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Murder in Tombstone: The Forgotten Trial of Wyatt Earp (The Lamar Series in Western History)

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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.

Let me preface this review by stating that I am a political junkie. My copy of "Murder in Tombstone" arrived this AM. I wasn't able to sit down to read it until about an hour before the Presidential Debate. I kept one ear on the debate and both eyes on the book. I think Wyatt Earp may have expressed an opinion on the War in Iraq, but I'm not quite sure. I devoured Steve Lubet's book in one sitting, finishing just about the time Brit Hume ended his wrap-up of the debate.

Seriously, I found the book absolutely fascinating. About half-way through it I came to the conclusion I'd love to see this book made into the Ultimate OK Corral Movie! Lubet brought much needed new insight into a story that appeared not to need new insight. Until now the only book strictly about the Inquest was Turner's, which is excellent source material. The Lubet version will replace Turner in many respects although the Turner does provide a complete transcription of the Inquest.
The entire field of Tombstone & Earp related books and research will benefit from this book. The past decade has been an exciting one in the field dominated by well-researched books by Casey Tefertiller and Allen Barra, both of which I highly recommend. It will be further enhanced by the publication of my book, "Travesty" this winter.

Anyone who is interested in a good legal read with be absolutely fascinated by this one.

Despite its anomalous title, which must be either a marketing ploy or the author's unstated opinion, this is an exceptional book written by a legal scholar who is intimately familiar with the law and its history, and who has obviously done his homework regarding the hearing held in the wake of the police action of October 26,1881 in Tombstone, Arizona. The author clearly understands the laws, then extant in Arizona, and has studied the case and its testimony in painstaking detail. With that insight and background, he walks us through the proceedings pointing out when and where the prosecution and defense succeeded or erred in judgment, either winning or losing points for their positions. Fortunately for the reader, Mr. Lubet writes fluently and is able to explain the subtle nuances of both the law and the testimony, as a lawyer would see it, in terms easily understood by the layman. This makes for easy and enjoyable reading.

Beyond the proceedings, the book is still more interesting since it delves into some little known legalities of times past and explores the histories of some of the major participants. For example: I never quite understood why those accused of assassinating Abraham Lincoln were never allowed to testify in their own defense. Little did I know that, prior to 1864, laws in all U.S. jurisdictions prohibited accused parties from doing so or that in 1864 Maine became the first state to abolish that rule. Neither did I know that Judge Spicer, who presided at the OK Corral hearing was the defense attorney for the only man found guilty and executed in Utah for the Mountain Meadows Massacre. I also didn't know that Tom and Frank McLaury's brother, Will, a lawyer from Texas, interjected himself into the proceedings on the side of the prosecution and may have been instrumental in that side's insisting on a charge of first degree murder.

I must confess, however, that although I found this book to be an excellent read I was somewhat disappointed at some of the things the author failed to recognize, or at least failed to mention, and I have to disagree with some of his conclusions. More specifically: he never observed that the prosecution's case was almost entirely fabricated. As a result, he didn't seem to understand why their lawyers didn't ask more probing and expansive questions to solidify their testimony. The obvious answer, in my view, is that what they had contrived was all there was and that any deviation from that orchestrated testimony could easily have devastated their case. I.e., Would all the witnesses have said the same thing? (Witness Ike Clanton's wild and outlandish testimony.) In addition, the author stated several times that Wyatt Earp had clearly lied in stating that his gun was in his pocket. In the author's opinion, if that was so Wyatt would never have been able to draw it as quickly as he was said to have done. Instead, Mr. Lubet concluded that Wyatt was most likely waving it as they approached the "Cowboys." (a clear provocation) To me, a more likely scenario is that upon seeing that the Cowboys were armed, Wyatt quite sensibly put his hand in his pocket, grasped his pistol and steadied his nerves. And, strangely enough, the author never mentioned the fact that almost all of the prosecution witnesses were friends or associates of the slain Cowboys and that, based on the testimony of the two most neutral witnesses to the shootout, all had clearly perjured themselves.

There is one other conclusion which one can drawn from this book. Whereas many have long held that Sheriff Behan was simply a bumbling or ineffectual lawman with sympathies toward the "Cowboys" (i.e., the outlaws). He was most likely one of them. Why else would he: 1) deputize known Cowboys, 2) include known Cowboys in his posses, 3) steadfastly avoid ever capturing any Cowboys, and 4) perjure himself in an attempt to hang Virgil, Wyatt, and Morgan Earp, three respected lawmen, along with Doc Holliday? Blind hatred may have clouded Will McLaury's judgment, if he was an honorable man, but Johnny Behan has no such excuse.

