Authors: Harry N. MacLean
The judge's initial error, compounded by his lengthy delay in signing the modification, gave McFadin sufficient grounds for a continuance. The restriction had prejudiced the right of the defendant to effective counsel, a fact that would undoubtedly be raised on appeal and, perhaps, exposed in a published opinion. Much better for the judge to avoid public chastisement from a higher court by simply granting the continuance.
Donelson had no trouble scheduling this motion for an immediate hearing, nor did he have to take it under advisement. The motion for continuance was filed on November 24, and heard and granted the next day.
A few days later, Bo and the other witnesses received notices that the trial had been continued to February 5,1981. Resignation and anger reverberated through the community: McElroy and his Kansas City lawyer had done it again, and this judge was no better than Nodaway County's own Monty Wilson. The system was as screwed up as ever.
McElroy didn't let up. One day Cheryl Brown drove into town and spotted the green Chevy in front of the tavern. Hanging in the truck's rear window was a Thompson .45-caliber machine gun. Cheryl began shaking. She wobbled into the grocery and told Lois, who called Sheriff Estes. He told her the gun was legal as long as McElroy had a tax stamp for it. In fact, possession of a machine gun was a felony under Missouri law and carried a penalty of two to thirty years. Other people also saw the machine gun, and Trena later admitted under oath that McElroy owned one.
Corporal Stratton had begun taking several precautions. He pulled his patrol car into the garage to make his whereabouts less obvious. He used the radio on the patrol car less and less frequently; instead, he phoned in from home before leaving for work and stopped to use private phones along the highway. He found himself making fewer checks on vehicles, and overall he knew the stress was decreasing his effectiveness as a patrolman. And Margaret's nerves were frayed. McElroy had called her one night and described the Early American couch and chair in the living room. He talked about the color of the wood and the pattern of the material, and he described where the couch and chair sat in relation to the hutch and the fireplace. Stratton thought about sending his wife to her sister's home in Texas and getting an unlisted phone number but decided not to, realizing it would only acknowledge McElroy's power.
The St. Joe police continued to watch the house, sending unmarked cars around several times a day. Once, Margaret phoned in the license number of a car that had been lurking nearby, and it turned out to be an unmarked car the patrol had forgotten to tell her about.
The tan buick continued to appear in the driveway, always when Stratton wasn't home, sometimes every other day, sometimes every other week. Ken and Trena usually sat there for ten minutes to half an hour, staring at the house occasionally, never saying or doing a thing. A shotgun lay across McElroy's lap, and a beer can perched in his hand. To Margaret, his face seemed fat, and his hair looked wavy and greasy, as if it were plastered with Brylcreem. The expression on his face seemed empty, rather than mean. She tried to maintain her dignity and composure-after all, she was a cop's wife. She also knew that as long as McElroy thought he was getting to you, he'd keep it up.
As for Trena, Margaret felt just as much enmity toward her as toward McElroy. Her neighbors told Margaret that they had seen Trena look in the Strattons' garage window on several occasions. Margaretremembered Trena from a gathering held when she was in state custody. At the time, Trena was young and pretty with long blond hair. Now, sitting in the car, she was older, plumper, with a dead look on her face.
Meanwhile, in St. Joe, Prosecuting Attorney Mike Inscoe was reviewing the case against Ken McElroy for the "rude and angry display of a deadly weapon." Inscoe was a good politician and an aggressive prosecutor. He had heard of Ken McElroy and knew his reputation, including his ability to beat cases. Inscoe questioned Assistant Prosecuting Attorney Shepard about the case: Did it make any sense to proceed when neither one of the victims would testify against McElroy? Shepard felt confident that he could get the case to a jury and put McElroy in jeopardy. After that, who could tell what a jury would do? Additionally, Inscoe felt strongly that his office should demonstrate that wrongs committed in St. Joe would be prosecuted, even if there were problems with the evidence. They decided to proceed.
