by James Muehlberger, Esq, Kansas Alumni Magazine, No 3, 2014

True Crime

A lawyer’s successful search for a missing court case sets straight the crooked tale of Frank and Jesse James

By Steven Hill

“The Ballad of Jesse James”

Jesse James we understand
Has killed many a man
He robbed the Union trains
He stole from the rich
And gave to the poor
He’d a hand and a heart and a brain.

James Muehlberger was down to the final day of his three-month sabbatical, and the county clerk’s office in Gallatin, Mo., was due to close in 5 minutes. He had spent the past week hunkered down in the dusty office, rifling through drawer after drawer of legal files. Now it was 4:25 on a Friday, and he still hadn’t found the document he was searching for. In fact, he’d been told he wouldn’t find it.

“The clerk told me I was crazy, that it didn’t exist,” says Muehlberger, c’78, l’82, “and if it had existed it had been stolen or preserved [elsewhere] because anything related to Frank or Jesse was long gone from their files.”

But Muehlberger—a former Johnson County prosecutor who now defends corporate clients as a partner at Shook, Hardy & Bacon (SHB) in Kansas City—looked anyway. As Theresa Hamilton, deputy for the Circuit Court of Daviess County, began buttoning up the office for the weekend, he raced to finish one last file drawer. There, at the very back of the drawer, he recognized the prize he sought, a dusty, barely legible folder that he’s convinced no one has seen since 1870: the lawsuit file for Daniel Smoote v. Frank and Jesse James.

“Finding that was probably the most exciting thing I’ve done as a lawyer,” he says. “Part of what I do is spend months or years looking for the smoking gun document that’s going to make my case, or trying to find witnesses who don’t want to be found. Basically I used the same sort of skills I developed over 30 years of being a lawyer and applied it here.”

The find confirmed a story Muehlberger had heard around SHB’s Kansas City headquarters, that a lawyer named Henry McDougal, associated with a founding partner of the high-profile firm, had once sued the notorious Missouri outlaws.

The case and the crime that spurred it—the murder of a former Union officer and Gallatin bank clerk named John Sheets—marked the first time the James brothers gained notoriety for their crimes, and the media attention was the beginning of the enduring Wild West legend of Jesse James as a “noble robber,” a chivalrous farm boy who fought for Southern honor during the Civil War and after was driven to crime to battle corrupt pro-Union politicians.

The discovery of the lost lawsuit was one in a series that led to Muehlberger’s book, The Lost Cause: The Trials of Frank and Jesse James, a thoroughly researched and carefully argued chronicle of the decade-long quest to bring to justice one of the most feared—and revered—outlaw gangs in the West. The Kansas City Star named it one of the best 100 books of 2013, and the New York Times Book Review credited Muehlberger for creating a story that is “equal parts violent melodrama and meticulous procedural, wrapped in vivid packages with enough bloody action to engage readers enthralled by tales of good versus evil.”

Don’t be fooled by the book’s cover: The jacket features a sepia-toned photograph of a fierce, pistol-brandishing Jesse James, but the true heroes are the lawyers who took on the infamous Missouri outlaw and his brother Frank. . .

Jesse James had a wife
To mourn for his life
Three children, they were brave
But history does record
That coward Robert Ford
Has laid poor Jesse in his grave

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