Murder in Tombstone: The Forgotten Trial of Wyatt Earp

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The gunfight at the OK Corral is legendary—but what happened once the shooting ended? This book tells the nearly unknown story of the prosecution of Wyatt Earp, his brothers, and Doc Holliday following the gunfight and shows how a talented defense attorney saved them from the gallows.
"[One of the] gems in the vast . . . literature on Wyatt Earp. . . . Lubet’s study of the complicated legal aftermath of the OK Corral manages to be stylish and . . . elegant, a virtue not often found in outlaw studies."—Larry McMurtry, New York Review of Books 
“This is the first book to examine in depth these legal proceedings, and no one could have done a better job. Lubet explains, in a clear and interesting way, how Arizona territorial law worked in the 1880s.”—Michael F. Blake, Chicago Tribune

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Editorial Reviews

Publishers Weekly
The most legendary gunfight in the Wild West-the famous shoot-out at the O.K. Corral-took place in Tombstone, Ariz., on October 26, 1881. Lubet, professor of law at Northwestern University, provides an unusual account of the heretofore obscure court case that followed the gunplay, when local prosecutors with political connections to the Earp brothers' opponents, the Clantons and McLaurys (of whom only Ike Clanton survived), sought quite earnestly to send the Earps and John "Doc" Holliday to the gallows. "To the prosecutors," writes Lubet, "the Earps and Holliday were murderers-law officers out of control.... For the defense, the Earps were steadfast heroes-willing to risk their lives on the mean, dusty streets of Tombstone for the sake of order and stability." As Lubet makes clear in his detailed narrative, the tense, bitterly contested trial was nearly as charged as the shoot-out itself: filled with intrigue, fifth columnists and hidden agendas. The level of emotions may best be illustrated by actions after the acquittals: Clanton partisans shot Virgil Earp on a Tombstone street, crippling him for life, while Morgan Earp took a fatal bullet in the back. Wyatt and Doc, meanwhile, found it advisable to get out of town. Lubet's worthwhile account will interest Wild West buffs as well as readers interested in legal history. Agent, Lydia Wills. (Oct.) Copyright 2004 Reed Business Information.
Library Journal
The prosecution said that it was first-degree murder, nothing else; the defense said that it was a proper discharge of duties and self-defense. The full truth will never be known, but Lubet (law, Northwestern Univ.) has given us a fascinating account of the legal strategy and maneuvering at the preliminary hearing (it was not a trial) of the Earps and Doc Holliday following the celebrated gunfight at the O.K. Corral. Utilizing the edited transcript of the hearing (the original longhand transcript has been lost and most likely destroyed), as well as the detailed daily accounts in the Tombstone Epitaph and Tombstone Nugget, Lubet analyzes the testimony and arguments to show how the defense team constructed a coherent, unified theory of defense and took advantage of every error and miscue by the prosecution to win its case. Lay readers as well as specialists will enjoy this well-written and accessible account, which is highly recommended for academic and public libraries.-Stephen H. Peters, Northern Michigan Univ. Lib., Marquette Copyright 2004 Reed Business Information.
From the Publisher
After the gunfight at the OK Corral, Wyatt Earp, his brothers, and Doc Holiday faced the gallows—many in Tombstone considered them wanton killers. This book tells the nearly unknown story of the prosecution of the Earps and Holiday, how their extraordinarily talented attorney defended them, and how Wyatt became an American icon.

"This trial has everything: a family feud, famous outlaws and lawmen, politics, sex, and the most famous shootout in frontier history. It's Rashomon set in the Old West. Steven Lubet's accessible and highly original book will set a standard for scholarship in a field laden with folklore."—Allen Barra, author of Inventing Wyatt Earp

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Product Details

  • ISBN-13: 9780300115277
  • Publisher: Yale University Press
  • Publication date: 3/28/2006
  • Series: The Lamar Series in Western History
  • Pages: 288
  • Sales rank: 995,197
  • Product dimensions: 5.50 (w) x 8.22 (h) x 0.73 (d)

Meet the Author

Steven Lubet is professor of law at Northwestern University, where he is the director of the Program on Advocacy and Professionalism. He is the author of numerous books on legal strategy and trial advocacy.

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Read an Excerpt

Murder in Tombstone

The Forgotten Trial of Wyatt Earp
By Steven Lubet

Yale University Press

Copyright © 2004 Steven Lubet
All right reserved.

