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Provocative Look at O.K. Corral Shootout

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October 19, 2004 | by Pat Vaughan Tremmel
Steven Lubet

Steven Lubet

The legendary shootout at the O.K. Corral that took place in Tombstone, Ariz., in 1881 is perhaps the best-known gun battle in the highly publicized and cinematized history of the Wild West. The storied shootout pitting the Earp brothers — Virgil, Wyatt and Morgan — and Doc Holliday against the Clanton and McLaury brothers generally is celebrated as a heroic good-guys-kill-bad-guys tale with no arrests or complicated legal proceedings.

But contrary to cinematic imagery, the Old West was not devoid of law and order, and Wyatt Earp was not universally claimed as a hero, according to a new book ”Murder in Tombstone”  (Yale University Press).

The book, by Steven Lubet, professor at Northwestern University School of Law and director of the law school’s Program on Advocacy and Professionalism, tells the little-known story of the prosecution of Wyatt Earp, his brothers and Doc Holliday following the famous gunfight.

The prosecutors presented the Earps and Holliday as wanton killers and accused them of first-degree murder. To the defense, they were heroes.

The defense’s arguments are reflected in the well-known legend of the Earp brothers as stalwart peace officers, determined to bring law and order to tough frontier streets. The legend has the Earps and Holliday facing down Ike and Billy Clanton and Tom and Frank McLaury — desperadoes who threatened the lives of anyone who got in their way — and killing three of them in self-defense.

But from the victims and some other contemporaries’ point of view, the Earps were little more than badge-wearing thugs who shot down innocent men.

“The case against the Earps is like a thriller, with its dueling narratives of brutality and justification, fueled by personal politics, with themes of betrayal, duplicity, revenge and even adultery,” Lubet says.

After more than a century of argument, no one can say definitively whether Wyatt Earp was guilty of any crime, but Lubet shows exactly how his lawyer, the exceptionally capable Thomas Fitch, took advantage of every error and miscue by the prosecutors and out-lawyered the opposition.

“Murder in Tombstone” is as much about skillful lawyering in any age as justice in the American West.

It all comes down to a single question. Who drew first? Did the Earps and Doc Holilday gun down terrified men who were frantically trying to surrender or did they react professionally to a known danger? Were they simply faster and steadier than the Clantons and McLaurys or did the Earps trick their victims into raising their hands, intending to kill them all the while?

Drawing upon his expertise as a litigator, legal scholar and prolific writer for newspapers as well as law journals, Lubet offers a colorful as well as meticulous account of what happened in Wells Spicer’s courtroom that fateful day in 1881.

He contrasts the brilliance of Fitch’s defense against the prosecution’s missteps — the gravest being accusing all four defendants of first-degree murder rather than manslaughter. While the judge could have easily been persuaded that the Earps were guilty of manslaughter, the evidence, damning as it was, could not support the charge of first-degree murder. Murder requires proof of malicious intent, which the prosecutor was not able to produce, paving the way for the Earps to ride off into the sunset as free men.

Praise for the book follows:

“Steve Lubet’s ‘Murder in Tombstone’ will interest anyone who’s ever wondered about the distance between the truth and popular mythology,” said best-selling author Scott Turow. “Lubet’s reconstruction of the most storied gunfight in the American West, the shootout at O.K. Corral and the courtroom events that followed, is fascinating, because of what it reveals about both the tangled motive and machinations in a western town and in the American imagination.”

“I love this book, and I love this author,” said nationally known defense attorney Gerry Spence. “We all want to travel back to those romantic, rustic, ruffian days of the old gunfighters. This book takes us there with authentic thrills and honest scholarship — a rare combination indeed. The shootout at the O.K. Corral and the trial of Wyatt Earp are masterfully told, and there’s not a yawn in this whole book.”

“This trial has everything: a family feud, famous outlaws and lawmen, politics, sex and the most famous shoot-out in frontier history,” said Allen Barra, author of “Inventing Wyatt Earp.” “It’s ‘Roshamon’ set in the Old West. Steven Lubet’s accessible and highly original book will set a standard for scholarship in a field laden with folklore.”

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