Ethics in Tombstone: the Trial of Wyatt Earp

Ethics in Tombstone: The Trial of Wyatt Earp

David J. Sachar

Executive Director

Judicial Discipline & Disability Commission

Tombstone, Arizona
Birth and Growth- In the 1880s population grew from 100 to around 14,000 in less than seven years
Government- Generally a schism between Democrats in the rural areas and pro-business Republicans in town.
Past history relevant to the conflict

The Main Players
Wyatt Earp- Best known for his days as a Deputy Town Marshal in Tombstone, Arizona and his part in the “Gunfight at the O.K. Corral”. Earp held the role of city policeman, county sheriff, hunter, bouncer, saloon-keeper, gambler, brothel owner, pimp, miner, and a boxing referee at different points in his life. Several sources, including the 1994 movie Wyatt Earp, claim that Wyatt was jailed for horse thievery in Pine Bluff, Arkansas before escaping and not facing prosecution or punishment. In 1878, he went to Texas where he met John Henry "Doc" Holliday whom Earp credited with saving his life.

Virgil Earp- Tombstone City Marshal and Deputy U.S. Marshal the day of the gunfight. He was a more experienced sheriff, constable, or marshal than Wyatt. Union Soldier and a Republican.

Morgan Earp- Youngest brother. Like Wyatt was left home to help out at the family farm when the older brothers joined the Union Army in the Civil War. Assassinated after the “trial”. Worked riding “shotgun” on Wells-Fargo stagecoaches before his time in Tombstone.

John Henry “Doc” Holliday- Earned a dental degree in Pennsylvania as a young man. Suffered from tuberculosis and traveled the American southwest as a gambler to help the consequences of the disease. Died in Colorado after Bat Masterson, as a favor to Wyatt Earp, arranged to have Doc’s extradition to Arizona delayed and then released him. At that point Doc was wanted for charges from the Earp’s vengeance killings after the O.K. Corral fight, trial and subsequent shootings.

Sheriff Johnny Behan- Sheriff during the O.K. Corral gunfight. Behan was a friend of the “cowboys” and a staunch Democrat. Had personal friction with Wyatt Earp over politics (including an election contest with ballot stuffing allegations) and the attention of the same woman, Josephine Sadie Marcus.

Judge Wells Spicer- A respected trial lawyer who was affected by his defense of a defendant in the Mountain Meadows Massacre of Arkansas pioneers in Utah. This incident may have made him wary of the jury system and affected the way he handled the O.K. Corral “trial”. His preliminary hearing on the matter became the longest in Arizona history. His verdict resulted in him receiving death threats. He later disappeared and is rumored to either have committed suicide, faked his death to avoid creditors, left to find his own silver mine fortune or some combination of the above.

The “Victims”- Billy Clanton. Ike’s brother and generally considered to be hard working and well liked. Tom and Frank McLaurey were “Cowboys” and owned a ranch. They may have been involved in recent cattle rustling (Tom had $3000 on him when he was shot to death) and the issue of whether Tom was armed became a big matter of contention in the trial. Billy Claiborne was also there but was unarmed and ran from the conflict. Died in Tombstone a year later at age 22 after calling someone out to a gunfight.

Ike Clanton- Also at the gunfight. However, he ran screaming with his hands up. He was unarmed and was seen by witnesses still running for blocks through the streets of Tombstone. He filed the charges against the Earps and Holliday. His testimony about past interactions with the Earps (Wyatt in particular) greatly affected the outcome of the hearing.

The Lawyers- Thomas Fitch represented the Earps and Doc Holliday had separate counsel, T.J. Drum. Little is known about Drum as Fitch was obviously the lead counsel for the defense team. Fitch had seen Spicer represent a defendant in the Mountain Meadows Masscre. He also had special knowledge on a nuance in trial procedure; allowing interested parties to testify and be cross-examined. Took what the prosecution gave him (and all or nothing attempt at murder charges, not manslaughter) and turned the hearing into a big win for the defendants. The prosecutors were also considered to be competent lawyers. Lyttleton Price was the “official” prosecutor but had strong Republican ties which made him suspect to the strongly Democratic victims and their families. Ben Goodrich (a Confederate veteran) was hired by the Cowboys and their families as was the tradition in that day. He had a distinguished legal career but was Ike’s personal lawyer and was certainly affected in his strategy by that fact. After the trial began, Will McLaurey, brother of the two McLaurey victims, joined the defense counsel team. This all but sealed the strategy of the prosecution to be the most extreme presentation possible against the Earps and Holliday.

Gunfight at the O.K. Corral- 30 Seconds that are still debated 130+ years later

Prosecuting Attorney Ethical Issues

Charging Decision

-Prosecutors are placed in an uncomfortable position when prosecuting police officers.

-Society looks for reassurance that the police actions are legal and appropriate.

-The obligation is to determine the truth and to dispense justice.

-This obligation is often exercised under the glare of intense scrutiny.

