Episode Transcript
[00:00:01] Speaker A: One of the biggest challenges of writing about true crime are the parts that dig deep into the legal process.
It can be slow, it can be boring.
It's filled with Latin.
And I'm thinking here, of course, of a comment someone made about an early version of my book, what happened in Craig. The comment the trial was boring and the issue was that there were two trials in that book.
Unfortunately, in this episode, we're about to go there again. Well, not exactly we are going to touch court related things, but of course we're most interested in. In the drama because that's what you can hang your hat on are these human parts of it. Of course, it's all human.
Even Latin is human.
And we start one week after the murder and Neil McKay is at his typewriter and he is typing like crazy to get his complaints before the court.
I asked Mr. Bailey one prime and
[00:01:29] Speaker B: question, which we all have to know, including the doctors, and Mr. Bailey did not know the answer.
The question is, does Scotty know that his mother is dead?
[00:01:46] Speaker A: Shortly later, after not receiving the response he expected, McKay raised the stakes in an October 20, 1976 writ of habeas corpus.
Here it comes.
He wrote the following.
[00:02:03] Speaker B: Robert P. File, Douglas v. Bailey and the law firm of Matthews, Don Bailey, in consortium with others unknown at this time, have deliberately acted in a wrongful, malicious, capricious, arbitrary and unlawful conspiracy to deprive petitioner of his parental rights and relationship to the custody and control of Scotty.
That petitioner has not seen his son since Wednesday, September. September 29, 1976.
As stated above, Douglas B. Bailey advised petitioner that he would have no further visitation rights.
[00:03:01] Speaker A: So Neil McKay filed a writ of habeas corpus.
Here we are in Latin, which essentially says, bring me the body.
One week after Muro's murder, he was seeking to modify his custody and visitation rights, wanted full custody of his kid, which made things interesting because the files were on record as wanting to take Scotty too.
And McKay got his judge all right. It was Judge Alan T. Compton. The very same judge who oversaw his divorce from Muriel. The very same judge who'd pinned him in with what McKay considered intolerable visitation rights. Now, I'll never accuse Neil McKay of judge shopping, but those unfavorable rulings had definitely clogged his brain.
Not only was he continuing, and by he, I mean Compton, continuing, the custody case, he was suggesting something new.
He told McKay that he was going to appoint a guardian for Scotty, that is, provide Scotty with his own legal representation independent of Anyone representing Neil McKay or his uncle, Robert File.
It wasn't long before Compton received a telephone call from Neil McKay.
In a letter to the presiding judge, Compton memorialized that phone call as follows.
Shortly after I arrived at home that morning, I received a telephone call from Mr. McKay. He advised me that he was going to exercise his right to peremptorily challenge me in the above referenced cases.
He was somewhat concerned about the timeliness of the challenge and asked that I honor the informal request, since that is allowed by rule.
It is my sense, based on the emerging evidence, that the term guardian ad litem scared the hell out of Neil McKay.
Scotty, with his own attorneys, couldn't abide the loss of control. And more than that, the risk that a neutral party would raise issues, inconvenient issues, might lend support, God forbid, to Robert File.
And given those realities, it's worth noting that virtually everyone in the court system knew about Neil McKay's legendary divorce case with Miro Fa, the fisticuffs in the courtroom, the jail time for Neil McKay, the drugs, the psychiatric visits, the drugs, prescription drugs, okay. But there was no getting away from who that man was or what he may have done.
[00:06:14] Speaker B: Sam.
[00:06:40] Speaker A: So let's get back to the court case, because after telling Judge Compton, hey, I'm going to try to get rid of you. As the judge, Pete exercised his right to challenge him.
That Compton, that is. And soon enough, there was a new judge waiting in the wings. The judicial lottery brought him Judge Roy Madsen of Kodiak, Alaska. He had the unenviable task to rule on that writ of habeas corpus to banning Scotty be returned to Neil McKay. Accept that. Wait for it. Judge Compton also ruled on the matters before him, noting that he, Compton, still had jurisdiction to enter an order as to whether Neil McKay was entitled to the custody of Scotty at this point in time.
And Judge Compton wrote favorably, the weight of authority and other jurisdictions clearly favors the proposition that when a custodial parent dies, the right to custody automatically in yours accrues or reverts to the surviving parent.
Me and McKay liked the sound of that one.
Of course, as with all things, most things, there is a complicating factor because Compton also wrote about the exceptions.
At the very least, he was setting sort of a precedent.
