut and impeach it) than the prosecution was to learn the defendant's case.
This unlimited right to take depositions also provided the defendant with a ready-made excuse to delay the trial by claiming that discovery hadn't been completed. If he couldn't locate a witness, for example, the defendant would be entitled to a continuance in order to locate him and take his deposition.
McFadin wasted no time in starting the discovery process. On the day Judge Wilson transferred the case to Harrison County, McFadin sent Nourie a Request For Discovery, asking for any reports or statements by experts; any books, papers, photographs, or other evidence the prosecution intended to introduce; and the names and addresses of all persons the prosecution intended to call as witnesses at the trial. Five days later, Nourie responded, listing twenty possible witnesses, including Bo and Lois Bowenkamp, the four teenage boys, troopers Richard Stratton and Alvin Riney, David Dunbar, Eldon Everhart, Evelyn Sumy, and Dr. E. R. Wempe. Within days, McFadin had issued subpoenas to all the people on Nourie's list, requiring them to make themselves available for sworn depositions. In response to the prosecution's request for disclosure, McFadin replied with a list that repeated verbatim the witness list Nourie had given him. Absent from the list, of course, was the name of McFadin's client, although McElroy would be called to testify at the trial.
The majority of the depositions were conducted in a small room off the prosecutor's office in the Nodaway County Courthouse. In addition to the witnesses and the attorneys, a court reporter and Ken McElroy were present at each deposition. As the four teenage boys answered McFadin's questions under oath, McElroy stared across the table at them.
To ensure that decisions involving life and liberty were made through the dispassionate application of principles of law to the facts of each case, the judicial process was insulated from the rest of society. An intricate set of rules and procedures had been designed to immunize the process from contamination by outside influences. The courtroom became an arena in which each side struggled to prevail, using every allowable procedure and technique in a strategy of controlled combat. The assumption was that if the fight were fair, truth and justice would prevail in the end. The judge's job was to ensure that the fight was fair, that all the rules were observed and the procedures followed. Like the lawyers, the judge bore no moral responsibility for the outcome of the trial as long as everyone played by the rules. The jury, after watching the struggle staged for its benefit, would make the judgment of guilt or innocence, turning thumbs up or thumbs down on the defendant.
The focus was on process, the critical assumption being that the correct substantive result would occur more often than not if the right process were followed. The purpose of this artificial environment-fair treatment for the defendant-was certainly laudable, but often the results were not. Some judges became remote authoritarians who felt no accountability to the community at large, and juries were often asked to make complex decisions on incomplete, sanitized facts. What often fell outside the constricted vision of the judge and the jury was the very cornerstone of the system-the community.
The case of the State of Missouri vs. Ken Rex McElroy was assigned to Judge John Morgan Donelson, Circuit Judge of Harrison County. Donelson was known for being very formal and concerned with proper procedures in his courtroom. He showed little warmth and rarely smiled. Lawyers considered him a good judge because he was intelligent and ran his courtroom with a firm hand, but he also had a monumental ego that reacted strongly whenever he perceived a challenge to his authority. He was the judge, and you weren't, so to speak.
Donelson showed promise of being the perfect judge for Ken McElroy's trial, a judge who would run the show by the book and suffer no shenanigans from the lawyers. His isolation from the community he was supposedly helping to protect would only become apparent as the case worked its way through his courtroom. His first judicial act in the case was to schedule the trial for December 5, 1980. If the date held, McElroy would be called to account for his behavior some five months after the shooting-certainly not swift justice in the eyes of the people of Skidmore, but not unconscionably slow, either. The community geared themselves psychologically for a resolution on that date.
McElroy's two appearances in court seemed to inflame his obsession with his enemies and to incite even more flagrant and provocative behavior.
Corporal Stratton came home from work one day in early September to hear a strange story from his wife. The other unit in their duplex was for rent, and she had noticed a couple apparently interested in the unit sitting in the driveway in a brown Buick, staring at the building for hours.
Stratton asked what the couple looked like. The man was older, Margaret said, heavyset, dark with black hair, and the woman was younger, a washed-out blonde.
Stratton didn't say what he thought-he just told her to get the license number the next time the Buick showed up.
The following week, the car appeared in the driveway again. This time, Margaret stepped out on the deck overlooking the driveway and wrote down the license number.
"Would you know the man if you saw pictures of him?" Stratton asked her.
She would.
The next day, he ran the license number through the computer and picked up five or six photos, including one of McElroy. That evening, he dropped the photos on the dining room table and asked Margaret if she recognized any of them. She picked out McElroy immediately.
The brown Buick appeared in the drive again the following week, and Margaret walked out onto the deck for a closer look. Through the wind shield, she could see a can of Budweiser in McElroy's left hand and a shotgun lying across his lap. McElroy looked up, white quarter-moons glistening beneath his dark irises, and held her gaze.
As the calls and appearances continued, Margaret grew increasingly upset. Stratton became concerned as Margaret's anxiety increased. He thought about filing a formal complaint with the prosecuting attorney alleging intimidation of a witness, but wondered whether he could prove the charge. McElroy always came when Stratton was away and left before he got home. It would be their word against his.