ISBN: 978-0-300-10426-4

Chapter One

Slap Leather

In American popular culture there may be no more enduring character than the western gunfighter. Popularized in dime novels, glamorized in Hollywood films, and serialized on television, his image is nearly synonymous with the frontier itself. Often a hero, sometimes a villain or outlaw (not at all the same thing), and lately an enigma or cynic, he is always quick on the draw-ready to stand his ground and shoot it out.

The gun duel has its own legendary structure. Armed men face each other on a dusty street, weapons holstered but trigger fingers taut. They stand ready, hands poised, each waiting for the other to make the first move. One of the combatants, usually a bad guy, reaches for his gun, sometimes shouting a taunt or challenge: "Slap leather." Then the firing begins, ending only when someone lies bleeding on the ground. The winner, either hero or antihero, walks slowly and quietly away. His work is done.

There is seldom, if ever, an aftermath to a fictional gunfight. No posse, no arrest, certainly neither a trial nor imprisonment. If the sheriff so much as arrives on the scene, the bystanders quickly assure him that it was a "fairfight" or perhaps "self-defense," which is sufficient to conclude the investigation.

The myth of the gunfight depends wholly on its form. When armed men openly confront each other, it is their business and only their business. As long as there is no sneaky ambush or ganging up, the larger community will remain more or less uninvolved. There will be no postmortem talk of prosecution, of police brutality, or even of protecting innocent bystanders from stray bullets. The bad guys smirk at the law's impotence, while lawmen (and their vigilante counterparts) revel in the cheers of the crowd.

The reality was sharply different. There were many murders and shootouts in the days of the Wild West, from the end of the Civil War until about 1890, but they were far from "the quick-draw duels in the street that form the climax of so many movies." In fact, most shootings were committed in the course of robberies or during drunken brawls, with no hint of mannered choreography.

Lawmen in particular were unlikely to keep their guns holstered when facing armed criminals. It made far more sense-for both law enforcement and self-preservation-to approach the bad guys from behind or, failing that, with a maximum show of force. It could be nearly suicidal to wait for an adversary to draw first-far better either to knock him to the ground or intimidate him into surrendering.

And even standing face to face, it was virtually impossible to "slap leather." The quick-draw holster, invented in Hollywood as a movie prop, would have been worse than useless in real life because there could be no good way to keep a gun from falling out while walking or riding. In fact, men carried their pistols in their waistbands or their pockets, only occasionally wearing gunbelts (which were often equipped with straps to keep the weapons firmly in place). When it came to gunfights, displaying your weapon was the first move, not the last, of anyone who was seriously interested in surviving.

Also contrary to cinematic imagery, the Old West was not devoid of law and order. Along with settlement came social institutions such as churches, schools, and businesses, all of which required law enforcement. Most towns were run by business elites, who quickly enacted gun-control ordinances and established local police forces, some of which-as in Dodge City, Kansas-became well-known for their efficiency and professionalism. Consequently, shootings did not go unnoticed, and real-life murderers did not flaunt notches on their guns. Outlaws were apprehended, arrests were made, trials were held. Even famous figures such as Wild Bill Hickok and Wyatt Earp were charged with crimes following shoot-outs, though the courts in both cases proved keenly sympathetic to claims of self-defense.

Frontier policing was a distinct art, largely perfected in the Kansas cowtowns where rowdy Texas trailhands tended to get drunk and sometimes violent after weeks spent herding cattle north to railheads. The Texans weren't outlaws but they were armed and dangerous, and their carousing often involved serious damage to life and property. Town marshals faced a dilemma in places like Dodge City, Abilene, and Wichita. Texas drovers were the primary source of crime, but they were also the main source of income for the local saloons, gambling parlors, and dance halls. As Allen Barra points out, local business interests expected the constabulary to keep the Texans under control, but could not afford to see them driven away. Too much violence in law enforcement, especially gunplay, was bad for commerce, but too little law enforcement might lead to vigilantism, which could pose an even greater threat to a town's economic lifeblood. The compromise solution was frequently for the law officer to use his pistol as a club, rather than a shooting iron, isolating the leader in any group of troublemakers and "buffaloing" him across the head before he could do any substantial damage. Drunken cowhands might shoot at the moon, street lamps, or each other, but they had relatively few armed confrontations with lawmen, and almost none that involved quick-draw artistry.

