After that November 13 hearing, Ellerbee's threats took a darker turn. Cockerham began seeing him in the empty lot across the street from her house with a shovel and wheelbarrow, digging. Then came his voice on her answering machine: "You and the kids will be in those graves and no one will ever know."
Cockerham called Police Chief Coe. He was one of the few who had never dismissed her fears, and she wanted him to hear Ellerbee's words. Coe came to her house, and she showed him the two freshly dug holes just 30 feet from her driveway, one as deep as an adult-sized grave, the second smaller and shallower.
When Coe saw the graves, he says, he put his department of nine officers on alert. According to Coe's deposition, he told Lieutenant Tim Lee Gwyn, "We need to keep a closer watch on what's going on with these people because it could escalate." Still, Ellerbee was not arrested. The protective order gave police the authority to make an arrest without a warrant. Yet because police hadn't actually seen Ellerbee digging the graves, Coe told Cockerham to get a warrant from a magistrate.
Monday morning, November 18, Ellerbee showed up at the Magic Kingdom daycare center, another clear violation of the protective order. Cockerham says she went straight to the police station to report it. Again she was told to obtain an arrest warrant, this time by Scotty Vestal. Cockerham drove 16 miles to the county courthouse and got one.
Later that day, Cockerham stopped Vestal on the street near the station and pointed out Ellerbee's silver Blazer following close behind her. Vestal took off after it in an effort to identify the driver, but Ellerbee eluded him. In his deposition, Vestal said he called Gwyn, who was his supervisor, for help. Gwyn, too, was unable to locate the Blazer. The officers (who are both named in the suit) never turned on their sirens or sent out a general bulletin to law enforcement in the region to find Ellerbee.
As dusk fell late that afternoon, Cockerham says she called the police department and asked Vestal and Gwyn to meet her down the road outside her father's house. She had a copy of the protective order with her and wanted to make sure the officers understood that a violation required them to make an arrest. While the three were talking in the front yard, Ellerbee drove by, slowly, as if taunting them, according to Cockerham, and the two officers got in their cars. She says they told her that they would get him and not to worry. She watched as they followed her husband's Blazer out of sight.
But that conversation—which is central to the lawsuit—is in dispute. Vestal and Gwyn say they met Cockerham there just after the silver Blazer slipped away from them near the police station, not later. They say they never saw Ellerbee drive by the house—and never promised to arrest him.
"Lieutenant Gwyn did tell me that they did see him come by there and that they went after him and couldn't find him," Chief Coe stated in his deposition. The next morning was the day of the murder.