You are listening to History on Trial, a production of iHeart Podcasts. Listener discretion advised. In the summer of eighteen eighty one, Wyatt Irp lawmen approached Ike Clanton outlaw with a proposition. This was highly unusual. Ike Clanton was affiliated with the Cowboys, a group of cattle wrestlers and stagecoach robbers who operated in the dusty reaches of southeastern Arizona. Wyatt Ierp, on the other hand, was a former Pima County deputy sheriff. His brother, Virgil, was city marshall for Tombstone, the mining boomtown situated in the heart of Cowboy country. The ERPs were sworn enemies of the Cowboys. So what did Wyatt want with Ike? As Wyatt would later explain it, he thought Ike could help make him sheriff. Earlier that year, too, Ummestone had split off from Pima County to become the seat of the newly formed Coachees County. Wyatt had hoped to be appointed sheriff of Cochees County, but that honor had gone to Johnny Beehn instead. Bee Hann was thought to be sympathetic to the Cowboys. Many in Tombstone were for various reasons, but having a sheriff with connections to outlaws seemed wrong to many other Tombstoners, including Wyatt Earp. Since there would be a real election held for the sheriff position soon enough, Wyatt decided to run. He had an unorthodox campaign strategy. A few months earlier, in March of eighteen eighty one, a stagecoach carrying a Wells Bargo money box was attacked by a group of bandits outside of Tombstone. In the course of the attempted robbery, the stagecoach driver and a passenger were killed. Wyatt and Virgil Earp had tracked down one of the robbers, a man named Luther King. King, in turn had identified his accomplices William Leonard, Harry Head and James Crane, all known cowboy affiliates. The RT Posse turned the King over to Sheriff be Hand so they could pursue the missing men, but they never found Leonard, Head or Crane. Soon after, King managed to escape custody. The circumstances of his escape were very suspect. One of Behan's deputies left the prisoner unattended with the door unlocked, allowing King to slip out and mount the fresh horse that had very conveniently been left behind the jail. Many Tombstoners suspected that Behan had looked the other way, or maybe had even helped. King George Parsons, a Tombstone resident, wrote in his diary quote, some of our officials should be hanged. They're a bad lot. Wyatt wanted to play off these bad feelings in his own campaign for sheriff. And wouldn't it be even better if he managed to capture the missing robbers life head and crane too. That would show just how useless Beehn was. But to do that, Whyatt needed intel on the cowboys, and where better to get that intel than from another cowboy. Ike Clanton came from a cowboy family. His little brother Billy and his father Newman, who everyone called Old Man, took part in cowboy raids. Two. Ike might know where to find the missing robbers, So Whyatt came to him with an idea. Wells Fargo was offering a five thousand dollars reward for the robbers capture. If Ike helped him find the men, Wyatt said he'd give Ike the reward money, Ike demonstrating that there's no honor amongst cowboys. Had just one question. Was the reward only good if the men were captured? What if they were killed? Wyatt telegraphed the Wells Fargo office to ask dead or alive. Wells Faro confirmed, so Ike and Wyatt struck a deal. Unfortunately for Wyatt's campaign ambitions and Ike's financial dreams, Leonard, Head and Crane all soon died in unrelated gun battles, but the deal the two men had struck that summer would only months later lead them both to a dusty lot behind the Ok Corral, where an escalating IRP cowboy conflict erupted into one of the wild West's most infamous gunfights. The twenty sixth of October eighteen eighty one, wrote reporter Richard Rule in the Tombstone Daily Nugget. The next day will always be marked as one of the crimson days in the annals of Tombstone, A day when blood flowed as water and human life was held as a shuttlecock. A day always to be remembered as witnessing the bloodiest and deadliest street fight that has ever occurred in this place, or probably in the territories. Rule was right, we remember the gunfight at the Oka, CA. We can picture it, the long black coats, the drooping mustaches, the fingers resting on triggers. The gunfight at the OK Corral has become a symbol of the wild West, an illustration of how hard men administered justice on the lawless frontier. But here's the funny thing about the gunfight at the OK Corral. It might have started in the streets, but it ended up in a courtroom. Welcome to history on trial. I'm your host, Mira Hayward. This week the Irp Holiday Case. The legend of the Earths began in July eighteen forty when Nicholas Irp married Virginia Cooksey in Hartford, Kentucky. The couple would have eight children, including the three that we know best today, Virgil, Wyatt, and Morgan. Nicholas was a short tempered, ill mannered, but energetic man. He moved to family frequently. Virgil was born in Kentucky in eighteen forty three, Wyatt in Illinois in eighteen forty eight, and Morgan in Iowa in eighteen fifty one. This unsteady childhood bonded the Ert brothers as adults, they often traveled and lived together. Throughout the eighteen sixties and seventies. The brothers bounced across the West and Midwest, taking whatever jobs they could get, like driving stage coaches, dealing in casinos, and building train tracks. Contrary to our idea of them today, law enforcement was not always the rp's passion. When they did take police jobs, like when Wyatt and Morgan served as deputy town marshals in Wichita, it was usually only because of the steady paycheck provided. In fact, Wyatt, for most of his young adult life, had more of a penchant for breaking the law than for enforcing it. After the tragic death of his pregnant wife Urilla in eighteen seventy, Wyatt went through a bit of a dark period. He was at various times arrested for horse theft, charged with running a floating brothel, and sued for keeping taxes he had collected for local schools for himself. But by the late eighteen seventies Wyatt had settled down, as had his brothers. Virgil and his common law wife Ali were living in Prescott, Arizona, where he was serving as town constable, a job that mainly required him to serve subpoenas. Virgil encouraged