Murder in Tombstone: The Forgotten Trial of Wyatt Earp

Rating:
Summary: Which murder in Tombstone
Review:
An immediate problem with this book is its title, which invites the question: "Which murder in Tombstone?"

The subject is the hearing in justice court after the so-called OK Corral gunfight to determine if there was cause to bind over the Earps and Doc Holliday to the Grand Jury for determination of whether they had actually committed murders under the cloak of their positions as lawmen. The unusual affair went on for almost a month, and the unusual justice who heard it concluded that there was no cause to bind over the killers. Obviously then, this was not technically murder (yet). And it never became so because, as a result of this hearing, the Grand Jury did not take up the case, and there was never a trial in a court of criminal jurisdiction, the only tribunal legally qualified to determine murder. The later killing of Brother Morgan Earp, of course, was murder by common sense standards, whether a petit jury so determined or not.

The author, a legal authority and law professor, makes a fair hand at evaluating Justice Wells Spicer, Earp defense counsel, Tom Fitch, and the famous hearing. All were unique in their own way. However, the book's claim that this is an inquiry into a little known or remembered subject is pure grasping for sales hype. No events are better known in the Earp field, a field in itself one of the best known to Western history in general. Moreover, there is more illuminating coverage of this very event in a single prior publication. That is the full testimony of both the Coroner's Jury hearing and Justice Court Hearing, published based on lost documents recovered by researcher Glenn Boyer and annotated and published by his associate, Earp writer, Alford Turner. Considered in their entirety they are more educational for even a casual reader, than is this academic recitation. They are available from Creative Publications of College Station, Texas.

For example, this new book needlessly goes to great lengths to establish the objectivity of Justice Wells Spicer, based on remote past activities of his, whereas it would have done better to simply reprint Boyer 's Preface to Turner's book, which was based on local hearings conducted by Spicer in Tombstone, within a year prior to this famous OK Corral hearing. Moreover, that preface drew in necessary corollary events in Tombstone to better explain the shooting and why it occurred.

After plowing through this PHD thesis-type morass, based as most are on dredging for a new angle to an old subject, I inescapably concluded the author hadn't done his homework. There seems to be a pervasive belief among academic authors and presses that the time and effort required to produce a PHD thesis is sufficient to master any subject. In the Earp field, in which books with new slants have become a cottage industry, to match the old cottage industries of scented candles and macramé, this book doesn't even qualify as a shining example of dredging.

The usual shortcoming, and this book does not escape it, and may be a crowning example of it, is that academic authors appear not to have read, or if they have obviously have not mastered, their own suggested further reading, a list that makes for impressive visual documentation, but not much more. Here is two pounds of research attempting to fill a ten pound sack. The academic author simply doesn't master his subject or perhaps see any need to, since credentials assure publication, and one must hurry on to superficially cover another segment of the waterfront.

However, this author may have read so much of his suggested additional reading as Boyer's WYATT EARP'S TOMBSTONE VENDETTA, which would account for his title, since Boyer makes clear that the killings at the OK Corral (so-called) were premeditated by Wyatt Earp and Doc Holliday and qualified as first degree murder. Boyer's source, one might add, was fireside chats in the Earps homes where he was practically a family member for decades. Under the Code of the West, these first-degree murders also qualified as a long overdue public service. When the Texas Rangers lined up a row of the types that the Earps killed in Tombstone, like a pile of cordwood (in Brownsville, TX, as I recall) the community figuratively rushed to present them with gold medals.

All that prevented this in Tombstone was a crooked sheriff who'd had his girl stolen by Wyatt Earp. At least this didn't entirely escape this author. He soft-pedals that due to a perception that the girl's memoir, the principal evidence of a love triangle, has somehow been proven conclusively spurious. Those familiar with the subject will suspect this author has been biased by exclusive reference to only one side of a historical controversy simmering over the book I MARRIED WYATT EARP. (And the wrong one, at that.)

I cannot escape the feeling that this author is a "dude" of the academic variety that once asked an old timer, "What was the Code of the West, anyhow?" and was told, "The Code of the West was that the holes were all in the front of the later unlamented such-and-sos and got there in broad daylight." It is worthy of note, but this author overlooked the fact that this was how the Earps did all of their killings, from the front in broad daylight, while their enemies practiced exactly the opposite. One therefore wonders at the thinly veiled nose wrinkling over the Earps' activities? This precious hint of bias doesn't lend much to the credibility of this book.

