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Murder in Tombstone By Steven Lubet (Yale University Press, 253 pages, $30) Known as “the town too tough to die,” Tombstone, Ariz., today has a population of about 1,500. In the fall of 1881, however, it was a new town, created in 1879 after silver was found in the nearby hills. It had a population of more than 7,000, including Virgil Earp, the town marshal, and Wyatt, his more-famous brother. Rounding out the group that has spawned countless books, articles, and movies were the other Earp brothers, James and Morgan; a tubercular man named John Henry “Doc” Holliday, who had forsaken dentistry in favor of gambling and drinking; and a host of others whose names have become legend � “Big Nose” Kate Elder, Bat Masterson, the “Cowboys” John Ringo and “Curly Bill” Brocius, brothers Frank and Tom McLaury, the Clantons, and the town sheriff, Johnny Behan. It also had lawyers, merchants, prostitutes, politicians, and judges. Moviegoers from the late 1950s remember Burt Lancaster as Wyatt Earp and Kirk Douglas as Doc Holliday in “Gunfight at the OK Corral.” You can still search it out at your local video store; better yet, you can read Robert B. Parker’s fictionalized version of Earp’s life, Gunman’s Rhapsody. But first, read Steven Lubet’s latest book, Murder in Tombstone: The Forgotten Trial of Wyatt Earp. LAW OF THE OLD WEST If Scott Turow and John Grisham have set the standards for legal fiction in our time, Northwestern Law School professor Steven Lubet occupies his own unique niche as a storyteller specializing in “Old West” law. In his previous book, Nothing But the Truth: Why Trial Lawyers Don’t, Can’t and Shouldn’t Have to Tell the Whole Truth, published by New York University Press in 2001, Lubet devoted a chapter to Wyatt Earp and what happened after the famous shootout. That chapter, as it turns out, was just the appetizer. Lubet has now given us the entire feast. He has expanded the story into a full-length rendition of the probable cause hearing that began on Oct. 31, 1881, just five days after the shootout that left Billy Clanton and the McLaury brothers dead and two Earps wounded. As we now learn, three men lost to history played historic roles in the aftermath of the gunfight � the judge, the prosecutor, and the hero of this book, defense counsel Tom Fitch. Known as “the Silver-Tongued Orator of the Pacific,” Fitch was 43 when he arrived in Tombstone early in 1881. By then, he had lived and practiced law in California (according to one of his obituaries he was one of “the three great orators who kept California loyal to the Union during the Civil War”), Nevada (which he represented for a term in Congress), and Utah (where he became personal counsel to Brigham Young). As Lubet describes him, Fitch came to the Earp case with a wealth of trial experience and a clear sense of how to construct a coherent, unified theory of defense. He brought another distinct advantage to the case � a keen appreciation of the judge, Wells Spicer, with whom he had much in common. Both had been newspaper reporters, and both were Republicans. Like Fitch, Spicer had practiced law in Utah, where he had represented John D. Lee in the notorious 1875 Mountain Meadows Massacre case. Lubet speculates that Fitch’s defense strategy for the Earp brothers was driven, at least in part, by Spicer’s abhorrence of the perjured testimony and unjust outcome in Lee’s case. Lubet suggests that Spicer chose to turn a probable cause hearing into a full-fledged trial because he knew that Spicer would enter the courtroom with healthy skepticism toward the prosecutors and would give Fitch considerable latitude. If that was Fitch’s thinking, he turned out to be correct. As Lubet explains, Fitch needed every possible break, since there certainly was ample evidence to bind Holliday and the Earps over for trial. Early in the proceedings, according to a contemporaneous newspaper report, a Tombstone resident testified that “the firing commenced by the Earp party. . . . I think it was Doc Holliday who fired first.” Johnny Behan testified that he tried to prevent the confrontation, but the Earps pushed him aside and Doc Holliday fired the first shot, even while the cowboys raised their hands. Behan gave the prosecution nearly everything they needed, putting much of the blame on Virgil Earp for instigating the fight and bringing the trigger-happy Doc Holliday along. Fitch spoke in the stilted language of the day: “Did you not on the fifth day of November 1881, about 5 o-clock in the afternoon, in front of the Oriental Saloon in Tombstone, say to or in the presence of Wyatt Earp, that you knew nothing in your testimony that would hurt the Earps, but that you intended to cinch Holliday, or words of like import or effect?” Over the course of a full month and 30 witnesses, however, he was always one step ahead, an organized advocate with a theme (his clients wore the white hats) against prosecutors with a divided agenda. He was right about Judge Spicer, who let Fitch try his case, was extremely attentive, and made a number of rulings favorable to the defense. Lubet takes us through the proceedings, witness by witness, letting the evidence speak for itself. The prosecutor, Ben Goodrich, faced a number of problems. One was his co-counsel, the McLaurys’ brother Will, who left his Texas law practice to join the prosecution team. He brought a “take no prisoners” approach to the case � no lesser charge for him. Will McLaury’s attitude towards the Earps was summed up in a letter to a law partner: “I think I can hang them.” Another problem was Ike Clanton, who “broke and ran” when the fight started. Like Behan, he testified that Doc Holliday and Morgan Earp fired the first shots, followed quickly by Virgil and Wyatt. Lubet credits Fitch with impeaching Clanton through skillful questioning, but his testimony, at best exaggerated and probably perjured, simply collapsed of its own weight. Earp’s reputation was such that trying to make him out as a premeditated killer was a classic example of prosecutorial excess. Lubet suggests that the decision to call Clanton at the probable cause hearing may have been made out of fear that Ike would be gunned down before they ever got to the criminal trial. TOUGH CROSS-EXAMINATION Sheriff Johnny Behan’s testimony, while favorable to the prosecution, didn’t hold up very well under Fitch’s questioning. It seems that Behan had his eye on a nickel-plated pistol, while Doc was carrying a shotgun, which Behan somehow missed. In other words, Behan had the first shot coming out of the wrong weapon. Lubet’s lucid description of this part of the hearing serves as a clear reminder of why cross-examination is the surest means of finding the truth. As Lubet points out, Behan had both political and personal differences with Wyatt Earp. The personal issue was that Earp, who had a wife, was romantically involved with Johnny Behan’s fianc�e, Josie Marcus (whom Earp later married). Lubet suggests that “no lawyer today” would pass up an opportunity to use this on cross-examination to show bias, but Tom Fitch did. It seems doubtful that Fitch chose to avoid the subject due to its “delicacy.” More likely, he decided that the risks of bringing this love triangle into the case outweighed the potential benefit and stuck to his game plan. Unlike Lubet, I suspect many a lawyer today would make the same judgment. As in all of his writings, the prolific Lubet wears two hats. Lubet the law professor is fascinated with Fitch’s defense strategy, which included using “provables” (locking a witness into a statement to be refuted by later witnesses) and having Earp read a “statement” while avoiding cross-examination. This aspect of the book will have special appeal to law students and trial lawyers. At the same time, Lubet the storyteller gives us character and plot, as well as the flavor of the Old West. By doing so, he tells a tale that will appeal to everyone. Joseph D. Steinfield, a Boston trial lawyer, is a partner in the law firm of Prince, Lobel, Glovsky & Tye and an adjunct professor of law at Boston College Law School. He specializes in complex business litigation and First Amendment cases.

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