Morgan, who was then mining in Montana, and Wyatt, a deputy marshal in Dodge City, Kansas, to join him in Arizona. Wyatt and Morgan were in Wyatt's good friend John Holliday decided to come to Doc. Holiday, as he's better known, was a hard drinking dentist with a quick temper and a bad case of tuberculosis. Most people didn't like him, but Doc had once saved Wyatt's life during a standoff, and the two had been fast friends ever since. On November first, eighteen seventy nine, I met up with Virgil and Ali in Prescott. The party then made their way to Tombstone, arriving on December first. Morgan came eight months later in July eighteen eighty, and Doc several months after that. The RPS had chosen Tombstone because of its legendary mines. In August eighteen seventy seven, a man named Ed Schifflin had found a vein of silver in the area. In a cheeky nod to a doubter who'd once told him he'd only find his death out there, Schifflin dubbed his claim Tombstone. In November eighteen seventy nine, a month before Virgil and Wyatt arrived, Tombstone elected its first mayor and city council. Like many Western mining towns, Tombstone was a rough place. Saloons and gambling halls lined the streets. After too many drinks, fights broke out over card games. The town's location, only thirty miles from the Mexican border made it a popular spot for bandits and cattle wrestlers who stole goods in one country and sold them in another. People called such criminals cowboys. The men who we'd call cowboys today were then called stockmen or cow hans. By the late eighteen seventies, people had started calling the wrestlers and robbers who lived in southeastern Arizona the capital c cowboys. The cowboys weren't an official gang. They were a loose group of outlaws who collaborated to part cattle from ranchers and money from stage coaches. Many of them came to Arizona from the former Confederacy, drawn to the territory by the promise of less government oversight. Though the cowboys could be violent, sometimes killing victims during their robberies, not everyone in Tombstone minded their presence. Legal historian Stephen Lubet, in his book Murder in Tombstone calls the relationship between the cowboys in the town quote symbiotic, not flatly antagonistic. The cowboys had many friends and supporters both in and around Tombstone, and other local merchants depended on cowboys for cheap provisions, and saloon keepers enjoyed their freewheeling spending habits. Ranchers living outside of town, many of whom were ex Confederate Democrats, also got on well with the cowboys, who shared their political beliefs and backgrounds. Some of these ranchers even acted as middlemen for cattle the cowboys stole in Mexico. But not everyone was so tolerant of the cowboys. Many involved in the mining business. Mine owners and engineers, as well as other businessmen, were concerned about the economic impact the cowboys crime could have. These people mainly came from Northern States and were Republicans. They had less in common politically and socioeconomically with the cowboys. This latter group included the Ert Brothers, who were now firmly invested in helping maintain law and order They did so in both private employment, guarding wells, fargo stage coaches and acting as bouncers and saloons, and also in public roles. Before arriving in Tombstone, Virgil had been appointed a Deputy U s Marshal, making him the only federal authority in the region. In the summer of eighteen eighty, an Army lieutenant reached out to Virgil with a request. Six mules had been stolen from the army's base at Camp Rucker. Could Virgil track them down. Virgil agreed to look into the matter, taking Wyatt and Morgan along with him. The IRPs got a tip to search the mcclowry ranch outside of Tombstone. Two of the mcloary brothers, Frank and Tom, were known to collaborate with the cowboys hiding russelled livestock on their ranch. Sure enough, there were the mules. The mcloarys, unsurprisingly, were never big IRP fans After that. Besides a little mule wrustling, relative peace reigned in Tombstone for much of eighteen eighty. Wyatt was appointed a deputy sheriff in Pima County, and he and Virgil collaborated with Tombstone's Town Marshal Fred White direct present federal, county and local law enforcement. Then, on October twenty eighth, a group of drunken cowboys took to the streets of Tombstone and began firing their guns for fun. Town Marshal Fred White intervened and got shot in the groin. White died four days later, and Virgil was appointed acting town Marshal. In response to this violence, the Tombstone Town Council passed a new ordinance forbidding people from carrying weapons with in city limits. They hoped this would restore peace, but the violence was only beginning. Eighteen eighty one saw a number of upheavals for the town. First, Tombstone and its surroundings split off from Pima County to form Cochees County. If this is sounding familiar, I talked about this in the prologue, but that was ages ago, so as a quick refresher. In February, Democrat and alleged cowboy sympathizer Johnny Behn becomes Coachee's County Sheriff, much to Wyatt Irp's chagrin. In March, the fatal stagecoach robbery takes place. After the IRPs apprehend one of the robbers, he miraculously manages to slip out of bee Han's custody. Wyatt IRP, fed up with bee Hand's incompetence, decides to run for sheriff. He makes a deal with Eike Clanton Cowboy to get intel on the other stagecoach robbers. Ike says yes because a five thousand dollars reward is hard to refuse. The other robbers end up dying in unrelated gunfights, as outlaws tend to do. So nothing happens except that the animosity between the IRPs and Sheriff bee Han grows and grows and grows. I should mention here that at some point be hands fiance Josephine Marcus leaves him and eventually ends up with Wyatt Irp, So that also doesn't help relationships between the men. That takes us to September eighteen eighty one. That month, Acting Arizona Territory Guns John Gosper hears about the dysfunctional law enforcement situation in Tombstone and decides to see for himself. His report to Secretary of State James Blaine, written on September twentieth, is concerning in conversations with Johnny b Han and Virgil Irp, Gosper wrote both men had accused the other of enabling the cowboys. Without cooperation between