The first person to testify was Sheriff Bell. Bell testified what had been reported to him by many of the eyewitnesses in the saloon.
“Sheriff Bell,” the prosecutor said. “Several weeks ago there was a shooting incident in which Frank Lovejoy killed two men. Do you recall that incident?”
“Yes, of course I recall it,” Sheriff Bell said.
“Why is it that Frank Lovejoy wasn’t put in jail for that shooting?”
“Because there were enough witnesses who testified that it was a fair fight,” Sheriff Bell said.
“In fact, it was more than fair, wasn’t it?” the prosecutor continued.
“What do you mean?”
“Is it not true, Sheriff, that Lovejoy allowed the two men to hold the pistols in their hand, telling them they could shoot as soon as they saw him start his own draw?”
“That is true.”
“And what was the result of that experiment?”
“Lovejoy killed both of them.”
“That being the case, is it reasonable to assume that in a fair fight, another skilled gunman, even someone as skilled as Mr. Matt Jensen obviously is, could beat Lovejoy? And not only beat him, but shoot him before he could even get off one shot?”
“It doesn’t seem reasonable, I admit,” Sheriff Bell said. “But that is exactly what all the witnesses have reported.”
“Not all the witnesses, as we shall soon see,” the prosecutor said. “Witness is dismissed, Your Honor.”
Rebecca was the next person to testify. She explained that she was Dalton’s sister, and that while she and Dalton were involved in a family discussion, Frank Lovejoy interfered. She then told how Lovejoy had challenged Dalton to a gunfight, and then killed Moses Coffey when he tried to come to the boy’s defense. He again threatened to kill Dalton, but Matt Jensen had stepped up.
“Frank Lovejoy drew first,” Rebecca said. “But Mr. Jensen was faster.”
Tom, and Dalton also testified in Matt’s defense. Their testimonies mirrored Rebecca’s, as did those of at least three other witnesses who had no connection to either party, other than being saloon patrons at the time.
Then Tom Whitman was called to testify. His testimony mirrored that of everyone else, but before he was excused, he asked the judge for permission to make an observation for publici juris.
Judge Blanton and the prosecutor both, blinked in surprise at Tom’s use of the Latin term.
“Are you a lawyer, Mr. Whitman?” the judge asked.
“No, Your Honor.”
“But you wish to make a comment for the public right?”
“For the public’s right to know, yes, Your Honor.”
“Very well, what comment would you make?”
“Your Honor, with regard to Mr. Lovejoy shooting the two men who were already holding their weapons in their hands, I submit to the court, that rather than being fair with them, Lovejoy, in effect, murdered them.”
There were immediate shouts and cries from the court.
“He done it! I seen it myself!” one man yelled. “Them two fellas already had their guns in their hands!”
“Were you a witness to that shooting, Mr. Whitman?” the prosecutor asked.
“No, Your Honor, I was not.”
“Then how can you testify publici juris on something you know nothing about?”
“I said I did not witness the shooting. I didn’t say I didn’t know anything about it. But if what everyone who did see it says is true, if Lovejoy told those men not to draw until they saw him start his draw, then I know that it was nothing short of murder.”
Again there was a loud outbreak of protests and shouts of surprise from the gallery, and Judge Blanton had to still them with his gavel.
“May I explain?” Tom asked.
“Please do.”
“In 1863, a man named Sigmund Exner began a series of experiments with something he calls ‘reaction time.’ Simply put, reaction time is how long it takes a person from the time their brain tells their muscles to do something, until they actually do it. And in something like drawing your pistol upon response to stimuli, that reaction time constitutes the longest period of time of the maneuver. He told the two men to draw when they saw him start his draw.” Tom emphasized that point.
“When Lovejoy started his draw, the longest part of the action, telling his hand to start the draw, had already been accomplished.”
“That’s preposterous,” the prosecutor said.
“Your Honor, if I could have two pistols, and a holster, I could prove this,” Tom said. “Empty pistols,” he added quickly.
The gallery laughed, nervously.
“All right,” the judge agreed. “And I’m doing this more as a matter of curiosity than a matter of law.”
Tom strapped a holster on, then, after both pistols were certified as being empty, he put one in his holster, and handed the other one to the prosecutor.
“The witnesses said that the two men were holding their pistols down by their sides, right?”
“That is correct,” the prosecutor said.
“Judge, Mr. Prosecutor, I am not a skilled gunman. In fact, I wouldn’t even be willing to say that my skills are above average. So I’m going to give this demonstration, then allow the prosecutor to choose anyone from the gallery that he would like to do it a second time to validate this.”
“All right, what exactly are you going to do?” Judge Blanton asked.
“The same thing Lovejoy did,” Tom said. “I want the prosecutor to hold the pistol down by his side. When he sees me start my draw, I want him to raise his pistol up and pull the trigger.”
“Ha!” the prosecutor said. “All right, Mr. Whitman, make a fool out of yourself.”
Tom let his hand hover over the pistol, then quickly he drew it and pulled the trigger. He was able to do so before the prosecutor was able to raise his own gun and pull the trigger. The separation of the two snapping triggers was clearly obvious, and the gallery reacted in disbelief.
“Wait, I wasn’t ready,” the prosecutor protested.
“Shall we do it again?” Tom asked.
“Yes.”
“Are you ready?”
“Yes.”
Again Tom drew the pistol, and again he clearly beat the reaction time of the prosecutor.
“All right, all right, I want to see someone else do that,” the prosecutor said, and he chose two men at random from the gallery. Once the experiment was set up, the man drawing from the holster won every time.
“Thank you, Mr. Whitman, for this—most interesting experiment,” Judge Blanton said. “Now, may I ask how this contributes to the publici juris?”
“Because, Your Honor, the public has the right to know that Frank Lovejoy’s quickness as a pistoleer cannot be validated by the example of his killing the two soldiers in the earlier incident.”
“All right, Mr. Whitman, as I decide this, I will take the information you have so pointedly demonstrated into consideration,” Judge Blanton said.
“Your Honor, may we get on with the trial?” the prosecutor asked.
“Please do, Counselor,” Judge Blanton said.
Marcus Doyle was the next witness. “I don’t care what tricks this Whitman fella showed everyone,” Doyle said with a sneer. “’Cause it don’t have nothin’ to do with the fact that this man,” he pointed toward Matt Jensen, “kilt Frank Lovejoy. The way this whore,” he pointed to Rebecca, “and the other people been tellin’ what happened, ain’t what happened at all,” Doyle said.