-Objective Reasonableness Standard: From the perspective of a “reasonable” officer on the scene, rather than with 20/20 vision of hindsight. Graham v. Connor, 490 U.S. 386 (1989)

Arkansas Rules of Professional Conduct has a special section for Prosecutors. Rule 3.8 Special Responsibilities of a Prosecutor states:

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

…
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and

(e) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this rule.

NDAA ethical standards give much more detailed advice on behavior that is ethical for a PA or DPA. In fact, Rule 1-1.1 states that the prosecutor is an “independent administrator of justice” whose primary responsibility is “to seek justice”.

Conflict of Interest- 1-3.3. The prosecutor should exclude himself or herself … “where personal interests of the prosecutor would cause a fair minded, objective observer to conclude the prosecutor’s neutrality, judgment or ability to administer the law in an objective manner may be compromised.”

Party Politics
Business Interests
Personal Relationship with Victims

Influence by the Sheriff or others on charging-

NDAA Standard 1-1.2 “zealously protect the rights of individuals, but without representing any individual as a client.”
4-2.3- Can it be substantiated by admissible evidence at trial?
Factors to consider are listed in 4-2.4.

Prosecuting police officers in a small jurisdiction has other practical challenges.

Judicial Ethical Issues

RULE 2.4 External Influences on Judicial Conduct

(A) A judge shall not be swayed by public clamor or fear of criticism.

(B) A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment.

…

RULE 2.9 Ex Parte Communications

(A) A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending matter,

…

(B) If a judge inadvertently receives an unauthorized ex parte communication bearing upon the substance of a matter, the judge shall make provision promptly to notify the parties of the substance of the communication and provide the parties with an opportunity to respond.

(C) A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.

…

Attorney Ethical Issues

Conflict of Interest: Current Clients: Specific Rule

(a)A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.

…

Declining or Terminating Representation

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if;
(1) the representation will result in violation of the rules of professional conduct or other law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime or fraud;
(4) a client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

Conclusion

Links and Sources

Arkansas Judicial Discipline & Disability Commission

Supreme Court Committee on Professional Conduct

National District Attorneys Association

Lubet, Steven, Murder in Tombstone: The Forgotten Trial of Wyatt Earp, Yale University Press (2004).

Turner, Alford E., The O. K. Corral Inquest, Early West Publishing (1992).

Turner, Alford, The Earps Talk, Early West Publishing (1992).

“Police Liability: The Prosecutor’s Role and Ethical Duties When Deadly Force is Used”, by Grover Task, District Attorney and E. Michael Soccio, Chief Deputy District Attorney, Riverside County, Riverside California, from The Prosecutors Deskbook, Ethical Issues & Emerging Roles for 21st Century Prosecutors, by American Prosecutors Research Institute, 3rd Edition.

THE VERDICT

Defendants Wyatt Earp and John Holliday, two of the defendants named in the above entitled action were arrested upon a warrant issued by me on the 29th day of October, on a charge of murder. The complaint filed, upon which this warrant was issued, accuses said defendants of the murder of William Clanton, Frank McLaury, and Thomas McLaury on the 26th day of last month, at Tombstone, in this County.

This case has now been on hearing for the past thirty days, during which time a volume of testimony has been taken and eminent legal talent employed on both sides.

The great importance of the case, as well as the great interest taken in it by the entire community, demand that I should be full and explicit in my findings and conclusions and should give ample reasons for what I do.
From the mass of evidence before-much of which is upon collateral matter-I have found it necessary for the purposes of this decision to consider only those facts which are conceded by both sides or are established by a large preponderance of testimony.
Viewing it in this manner, I find that on the morning of the 26th day of October, 1881, and up to noon of that day, Joseph I. Clanton or Isaac Clanton, the prosecuting witness in this case, was about the streets and in several saloons of Tombstone, armed with revolver and Winchester rifle, declaring publicly that the Earp brothers and Holliday had insulted him the night before when he was unarmed, and now he was armed and intended to shoot them or fight them on sight. These threats were communicated to defendants, Virgil Earp and Wyatt Earp.
Virgil Earp was at this time the chief of police of Tombstone and charged as such officer by the city ordinance with the duty of preserving the peace, and arresting, with or without warrant, all persons engaged in any disorderly act, whereby a breach of the peace might be occasioned, and to arrest and disarm all persons violating the city ordinance which declares it to be unlawful to carry on the person any deadly weapon within the city limits, without obtaining a permit in writing.
Shortly after noon of October 26th, defendant Virgil Earp, as chief of police, assisted by Morgan Earp, who was also at the time a special policeman in the pay of the city and wearing a badge, arrested and disarmed said Isaac Clanton, and in such arrest and disarmament, inflicted upon the side of his head a blow from a pistol-whether this blow was necessary is not material here to determine.
Isaac Clanton was then taken to Justice or Recorder Wallace, where he was fined and his arms, consisting of a revolver and Winchester rifle, taken from him and deposited at the Grand Hotel, subject to his orders.