In sum, it appears to me that this writer "from an infinite agitation of wit has produced not very much matter" to quote Bacon.

Save your money! Read Turner!



Rating:
Summary: A assestment from a relatively interested party .
Review: A very interesting and informative look into the intricacies of the legal proceedings after the Ok fight, with the first published ( that I know of) details of applicable law and methods of attorneys of that time and locale.I was especially impressed with the more in depth and factual information on all three of the McLaurys involved in the story and the authors opinions on their depth of involvement with the Cowboys (Thomas & Robert "Frank") and in the prosecution efforts of their brother William ( relatives of this reviewer) I too think it would make a great movie.



Rating:
Summary: Murder in Tombstone -- A Fascinating Book
Review: Almost everyone is familiar with the Gunfight at the O.K. Corral; it has been the subject of numerous movies and books. However, relatively few know about the inquest that was held after the shootout, charging the Earp brothers and Doc Holliday with murder. The complete transcripts of the inquest have been published and serious books on the gunfight, or on Wyatt Earp, delve into the inquest transcriptions. However, Steven Lubet's Murder in Tombstone is the first book to analyze the murder inquest in detail, from the perspective of a lawyer.

Steven is a professor of law at Northwestern University in Chicago, and an expert. He analyzes the legal tactics, examining the questions of the prosecution and defense, explaining why they were asked and what the answers reveal beyond the mere words. We can also tell, from Lubet's masterful study, where the tactics may have gone wrong, eliciting information that hurt either the prosecution's or the defense's respective case.

Murder in Tombstone is not a dry, dusty, legal tome. In fact, is a page-turner of the first order. I could not wait to finish this book. It is well-written and highly entertaining. I highly recommend it to anyone interested in Old West history or, particularly, in the history of Tombstone, Arizona and the colorful characters who made the town famous - the fighting Earp brothers, Doc Holliday, the Clantons, the McLaurys, and the infamous band of rustlers and outlaws known as the Cowboys.


Rating:
Summary: The Court Fight, Not the Gun Fight
Review: Even if you can't recite the names of the participants, you have probably heard of the "Gunfight at the OK Corral," probably courtesy of Hollywood. The most famous participant was Wyatt Earp, who has been portrayed in at least thirty movies, and you can imagine with what degree of realism. For instance, who remembers that because of the shootout, Wyatt and his sidekick Doc Holliday were actually brought to court for murder? In the lawless West, the law took its course, and in _Murder in Tombstone: The Forgotten Trial of Wyatt Earp_ (Yale University Press), Steven Lubet has looked at the legend and the legal outcome. This particular gunfight is still argued about by experts and western fans, and it is certainly the case that important parts of the event itself are never going to be completely understood. However, the subsequent trial was well documented, and Lubet's is the first book to tell the often surprising story of the court fight after the gun fight. Lubet is a lawyer himself, and brings much legal insight to a story that is usually only told as western legend.

Tombstone was a town that had sprung up in response to silver mining, and in true boomtown fashion it would fold only a few years after the shootout (it has come back as a tourist site since then). Around the town were cowboys, not at this time the respectable ranch-hands who managed cattle production, but small time ranchers who raided herds in Mexico to replenish stock, and robbed stagecoaches as a sideline. Virgil Earp came to town as a US marshal and Wyatt followed as a deputy county sheriff; they were professional lawmen, and would have been immediately marked as enemies of the cowboys. Youngest brother Morgan was there as well, and following Wyatt was the disreputable Doc Holliday he had inexplicably befriended. Among the cowboys were Ike and Billy Clanton and Frank and Tom McLaury. Ike got into a shouting match with Doc in the Alhambra Saloon, in which Virgil had to intervene. Ike spent the night drinking and cursing the Earps, and on 26 October 1881 enlisted the McLaurys and his brother Billy to arm themselves and prepare to meet the lawmen. Three of the cowboys died, and public sympathy turned from the lawmen to those they had killed. Five days later there was a preliminary hearing which was to determine if the accused men ought to be bound over for a trial. It is this hearing that forms the mass of the book, with an examination of the legal procedures of the time compared to those now.

