Criminal - Mantrap

Episode Date: September 23, 2022

Ed and Bertha Briney’s unoccupied farmhouse was reportedly broken into 50 times over 10 years. They put up “No Trespassing” signs, repeatedly complained to sheriffs in two different counties, nailed doors shut, and boarded up windows - but nothing worked. So they decided to try something else. Say hello on Twitter, Facebook and Instagram. Sign up for our occasional newsletter, The Accomplice. Follow the show and review us on Apple Podcasts: iTunes.com/CriminalShow. We also make This is Love and Phoebe Reads a Mystery. Artwork by Julienne Alexander. Check out our online shop.  Episode transcripts are posted on our website. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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That's BotoxCosmetic.com. That's BotoxCosmetic.com. Well, everyone knew everyone in this very small town called Eddyville, and everyone apparently knew the Brineys. In 1957, a couple named Ed and Bertha Briney inherited an old farmhouse from Bertha's parents in a rural part of Iowa. And they left it unoccupied for 10 years. And it was an uninhabited old farmhouse and out in the middle of nowhere, basically. But they kept items of value apparently in there. Bertha Briney's grandparents and parents had lived in the house.

After her parents died, Bertha Briney had wanted to keep things as they were, down to the plates and silverware on the kitchen table. We're hearing about the Brineys and their farmhouse from retired law professor Andrew McClurg. People had repeatedly broken into this house. According to the Brineys, in the decades since they inherited the house, it had been broken into 50 times. Ed Briney later said he'd nailed doors and windows shut, posted seven no trespassing signs around the property, and complained to sheriffs in two different counties

over and over, but nothing seemed to work. So they basically boarded up the windows and put tin over the windows to try to keep people from breaking in, but that was unsuccessful. And that's when Ed Briney got out his shotgun. Because they were fed up, as I think with Mr Ed Briney got out his shotgun. Because they were fed up, as I think Mr. Briney, I think those were his words. They were just fed up with people breaking in.

Ed and Bertha attached the shotgun to an iron bed frame and ran a wire from the gun's trigger to the bedroom doorknob so that if someone opened the bedroom door, the trigger would be pulled and the gun would go off. Originally, the barrel was aimed to hit the intruder in the stomach. Ed Briney, the husband, wired it, and his wife, Mrs. Briney, that paragon of reasonableness that she was, suggested he lower it to just shoot the intruder in the leg. Was there any sign posted outside of the house saying no trespassing or gun on premises, you will be shot if you enter?

There were no trespassing signs that they had on the land for several years. Just regular no trespass signs. There were no warnings that there was a deadly trap inside. A booby trap. A booby trap. The population of Eddyville was around 1,000 people. Its main street was two blocks long. And just off of it was a gas station owned by the Katko family. 28-year-old Marvin Katko worked there with his father. And he had an interest in collecting, apparently, jars and bottles that he considered to be valuable antiques. And one day he broke into an abandoned,

not abandoned actually, an uninhabited farmhouse out in the country about seven miles away. Edinburgh the Briney's farmhouse. Marvin had noticed the house over the years when he went hunting in the area. It was surrounded by tall weeds, and some of the smaller buildings around the property were falling apart. According to court documents, Marvin had broken in once before with a friend to collect bottles, and they had decided to come back to see if there was anything they missed. The window they'd used to get in the first time had been completely boarded up, so they walked around the house until they found another window that was easier to get into,

even though it was boarded up too. So he removed a board or a piece of tin and entered the house. Marvin's friends started looking around the kitchen, and Marvin headed for the bedroom. And when he pulled on the bedroom door, the shotgun trap went off and blew away a substantial portion of his leg. What happened next led to a case that's still taught to first-year law students, more than 50 years later. I'm Phoebe Judge. This is Criminal. After Marvin Katko was shot in the leg, the friend he'd broken into the farmhouse with

helped him to the hospital. He spent 40 days there. He had to wear a cast for about a year, a brace for another year, and he lost two and a half inches of his leg. His doctor said he had seriously considered amputation. When Marvin Katko recovered while he was in the hospital, he was admitting that he had broken into another person's premises, what did he do? Well, first, absolutely he knew, and he admitted he knew it was wrong and criminal,

