FRANK GIBBARD, J.
Irene Allen was crying when she met with Leadville Police Officer William Campbell at around 11:30 p.m. on Thursday, November 7, 1901.1 Allen handed him a telegram she had just received from a man named Tomas Keady. The telegram said, “I will be in on the six o’clock train in the morning.”2
The woman was terrified. Keady was a bad man, she said. He carried a gun with him, a .45 revolver. He’d be coming down State Street to find her, and if he did, she was afraid he would kill her.
Campbell didn’t promise her anything, but he went and found another Leadville policeman, Robert Telfer, and relayed the woman’s story. Campbell instructed Telfer they should watch the trains the next morning, to see whether Keady really was carrying a gun. If he was, he said, they would take it away from him.
Keady arrived in Leadville the next morning, like he’d said. He was the last passenger off the train. After he descended, he approached a horse-drawn cab and told the cabbie to take him to 208 West Second Street. When they arrived there, he got out of the cab. He took his overcoat with him, and his gun.
After a while, Keady came back and told the cabbie to take him to a “first-class saloon.”3 They wound up at the Pioneer Club, a legendary Leadville watering hole and brothel that offered billiards and bowling.4 Keady did some early-morning drinking there.5
When he got in the cab for the third time, he put his gun in his lap, and covered it with the overcoat. That was when, according to Keady, all hell broke loose. An unknown man threw open the cab door, yelled “God damn you, get out of here!” and grabbed his arm.6 Keady could see the man was armed, though he hadn’t drawn his gun. He swore at Keady, calling him a “damned cur” and a dog.Keady insisted he had no idea who the man was. He just knew he had to protect himself.
Keady reached for his gun and pointed it at the man, who grabbed it. The two men struggled for the gun. In the struggle, Keady pulled the trigger. He claimed he blew his own fingernail of.
The other man took the gun away from him. Ten the police showed up. They beat Keady savagely on his head and arms and then hauled him of to jail. At least that was the story Tomas Keady told the jury.
Officer Telfer—for that was the other man— gave a very different account. He testified that at around 8:00 a.m. on November 8, 1901, he opened the door of a cab standing on a Leadville street. He knew Thomas Keady was inside. He was going to figure out if Keady really was carrying a concealed weapon.
In Telfer’s version, he was polite and courteous—at least at first. He said, “I opened the door of the hack, and at the time I did I was going to excuse myself.”8 But he only got as far as the “ex–“ in “excuse me” when Keady pulled out his gun and held it to Telfer’s chest.9
Telfer grabbed for the gun and caught it by the barrel. He pushed the gun leftward and down. Keady pulled the trigger. The bullet ricocheted of an iron plate on the floor of the cab. It entered Telfer’s leg, severely wounding him.
For shooting Officer Telfer, Keady was charged with assault with intent to murder. A jury convicted him of the crime. He appealed. But before he could present his case to the Colorado Supreme Court, an unusual issue arose concerning the record.
A “Wholly and Grossly Improper” Examination
During Keady’s trial, his attorney James Glynn and the Lake County district attorney engaged in voir dire and selected a jury to try the case. Each side exhausted its 10 peremptory challenges allotted by statute. They had the jury picked. But before the jury could be seated, the district court judge decided to do some further inquiry of one of the jurors.
The judge, Frank W. Owers, called to the stand a juror who had been passed for cause, later identified by the Colorado Supreme Court as “juror Campion.” He proceeded to grill Campion for a half-hour or more about his citizenship status. At the end of the interrogation, he discharged Campion from the jury, finding him disqualified from service as a non-U.S. citizen.
Keady’s attorney took exception. Neither he nor the state had objected to Campion’s presence on the jury. Keady planned to take up Campion’s exclusion with the Colorado Supreme Court. But to do that, he needed a transcript of the judge’s impromptu voir dire.
He knew the court stenographer, H.L. Denison, had taken down every word of the colloquy with Campion. But when he requested a full transcript, Denison refused to give it to him. Instead, the stenographer produced a highly expurgated record of the examination, which simply stated:
And thereupon the court, of its own motion...