All that aside, however, this is an erudite book about the most famous gun fight and the most controversial character on America's wild frontier. As such, it is thought provoking and a "must have" for every fan of western history.

Steven Lubet's "Murder in Tombstone" is a landmark study, both because Lubet takes a fresh approach and because the book represents a perfect marriage of author and subject.

Paula Marks, Casey Tefertiller, Allen Barra, and Steve Gatto have all addressed the OK corral preliminary hearing at length in their books, and Jeff Morey has written about it at length in his Internet and other articles. Each has examined the testimony, and judged it in light of such factors as witness credibility and extra-transcript evidence. They have commented upon the impact made upon the hearing by Thomas Fitch and William McLaury, and upon the reasoning of Wells Spicer. But "Murder in Tombstone" is something new.

While other works have focused on what the judge, lawyers and witnesses said about the conduct of the lawmen (police & sheriff) and of their adversaries in the vacant lot, this is the first work to focus on the conduct of the judge and lawyers (and secondarily of the witnesses). It is a first rate study, not only about the conduct of a particular complex 30-day preliminary hearing, but also of trial practice in the Gilded Age West. And this is where that "perfect marriage" I spoke of comes in. While Steven Lubet is not the first lawyer to pen a book about the OK Corral gunfight, he is the first recognized national authority on trial advocacy to do so. He has had that status for about a decade (as far as I can tell from the Amazon listings), and so what he has to say about the options open to the judge & lawyers, the tactics used and discarded, the traps sprung and the mistakes made, carries great weight. I don't agree with every conclusion made by Lubet. (I don't think that Wyatt had his gun out of his coat pocket; I think it more likely that he had his hand on his gun in his pocket, and that the hesitating movements of Frank/Billy gave him time to jerk and fire.) But I do conclude that this groundbreaking study cannot be ignored, will not be easily challenged.

Finally, the book elevates attorney Thomas Fitch to the level of being one of the most significant characters in the entire Earp/Cow-boy/Tombstone drama. Without his representation of the Earps, there would have been no Vendetta. Without a Vendetta, there would have been some books on the OK Corral story, but they would never have become the book/movie/etc. industry they became.

Buy this book and read it closely. While likely to remain sui generis in the OK gunfight field (and for that reason in print for a long, long time), it should give rise to a new genre of American legal history. Let's hope so.

Anyone interested in Wyatt Earp and Tombstone might be excused for wondering what new there is to say on the most written about of all gunfights in the Old West. But in this new book, Northwestern University law professor Stephen Lubet delivers a fresh approach, thoroughly analyzing the legal strategies and procedures that took place during the post-gunfight hearing in Judge Wells Spicer's courtroom. The hearing was ostensibly held to determine whether the law officers involved in the gunfight would be held over for the grand jury, but this hearing turned out to be the de facto trial of the Earp brothers and Doc Holliday for the killing of three cowboys. The author calls this judicial proceeding " the most widely debated decision ever delivered in a preliminary hearing by a justice of the peace." This does not seem undue hyperbole, as its results have been the subject of heated controversy for more than a century, with each generation producing its pro and anti-Earp polemicists anew.

While the myriad studies of the Earps and of Tombstone history must of necessity describe notable and sensational aspects of the hearing, Lubet focuses on topics overlooked by other writers. The author deconstructs each interim judicial decision of Judge Spicer, along with the actions of the prosecution team and defense lawyers. He parses the testimony of the defendants, and of a parade of witnesses for both sides.

Spicer's background as a defense lawyer at the trials of John D. Lee at the infamous Mountain Meadows Massacre is examined in relation to its critical impact here. Spicer was determined not to preside at a trial where perjury was suborned, according to the author. Lee's trials, where such perjury occurred, is pivotal in understanding his decisions.

Earp defense lawyer Thomas Fitch is shown to understand recent changes in "cross-examination" far better than prosecution lawyers. This technique had been lately evolving, moving past being used merely for filling in missing information. Fitch's cross-examination destroyed Ike Clanton's testimony. The prosecution's attempts at cross-examinations, on the other hand, floundered. The addition to the prosecution team of the understandably vindictive Will McLaury, brother of two slain cowboys, hindered their efforts. It precluded the possibility of trying the lawmen for anything short of first-degree murder. McLaury would have nothing less.

The author shows the entire prosecution team stumbling badly by presenting no final argument and by not moving to lesser charges of homicide. They thereby made Ike Clanton's testimony central to their case. This left Spicer with only one option, untenable to him, if he saw merit in the prosecution's case- turning the Earps over to the grand jury on first-degree murder charges. After listening to Clanton's fantastic testimony, the judge, likely influenced by his Mountain Meadows experience, was unwilling to help the defense by countenancing a lesser charge against the lawmen on his own.