the sheriff and the Marshall, Gosper said there was little chance of cracking down on crime in the region. Gosper ended his report on an ominous note, quote something must be done and that right early or very grave results will follow. Only a month later, his worst fears came true. Late on the evening of October twenty fifth, eighteen eighty one, Ike Clinton and Tom mccloughy arrived in Tombstone with a wagonload of beef to sell. Around midnight, Ike stopped by the Alhambra Saloon, where he ran into Doc Holliday. This meeting was no coincidence. Wyatt Irp had engineered it. In the months since Wyatt and Ike had made their deal, Ike had gotten increasingly nervous about word of his betrayal getting out. For some reason, Ike believed that Wyatt had told Doc Holliday about their discussions. Wyatt thought a conversation with Doc might reassure Ike. Why he thought this is a mystery. Doc Holliday was many things, but a soothing presence, not one of them. He and Ike were both known for their quick tempers. Plus, there's nothing that says I don't know about your secret business like telling someone I don't know about your secret business. The meeting quickly devolved, and Ike and Doc began threatening each other. Morgan irp intervened and broke up the fight out on the street. Ike briefly got into it with Wyatt. Tempers eventually cooled enough for someone to suggest a poker game, so Ike, Tom Virgil, Sheriff b Han and maybe Morgan, Wyatt and Doc two all sat down for a casual five hour game at the Occidental Saloon. Unfortunately, if unsurprisingly, hours of drinking and gambling did nothing to cool Ike off. Throughout the next morning, October twenty sixth Ike was seen drunkenly wandering through the streets of Tombstone, waving a rifle and threatening the RBS and Doc holiday. The gossip network in Tombstone worked fast, soon enough, word of Ike's behavior reached Virgil and Morgan. When they found Ike, Virgil seized Ike's rifle and then employed a Western lawman's favorite technique for subduing a troublemaker. He clubbed Ike in the head with the butt of his revolver. This was called buffaloing, and though we'd probably call it police brutality today, buffaloing was looked upon as a sign of an officer's restraint, better than just shooting someone. Then, Virgil charged Ike with carrying a firearm within city limit, the ordinance that had been passed a year before in response to the shooting death of town Marshal Fred White. After paying a twenty five dollars fine and surrendering his weapons, Ike was released. Virgil deposited Ike's rifle and revolver at the Grand Hotel for Ike to pick up. When he left town. In the street, Wyatt ran into Tom mclowry, who was looking for Ike. Wyatt would later claim that Tom had a gun, but by most other accounts, Tom was unarmed. Exactly what happened then between Wyatt and Tom is unknown, but Wyatt ended up buffaloing Tom. Just then, Ike's younger brother Billy and Tom's older brother Frank arrived in town, both armed. Billy and Frank were furious about what had happened to their brothers, whose heads were both bleeding from their buffaloings. Not long after, the Clinton's and mcclowrys were seen in Spangenberg's gun shop, where they bought ammunition. Ike also tried to buy another gun, but mister Spangenberg refused. The group then headed to the Ok Corral for unknown reasons. The ERPs heard about the gunshot visit and grew concerned. Virgil went to the Wells Fargo office and borrowed a shotgun, but he left the cowboys alone for now, hoping they would leave town of their own accord. Meanwhile, Sheriff be Hann, having just woken up from his post poker nap, was apprized of the situation. Bee Hann decided to approach the cowboys and, per his later testimony, get them to disarm. He found the group in an alley that connected the back of the Ok Corral to Fremont Street. Unfortunately, Frank mclowerry refused to give up his gun unless the ERPs and Holiday also agreed to disarm. Billy Clinton also refused, saying he was planning to leave town. Ike Clinton and Tom mcclowry both appeared to be unarmed. Bee Hand padded Ike down and found nothing, but did not search Tom Apparently satisfied with his own work, bee Hann went to update the ERPs, but bee Han's efforts were too little, too late. While he'd been talking to the cowboys, the ERPs had learned that the Clintons and mclarry's had left the Ok Corral and had been spotted on Fremont Street. In stepping on to a public street, Billy and Frank had broken the ordinance against carrying weapons in town. In Virgil ERP's mind, this crossed the line. He decided that he needed to disarm the cowboys. Doc Holliday then showed up and offered to come along. Wyatt brushed him off, saying this is our fight, to which Doc replied, that's the hell of a thing for you to say to me. So Virgil decided to deputize Doc along with his brothers, and gave Doc the shotgun he'd borrowed before they set off. Part Way down Fremont Street, the ERPs and Holiday ran into Sheriff bee Hann. He tried to stop them, saying, I am the sheriff of this county and I am not going to allow any trouble if I can help it. When this was ignored, bee Hand pleaded, for God's sake, don't go down there, or you will get murdered, and then, for some reason be hand inaccurately said I have disarmed them all. A minute later, the ERPs and Holiday arrived at the vacant lot bordering Fremont Street where the cowboys were. Besides the Clintons and mclowry's, another cowboy named Billy Claiborne was hanging around, but he quickly faded away as the lawman approached. Even from ten feet away, Virgil could see that Billy Clinton and Frank mcclowry were armed. Virgil raised the walking stick he had in his right hand and called out, boys, throw up your hands. I want your guns, and then, realizing he might be misinterpreted, he added, hold I don't want that, but it was too late. What happened next is still debated. Some said that the cowboys tried to surrender, Others said that the cowboys shot first. Either way, in seconds, shots were flying. Frank mclowry took a bullet in the side, Morgan Irp was hit in the shoulder. Tom mclowry turned towards his horse either to grab the rifle hanging off of its saddle or to run, and Doc Holliday hit him with a load of buckshot. Frank mclowry took aim at Doc and missed Morgan, and Doc shot back, killing thirty two year