And I again quote from Compton. It would thus appear clear that unless the surviving non custodial parent has either been determined to be an unfit parent or deprived of parental rights through other court proceedings or is under a legal disability, that parent is entitled to restoration of parental rights and Custody upon the death of the custodial parent.
So McKay's sense that maybe he should drive away from Compton was kind of correct, because that whole unless and the word unfit would continue to haunt him.
If there's one thing to learn about Neil McKay, it's that he was willing to fight the same battle over and over and over. The point was to wear down your opponent, wear them down.
The other thing, of course, that we know about Neil McKay was he was never short of self confidence or seemingly had, let's put it this way, an unending source of confidence.
But even the whiner in chief could not be certain that this new roll of dice would benefit him.
When the powers that be replace one judge with another, they're looking at the calendar. They're looking for possible conflicts of interest. And if the powers that be are smart, they're looking for someone who can calm the waters. Because there were some deep emotions roiling, turning and crashing into Scotty McKay's custody, not the least of which was a recent ruling that Neil McKay was entitled to custody of Scotty for the time being.
Well, that intricate puzzle now belonged to a judge. Roy Madsen was a stroke of genius. His point of reference, this is Madsen I'm talking about, was far from Anchorage. He was born in a village on Kodiak island, the biggest island in the United States.
His father was a Danish fur trader who owned a general store. His mother was an Alaska native.
They practiced a subsistence lifestyle, working fish traps and supplementing that with wild game. Oh, and on the side, they organ hunting expeditions for rich east coast big game hunters. In other words, here was a man grounded in real life. He would bring that to the courtroom.
Judge Manson's sense that this was no ordinary case hit him almost immediately. Anchorage authorities offered him a police escort to the Anchorage hearings, and he was told that nobody was to know where he stayed when he was in town.
The mural bombing, of course, was looming in the background, a warning to anyone who came near. And now this true Alaskan was thrust into the storm.
So it came as no surprise that Madson's first note to self was to take down the temperature of the proceedings. He'd read Neil McKay's angry screens. He'd heard Robert Files grim determination to keep his nephew as far away from Neil McKay as possible.
His first act of substance was to temporarily remove both Neil McKay and Robert file from the realm of physical custody, to move Scotty to a neutral third party.
It was not an easy assignment.
After considering the options, however, he reasoned that Alaska Supreme Court Justice Robert Irwin would fit the bill.
He and his wife had experience taking in foster children. He was a respected member of the community, a pillar. And as it turned out, his home was across the street from Scotty's daycare.
Only two houses away, in fact, from the duplex that Scotty had shared with his late mother.
It was in a way like returning home, or as semblance of that emphasis on semblance that said the ideals of jurisprudence were now poised to undergo a stress test with, I might add, a three and a half year old boy at its center.
What could possibly go wrong?
Well, for one, Neil McCai immediately saw this development as a conspiracy against him.
That ruling from Judge Compton, who he had summarily removed from the case, suddenly moved to the top of his treasured documents.
Neil McKay, it seemed, was trying to have it both ways until the courts hastily ruled that. No, you can't do that, Neil. Only one judge per customer. Thank you very much.
I'd like to add some notes about Judge Roy Madsen. I found him an entirely intriguing character.
Character in that he's a character, sense of the word.
As I've noted, he. He was a man of no ordinary upbringing, the youngest of five children. His birth mother died when he was four.
His father soon remarried and in. In his telling, I had a stepmother that brought me up.
At about the same time his father went into the big game guiding business on Kodiak Island.
By the time Roy reached 11, his father had taken him out on his first bear hunting trip.
They bagged an 11 foot bear, a huge specimen by the way. I'll post a photo on my web page.
It was an adventure just getting that bear back to town. Their hunting cabins were 75 miles from home.
They used an open skiff to travel between the locations. It took seven and a half hours one way to get there. And their guests, the. Their hunting guests, meanwhile, had come in by steamer from Seattle. There was only one ship a month.
So they hunted for three weeks before returning to Seattle on that same steep.
And I bet you wonder, as I did, how it is that a boy from remote Kodiak island becomes first a lawyer and. And then a judge.
In some ways, his story is like that of Mural File or even Neil McKay. He was a good student and he left the island.
It's not a straight path.
He was so good in school that when he graduated high school he was given Alaska's principal appointment to join the Naval Academy in Annapolis. And he was going until he took the fiscal. He learned he was Colorblind.
So Roy Madson went to Oregon instead. Now, now it's called Oregon State University. It had another name back in the day,
[00:17:01] Speaker B: Sam.