The hearing lasted a month, with thirty different witnesses, some of them surprise witnesses called by the defense. As a lawyer, Lubet is very good at alerting readers to mistakes the lawyers on both sides made. "As desperate lawyers often do..." he explains when a lawyer stalls for time after a witness has given a surprisingly unfavorable response, or "Then the cross examiner blundered in a manner still all too familiar to trial lawyers, by asking one question too many." Spicer found that although Virgil had acted "incautiously and without due circumspection," the defendants had committed only "a necessary act, done in the discharge of official duty." There is a short epilogue after the trial; Virgil was ambushed in revenge and crippled for life, Morgan was shot and killed while playing billiards, and Wyatt conducted a "vendetta ride" to kill those responsible for attacking his brothers. This all sounds more like western history as depicted in the cinema. The main part of Lubet's history, however, is a fascinating and detailed examination not of a shoot-out but of the uncinematic and neglected legal outcome.


Rating:
Summary: Fills in many blanks for serious Earp researchers
Review: I have amassed a great deal of material over the years specifically dealing with Tombstone during the Earp time there, and this is indeed the most detailed information I have seen on the trial of the Earps and Holliday to date.

I learned a great deal, and was very interested in, among other things, Mr. Lubet's analysis of the defense strategy, not to mention the background information on Wells Spicer (I had no idea he had defended John D. Lee of Mormon Mountain Meadows Massacre notoriety).

Steven Lubet's work has done a great deal to fill out a large gap in the legal proceedings following the OK Corral gunfight that has, until now, been mentioned briefly but largely glossed over. Earp enthusiasts and researchers owe him a debt of gratitude for his work. There have been a number of notable standout books dealing with the OK Corral period of Tombstone's history, and I believe this ranks with the best of them. I can say this as an Arizonan who has visited most of the sites dealt with in the literature and who has kept up on the various authors and literature produced since Walter Noble Burns first wrote his book on Tombstone in 1927, which really started all the interest in this part of the country, and in the OK Corral gunfight. In all of the work to date, while the preliminary trial of the Earps and Holliday is discussed, the trial strategy has heretofore not been discussed at any great length, and I find that this book adds a dimension that writers until now have overlooked. One of the things that is happily lacking is an obvious bias for or against the Earps which seems to color most work done on their lives and the events they were involved in; Mr. Lubet just lays out the facts and the statements made by the principles, analyzes the attorneys' effectiveness or lack thereof in the trial, and presents his unique opinion as a scholar to the reader, allowing the reader to view the trial through the eyes of a modern legal mind.

If your interest is, as mine has been, in fleshing out the events surrounding the players and events in 1880s Tombstone, Arizona, this book will be an invaluable addition to your shelf of material, and I recommend it highly.

Rating:
Summary: "Masterpiece in Tombstone"
Review: Steve Lubet's latest venture into book-length writing is a masterful tribute to his very special rhetorical and imaginative abilities to produce a compelling work that is appealing to both lawyers and non-lawyers alike. As a lawyer and former judge, I was mesmerized by the fair-handed way he described the characters in the O.K. Corral shoot-out and presented the issues from both a prosecutorial and defense perspective. I was particularly impressed with his analysis of the trial judge's decision in the case and his explanation of the reasoniing supporting the judge's result. If you haven't read this book yet, please put it at the top of your reading list. You won't be sorry. I am very much looking forward to Steve's next expedition into the intriguing world of what I would call the "litigation docu-drama". John W. (Jack) Cooley

Rating:
Summary: Frontier Justice at the OK Corrall
Review: Steven Lubet has written a fascinating book about the aftermath of perhaps the best known gunfight of the old west. Who knew there was an inquest? A hearing? That the Earp brothers and Doc Holliday faced the possibility of being tried for first degree murder? Lubet teaches trial advocacy at Northwestern University and after reading his book I'd like to sign up for his course. Lubet did his homework. He provides significant background on key participants, detailed analysis of courtroom strategy and a suggested alternative legal approach (for the prosecution). Well written, good read.