old Frank on the spot. Billy Clanton took shots to his chest and wrist, but still managed to shoot Virgil's leg before taking another bullet to the stomach. All of this happened in less than thirty seconds, despite all the shots fired more than thirty. Wyat and Ike emerged unhurt. Wyat by some stroke of luck, Ike because he ran away. Virgil had a nasty leg wound. Morgan had a chipped vertebra from the bullet that had passed through one shoulder and out the other. Nineteen year old Billy Clanton and twenty eight year old Tom mclowry both died within the hour. Johnny Behann, trying to assert some control, approached Wyatt and told him he was under arrest for murder. Wyatt was speechless. I won't be arrested, he said, you deceived be Johnny. You told me they were not armed. He told Bihan he would answer for what he had done and that he wouldn't leave town. But that he refused to be arrested. Behind him, the gathering crowd voiced their support, there is no hurry in arresting this man. Hotel owner Sylvester Comstock declared he done just right in killing them, and the people will uphold them. Be Hann backed off that day. It seemed that Comstock was right, the people would uphold the IRPs and Holidays actions. Newspaper accounts of the shooting, based on eyewitness accounts, all favored the lawmen. Ike Clanton and his younger brother Finn were taken into protective custody because it was rumored that people wanted to lynch them, but this support would not last long. Frank, Tom and Billie's bodies were displayed in open caskets on the street. Someone placed a sign above them that read murdered in the streets of Tombstone. Two thousand people showed up for the men's funeral. Whispers grew louder, were the killings really justified? And then on October twenty eighth, the coroner's inquest began. Arizona law only required a coroner's inquest in cases where a death was suspected to be caused by crime. A troubling sign for the RBS. Still, they likely believed that the testimony would support them, but the first witness, Sheriff be Han, dashed their hopes. Behan claimed that after Virgil asked for the cowboys guns, Billy Clanton had cried out, don't shoot me. I don't want to fight, and Tom mccloughry had said, I have got nothing, pulling his coat back to show he was unarmed. Even as the men were surrendering, be Hand said the IRP party had started shooting. Bihan also claimed that Virgil had not been quote acting in an official capacity, painting the shootout as the result of a private feud. Ike Clanton and Billy Claiborne corroborated b Hand's story. More damningly, several neutral witnesses also testified about the ERPs and holiday shooting quickly after asking the Clintons and mcclowry's to surrender. By the end of the two day inquest, many Tombstoners had become openly critical of the irp's actions, though coroner Henry Matthews released an ambiguous verdict, finding only that Billy Clinton and the mclowry's had died as a result of being shot. Everyone knew the story would not end there, and indeed, the day after the coroner's verdict, Ike Clanton filed first degree murder charges against John Doc Holliday and Virgil Wyatt and Morgan Irp. The case would now be sent before Justice of the Peace Wells Spitzer for a preliminary hearing. If Spicer found that a crime had indeed been committed and that there was sufficient cause to find the IRPs and Holiday guilty of said crime, they could find themselves on trial for their lives. Tombstone's first courthouse had burned in a fire earlier in the year, so the preliminary hearing took place in the court's temporary home in the Mining Exchange building, just down the block from the shootout site. Wells Spicer, the Justice of the Peace, presided a true multi hyphenet Westerner. The fifty year old Spizer was a lawyer, prospector, and a journalist. Preliminary hearings were usually brief affairs, consisting of a straightforward presentation of evidence to a judge who would then rule if a grand jury should hear the case, but this hearing would last for nearly a month and closely resemble a real trial. Why, while given the nomadic existence of many frontier settlers, there was no guarantee that a witness would stick around for a trial. Arizona law allowed for sworn testimony given in preliminary hearings to be read aloud at trial should the witness have moved on, so lawyers on both sides were incentivized to get testimony recorded. Now, the prosecution and defense also had their own reasons to believe a prolonged preliminary hearing could benefit their case. In the past, Tombstone prosecutors had held back evidence that they wanted to save for trial from preliminary hearings and seen their cases dismissed as a result, And the defense probably believed that they would have a better shot with Judge Spicer, a Republican, than with a Coachees County grand jury, which would likely contain many Democrats and cowboy sympathizers. Attorney Tom Fitch led the defense. Fitch was a fascinating character during his long and varied career. The forty three year old Fitch had worked as a reporter, a political organizer, and a lawyer, and had also served a term in Congress. As a representative from Nevada. Fitch technically only represented the RBS. Lawyer TJ. Drum represented Doc Holliday, but Fitch structured the defense and likely conducted most of the examinations. The prosecution had no such unifying force. District Attorney Lyttleton Price, a thirty three year old lawyer, was technically in charge, but friends of the Clintons and mcloughry's skeptical of the Republican, Price fundraised to hire another prosecutor, Ben Goodrich. Goodrich was a Confederate veteran and a staunch Democrat. He may also have helped I Clanton file the murder charges. There was a third prosecutor two who arrived on the third day of the hearing and shaped the case more than either Goodrich or Price. His name was Will mcloughy, and he was Frank and Tom mcloughry's old brother. Thirty six year old Will was an attorney in Texas. Upon hearing of his brother's deaths, he had gone immediately to Arizona and asked to join the prosecution. From the start, Will's intent was clear. He wanted the IRPs and Holiday dead. This thing has a tendency to arouse all the devil there is in me, he wrote to his law partner, I could kill them. Will made it clear to his co consuls that he