The Incomprehensible Trials of Ray Tarbell

The third article in a series, written by Historian Shane Dunning. Shane may be reached at [email protected].

Reconciling all the conflicting testimony in the criminal case against Ray Tarbell is an exercise in futility. Perhaps the only thing that was not disputed was the fact that Ray Tarbell killed George Mitchell on September 8, 1909, at a roundup near the present-day community of Sonnette. Two previous articles have related the testimony of the preliminary hearing and the two criminal trials. In the end, the jury in the second trial acquitted Tarbell of all charges. That simple sentence, however, belies the difficulty the Custer County legal system had handling this entire affair.

Nearly every significant item of any relevance to the guilt or innocence of Ray Tarbell was directly contradicted by other testimony of seemingly similar weight. These contradictions were nearly total. So much so, that it seemingly became impossible to genuinely accept either the prosecution's or the defense's case without also accepting that the opposing presentation had been a brazenly dishonest attempt to deceive the jurors.

A key point on which there was considerable disagreement was the identity of the man who first initiated physical hostilities. After an initial confrontation, a general shootout had occurred between at least four, possibly five men and at least a dozen shots fired. According to the state's case, directly testified to by Ray Mitchell (the deceased's son), Lehman Wilkes and four others (including some defense witnesses), John Woodley rode up to George Mitchell, and after exchanging some heated words, took out his pistol and tried to club the elder Mitchell with it. As Mitchell ducked from Woodley's blow, Henry Jackson rode his horse between them, apparently causing Ray Tarbell to fire the first shot of the incident at Jackson. Jackson, Woodley, Tarbell, and W.E. Eubanks then engaged in a literal shooting match. George Mitchell was unarmed and did not participate in the initial shooting. This testimony seemed to establish that both the first physical blow, as well as the first shot of the initial encounter had been perpetrated by the Tarbell faction. The state thus presented Tarbell and Woodley as the conflict's aggressors, at least with regard to physical violence.

Such a straightforward chain of events was refuted, just as straightforwardly, by the defense. Woodley, Tarbell and Eubanks all testified that Mitchell had attempted to strike Woodley with his quirt after the two had words. Woodley striking at Mitchell with his pistol had been retaliatory, they stated. To complete the total contradiction of the state's case, they claimed the first shot had been fired by Jackson. Several other defense witnesses corroborated the assertion that Jackson had fired first.

The participation of Ray Mitchell in this initial round of gunplay was also disputed. Ray Mitchell, in the preliminary hearing (in September) and throughout both trials adamantly maintained that, while he had a pistol on his person at the time, he did not fire a shot. His non-shooting status was confirmed by Jackson and the testimony of at least two others'. Ray Mitchell's pistol was a 32 Colt automatic, and, being the only automatic in the fight, had a distinctive sound. Woodley, Eubanks, and two others claimed to have either seen Ray Mitchell firing or heard his pistol's distinctive report. The fact that Ray Mitchell and Henry Jackson had come armed to the roundup the previous day was a key assertion of the defense's self-defense claim.

While Tarbell, Woodley, and Eubanks stopped firing to reload their guns, George Mitchell rode to Jackson and retrieved his gun. The elder Mitchell and his son then started to ride away from the conflict when they turned around (the reason for this is also disputed) back toward the roundup herd and Ray Tarbell. George Mitchell, with Jackson's pistol in his hand, had a few more words with Tarbell, when (according to the prosecution), a single shot was fired by Tarbell, killing Mitchell instantly.

Not only was this version of the killing blow disputed by the defense, but they presented another mutually exclusive set of alternate facts. According to the defense, Mitchell had actually fired first, with Tarbell shooting back almost instantaneously. Interestingly, in attempting to paint Mitchell as the aggressor, Tarbell claimed he had made this instantaneous and deadly single shot while initially looking AWAY from Mitchell when the deceased pulled his trigger.

The practice of presenting a set of mutually exclusive facts on key aspects of the trial was not limited to the defense, however. In presenting their case that Tarbell had shot Mitchell in self-defense, the defense counsel used the testimony of Eubanks and J.C. Gardner to state that George Mitchell had, that August, made specific threats to kill Woodley and Tarbell if they rounded up on his range. Other members of the roundup were also called to testify that they had heard of Mitchell's threats. This, combined with Ray Mitchell and Jackson coming armed to the roundup the previous day, laid the key predicate for Tarbell to believe Mitchell posed a reasonable threat to his life.

On redirect in the second trial, the State refuted this threat with the testimony of Mitchell's widow, Eva, Joe Hannan, and Hans Peterson. All three affirmed that they were also present during the conversation when George Mitchell "threatened" Woodley and Tarbell. They firmly denied that Mitchell had made any such statement to Eubanks.

Given the ferocity of this back-and-forth, it is perhaps understandable how the first jury was unable to render a unanimous verdict. Even the reports of first jury's final vote were contradictory. The newspapers reported a split of ten for acquittal, two for conviction, while printing a total correction (ten for conviction, two for acquittal) on the very same page. It is reasonable that, given such contradictory testimony, the presumption of innocence would sway the second jury towards an acquittal. Both juries had to decide between two versions of events, the logical extension of which was deeply disturbing to the rule of law in Custer County. If you believed the prosecution, a cabal of wealthy sheep interests had shamelessly concocted a self-defense story and purchased the perjured testimony of close to a dozen cowboys. The defense lawyers had the benefit of the preliminary trial testimony and three months to form a workable story. If the defense's case was to be taken at face value, the state had (for unknown reason) actively prosecuted an honorable man who had done too good a job protecting himself from a known and dangerous crank. In doing so, the state had deliberately ignored most of the eyewitnesses in favor of the biased testimony of the deceased's extensive family and friends.

Today, the reliability of eyewitness testimony is under serious scrutiny, and the jury system of Custer County at the time was under considerable disregard. In this analysis, I have relied on the newspaper accounts of the first and second criminal trial. I continue to search for the transcripts of either the first (December 1909) trial or the second (June 1910). While the newspapers report the substance of the testimony, they do not describe in detail how specific witnesses responded to cross-examination of opposition counsel. These important details remain unavailable and is why finding the trial transcripts are so important.

Given all this, I believe the truth lies somewhere in the middle of the two extremes, and that the factionalism that prevailed in the community at the time drove its own legal system to a breaking point. What actually happened the morning of September 8, 1909? While I certainly welcome more evidence and would reconsider any opinion given such, I will lay out my view of the most likely scenario in a fourth and final article.