In the entire history of the Wild West, perhaps the most famous "slap leather" gun battle occurred when the Earp brothers-Virgil, Wyatt, and Morgan-along with Doc Holliday encountered the Clanton and McLaury brothers in Tombstone, Arizona, on October 26, 1881. The basic outline of the story is well known, although subsequent pulp fiction exaggerated the role of Wyatt Earp at the expense of his older brother Virgil, who was actually in charge that day.

The trouble began in the late evening of October 25, when Ike Clanton and Tom McLaury rode into Tombstone with a wagonload of beef. Shortly after midnight, Ike got into a shouting match with Doc Holliday at the Alhambra Saloon (the reason for their quarrel would play an important part in the gunfight the next day). As the two men exchanged increasingly violent insults, Doc taunted Ike to make good: "You son-of-a-bitch, go arm yourself." Ike returned the threats in kind until Virgil Earp, Tombstone's town marshal, intervened and separated the two men.

Ike Clanton, drunk and bad-tempered, spent much of that night and the next morning wandering the streets and cursing the Earps and Holliday. At one point he confronted Wyatt with the warning that they would soon have to go "man for man." Wyatt was dismissive, replying, "Go home, Ike, you talk too much for a fighting man."

Ike continued to make his way from saloon to saloon, threatening the Earps in front of anyone who would listen. By noon, he was standing in front of Hafford's Saloon waving a rifle and continuing to spout off. In the meantime, Virgil and Wyatt, who had gone home to sleep, were alerted to Ike's tirade and the alarming fact that he was now brandishing firearms. Virgil tracked Ike down and tried to pound some sense into him, or more likely knock the fight out of him, clubbing Ike to the ground with the barrel of his gun.

It didn't work. Ike continued his threats, at one point warning Morgan Earp that, given the opportunity, he "would have furnished a coroner's inquest for the town." Not long afterward, Frank McLaury and Billy Clanton rode into town for what was probably a prearranged rendezvous with Ike and Tom. The four men headed to Spangenberg's gun shop, where they were observed ominously loading bullets into their cartridge belts. Sensing trouble, Virgil wasted no time walking to the nearby Wells Fargo office to borrow a short-barreled shotgun.

The Clantons and McLaurys next proceeded to the O.K. Corral, where they were overheard threatening to shoot the Earps on sight. For unknown but suspicious reasons, the four men, carrying six-guns and rifles, then moved to the other side of the block, stationing themselves in a vacant lot adjacent to Camillus Fly's photography studio and boardinghouse.

As long as the four men remained at the O.K. Corral, Virgil was willing to let them vent their anger-perhaps they were preparing to leave town. But when they moved toward the city street, he decided that matters had gone far enough. They were openly carrying arms in a public place, in violation of the law. Calling on Morgan, Wyatt, and Doc Holliday for assistance, Virgil determined to disarm the Clantons and McLaurys, by force if necessary.

Thus began the famous march toward destiny. Virgil, Wyatt, Morgan, and Doc walked slowly down Fremont Street toward the confrontation that would become known as the gunfight at the O.K. Corral. Virgil carried a walking stick in his right hand and a six-gun in his waistband. Wyatt and Morgan were carrying pistols, and Doc was concealing the Wells Fargo shotgun under his overcoat.

As they came within ten feet of the Clantons and McLaurys, Virgil called out, "Boys, throw up your hands, I want your guns." Then something went terribly wrong. Someone fired a shot, and as Ike Clanton put it, "the ball opened." Within thirty seconds six men had been shot. Billy Clanton and both McLaury brothers were dead or dying; Virgil and Morgan Earp were seriously wounded, and Doc Holliday was slightly hurt. Wyatt was unscathed. So was Ike, the instigator of it all, who had run away when the shooting began.

Who fired the first shot, and why? And could the tragedy have been avoided, even as the Earps faced down the Clantons and McLaurys in those last critical moments? Some witnesses lauded the Earps for confronting dangerous outlaws, while others accused them of assassinating innocent ranchers who were desperately trying to surrender. Were the Earps courageous lawmen or cold-blooded killers? It would take a trial to answer that question, and the controversial verdict has been debated for the past 120 years.