McFadin made no motions to delay this trial, requested no additional time for taking depositions. Since the two victims favored his client, the quicker the matter could be brought to trial, the better.
As the trial date drew near, Judge Donelson still had not managed to clean up his error-ridden travel restrictions. As the order stood now, McElroy would be prohibited from attending his own trial in St. Joe. On December 3, Donelson sent a letter to McFadin giving McElroy permission to attend his trial on December 12.
Shorter and stockier than Shepard had expected, McElroy did not come off as a bully or even as a tough guy in the courtroom. He seemed more like an average Joe. In the hallway, however, away from the judge and jury, McElroy adopted a blustery and pushy manner in standing close to the two victims and looking down at them.
The state's first witness was Sergeant Rostock. When he testified about what the two victims had said to him at the scene, McFadin objected that the testimony was hearsay-the witness was repeating statements made out of court.
Shepard argued that testimony fell within the "excited utterance" exception to the hearsay rule. (The rationale for the "excited utterance" exception was that a statement made in an obviously excited emotional state was likely to be reliable, because the person who made the statement had little opportunity to lie.) The judge overruled McFadin's objection, and the statement came in.
"I talked to the girl," testified Rostock, "and she said, "That son of a bitch pointed a shotgun at me and my ex-husband and threatened to shoot us, and we had kids in the car, and that's not right.""
During cross-examination, Rostock felt as if he were on trial. McFadin's questions implied that Rostock was a dumb, brutal cop and that he had tried to steal a fancy pocket knife of McElroy's. Rostock had seen the technique before-put the cop on trial to shift the focus away from the defendant-and it pissed him off, because he felt he had done everything by the book.
Out in the hallway, Rostock had remarked to another cop that the only way McElroy would be acquitted was if the two victims perjured themselves. Spooner made a motion to dismiss the charge on the grounds that Rostock had been intimidating the witnesses. The judge denied the motion, but it further infuriated Rostock.
The judge refused McFadin's motion to dismiss the charge at the end of the prosecution's case. McFadin then called the victims to the stand, and they denied that McElroy had pointed a gun at them or threatened them. They also denied seeing the truck stop to change drivers. They didn't understand why McElroy was being prosecuted; the incident had been a simple misunderstanding, and they were all friends now. Shepard attempted to impeach the woman with her earlier statements, and she explained that she had been angry and excited at the time, but now she was under oath and telling the truth. McElroy had never pointed the shotgun at her ex-husband.
Dressed in a white shirt and slacks, McElroy behaved like a gentleman during the trial. He knew when to sit down and stand up and to allow his attorneys to speak for him. Testifying in his own defense, he denied pointing the shotgun at anyone. He explained with a straight face that he and Trena had been on their way to coon-dog trials and had stopped in a bar on Sixth Street to cash a check. He had taken the shotgun from the window rack and put it on the floor so it wouldn't be stolen, and he had forgotten to put it back in the gun rack upon his return to the truck. When he opened the door to confront the people in the Plymouth, the gun fell out, and he simply picked it up.
On cross-examination, Shepard handed McElroy the shotgun and asked him to identify it. When Shepard picked up two of the 00 buck shells, McFadin leaned over to Spooner and said, humorously, "If he hands him those shells, let's hit the floor." Shepard handed him the shells and asked him to identify them. (The judge would later tell McFadin that at this point, "I looked over my shoulder for the door, because I figured I had about two seconds to get through it.")
"And what do you use that weapon with those shells for," asked Shepard. McElroy became visibly nervous for the first time in the trial. He rolled the shells back and forth in his hands and squeezed them while thinking about his reply.
"I hunt coons with it," he finally responded.
Shepard asked several questions about why somebody would hunt coons with a sawed-off shotgun and shells designed to stop human beings in riot situations. McElroy gave vague answers and kept rolling the shells around in his hand, squeezing them.
On re-direct, McFadin took the shells away from McElroy, and on re-cross, Shepard gave them back. McElroy resumed rolling them and squeezing them in his hands during Shepard's brief questioning.