was uninterested in any charge less than first degree murder and the death sentence that accompanied it. Before Will mcloughy's arrival on November fourth, the prosecution case had proceeded sedately. Coroner Henry Matthews detailed the wounds on the dead men's bodies. Billy Allen, a friend of the mcloughry's and Clanton's, testified that Frank mcloughy had told him he planned to get his brother out of town, not fight the IRPs. Sheriff Johnny B. Hann repeated his story from the inquest in which Tom mcloary and Billy Clanton had tried to surrender. Martha King, a housewife, described seeing the IRPs as they walked towards the gunfight and hearing one of the brothers tell Doc Holliday quote, let them have it. Andrew Meehan, a saloon keeper, testified that Tom mclowry had turned in his pistol per tombstone law in the early afternoon of the twenty sixth, supporting the idea that he'd been unarmed during the gun fight. Billy Clayborne, the cowboy who'd been with the mclowrys and Clinton's right before the gunfight, claimed that the ERPs and Holiday had approached with their guns drawn, ready for a fight. None of this looked good for the defendants. The prosecution's presentation made it look like they had acted hastily out of anger, that they had provoked the gunfight and shot unarmed men. But the prosecution hadn't provided much evidence for premeditation, which was needed to prove first degree murder, and that was a problem for Will mclowry, who wasn't going to be satisfied with a lesser charge. Fortunately, the prosecution's next witness, Ike Clanton, was prepared to provide the defendants with a motive for murder. It came out surprisingly during his cross examination on Saturday, November twelfth. Earlier, Ike had testified that his fight with the ERPs and Dock the night before the gunfight had been unprovoked. Tom Fitch pushed him on this, asking if it had anything to do with the deal that Ike had made with Wyatt to turn on Leonard Head and Crane. The stagecoach robbers. Ike admitted that there was a deal, but it wasn't a deal to capture the robbers. It was something much more nefarious. Wyatt erp Ike claimed, had offered him six thousand dollars to quote help put up a job to kill Crane, Leonard and head. Why would Wyatt want the men dead? Because, Ike said the ERPs and Doc Holliday had worked on the stagecoach robbery with them. Why it was afraid, Ike continued that some of them would be caught and would squeal on him. Tom Fitch was stunned. Where had the story come from? It was baffling, and it was hard for most people to believe. The prosecution, however, doubled down on redirect. The prosecutor asked Ike for more details. Ike took the invitation and ran with it, now claiming that all three Urt brothers had admitted directly to him their involvement in the robbery, and that Doc Holliday had openly confessed to firing the shot that killed the driver. Ike described his horror at what the men were telling him, saying, quote, I was not going to have anything to do with helping to capture Bill Leonard Crane and Harry Head capture them, not kill them. Ike caught his slip of the tongue and quickly corrected himself, but not quickly enough for it to escape Tom Fitch's notice. Fitch asked for a note to be made in the record, and Spicer obliged, writing quote. At the time of stating the above sentence, the witness first said capture and then corrected it to kill. But Ike wasn't deterred by this revealing mistake. As the redirect examination continued, Ike apparently with the full support of the prosecution, now tied this deal back to the gunfight, saying that after Leonard Crane and Head died, he believed that the IRPs and Holiday would kill him for what he knew. Ike thought the gunfight had actually been an attempted assassination. What prompted Ike Clanton to tell this story so blatantly an invention? Maybe alcohol when historian has suggested or cocaine, says another which Ike might have been taking headaches. Stephen Lubet believes that Will mcclowry, desperate to prove first degree murder, might have encouraged Ike to provide a motive on re cross. Tom Fitch got Ike to admit that he had shared this story with the prosecution before he told it in court. Whatever Ike's reasons, his impact on the hearing was enormous. On November sixteenth, the defense began their presentation. Tom Fitch recognized the unique dimensions of this case. In most cases, Stephen Lubet writes, it is undisputed that a crime has occurred, and the question is whether the defendant committed it. The IRPs trial, however, was very nearly the reverse. There was no doubt that the ERPs killed the three cowboys, but the question was whether it amounted to a crime. Criminality, not commission, was the ultimate issue for the court. The defense planned to answer the question of criminality by focusing on character, by defining the ERPs as law men and casting the dead men as dangerous criminals who posed a threat to Tombstone. To that end, the defense's first witness was Wyatt, Erp himself. This was sure to be a dramatic moment in the hearing, but what Tom Fitch did after calling Wyatt made it even more riveting. He declared that Wyatt would not be undergoing a direct or cross examination. Instead, he would be presenting a narrative statement. Under Arizona law, defendants were allowed to do this. This law was a remnant of the time not long gone, when defendants were not allowed to testify in their own defense, something we talked about in more depth in the Lincoln Lawyer episode. However, defendants usually spoke off the cuff, and Wyatt Earp would not be doing that. Instead, he began to read from a prepared statement. The prosecution objected, but Judge Spicer ruled that quote the statute was broad and the defendant could make any statement he pleased, whether previously prepared or not, and so Wyat read. His statement was wide ranging and suspiciously articulate, presenting a long history of the Clinton and mclowry brothers association with the Cowboys and their various criminal activities. He called Ike Clinton's testimony quote a tissue of lies from beginning to end. He said he believed Tom mclowry to have been armed, and he expressed the personal fear and responsibility he felt, saying quote, I believed then and believe now from the acts I have stated and the threats I have related made by Tom