To the prosecutors, the Earps and Holliday were murderers-law officers out of control who abused their badges out of malice and revenge. For the defense, the Earps were steadfast heroes-willing to risk their lives on the mean, dusty streets of Tombstone for the sake of order and stability. The case against the Earps, with its dueling narratives of brutality and justification, played out themes of intrigue, betrayal, duplicity, revenge, and even adultery. As the witnesses contradicted and denounced each other, the lawyers used all of their considerable talents to shape the testimony and sway the court.

We tell ourselves that trials are about truth, but they are also very much about clarity. The most convincing case wins, not necessarily the truer one. As we will see, the prosecutors in Tombstone seemed at times to have a nearly airtight case, but their efforts were hampered by indecision, dissension, false starts, and conflicts of interest. At key moments, the prosecutors repeatedly overplayed their hand, allowing passion rather than judgment to determine their strategy. In fact, the prosecutors probably had a winning case, but it was not the one they ended up presenting.

In contrast, the defense team, led by the exceptionally capable Thomas Fitch, took advantage of every miscue and error by the prosecutors. He deftly employed loopholes in the territorial statutes, allowing Wyatt to testify without fear of cross examination. Most importantly, Fitch constructed a coherent, unified theory of defense that successfully exploited every flaw in the prosecution's case.

The hearing in the Tombstone court was not simply an epilogue to the gunfight, as most historians have tended to treat it. It was an independent event, in which tactics and maneuvers determined the outcome. After more than a century of argument, no one can say definitively whether Wyatt Earp was innocent or guilty of any crime, but we will be able to see exactly how his attorney out-lawyered the opposition.

One more thing is certain. Wyatt's own description of the events provided a reference point for the legend of the frontier gunfight that has lasted to this day. Testifying before Judge Wells Spicer in a Tombstone courtroom, Wyatt explained: "I did not intend to fight unless it became necessary in self-defense and in the performance of official duty. When Billy Clanton and Frank McLaury drew their pistols, I knew it was a fight for life, and I drew in defense of my own life and the lives of my brothers and Doc Holliday."

Everyone can imagine the scene. The stalwart frontier marshal, though facing death at the hands of outlaws, refuses to pull his weapon first. Then a bad guy makes a false move. Slap leather. The shooting begins.

Chapter Two

From Dodge City to Tombstone

Wyatt Berry Stapp Earp headed west for the Arizona Territory in late 1879, with no reason to expect that his exploits in Tombstone would eventually establish him as one of the most famous frontier marshals in American history. For most of the previous four years he had worked as a deputy marshal or policeman in several Kansas towns, but his career as a lawman had an on-and-off quality. He was terminated amid controversy from his first full-time job in Wichita, and he served three different terms in Dodge City, interrupted by his efforts to find more lucrative opportunities in places such as Deadwood and Fort Worth. He tried his hand in a wood-hauling business and he also gambled and worked as an armed guard (or "shotgun messenger") for a stagecoach line, but he returned each time to Dodge City where he was always welcomed back to the force at a monthly salary of about seventy-five dollars.

Wyatt obviously had a natural affinity for law enforcement, which called upon his inner reserves of determination and self-control. The Dodge City Times observed, "He had a quiet way of taking the most desperate characters into custody which invariably gave the impression that the city was able to enforce ... and preserve her dignity." And the Ford County Globe commended him for doing his duty "in a very creditable manner-adding new laurels to his splendid record every day." Later, when Wyatt was on trial for his life in Tombstone, the Dodge City fathers would rally to his support, attesting that he was "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."

But however much he was respected in Kansas, it was evident by the summer of 1879 that Wyatt, at age thirty-one, had grown tired of the low pay and continual danger that attended his lawman's job. While Wyatt himself had never been seriously injured, his friend Ed Masterson (Bat Masterson's older brother), then the Dodge City marshal, was killed by a drunken cowhand outside the Lady Gay Dance Hall in early 1878. Other officers and citizens were killed or wounded by the frequent gun-play in Dodge City streets, and several incidents surely combined to persuade Wyatt that he was no longer the right man in the right place.

James "Spike" Kennedy, the son of Captain Mifflin Kennedy, a wealthy and powerful Texas cattle baron, was in the habit of causing trouble when he brought his herd into Dodge City. In July 1878 Wyatt arrested him for carrying a pistol inside the town limits, and a month later Marshal Charlie Bassett arrested him again for disorderly conduct. Unaccustomed to such insulting treatment, Kennedy complained to Dodge City Mayor James "Dog" Kelley, no doubt expecting that his father's prestige and influence would prompt the mayor to call off the law. Kelley, however, further offended the young Texan, informing him that the officers were doing their duty and that Kennedy could expect another arrest if he continued to disobey the law. Infuriated, Spike Kennedy muttered a threat and angrily rode out of town.