The trial was over in a day. When the jury came in with a verdict of not guilty, Shepard was disappointed, but not really surprised. An instant after the judge's closing gavel, McElroy stood up and demanded his shotgun and shells back from the prosecution. When he retrieved the gun, he told McFadin he wanted him to have it as a gift. McFadin protested, but McElroy insisted, explaining that the gun had become bad luck to him. McFadin later took the gun into the country and fired it. The 00 buck spread out in a pattern that would have obliterated a human being within twenty yards.
After the trial, Rostock talked to one of the jurors about the verdict. The juror said he didn't believe McElroy and figured the two victims were lying, but he also figured, what the hell, if the victims didn't care enough to tell the truth and put him in jail, then neither did he. No witness, no case.
The St. Joseph Gazette carried news of the acquittal, and most of the regulars at Mom's Cafe knew about it by breakfast the next morning. People in Skidmore never quite got straight what had happened-they thought that the witnesses hadn't shown up and the case had been dismissed-but the effect was the same. McElroy had beaten the system again, this time in a big city. The legal system was in such a shambles that it couldn't punish a man who pulled loaded guns on people in public, not even in St. Joe.
As the community watched the criminal justice system fail time after time, it began to lose faith in the basic rule of law that people who committed crimes would be caught and punished. With this gradual loss of faith, the fabric of the community began to unravel. Perhaps a man's first duty was to his family, and his neighbors would have to take care of themselves. Perhaps he should just stay inside his house, lock the doors, and try not to do anything that would bring the animal to his doorstep.
People around Skidmore began to arm themselves. Men, in particular, began carrying guns in their pickups or loading their deer rifles and putting them in their front closets.
Ken McElroy continued to run free. Several times he and Trena circled the sheriff's office in Maryville during the day, cruising by slowly and peering through the windows. After a few circuits, the blinds would close, and McElroy would cruise off.
McElroy seemed convinced that he would beat the charge for shooting Bowenkamp. He laughed about it in the D & G Tavern in Skidmore and in the Shady Lady in Maryville. He offered to bet thousands of dollars that he would never spend a night in jail.
"I've already paid my goddamn lawyer $30,000," McElroy would say. "He better get me off."
Meanwhile, McElroy had to return to work. McFadin filed a motion in Judge Donelson's court seeking to have the travel restrictions lifted, citing the acquittal in the St. Joe case. McFadin swore under oath that his client made a living buying and selling livestock and antiques, and that he could not be fully employed, while restricted in his traveling. (Interestingly, McFadin did not ask the judge to remove the prohibition on his client carrying a weapon in his vehicle. Perhaps McFadin wanted to avoid drawing the judge's attention to the fact that in the St. Joe trial, his client had admitted having a loaded shotgun in his vehicle, a crime with which he was not charged.) Nourie did not contest the motion, and Judge Donelson removed the restrictions in early January of 1981.
One bitter-cold evening shortly before Christmas, as McElroy and his friend Fred sat drinking at the Hickory Bar in St. Joe, McElroy began talking about how he needed a new pickup. The more he drank and the more he talked about it, the more he needed a brand-new truck that night. The two men left the bar and headed north to Crouse Motors in Mound City, arriving a few minutes before closing time. McElroy went into the showroom and sent Fred across the street to look over the pickups parked on the dealer's lot. The salesman thought it odd that Ken never looked at any of the pickups himself; he just pointed at them through the window, one by one, and asked, "How much?"
When he came to the 1981 Silverado, he didn't go any further. The Silverado sat by itself, its polished chrome and fancy two-tone brown paint job gleaming under the bright outdoor lights. The three-quarter-ton pickup had four-wheel drive, a 350 four-barrel engine, and all the extras-sliding rear window, air conditioning, tilt, cruise control, and dual gas tanks. The fanciest, hottest truck on the lot, the Silverado was loaded and ready to roll.