|Vol. VI, No. 3, Winter 1993|
by Robert Flanders
The Ketchel Affair
In 1911, Stanley Ketchel, the middleweight boxing champion of the world, was murdered on a Webster County, Missouri farm. The story of the murder and of the trial which followed is the centerpiece of this OzarksWatch.
Ketchel's local patron was an eccentric Springfield millionaire named R.P. Dickerson, who became his zealous and vindictive advocate after the murder. Dickerson determined on revenge: he wanted to see the accused suspect dead, either by court law or lynch law. He offered a big reward for the suspect, dead only. He inflamed public opinion. Most notable, perhaps: he hired, at his own expense, a special prosecutor to "assist" the regular prosecutor. It was a key device to assure conviction.
The Ketchel murder and the trial that ensued constitute an Ozarks melodrama. Indeed, Robert Gilmore has chosen to present "The Killing of Stanley Ketchel" in melodrama form.
Dickerson's intrusion into the criminal law process may seem bizarre to us. But at the time, such intervention was common. Dickerson was unusual mainly because he had more money than other private citizens who intervened in criminal cases.
Donald Landon, in his 1990 book Country Lawyers: The Impact of Context on Professional Practice, explains that justice in the Ozarks has not always been "blind." Popular perceptions and public opinion of any "law and order" issue often effect the prosecutors', defense lawyers', and even judges' decisions and conduct, before and during a trial. Dickerson's entry into the Ketchel case was a high-profile instance of "popular perception." He was determined to shape the outcome in his own way.
Dickerson's notion that "the law" needed help was not without reason. The dead man was an "outsider." The accused was an Ozarker for whom apprehension, then conviction, were anything but certain. (Other factors potentially favorable to the defendants are revealed in the story.) Dickerson had to arouse public opinion. The sheriff must be energized. The prosecuting attorney was not to be trusted to carry the case to conviction. Dickerson's "special prosecutor" was legal, and, at the time, not unheard of.
The Primacy of County Officials In Law Enforcement
In 1923, Missouri Governor Arthur Hyde spoke bluntly to the State Legislature about the problems of law enforcement. Neither he, nor any other person or agency of state government, had legal power to enforce the laws of Missouri.
Nowhere is there any effective agency for enforcement of law and maintenance of order except the National Guard .... No law can be enforced without the cooperation of three officials: sheriff, prosecuting attorney, and court. When one or all...fails, anarchy results. The state government has no power over any of the three.... No state authority can...suspend or remove any sheriff, prosecuting attorney, or other local official .... If the sheriff fails to apprehend or the prosecuting attorney fails to prosecute, the people of the county are helpless until the next election .... No power exists whereby the state can send any of its officials into a county to assist in preserving peace and order. Unless the emergency is great enough to warrant sending the National Guard, the State and the people are helpless ....
The almost absolute power of county officials to enforce or fail to enforce the laws could not be more emphatically stated. Dickerson's understanding of the role of public opinion, especially public outrage, and the power of the press to arouse it, is more understandable in light of Governor Hyde's analysis.
When Governor Hyde spoke, the primary task of county sheriffs was not law enforcement. Sheriffs were first magistrates and officers of the court. They derived most of their income from civic functions: carrying out court orders, "serving process," evicting persons, conducting tax sales, etc. If he (or she --there were some female sheriffs) sought to apprehend a suspected criminal and spent days in the process, he received but one dollar for the arrest. If no arrest were made, he got nothing. In most counties, a sheriff had to pay for his own horse and the horses of his deputies. The same was true later for automobiles and gasoline. (The Sheriff of Ozark County, Missouri, did not use a car until 1937 -- too few bridges to be able to get around the county in one.) The greatest financial incentive to a sheriff in the realm of law enforcement: he was paid to feed prisoners lodged in his jail (in effect, it was usually his wife who performed that duty).
The 1945 Missouri Constitution for the first time provided that sheriffs must receive a salary. When established in law, the amounts ranged from $8750 in Jackson and St. Louis Counties to $3600 in Greene, Jasper, and Buchanan Counties (Springfield, Joplin, St. Joseph), on down to $1200 in low population counties. It was a step, albeit a small one, toward professionalizing a local political office.
The Prosecuting Attorney
Sheriffs were almost always laymen. To succeed in bringing an arrested criminal suspect to conviction, the leadership of the sheriff's associate, the prosecuting attorney, was necessary. The prosecutor was almost always a lawyer.
The county prosecutor, according to the 1926 Missouri Crime Survey, "possessed more power over criminal cases than any other official in the state, not excepting the judges." The Survey added disquieting facts about the low estate of county prosecutors' performance:
1."The power...to stop prosecutions and release prisoners charged with crime before trial is being
liberally exercised by...prosecutors."
2."The right of the prosecuting attorney to dismiss criminal prosecution...is absolute and may be exercised without the consent of the court...."
3.Of 7032 warrants issued in the entire state during the survey period, only 2232 resulted in some form of punishment. Of those punished, 87% were previously confessed felons or had pled guilty.
4.Of the indictments filed, grand juries initiated only about 11%. The rest were initiated by prosecuting attorneys.
5.Plea bargaining in felony cases resulted in many minimum sentences, paroles, commutations, short jail terms, or mere fines.
6."The laws providing for...a check upon [the county prosecutor's] power have proven utterly impotent...."
7.In many counties prosecutors were hampered in their duties both because they lacked cooperation from arresting officials and because they lacked a library and other facilities necessary to prepare cases of law.
Rollin P. Dickerson was more than just a rich zealot. When he hired a "special prosecutor," he did so knowing what the alternative might be.
