True, Doug, I guess I'm stretching Agamben's applicability in applying his analysis of sovereignty to a space not yet included in the sovereign jurisdiction of the United States. And of course once Deadwood is US territory, the police – motivated by duty and salary – will carry out the order of law, at which point Agamben's analysis (for instance, of the guard in the camp) will explain that the (law) officer can operate outside the law because insofar as the camp exists, the law is always already potentially in a state of suspension. But the same analysis won't explain why some officer will be always ready to hand.

Why, for instance, does Swearengen assist Alma Garrett discover the value of her claim – a gesture that guarantees she won't sell the claim to Al? When Farnham suggests killing Bullock and Alma to obtain the claim ("No Other Sons Or Daughters"), Al's answer is telling:

EB did you not hear the fucking news? Did you not listen to the fucking news? The plague’s end in prospect. And so’s peace with the fucking dirt worshippers. (Al opens the shutters leading to his bedroom from his office. He waves EB in.) Come here, come here. Sit down. The dam…has broken, young man. And only ourselves can fuck up. For we are about to be swimmin’ in money. And how could we fuck up? By engaging in open fucking bloodletting. And right here at hand, in our very hour of need, is the priggish fucking douche bag Bullock. Who only wants to sell pots and pans, fan his pretty face and hold his nose from the stench of our fuckin’ sordid carryings on over here. All the time thinking he can protect the meek and innocent. The perfect fucking front man, and you wanna kill him? Much as we might want the widow’s claim, it’s a luxury now to forego. EB, find yourself somewhere to lie down ‘til the feeling passes, huh?

In other words, what keeps Al from acting on E.B.'s advice is the prospect of greater potential future income – essentially, Al's investing in Seth Bullock as a "front man." And of course in "Sold Under Sin," Bullock indeed becomes that front man (and, indeed, to what extent is Seth himself bought – or does he sell himself – when he becomes sheriff?).

Now I'm not suggesting that Al only acts in profit-driven ways or that he never acts out of compassion – that would be a strong form of economism that I find naïve. Clearly, the example you offer – Al euthanizing Rev. Smith – demonstrates compassion, though the gesture isn't quite humanitarian – as David Milch reminds us in the DVD bonus, Al's brother suffered from seizures, and Al clearly identifies the minister with his brother when after Smith's death Al says, " You go now, brother." Again, that's not to say Al's not compassionate; he clearly still harbors significant sympathy for his brother, just as the alternative to Mrs. Anderson's orphanage Al offers his prostitutes is not devoid of compassion since he knows precisely what it's like to live with "fat Mrs. Fucking Anderson."

Al is certainly a beautifully rich character, as even the compassion we see here emerges from a self-absorbed vantage point. And this ambiguity (the ambivalence of Al?) infects even your interesting choice of the two "trials." Of course, the major difference that serves your argument, Doug, is that Jack McCall is found "innocent" rather than hanged, whereas the Anderson children are tortured, "found fuckin' guilty," and killed (and Joanie's forced to kill Flora to prevent her further torture). But just how civilized is the trial at Al's place at all? Isn't it really just a parody of a "legitimate" trial? Now maybe therein lies the value, but nevertheless, why does Al have McCall freed? If his line of persuasion with the judge (Magistrate Clagett) is any indication, it's quite similar to the reason he gives up on Alma's claim:

I’m sayin’, I had a vision... My second of the day. First come when I was watchin’ you and them lawyers on line this morning. They began to slither in my sight like vipers. So as not to puke I had to close my eyes. The vision went on. Got worse. I saw the vipers in the big nest in Washington. They were takin’ us in the camp, for actin’ like we could set out own laws up or organizations and then saw the big viper decide to strangle and swallow up every fuckin’ thing we gain here. It was horrible. How could we fuckin’ avoid it? How could we let the vipers in the big nest know that, we didn’t wanna cause any fuckin’ trouble?

Al sees that it's crucial that the US government view Deadwood's juridical structure as sufficient but not identical to its own. If it's sufficient, it doesn't need replacing; if it's identical, it will have to follow US law – which would basically regulate Al's business out of existence.

So the trial's quasi-civilized in its form – and its result is more humane than the one at Cy Tolliver's – but it's not clear to me that this makes Al's behavior (or Cy's for that matter) inexplicable by Marxist analysis. And yet maybe your response would be that Agamben himself isn't out to explain human behavior. To which I can only say, Fair enough.