and he was originally charged with a felony, but ended up pleading guilty to a misdemeanor. Marvin pled guilty to larceny in the nighttime of property valued at less than $20. He was fined $50 and given a 60-day suspended sentence. And then, he filed a lawsuit against the owners of the house he'd broken into, Ed and Bertha Briney. Marvin Katko's lawsuit alleged that Ed and Bertha Briney had shown, quote, malice and intent to harm by rigging the shotgun, that they meant for someone to get seriously hurt. Marvin Katko's lawyer told newspapers that he based his case on the theory that there was a big difference between protecting your life and home, where you live, and protecting property, and that you cannot use excessive force to protect property.

Andrew McClurg says the case might have been very different if Edinburgh the briny lived in the farmhouse and were there that night. But the house was vacant. It's very important, a principle, I think, because this is where people get it wrong. So the fact is, is that if this had been an occupied house, if somebody breaks into my house, I don't own a gun, but if I did, if somebody broke into my house, there's a very good likelihood that, especially at night, I could legally shoot them, because then we would be switching from the defense of property to self-defense, or if I had a family living there, other people living there,

defense of others. So you can use deadly force often to protect yourself or other people, just not property. Edinburgh Thabrine's lawyer argued that the law allows for property to be defended with, quote, all the force necessary. And then he asked, who decides what is necessary? Ed Briney said he felt like he was being, quote, tormented by being robbed over and over again. During the trial, his lawyer attempted to demonstrate how bad it feels to

have your things taken by reaching into the jury box and grabbing the purse of one of the women on the jury. But in the end, Marvin Katko won. And not only does he win, he wins not just compensatory damages to compensate him for his injuries and medical expenses, but punitive damages, which are an add-on type of damage that is quite rare, actually, and designed to punish particularly egregious conduct. But they did not, they were not charged with any criminal crime. No, no. Today, it would be a crime in most states.

Back then, it probably was not technically a crime. So what were the damages? Will you tell me that he was rewarded? They were $20,000 in actual compensatory damages and $10,000 in punitive damages, but it would actually be substantially more in today's dollars. And as a result, the Brineys, and this was partly what really stirs up students, the Brineys had to sell 80 acres of their farm to pay the judgment to the criminal who broke into their house.

How do your students, you've been teaching this case for a long time, how do your students react to this case? So what usually happens is people will usually speak up in favor of the court's decision, that is in favor of Marvin Katko winning, that you shouldn't be able to use deadly booby traps. So I have to kind of play along with it and get, you know, draw out the people who don't want to come across as cold-hearted or cold-blooded to start defending the Brineys. But once they get going, they really get going on it. And then somebody, I find somebody who's vociferously sticking up for the Brineys. And then somebody, I find somebody who's vociferously sticking up for the Bronnies.

And then I say, how many people in here, because law school classes, first year classes are pretty large, it might be 70, 80 people there. I said, how many people in here ever entered, illegally, any kind of structure on somebody else's property when they were a kid? Whether it's a shed or a barn or an abandoned house, and almost every single person raises their hands. The Brineys appealed the decision, and the case went to the Iowa Supreme Court.

But the court agreed with the original ruling, finding the Brineys responsible. But a lot of people in the town sided with the Brineys. One paper reported that about 3,000 people had written to offer support to the Brineys. Mrs. Briney was quoted as saying, it's sort of a puzzling world, in that I didn't feel as if I was in the wrong. I was the one being harassed.

What else was I going to do besides get a 24-hour guard? Marvin Katko was quoted saying that some Eddyville residents no longer associated with him. But he said that the average person can see both sides of it. We'll be right back. Thank you. Tristan Redman as he tries to get to the bottom of a ghostly presence in his childhood home. His investigation takes him on a journey involving homicide detectives, ghost hunters, and even psychic mediums, and leads him to a dark secret about his own family. Check out Ghost Story, a series essential pick, completely ad-free on Apple Podcasts.