Lubet dissects the evidence, devastating to the prosecution, given by neutral witnesses. He breaks down the testimony of two key unaligned witnesses, H. F. Sills, a railway in town for a short time, and Addie Bourland, a seamstress who witnessed the beginning of the fight. The author discusses the legal propriety of Spicer's ex parte interview with Bourland.

Those who believe the Earps acted justifiably and stalwartly at the gunfight, and followed stalwartness with truthfulness at the hearing, will be challenged. The author provides a persuasive thesis that Wyatt Earp almost certainly lied under oath about not brandishing his pistol as he and his brothers and Holliday approached the cow-boys. He also posits that in Virgil Earp's testimony, he likely invented a pre-gunfight threat by Frank McLaury, a threat that suspiciously amounted to what Lubet calls a "preconfession."

This book holds its own as a full study of the event that made the mining camp of Tombstone legendary. The first 70 pages deal with background to the gunfight, with a potted history of the Earps and Tombstone. Material is presented in an unhackneyed fashion on cow-boy depredations, town politics, disputed elections, the actions of Governor Gosper, the ill-fated deal between Wyatt Earp and Ike Clanton, the gunfight itself, the Coroner's Inquest, and the hearing aftermath, including Wyatt Earp's famous `vendetta ride.' Many in this contentious field will disagree with this or that Lubet conclusion, but no reader will fail to find them interesting. Despite its legal analyses, Lubet's prose is trenchant, and accessible to non-specialist readers. This book should be the standard study of the Spicer Hearing for some time to come.

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.

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.

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

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.

This is well written and a fascinating account of the trial of the Earps and Doc Holiday versus the prosecution led by the brother of the McLaury brothers that were killed in the famous gunfight along with Billy Clanton. Lubet, who is a professor of law at Northwestern U., writes a very articulate account of the history of the Earp-Holiday Clanton-McLaury feud that culminates in an interesting and revealing review of the trial. Readers familiar with Wyatt Earp and Tombstone will appreciate Lubet's brief biographies and economical account of the brewing battle that virtually takes place after a mere 50 pages. Those unfamiliar with the famous gunfight will appreciate the detail that Lubet gives the reader in those few pages. The bulk of the book is about the trial, characters and witnesses, the lawyers, the strength of the cross examinations and a review of Judge Spicer's ruling. The shootout does have a personal element as the Clantons and McLaurys, paryicularly Ike Clanton who personally threaten the Earps and Holiday. The prosecution's theme is that the Earps and Holiday planned the all out confrontation to eliminate their enemies. Of course, as the author points out, the Earp's' defense attorney, Thomas Fitch, is a superior trial lawyer and Lubet makes it clear by discussing Fitch's accomplishments in the trial that reflects his superior experience and knowledge of the law. The trial relives the gunfight that barely lasted a minute virtually in slow motion as Lubet leads you through the testimonies and the strategies of both sides. Interesting that Ike Clanton who ignited the event essentially asks for Wyatt's blessing to flee from the gunplay unarmed. Lubet covers it all in this relatively brief book such as the weak actions of Sheriff Behan, the erstwhile politician, that makes a weak attempt to disarm the cowboys and who apparently had an interconnected history with Wyatt. Wyatt stole his girl, Josephine Marcus, who eventually became Wyatt's second wife and Behan also reneged on a promise to make Wyatt his Deputy. Lubet provides a wealth of information including Judge Spicer's earlier history as the defense attorney of John Lee who became Brigham Young's famous scapegoat for the Mountain Meadows massacre of a wagon train. The author also demonstrates that there were two societies in Tombstone, much like in Billy the Kid's town in New Mexico, Democrats that leaned to the Cowboys and the Republicans who were primarily town folk and businessmen who supported the Earps. Although most know the outcome of the trial, the aftermath is just as fascinating as Virgil is severely wounded in an assassination attempt and Morgan is murdered. And Wyatt, once his brother Virgil is safe, does go on a revenge posse acting as a Deputy Marshall on dubious authority tracking down and killing three of the suspected killers. Later after Doc and Wyatt escape to Colorado and apparently away from the scene, Johnny Ringo is found shot to pieces. It is fascinating that after the Earps leave, as did so many of the interesting people, the town ironically dies shortly there after. And how fitting that Ike Clanton, who stirred the passions that emptied into that famous street fight, was killed in 1887 for getting caught doing what he did best, rustling. And Lubet has a great comment about Sheriff Behan, he led many posses in pursuit but no closer than a mile of who ever he was chasing. But let the author tell the story, he does such a good job of it.