Wyatt Earp. Doc Holliday. We know who they were without remembering where or how we learned it. Americans have been steeped in the story of the gunfight at the O.K. Corral through popular storytelling, books, and films, just as we have embraced and thrilled to the escapades of Wild Bill Hickok, Billy the Kid, and Annie-Get-Your-Gun. My favorite was the Discovery Channel’s Unsolved History episode that purported not only to reenact the most famous gun battle in American history, but to reexamine it using modern forensic techniques (“Shoot-Out at the O.K. Corral”, aired October 9, 2002). The story of the Earps’ showdown with the Clantons and McLaurys has been explored extensively, first through witness and contemporary accounts, later through historians’ reviews of the hours leading up to the event.
This is what makes Steven Lubet’s Murder in Tombstone: The Forgotten Trial of Wyatt Earp (Yale University Press: New Haven and London. 2004. Pp. 253.) so refreshing. Lubet, a law professor at Northwestern University, diverges from the usual approach: he focuses on what happened in the minutes, days and months after the smoke cleared. Television shows and movies have lulled us into assuming that law and order were given mere lip service in the 19th century American west, that cultural heroes like the Earps were given the benefit of the doubt and everyone went home to supper. Lubet disabuses us of this notion, demonstrating exactly how the legal system did work in this instance and, by extension, in other similar instances across the west.
While Lubet’s title is rather misleading – the “trial” was actually a hearing to establish whether sufficient evidence existed to pursue a trial, and the hearing was not just about Wyatt, since the prosecution also held Virgil and Morgan Earp, and Doc Holliday, equally responsible – his substance fascinates. He brings to the fore the players most important to the proceedings: the attorneys, the judge, and the evidence presented by witnesses. Lubet introduces us to Judge Wells Spicer, allowing us to appreciate how his history as a newspaperman and lawyer, particularly his key role in Utah’s Mountain Meadows Massacre, would be of tantamount importance in his approach to the hearing. Lubet shines as he lays out the presumed strategies of defense attorney Tom Fitch as he navigates the realities of 19th century legal proceedings: we see how Fitch used his knowledge of Spicer to minutely inform his courtroom tactics, we see the weaknesses and mistakes of the prosecutorial team, and we understand the differences between modern trial techniques and those prevalent in 1881.
Lubet’s style is easily readable and entertaining, though some historians will wince at his frequent musings. He does not hesitate to speculate about what key individuals may have been thinking (for example, Chapter 11: “Decision” is full of presumptions about what Judge Spicer may have been trying to do with the wording of his decision and, indeed, the decision itself). However, if we release him from the historian’s standard and instead allow him to function as the lawyer he is, considering the possible motives and outcomes of every action as he dissects the hearing transcripts and related contemporaneous records surrounding the event, we are rewarded with an entirely new perspective on what happened that day in Tombstone. It is a trip worth taking.