Hey, it's Scott Galloway, and on our podcast, Pivot, we are bringing you a special series free on Apple Podcasts. and the senior AI reporter for The Verge to give you a primer on how to integrate AI into your life. So, tune into AI Basics, How and When to Use AI, a special series from Pivot sponsored by AWS, wherever you get your podcasts. Courts have been hearing cases about people setting off what's called a spring gun trap, a booby trap, or sometimes a man trap, for a long time. So one of the most notable and earliest cases was a case from England in 1825,

so almost 200 years ago, called Byrd v. Holbrook. And the defendant, Holbrook, maintained what were apparently very valuable tulips that he grew about a mile from his house. He set up a booby trap with tripwires running across a few of the paths in the garden. One day, a neighbor's peacock flew over the garden wall, and a 19-year-old climbed over it to help find the bird. He set off the tripwires and was shot in the knee.

Then he sued the tulip gardener and won. So one of the problems with booby traps is they're indiscriminate. They can't discern between a dangerous criminal and a 10-year-old kid who's just out, you know, doing mischief. A 1986 case involved an electrified booby trap. A store owner, whose store had been robbed multiple times, installed and electrified a metal grate above his front door. When a man broke in through the ceiling, the rubber soles of his sneakers protected him, but he touched the metal grate as he tried to climb out and was killed. The store owner was arrested and charged with manslaughter.

He said, I didn't mean for anyone to be killed. I just wanted to shock him and warn him. His store had been robbed six times in the past month alone and he said that the police hadn't done much about it. He said, The police come by and fill out a report and put down that the police hadn't done much about it. He said, the police come by and fill out a report and put down that fingerprint dust and you'll be cleaning it up for two days after that,

but they'll never even call you. A grand jury voted to release him. You know, and these are all cases involving people who are fed up with people breaking into their property, so it's not like that was their first idea to set up deadly buoy trap. In 1974, a man named A.C. Wade owned a liquor store in Cordial, Georgia. He also owned a cigarette vending machine just outside of the store. And apparently he had had trouble with people coming and rattling his machine, and it would sling out either cigarette packages or money or change out of the cup that held the money.

And so it was an early type machine, so it was not very sophisticated. So he began to make it sophisticated by, he put a third a stick of dynamite connected to a micro switch so that if it was disturbed in any significant manner, it would ignite the dynamite stick. So it's quite a crude thought. But if you were to shake the machine so much, whatever the charge would be set off.

That's correct. Attorney David Rainwater. And this machine was sitting out front of the liquor store, so it was exposed to 24-hour use. A.C. Wade, the liquor store owner, said his machine had been broken into five times and that he'd put in the dynamite to try to scare off potential thieves. He said, The solution was to sacrifice the machine.

It was the only thing I could come up with. He had not attempted to see what the amount of force would be. Would it be a killing force or would it just be a scaring tactic? But I think a third of a stick of dynamite is a significant force, and of course it turned out to be a deadly force. Just after midnight on August 23, 1974, a 16-year-old boy named Robert Joel McKenzie and his 15-year-old friend reportedly tried to pry open the machine with the tire tool. The dynamite went off and the machine exploded. Both of the boys were hurt. Papers reported that the 15-year-old left the scene to seek medical

help, leaving his friend behind. He was eventually questioned by police and brought the deputies back to the liquor store. Robert Joel McKenzie was still at the scene, very badly injured. His leg had been hit by a piece of metal from the machine during the explosion, and an artery in his thigh was severed. He died shortly after he was taken to the hospital. A.C. Wade said that he felt terrible and cooperated with police from the start. He admitted everything.

He admitted that it was rigged as a man trap. He didn't boast about it, but he actually felt that he had done nothing wrong. He told papers, I gave it lots of consideration. I never activated it until after hours. There was no way an innocent person could get hurt. He had to be breaking in. I figured it would knock them down on the pavement. He said, The county sheriff said he wasn't planning to file charges because he said he, quote,

knows of nothing illegal A.C. Wade had done. The sheriff said the death was accidental. He said the dynamite itself wasn't powerful enough to kill someone, and that Robert Joel McKenzie had died because a piece of the machine had come off and cut his leg, and he bled to death. Nobody was willing to prosecute this man for doing this, and so we then filed the civil suit. David Rainwater represented Robert Joel McKenzie's mother. One of her relatives insisted that she talk to a lawyer because it wasn't right for her son to be killed over stealing quarters, which is basically what it was.