mcloughy, Frank mcloughy and Ike Clinton that these men had formed a conspiracy to murder my brothers, Doc Holliday, and myself. I believe I would have been legally and morally justified in shooting any of them on site, but I did not do so, nor attempt to do so, when as part of my duty and under the direction of my brother, the Marshal, I did not intend to fight unless it became necessary in self defense and in the performance of official duty. When Billy Clinton and Frank mclowy 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. Virgil Irp also testified. The format was the more traditional direct and cross examination, but the setting was unusual. Virgil, still recovering from his wounds, gave his testimony from his sick bed. His story aligned with Wyatts, although he focused more on the law enforcement aspects of the day, explaining that he had deputized his brothers and Doc Holliday to help him disarm the Clintons and mcloughy's. Virgil also described all the threats the cowboys had made towards him including a new piece of evidence. Not long before the gunfight, a man Virgil did not know approached him and told Virgil that he'd just seen a group of men gathered by the ok corral. All the men were armed, this man said, and he'd heard one of them say quote, be sure to get erp the marshal, and another reply, we will kill them all. The defense now produced the man who had told this story. His name was H. F. Sills. He was a railway worker visiting Tombstone on October twenty sixth when he happened to overhear the Clintons and mcclowry's talking about the ERPs. Sylls had asked someone to point him to Virgil so he could pass on what he'd heard. He did not know who the Clintons or mclowry's were at the time, but at Frank, Tom and Billie's funeral, Sills had recognized Ike Clinton as one of the men making threats before the gunfight. Sylls' status as a complete outsider to the town gave his testimony weight, and he was also not the only one to testify for the defense about threats made by Ike Clinton. Ned Boyle, a bartender described Ike Clinton saying quote, as soon as the ERP's end and Doc Hollidays showed themselves on the street, the ball would open. They would have to fight. Julius Kelly, a saloon owner, and Resid J. Campbell, the clerk of the county Board of Supervisors, also heard Ike make threats. The defense also presented several gunfight eyewitnesses who were butted the prosecution's version of events. H F. Sills claimed that the cowboys drew their guns as soon as Virgil started speaking to them. Addie Borland, a dressmaker, said that she hadn't seen any of the cowboys putting their hands up in surrender. Borland also pushed back on Sheriff bee Han's claimed that the IRPs and Holidays had fired all of the first shots, saying that everyone began shooting simultaneously. Borland wasn't the only one to raise issues with Beehn's testimony. The defense had a surprise witness, Winfield Scott Williams, an assistant district attorney under Lyttleton Price. Williams did not seem pleased to be there. It must have been awkward under my your boss's case, but he appeared nonetheless when Tom Fitch had cross examined Sheriff be Hann. He'd asked bee Hann if he had visited Virgil Irp the night after the gunfight and told Virgil that he had seen one of the mclowry boys draw his pistol immediately after Virgil asked for their surrender. Bee Hann had denied saying this, but Winfield Williams had also been at Virgil's house that night, and now on the stand he testified that bee Hann had indeed said this to Virgil. It was a serious blow to Behan's credibility and raised the question if he had lied about this, what else had he lied about. On November twenty ninth, the preliminary hearing ended. Both sides waived the right to closing arguments for unknown reasons. It was now up to Judge Wells Spicer to review the evidence and decide whether to move the case forward to a grand jury. Spicer said he would announce his decision at two pm the next day. If Spicer found there was sufficient cause a pretty low bar to believe that the ERPs and Holiday were guilty of first degree murder, he could send the case to the grand jury. If he didn't find sufficient cause for this charge, he could recommend a lesser charge, like second degree murder or manslaughter, or he could dismiss the charges altogether. At two o'clock on Wednesday, November thirtieth, eighteen eighty one, the parties met once more in the Mining Exchange Building to hear Judge Speiser's decision. Though Spicer had produced his decision quickly, that didn't mean it was short. The text ran for more than three thousand words. The length reflected the prolonged hearing. Spicer said, explaining, quote, I have given over four weeks of patient attention to the hearing of evidence in this case, and at least four fifths of my waking hours have been devoted to an earnest study of the evidence before me. Based on that study, he had found that quote, there was no sufficient cause to believe the defendants guilty of the offense mentioned within, and I order them to be released early. In his opinion, Judge Spicer declared that there was a factor in this case that quote divested the subsequent approach of the defendants toward the deceased of all presumption of malice or of illegality. That factor was the defendant's roles in law enforcement, Virgil Irb as town marshal and the rest as his deputies. When the defendants, Spicer continued, quote, marched down Fremont Street to the scene of the subsequent homicide. They were going where it was their right and duty to go. Of course, police officers can and do wrongfully kill people, but Spicer did not think that that had happened in this case. He believed that the defendants had acted from necessity to quote, save themselves from certain death. In view of all the facts and circumstances of the case, Spicer found, I cannot resist the conclusion that the defendants were fully justified in committing these homicides, that it was a necessary act done in the discharge of an official duty. What circumstances did Spicer mean? He defined them as, quote, 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 the many threats that have been made against the ERPs. This description matches almost exactly the narrative that the defense advanced, that the ERPs were virtuous law men fighting an uphill