[00:17:29] Speaker A: And then he was offered another appointment, this time to West Point. He turned it down.
After a life on the water, one of his first jobs on Kodiak was working as a fish trap watchman. He decided he didn't want the army.
He enlisted in the Navy just in time for World War II. Ended up on a PT vote in the Pacific. Had the battle battles to prove it.
After the war, he got married in Philadelphia, of all places. That's what happens when you're in the Navy.
He and his wife returned to Kodiak. He fished, helped guide hunting trips in the spring and fall.
But always an avid reader, Madsen started a correspondence course in the law.
One thing led to the next. Soon enough he was outside again, this time in Portland, Oregon, at law school, at an in person law school. Oh, and because he had a wife now and some kids, there was also that full time job working 40 hours a week at a warehouse, unloading box cars for grocery stores. You get the picture. One step at a time. Sweat by sweat, he worked his way up. Legal secretary, title examiner, looking at mortgages and divorces and probate. And then a job opened up as an assistant district attorney in Oregon. He was on his way. But after 12 years in the Lower 48, it was time to return to Alaska, to Kodiak, that place was calling him. And he got there. He was the only lawyer in town after statehood 1959. They eventually made him city attorney, which put him in the courtroom representing the city of Kodiak.
And, and actually one of my favorite Madsen stories comes from that time. I, I'll read it as background. Let me repeat, the Kodiak is remote.
So remote they don't have a full time judge. And here's Madson telling the story involving a very well known Alaska judge, Ralph Moody.
Just to put Moody in perspective, he was the judge who sentenced serial killer Robert Hansen. Just for perspective, it was Judge Moody who sentenced serial killer Robert Hansen to a sentence of 460 years plus life and was able and his wisdom to note everywhere where there was culpability and for the Hanson thing, and it was everywhere. But let's get back to Judge Moody and here's Roy Madsen talking about it. It's a very different context and, and I love the stories. I hope you do too. If you don't just write me a letter and tell me to shut up.
Whenever the judge came and there was one occasion when Judge Moody was over there and all the jurors, the prospective jurors had to be there. All the witnesses, the lawyers, defendants, everybody had to be in Court at 9 o'clock on Monday morning when he had call of the calendar and the courtroom was jam packed with from wall to wall. And he walked in. Well, his clerk walked in, wrapped the gavel and said, all rise the honorable Ralph Moody and the good court is now in session.
He walked in. Well, it's clerk walked in and wrapped the gavel and said, all rise the honorable Ralph Moody and the good court is now in session. And everybody stood up except one old fisherman, a Norwegian fisherman. He sat there with his arms crossed like that. J looked out and said, what's the matter with you?
And the guy says, I rise for no man except God and the king.
And Judge Moody looked at him and said, five days for contempt.
And the man stood up and he says, you can't speak to this royal Norwegian face like that.
And the judge said, five more days. But the fellow was already in jail for drunkenness or something, so I, I don't think he served the time.
By the way, this scene with the judge and the Norwegian fisherman brings forward a twinge of jealousy for the crime fiction writer. They can imagine themselves inside the heads of the characters. They can dance in the courtroom.
In true crime, it's a hit or miss proposition, mostly miss.
There's the bench conferences, whisper, whisper, the objections shout, shout the jury and the jury out. Failed threats to take this very important matter to the appellate court or the Supreme Court.
But we can't venture into, like what people are thinking. We have to go with what they say or how they act and look, usually that's good enough. But I would love to have been inside the head of the Norwegian fisherman, right?
It would be some, some great stuff out for.
Okay, so I've tried in this episode to stay away.
In fact, throughout, I've tried to stay away as much as possible from all the sort of legal jargon. And I, I realize, however, that some of you may be still having questions about this, this guardian thing. And, and the, the Latin name is guardian ad litem. So let me take some time here, provide more detail. In the simplest terms, a guardian ad litem, a gal for short, is someone appointed by the judge to speak for the child's best interests in a court case.
Now, at present in the state of Alaska, if the court must appoint a gal, that any case in which the court believes a parent is abusing or neglecting a child.
The court may also appoint a GAL in child custody cases, domestic violence cases, juvenile delinquency cases, etc.
Notably, Alaska also has a broad remand to courts allowing them to point a gal and I quote in any other case in which it believes a child involved in the case needs someone to speak in the child's best interests.
Scotty is three and a half years old.
He is no way capable of speaking in his own best interest. Now the risk always is that you hand this over to the adults in the room and they have trouble being adults in the room.
See you next time.