You might remember back then the machines were not sophisticated enough to take dollar bills. So it was just quarters. A.C. Wade estimated there had been, quote, four or five dollars in the machine. David Rainwater thought Robert Joel McKenzie's mother had a good case. The wrongful death statute, number one, did not limit it to non-criminals. It applied to everybody. It didn't matter what your conduct was, even if you were a trespasser, even if you were a criminal,

you still could use the wrongful death statute to collect damages from somebody that had a willful and wanton intent. He knew he expected the trespasser to come back. He laid a trap for him. You know, at least in Georgia, you don't owe a trespasser any duty except not to leave a man trapped for him. That's the way our law is written. The defense kept saying, well, you know, we had no intent to kill him. We were just trying to protect our property, trying to scare him and whatever. But that wasn't good enough because the law held that any time that your conduct is willful or wanton, intent is inferred. A.C. Wade was found liable.

The judge wrote, He had an abandoned and malignant heart. He set a death trap with dynamite, never testing it to determine how many innocent persons might be killed if within 100 to 200 yards of it, and thus sought to protect his several dollars in the vending machine. He had a conscious indifference to consequences. A.C. Wade was ordered to pay a small settlement to Robert Joel McKenzie's mother.

How did people react in town to the events and the decision? Very negatively. They couldn't believe you could... somebody could collect that was in the process of stealing from you. So they weren't showing outward sympathy for what had happened to this 16-year-old? No, not at all. David says that people in town thought of Robert Joel McKenzie as a thief. He was a criminal.

What happened to him was, you know, irrelevant. He was in the process of committing a crime. And there are people out there that still believe that property and the right to enjoy it is the highest right you have, but that's not exactly true. And this case really illustrated that even a criminal in the state of Georgia can recover for damages if he was injured or killed as a result of a man trap. We'll be right back. Still find yourself occasionally rebounding with junk food and empty calories? You don't need to wait for the new year to start fresh. New year, new me? How about same year, new me? You just need a different approach. According to Noom, losing weight has less to do with discipline and more to do with psychology.

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That's anthropic.com slash Claude. Oh, my back was against the wall. This is Phil Conahan. In the late 80s, he was living in Denver, Colorado. He had a construction firm and did building repairs for a living. And he stored all of his equipment and tools in a warehouse in a non-residential part of town. Well, I had my snow plow in there and my service truck that had all my carpenter tools in it and it had all my concrete tools in it, and my roofing equipment in it, and all my hand tools, my mechanic tools that I repaired all my equipment.

I've done mechanical work most of my life. So everything you needed to do your job was in that warehouse? Absolutely. One day, Phil decided to take a road trip into the mountains. I had a little MG car. Weather was perfect and top-down. It's incredible driving through the mountains in a convertible, little convertible. And I stopped by the warehouse just to have a look.

It was a Sunday. And I saw that my back door had been broken into. And that's when it started. When you walked in, what did you see? I saw that I was doing a welding job, and I had it all laid out, had all my equipment there, and every piece of my welding equipment was gone. That job just came to a halt. and you can imagine the feeling. It's like, you know, your stomach just falls.

It was awful. What did you do when you saw that all of your things were missing? Well, I called the police, and I repaired the door. I reinforced it the best I could and I just built a new padlock system for it and that was the best I could do. And cops got there and looked everything over and took the report, and that was it.

It wasn't maybe two or three Sundays after that, I got there and found out that the door was smashed in again, and more of my equipment was gone. Were you surprised that it happened again? Oh, sure. Oh, yeah. I thought, you know, a one-time deal, but, you know, it was just the start of many. After about the second or the third, I got used to it, you know.

I didn't know what to do. I can't remember how many times they came through that back door until I finally rebuilt the door, and then I put sheet metal there, and then I backed it up with more wood. And the next time I got there to work, he had taken a hatchet or an axe or a claw hammer or something and tried to break in. And he absolutely just shattered the wooden door until he came to that piece of metal. And he didn't have any way to get through that metal.