Rating:
Summary: More than the OK Corral
Review: Steven Lubet's new book, "Murder in Tombstone: The Forgotten Trial of Wyatt Earp," is a most enjoyable trip back to the gunfight at the OK Corral. But it is much more than that. Lubet returns us to the Wild West of the late 19th century and walks us through the preliminary trial for murder of the Earp brothers and Doc Holliday. Did they gun down the unarmed and surrendering Clantons and McLaurys, or were they drawn on first? The answer is still unknown. Law Professor Lubet analyzes a mountain of evidence from both sides. He introduces us to the various players: the lawmen, their adversaries, the witnesses, and perhaps most interesting, the attorneys for prosecution and defense and the presiding judge. Throughout, he informs us of the difference between 19th century American trials and their modern counterparts, and demonstrates how the clever attorney in any epoch uses the rules of law and the proclivities of the judge to the client's advantage, while the less clever winds up trapped. In this case, the Earps and Holliday were lucky both in the choice of their lawyer and the overreaching and incompetence of the prosecution.

Lubet's book is both scholarly and entertaining. His prodigious research is evident, both in its quantity and in its application to his analysis of the conclusions of other historians of the event. His writing style is always felicitous. Overall he has produced an enjoyable and thought-provoking read.

Rating:
Summary: A valuable contribution and an insigtful, fresh look.
Review: This excellent volume provides a valuable new perspective on the much-written about Tombstone gunfight (123 years ago tomorrow) between the three Earp brothers and their friend Doc Holliday, and four or five "Cowboys", who have been described as cattle thieves, stage robbers and killers. Marshal Virgil Earp, his brothers Wyatt and Morgan, and Wyatt's friend, John H. "Doc" Holliday confronted the Cowboys for wearing firearms in town and said they sought to disarm them. At least two of the Cowboys wore sidearms and had rifles in saddle scabbards. No one is sure who fired the opening shots, but after some 30 seconds of shooting, three Cowboys (Billy Clanton, and Tom and Frank McLaury) were dead and three among the Earp party were wounded. Was this a case of lawmen enforcing town gun control statutes, or the culmination of a personal fued among the participants?

Lubet offers a concise summary of the events that led up to the confrontation, beginning with the theft of some army mules a year earlier, continuing through misguided secret deals between Wyatt Earp and both Ike Clanton, a Cowboy himself, and shady Sheriff Johnny Behan, the Benson and Bisbee stage robberies, as well as the criminal activity that was common in the area, including rustling, stage robbery and murder. Lubet also throws in speculation about possible jealousy between Wyatt and Behan over the favors of Josephine Marcus as a contributing factor, but that is entirely speculative since there is no evidence of a liaison between Earp and Marcus while they were in Tombstone, although they would spend the remainder of Earp's life together. Lubet also describes the events immediately preceding the confrontation, beginning with arguments the previous evening and Ike Clanton's drunken ravings and repeated threats to kill the Earps and/or Holliday well into the following morning.

However, Lubet's focus is on the legal proceedings that followed the gunfight. Within days of the shooting, a preliminary hearing was convened before Justice of the Peace Wells Spicer to determine if there was sufficient evidence to put before a grand jury, which could move to indict the Earps and Doc Holliday. The key character in Lubet's story is not the Earps or the Cowboys, but defense attorney Tom Fitch. Lubet builds a case against the prosecution, which he considers inept and misguided in its insistence on convicting all four defendants of murder, rather than seeking indictments for manslaughter, for which he believes they had a much stronger case. Instead, Fitch was able to use the hearing to cast sufficient doubt on the murder charge and win freedom for his clients. He also was familiar with Spicer's experience as defense counsel in the infamous Mountain Meadows massacre and, according to Lubet, believed it would predispose Spicer toward the defense.

Much of what Lubet concludes or suggests is speculation, as he acknowledges, but intriguing and well informed. Despite some incoherent, rambling reviews posted here to the contrary, Lubet very clearly explains that the legal proceeding against the Earps and Holliday was a preliminary hearing, not a trial. Anyone who actually read the book would understand that one of Lubet's main points is that the prosecution's misguided strategy turned the proceeding into a trail in all but name, with prosecution and defense going for broke by presenting all of their evidence and witnesses. Fitch's gutsy strategy and acute reading of the prosecution's errors saved his clients from a full trial, which would likely have put them in the hands of a hostile county jury far more disposed toward the prosecution.