battle against the lawlessness inherent to a frontier society. Stephen Lubitt argues that this narrative is the reason the defense emerged victorious, not necessarily because of this particular narrative's virtues, but because they had a narrative at all. In Tombstone, Lubert writes, the prosecutors lost primarily because they failed to present a coherent theory of their case. The prosecution presented many ideas that the IRPs had acted out of anger, that it was an attempted assassination, and so on, but their theories often contradicted each other and never came together. That's a problem in a trial which is, ultimately, in Lubet's words, quote, a contest of ideas in which each side tries to present a comprehensive reconstruction of past events, combining facts and law in a way that leads to a logical result. Judge Speiser's decision had not entirely let the ERPs and Holiday off the hook. He chast Virgil for enlisting Wyat and Doc to help disarm the cowboys, saying that in light of Doc and Wyatt's contentious history with Eyke Clinton, bringing them along was a quote injudicious and censurable act. He also left a thread dangling for future cases, acknowledging that the grand jury could still consider the charges if they wished. Ultimately, though the grand jury declined to pursue the case, this was certainly a relief for the ERPs and Doc Holiday, but not everyone was pleased. Clara Brown, a Tombstone resident, wrote, quote, there being two strong parties in the camp, of course this verdict is satisfactory to but one of them. The other accepts it with a very bad grace. And a smoldering fire exists which is liable to burst forth at some unexpected moment. If the ERPs were not men of great courage, they would hardly dare remain in Tombstone. It did not take long for that fire to burst forth. Late on the night of December twenty eighth, less than a month after the hearing, Virgil Irp was attacked in the streets and shot twice. Miraculously, the shotgun blasts did not kill him, but they ravaged his left arm, which he would never be able to use again. Like Clanton's hat was found at the site of the ambush. Some people also suspected that Will mclowry was involved, but he was already back in Texas, heartbroken by the hearing's outcome. The morning after the attack on Virgil, Wyatt telegraphed Arizona's Federal Marshall Crawley Dake, and asked Dake to make him a US Marshal and give him the power to appoint deputies. Local authorities are doing nothing, Wyatt wrote, the lives of other citizens are threatened. Dake agreed and made Wyatt a Marshal four months earlier, on March eighteenth, eighteen eighty two, as Morgan and Wyatt EARP were playing billiards at Campbell and Hatch's saloon, two gunshots ripped through the window. One bullet skimmed over Wyatt's head and embedded harmlessly in the wall, but the second bullet hit true, slicing through Morgan Rp's spine. Morgan fell to the ground and never stood again. He lived for an hour more as Virgil and Wyatt did their best to make their little brother comfortable. At one point, they tried to help Morgan up. Don't boys, don't, I can't stand it, Morgan said, I have played my last game of pool. Shortly before midnight, Morgan IRP died, aged thirty. Virgil and his wife left Tombstone to accompany Morgan's body on the train to Colton, California, where Morgan's wife and the IRP parents lived. A coroner's jury investigated Morgan's death and identified a number of suspects, but Wyatt EARP was not interested in a courts justice. He raised a posse, using his martial status to deputize eleven men, including his brother Warren and Doc Holiday, between March twentieth and March twenty fourth. In what would come to be known as the ERP Vendetta Ride, the posse killed three cowboy affiliates, Frank Stillwell, Florentino Indian Charlie Cruz and Curly Bill Brocious. This time there was no ambiguity about Wyatt Rp's actions, though Wyatt would claim he'd been within his rights as U S Marshal. This was murder, plain and simple. Johnny Behan formed a posse of his own to chase down Wyatt and his compatriots, but they fled. Wyatt and Doc ended up in Colorado, and the governor there denied Arizona's extradition requests, but death still stalked the men of Tombstone. The first to go was Judge Wells Spicer. After the hearing, he'd received death threats, but nothing came of them. He did not run for the Justice of Peace position again and turned to prospecting. When a mine he'd invested heavily in failed in early eighteen eighty seven, the now fifty six year old Spicer disappeared. It is thought that he wandered into the desert to die. Six months later, Ike Clanton ran into a detective who was investigating him in association with cattle wrestling and murder. Ever, reactive, Ike drew his gun, but the detective shot first. Ike Clanton died on June first, eighteen eighty seven, aged thirty nine. Doc Holiday was next. The tuberculosis that had driven him west in search of better air ate steadily away at him. His illness, however, didn't stop him from drinking, gambling, or shooting. In eighteen eighty four, Doc shot a man named Billy Allen in Leadville, Colorado, over a five dollars day Holiday owed. Alan miraculously survived and Holiday miraculously got away with claiming self defense at trial, though Alan had been unarmed and Holiday had essentially ambushed him. Despite a talent for escaping from the law, Holiday could not escape his illness. Tuberculosis killed the thirty six year old Doc Holiday on November eighth, eighteen eighty seven. Virgil Irp stayed in California after delivering Morgan's body. He spent the rest of his life moving from job to job, just as he always had, including stints in law enforcement, mining, and saloon operation. On October nineteenth, nineteen oh five, Virgil Irp died, aged sixty two, from pneumonia. Johnny Behan left Tombstone in eighteen eighty six. He would go on to hold a variety of other law enforcement and government positions, but usually left them under a dark cloud. Accused of embezzling money or other misconduct. Be Hand died in Tucson on June seventh, nineteen twelve, aged sixty seven. Virgil was the leader of the IRPs on that fateful day in Tombstone, but it is Wyatt whose name is best remembered. This is probably because Wyatt lived the longest and had a best selling biography written about