The Humor In Law Stories
Why are many Ozarks lawyer stories and court stories so funny? Is it that the attorneys and judges who relate them are comics? Hardly. There are other reasons.
In one Ozarks county a man was hauled before the magistrate judge for letting his dogs run loose over the countryside. "Edward," said the judge, "you are charged with allowing your dogs to run at large. What do you have to say?" "Judge," replied Edward, "I don't know nothing about dogs running at large. But I do know my dogs will run at any coon in this county!"
Clues to the humor of "law stories" are revealed here. The judge and the defendant don't speak the same language. The world in which it is illegal for dogs to run at large is not Edward's world-- a world of personal freedom, of the traditional open range, of social controls that emanate from clan mores, not from the law. Guilt exists; but the defendant has a defense -- of sons. In only a few words, the little drama unfolds in a surprising, and funny, way.
This story was repeated to me more than once in the county of origin. It is part of the oral literature of storytelling there, which includes many more from courtroom and sheriff's department. Every Ozarks county has them. OzarksWatch readers may have heard stories revolving around a certain Ozarks sheriff and his favorite weapon, the seven-cell flashlight.
Surprise is a key element in humor. The big surprise, the "Ozarks Joke," usually occurs whenever and wherever the traditional, rural Ozarks and its people meet the outside world -- the orderly, legal, urban, world. That legal world is represented in the court and in due process of law.
A big city journalist was researching a story in a rural Ozarks neighborhood when a killing occurred. He knew it had resulted from a clan feud; but he expected some consequence, some sort of legal action. His questions became more pressing. Why had the sheriff not been called? Why had something not been done? Finally, one of the elders of the community took him aside and said, "Son, there's something you need to understand. This here ain't town!"
Appalachian Mountain people still refer to outsiders as "people from off," meaning "off the mountain.'' "Town" and "off" have the same meaning: a different place, a different way. When "town" and "off' have entirely lost that meaning, the Ozarks, and the Southern Highlands of the which the Ozarks is part, will have completed their merger with the international cosmopolitan superculture.
In This Issue
On the wall of Douglas Mahnkey's law office in Forsyth, Taney County, Missouri is a "Schedule of Fees Adopted By The Taney County Bar," 1935. It begins with "Crimnal Cases [sic], Circuit Court." At the top of the list is "Treason or Sodomy, not less than....$500.00." Treason or sodomy trials in Taney County? Perhaps the Bar Association wanted to discourage the commission of such crimes by setting a sky-high price for their defense. More likely they wanted a large fee for the embarrassment -- or danger -- of standing up with such an accused.
Well down the Taney County lawyers' price list, between "All other felonies ($50) and "All other misdemeanors ($10), is "Selling liquors, not less than $25." "Selling liquors" joins treason, sodomy, murder, rape, incest, perjury, and bigamy to constitute the totality of itemized crimes for which Taney County attorneys set a minimum defense price.
An anthology of Douglas Mahnkey stories gathered by Sandra Tinsley appears in this issue of OzarksWatch.
Governor Hyde's bleak indictment of the fragility of law enforcement was preamble to his call for the creation of a state highway patrol. In 1921 Missourians had authorized a big bond issue to "get Missouri out of the mud" by beginning to build an intercounty state highway system. The new roads had profound implications for the mobility -- and slipperiness -- of lawbreakers. In the era of railroad dominance, sheriffs, deputies, or town marshals were on hand when trains pulled into the station. They observed who got on, and especially who got off. The railroad station was the "choke point" of movement. Improved roads and automobiles changed that aspect of protecting the public peace. The motorized escapades of Clyde Barrow and Bonnie Parker, including episodes in the Ozarks, dramatized the problem. The same for Ma Barker, Pretty Boy Floyd, and other desperados of rural organized crime.
In 1931 the Missouri Legislature created the State Highway Patrol, a professional, mobile, investigative, statewide peace-keeping and law-enforcing agency. It was to be under control of the state government. The Patrol was a giant step ahead in the prevention and prosecution of crime.
Clyde Brill, a Howell County man who entered the State Highway Patrol in 1937, tells in this issue of OzarksWatch about the early days of the Service. The interview was conducted by his grandson, Joel Brill.
Transition: From Then To Now
The twentieth century provides all the subject matter for this "Law and Order" issue. Absent is the subject of Civil War with its breakdown of social order in Ozarks counties: absent are accounts of the ruthless violence with which pro-Union and pro-Confederate forces contended for local control. Absent too are the vigilante aftermaths: the Oregon County Scouts, an armed legal constabulary commissioned by the County Court and authorized to use deadly force; the Bald Knobbers in Taney and Christian Counties; the Anti-Horse Thief Association in Lawrence and other western Ozarks counties. Absent too is the story of the continued organized crime, outlawry and hooliganism--"the Jesse James Syndrome" -- that gave rise to vigilantism.
Still, this issue is a story of transitions from that older past. A fast train from Springfield to Marshfield, automobiles, and the telephone -- new elements in law enforcement -- play roles in the Ketchel story. Though many of Doug Mahnkey's stories have a decided old fashioned charm, his practice of law was not so long ago. (Indeed, he still practices at age 90.) Doug was just beginning when Governor Hyde gave his address. Interviews with Robert Wiley of Stone County and Missouri State Senator Emory Melton of Barry County continue the theme of reflection: two rural and small town attorneys comment upon the transition in law practice from a former time to the present.
Said Magistrate Judge Friend "Boss" Greene of Shannon County in a 1978 interview: "A country lawyer's got no place trying a case in the city, and a city lawyer's got no place trying a case in the country. They don't speak the same language, somehow." That may still be so; but it may not always be so.
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