Lubet never weighs in decisively on the question of the defendants guilt or innocence, but, like Justice Spicer, he calls into question Marshal Virgil Earp's inclusion of Doc Holliday on his team on the fatal day and suggests that, because of animosity between Holliday and the Cowboys (or, perhaps, a history of criminal collusion between them), his presence may have increased the volatility of the situation. This, too, is speculative since there is no evidence that Holliday was involved in any crimes with the Cowboys (although the Cowboys had accused him of that), but he had added to the friction in earlier confrontations with them. Lubet suggests that the prosecution might have gotten a conviction against Holliday if they isolated him from the Earps, rather than remaining determined to convict them all.

Lubet also charges that Wyatt Earp, with Fitch's complicity, lied on the witness stand about not having drawn his pistol prior to approaching the Cowboys. He also suggests that Virgil lied in his testimony about threats made against him earlier by Frank McLaury. He also provides the first detailed discussion of the legal basis for Wyatt being allowed to read from a carefully prepared statement (probably written by Fitch) on the stand, which shielded him from cross-examination.

Although he makes mention of Wyatt's practice of disabling, rather than shooting, rowdy cowboys during his days as a Kansas lawman, Lubet does not connect it as well as he might have to Earps' actions in Tombstone. Past experience with drunken drovers celebrating the end of a cattle drive had taught Wyatt that walloping a cowboy over the head and jailing him for the night had little after effects, other than a sore head. Diffusing the situation through intimidation worked on drovers in Dodge City and Wyatt may have thought it would work against the Cowboys in Tombstone. If so, it was a serious miscalculation because, in Tombstone, Wyatt was dealing with resident criminals, loosely confederated, who were not going to leave town after a short stay. Each confrontation with them only added to their growing animosity and resentment of the Earps. In Tomstone such actions could have dire consequences.

The book is a compelling look at the legal process that followed the gunfight, but it does not significantly change or add to what we already knew about that legendary confrontation. Indeed, Lubet affirms that we are not likely to ever know more than we do and much about the gunfight will continue to be subject to informed speculation or surmise. While this is clearly the most careful look at the legal hearing, it does not alter or add to what we already knew about the conditions under which the gunfight occurred. Lubet emphasizes Sheriff Behan's ineffectiveness, the politicization of his office, and his complete failure to diffuse the situation or use his authority to disarm the Cowboys or remove them from town. Behan even seems to have been receptive to the outrageous demand of Frank McLaury that the Earps first disarm, despite their authority as lawmen. Indeed, Frank McLaury's arrogance and insistence on flaunting his disregard for that authority was crucial to the situation boiling over. One wonders if, absent Frank McLaury, the gunfight would have taken place. Behan's impotence only facilitated McLaury's brazenness.

Although Virgil Earp's judgment can be called into question, the Cowboys's history of violence, including murder against their adversaries, and especially their threats against the Earps, were likely stronger causes of the gunfight. Virgil exercised patience by giving the Cowboys ample time to leave town or surrender their weapons, but at least some of them refused to do either, thus giving the lawmen the choice of either ignoring a flagrant challenge to their authority or taking action.

Pesonalities aside, the Earps represented the law and had every right to arm themselves and demand that the Cowboys surrender their weapons. In fact, one of the strongest points Justice Spicer seems to have made in his ruling was his outrage at Frank McLaury demand that the lawmen disarm before he would.

Both those who are familiar with the Earp/Tombstone literature, as well as those new to the subject, will profit from Lubet's impressive work.

AW


Rating:
Summary: Forgotten Trial of Wyatt Earp??
Review: This part of the title is indeed a tip-off to the fact that the author gears his book toward those who did not know this fact. Although technically, this was a "hearing" or an "inquest" as Alford Turner's book, THE O.K. CORRAL INQUEST calls it. Although this book was well-written, it was obviously directed toward the neophyte where Tombstone and Wyatt Earp are concerned. In this regard it should be a good read for those who only have a passing interest in these areas. Dr. Lubet is also seemingly new on the scene of Tombstone and Wyatt Earp, but his book stands head-and-shoulders above other one-book authors in this arena. However, Dr. Lubet seems to lack knowledge of period weaponery and how they were used. Nor does he seem to understand the meaning of the "Code of the West" and how it was employed back then.
With unfounded suppositions, which some may misconstrue as fact, Dr. Lubet unfortunately "muddies the waters" - a crime other authors have been rightfully or wrongfully accused of. For those who never knew that there was a hearing or inquest after the streetfight near the O.K. Corral, then this would be a recommended book simply for that reason.