him. Wyatt married Josephine Marcus, Johnny b Han's former fiancee, in eighteen eighty eight. The two stayed together until his death. Like Virgil, he worked a variety of jobs across the West before eventually settling down in Los Angeles. There he befriended many early Hollywood cowboy actors and even consulted on several westerns. Wyatt Erp died on January thirteenth, nineteen twenty nine, aged eighty. Two years before his death, Wyatt's eventual biographer, Stuart Lake, asked Wyatt about the gunfight. For my handling of the situation at Tombstone, I have no regrets Wyatt's. If the outlaws and their friends and allies imagined that they could intimidate or exterminate the IRPs by a process of murder and then hide behind alibis and the technicalities of the law, they simply missed their guests. But were the cowboys really the ones who benefited most from the technicalities of the law. In the Tombstone hearing, no lawyer more ably exploited the law than defense counsel Tom Fitch. He used an outdated but still active provision and Arizona law to allow Wyatt Earp to present a meticulously crafted statement and avoid cross examination. Fitch realized that Judge Spicer was more likely to be sympathetic to his clients than a grand or trial jury, and subsequently presented a thorough trial case at what was really just a preliminary hearing. It's not hard to imagine a scenario in which the Earths and Holiday were convicted of involuntary manslaughter. Arizona law at the time defined involuntary manslaughter as an unlawful killing committed either during an unlawful act or quote during a lawful act, without due caution or circumspection. Did Virgil Irp show due caution when he brought Wyatt and Doc, who had been fighting with the Clintons and mclowry's all day to try to disarm the cowboys? Was giving Doc Holiday a shotgun an especially circumspect move. Whatever the answer to those questions, none of them would ever be explored in a jury trial thanks to Tom Fitch's clever lawyering, Thanks most of all to the power of the story he told. Though the Tombstone Hearing has largely faded from memory, the narrative of law men verse outlaw that the defense crafted at the hearing is one that has been repeated over and over again in books and TV shows and movies, And despite at first glance seeming to be about good versus evil, it's really a narrative where the distance between lawmen and outlaw is much shorter than you'd think. That's the story of the r Holiday case. Stay with me after the break for the account of the time Wyatt Erp played judge to disastrous results. Before Tombstone, before the Ok Corral, before any of it, Wyatt Earp worked on the railroad in the late eighteen sixties. Wyatt had helped build tracks for the Union Pacific. In the railroad camps, men liked to put on boxing matches, so Wyatt learned to box, which he was good enough at, and then he learned to referee, which he was very good at. He'd officiate matches and manage the money. Wyatt was a skilled referee, but officiating a casual boxing match in a railroad camp in Wyoming is very different than officiating the heavyweight title match in front of thousands in San Francisco. That's why when organizers asked Wyatt to officiate the fight between Tom Sharky and Bob Fitzsimmons, he hesitated. The fight would be conducted under the Marquess of Queensbury rules, which Whyatt wasn't sure he was familiar enough with. It was eighteen ninety six and Wyatt, now forty eight, was managing race horses and deeply in debt. He hadn't been official's first choice, but it was now the day of the fight, December twod and Sharky and Fitzimmons teams hadn't been able to agree on anyone else. Whyatt's name came up, perhaps thanks to a journalist. With the fight only hours away and ten thousand tickets sold, the organizers pushed Wyatt to accept. Eventually he said yes. Unfortunately, Wyatt's inexperience would have dire consequences. Things got off to a shaky start even before the opening bell, when Wyatt entered the ring with a pistol under his jacket. Classic Wyat officials quickly confiscated the gun, but after that things settled down. Fitsimmons, a quick, shrewd boxer, seemed to have an edge over the stronger but slower Sharky. No surprise there, Fitzsimmons was the favorite. In the eighth round, Fitzimmons delivered a hard uppercut to Sharky's chest, sending Sharky to the ground. For a moment, it seemed that Fitzimmons had knocked Sharky out, but then Sharky began holding his groin and crying that he'd been hit below the belt. Wyatt ran over to Sharky and examined him, then called a foul and declared Sharki the winner of the match. Perhaps anticipating the controversy of this call, Wyat then made a fast exit. Allegations immediately followed that the match had been fixed. Fitzsimmons and his manager filed charges claiming that there had been a conspiracy between Sharky's team and Wyatt. After two weeks of testimony, the court dismissed the case, saying that the boxing match was illegal and thus not something they would rule on. There is no concrete evidence that Wyatt was involved in any fix, but the match would haunt him for the rest of his life. To most Americans in the early twentieth century, Wyatt Earth was better known as the man who had cost Bob Fitzimmons his title than as the man who'd cost multiple men their lives. Thank you for listening to History on Trial. If you enjoyed this episode, please consider leaving a rating or review. It can help new listeners find the show. To see images of the people and places in this episode, check out our instagram at History on Trial. My main sources for this episode were Stephen Lubet's book Murder in Tombstone, The Forgotten Trial of Wyatt Earth, and transcripts from the hearing published on Douglas O. Linder's Wonderful Famous Trials website hosted by the University of Missouri Kansas City School of Law. For a full bibliography, as well as a transcript of this episode with citations, please visit our website History on Trial podcast dot com. History on Trial is written and hosted by me Mira Hayward. The show is edited and produced by Jesse Funk, with supervising producer Trevor Young and executive producers Dana Schwartz, Alexander Williams, Matt Frederick, and Mira Hayward. Learn more about the show at History on Trial. 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