Phil says he'd set up an alarm that would call 911 when it was tripped. But he says whoever was breaking in somehow knew to turn off the electricity. He says that each time he saw that there had been a break-in, he called the police and made a report. Eventually, he was calling them so much that they asked him to just mail them a list of the items that were stolen. The place was so off the beaten path

that they just couldn't seem to get a patrol car to go down in there and check the place. They were too busy where there was business and people and cars and so forth, you know. A columnist at the Denver Post wrote an article about all the robberies. And some readers felt so bad for Phil Conahan that they sent him money and replacement tools. It didn't take long, though, for those donated tools to be stolen, too. Phil Conahan says that he had no idea who was doing this.

But he was incredible. He was an incredible mechanic at getting into things. The final, the thing that broke my back was the fact that I had rebuilt the back door to where he couldn't get in that way anymore. And so he tied his vehicle to my front door and pulled the front of the building down to get in. And then he took everything he wanted that trip I guess. I thought I can't get any help, figure it out Connann.

I remember getting that shotgun and going back to the back room and sitting on that stool and putting it all together and testing it, make sure that it was going to work. And I ran a trip wire about foot off the floor and then loading it and getting it ready to do its job. I didn't really plan on it. I just did it. I guess it was the only thing that I thought would catch him. Were you worried about it shooting the wrong person and someone who wasn't doing anything wrong might get hurt? Never did.

He and I were the only ones that ever went back in that room. There wasn't any reason for anybody else to go in there. They couldn't get in there. How did you hear that something had happened? It was Easter. Easter morning. And I had worked to put the front of the building back together. And I got in my little MG and headed for Kansas City

and was going to spend Easter with some friends over there. And we were at my friend's farm, and the telephone telephone rang and they said it was for me. It was my daughter. She told me that she was with the police and they wanted to talk to me. and I don't know if you've ever had dry mouth but I almost died of dry mouth that day. It was awful. And police got on the phone and wanted to know if I was Bill Conahan.

I said, yeah. They said, well, we're at your warehouse and there's been a problem. Did the police tell you anything? What did you learn had happened? Well, I kept asking this cop, you know, what division are you with? And he'd say, Denver Police Department. And I said, no, you know, what division are you with? And he finally said, he said, I'm with Homicide. And that's when I about came undone. Because I knew then.

Four people had broken into the warehouse the night before. One of them, a 19-year-old, set off the shotgun and was killed. His three companions ran away. Police waited until the morning to go inside the building and retrieve the body because they were afraid of another booby trap going off. And they were searching for me. They charged me with first-degree murder. And I hid out several places in Kansas.

And finally, I realized I was going to have to face up to what was going on over there. As soon as I got back, I called the police and told them I was in town, what I needed to do. And they told me just to come down to police headquarters and turn myself in. That'd be the best thing. So that's what I did. The owner of a restaurant near Phil's warehouse told reporters that the victim had terrorized the area and that he was a skinhead with a visible tattoo that said, White Pride.

The restaurant owner said, If I would have faced a situation where I asked and asked and couldn't get help, I would have done the same thing to protect my property. Business owners in the area started putting up signs saying their buildings were booby-trapped too. One of them burned down because firefighters refused to enter it until they could determine that it was safe. Phil pled guilty to manslaughter. He was fined $2,500, placed on probation for six years,

and ordered to pay $7,000 to the family of the victim. You know, the punishment I got was really nothing compared with taking a life. You know, I realize that. I just did it to put a stop to it. I never thought about killing anybody. I don't know why. I guess maybe I blocked that part out as a way of justifying what I did. Did you ever see the family of the person who was killed?

Never did. You never heard from them? Nope, not a word. What would you say to them if you could talk to them? Oh, that I was sorry that I hurt their son, that I killed him. Thank you. Our technical director is Rob Byers. Engineering by Russ Henry. Special thanks to Matt Spohr. Julian Alexander makes original illustrations for each episode of Criminal. You can see them at thisiscriminal.com.

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