While at Justice Wallace's court and awaiting the coming of Judge Wallace, some hot words passed between Isaac Clanton and Wyatt Earp. Earp accused Clanton of having previously threatened to take his life, and then proposed to make a fight with him anywhere, to which Isaac Clanton assented, and then declared that "Fight was his racket," and that when he was arrested and disarmed, if Earp had been a second later, "there would have been a coroner's inquest in town.”
Immediately subsequent to this, a difficulty occurred in front of Judge Wallace's courtroom, between Wyatt Earp and the deceased Thomas McLaury, in which the latter was struck by the former with a pistol and knocked down.
In view of these controversies between Wyatt Earp and Isaac Clanton and Thomas McLaury, and in further view of this quarrel the night before between Isaac Clanton and J. H. Holliday, I am of the opinion that the defendant, Virgil Earp, as chief of police, subsequently calling upon Wyatt Earp, and J. H. Holliday to assist him in arresting and disarming the Clantons and McLaurys-committed an injudicious and censurable act, and although in this he acted incautiously and without due circumspection, yet when we consider the conditions of affairs incident to a frontier country; the lawlessness and disregard for human life; the existence of a law-defying element in [our] midst; the fear and feeling of insecurity that has existed; the supposed prevalence of bad, desperate and reckless men who have been a terror to the country and kept away capital and enterprise; and consider the many threats that have been made against the Earps, I can attach no criminality to his unwise act. In fact, as the result plainly proves, he needed the assistance and support of staunch and true friends, upon whose courage, coolness and fidelity he could depend, in case of an emergency.
Soon after the conclusion of proceedings at Judge Wallace's court, Isaac Clanton and Thomas McLaury were joined by William Clanton and Frank McLaury, who had arrived in town. In the afternoon these parties went to [the] gun shop, where they were seen loading their guns and obtaining cartridges. These proceedings were seen by Wyatt Earp, who reported the same to Virgil Earp, chief of police, said Wyatt Earp at the time being a sworn policeman.
After this, the Clantons and McLaurys went to the Dexter Stables, on Allen Street, and shortly after, crossed the street to the O.K. Corral and passed through to Fremont Street. With what purpose they crossed through to Fremont Street will probably never be known. It is claimed by the prosecution that their purpose was to leave town. It is asserted by the defendants that their purpose was to make an attack upon them or at least to feloniously resist any attempt to arrest or disarm them that might be made by the chief of police and his assistants.
Whatever their purpose may have been, it is clear to my mind that Virgil Earp, the chief of police, honestly believed [and from information of threats that day given him, his belief was reasonable], that their purpose was, if not to attempt the deaths of himself and brothers, at least to resist with force and arms any attempt on his part to perform his duty as a peace officer by arresting and disarming them.
At this time Virgil Earp was informed by one H. F. Sills, an engineer from the A. T. & S. F. R. R., then absent from duty, on a lay-off furlough, and who had arrived in town only the day before and totally unacquainted [with] any person in town, or the state of affairs existing here. Sills had overheard armed parties just then passing through the O.K. Corral say, in effect, that they would make sure to kill Earp, the marshal, and would kill all the Earp.
At the same time, several citizens and a committee of citizens came to Virgil Earp, the chief of police, and insisted that he should perform his duty as such officer and arrest and disarm the cowboys, as they termed the Clantons and McLaurys.
Was it for Virgil Earp as chief of police to abandon his clear duty as an officer because its performance was likely to be fraught with danger? Or was it not his duty that as such officer he owed to the peaceable and law-abiding citizens of the city, who looked to him to preserve peace and order, and their protection and security, to at once call to his aid sufficient assistance and persons to arrest and disarm these men?
There can be but one answer to these questions, and that answer is such as will divest the subsequent approach of the defendants toward the deceased of all presumption of malice or of illegality.
When, therefore, the defendants, regularly or specially appointed officers, marched down Fremont Street to the scene of the subsequent homicide, they were going where it was their right and duty to go; and they were doing what it was their right and duty to do; and they were armed, as it was their right and duty to be armed, when approaching men they believed to be armed and contemplating resistance.
The legal character of the homicide must therefore be determined by what occurred at the time and not by the precedent facts. To constitute the crime of murder there must be proven not only the killing, but also the felonious intent. In this case, the corpus delicti or fact of killing is in fact admitted as well as clearly proven. The felonious intent is as much a fact to be proven as the corpus delicti, and in looking over this mass of testimony for evidence upon this point, I find that it is anything but clear.
Witnesses of credibility testify that each of the deceased or at least two of them yielded to a demand to surrender. Other witnesses of equal credibility testify that William Clanton and Frank McLaury met the demand for surrender by drawing their pistols, and that the discharge of firearms from both sides was almost instantaneous.
There is a dispute as to whether Thomas McLaury was armed at all, except with a Winchester rifle that was on the horse beside him. I will not consider this question, because it is not of controlling importance. Certain it is that the Clantons and McLaurys had among them at least two six-shooters in their hands, and two Winchester rifles on their horses.