Kennedy returned several nights later to make good his threats, firing four shots through the bedroom window of Mayor Kelley's house. The mayor was not home, but one of Kennedy's bullets struck and killed a houseguest, the popular actress Dora Hand.


Excerpted from Murder in Tombstone by Steven Lubet Copyright © 2004 by Steven Lubet. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

1 Slap Leather 1
2 From Dodge City to Tombstone 7
3 Prelude to a Gunfight 27
4 Thirty Shots in Thirty Seconds 44
5 Invitation to an Inquest 57
6 Judge Spicer's Court 71
7 "I Don't Want to Fight" 84
8 "I Think We Can Hang Them" 105
9 "In Defense of My Own Life" 135
10 "I Want Your Guns" 156
11 Decision 179
12 Aftermath 203
Notes 224
Bibliography 233
Acknowledgments 244
Index 245
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  • Posted November 15, 2008

    more from this reviewer

    I Also Recommend:

    Corrupt Politics Leads to OK Corral

    Murder in Tombstone:<BR/><BR/>Steven Lubet has taken a thought provoking look at the fallout surrounding the October 26, 1881 shootout on the streets of Tombstone. He gives the background of the major players and a Wild West Frontier look at a growing mining camp during the early days of Tombstone.<BR/>The buildup to the shootout has all the elements of conflict, partisan politics with opposing newspapers fanning the flames, a love triangle, which involves both suitors in a run for the office of sheriff of Cochise County, and a gang of bullies known as cowboys running roughshod over citizens and ranchers in the Tombstone area.<BR/>Ike Clanton, one of the most provocative voices among the cowboys sets the stage for the shootout the night before with his threats and rants against the Earps and Holliday. The threats continued the following morning with other cowboys joining in the chorus. In an effort to disarm the cowboys and quell the disturbance, Chief of Police Virgil Earp deputized his brothers Wyatt and Morgan Earp along with Doc Holliday.<BR/>When the confrontation becomes imminent Ike Clanton, the chief loud mouth, ran away and left the fighting to his younger brother, Billy Clanton and two associates Tom and Frank McLaury. At the end the shootout cowboys Billy Clanton, Tom McLaury and Frank McLaury were all dead. Virgil and Morgan Earp both received debilitating gunshot wounds, Doc Holliday suffered a bad bruise from a glancing bullet, and Wyatt Earp was not hit.<BR/>Cowboy backers and lawyers immediately filed murder charges against the Earps and Holliday and hauled them into Judge Wells Spicer¿s court for a hearing.<BR/>Prosecution and defense were represented by capable lawyers skilled in the law and articulate in the courtroom.<BR/>Lawyers Tom Fitch and T.J. Drum represented the Earps and Holliday in the courtroom while District Attorney Lyttleton Price and lawyer Ben Goodrich presented the prosecutions case.<BR/>More than a dozen witnesses took the stand during the 28-day hearing and Lubet uses all of them to point out strategies being employed by prosecution and defense attorneys. The questions and cross examinations, objections and rulings by Judge Spicer leads to good courtroom drama. And there is a good balance in presentations until Ike Clanton takes the stand and makes a string of wild allegations that could not possibly be proven.<BR/>In the end Judge Spicer rules in favor of the Earps and Holliday. Spicer advises the prosecution team that they have every right to pursue a grand jury indictment. However, it was his opinion that there was mot enough evidence to sustain a conviction.<BR/>The cowboys were not finished though, and pursued a vendetta using threats and intimidation against Judge Spicer and Mayor Clum. In the dead of night shotgun blasts hit and almost kill Virgil Earp. Unfortunately their next try succeeds, when they shoot Morgan Earp in the back. <BR/>Unfortunately the corrupt political ring and their night guns took over the Tombstone streets and the myth grew as victim status was bestowed upon those poor defenseless cowboys¿s that were shot down at the OK Corral.<BR/>Tom Barnes author of `Doc Holliday¿s Road to Tombstone.¿

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    Posted April 2, 2009

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