The Executioner's Song

  The fourth witness, Dr. Morrison, was the Deputy Chief Medical Examiner of Utah, and had performed the autopsy on Benny Bushnell. Dr. Morrison testified that the absence of powder burns on the surface of Bushnells skin dictated that the murder weapon had been put in direct contact with his head.

  Esplin had to make some attempt to discredit him.

  MR. ESPLIN At the time that you examined the decedent did you examine the weapon that was allegedly used in the commission of this offense?

  DR. MORRISON No, sir . . .

  MR. ESPLIN And I take it at the time that you examined the decedent, you did not know the type of ammunition that was used?

  DR. MORRISON That's correct.

  MR. ESPLIN And yet you say these things were all things which do make a difference in making your determination?

  DR. MORRISON They could make a difference . . . In this particular case, in my opinion, it did not make a difference . . . I did not feel that the type of ammunition or the specific type of weapon would enter into or present a problem as far as the determination went. However, I was informed at the time I did the autopsy the weapon was a handgun.

  MR. ESPLIN But you didn't examine it?

  DR. MORRISON But I did not examine the weapon? No, sir.

  The defense had to gamble. If nothing else, the vigor of Esplin's cross-examination could confuse the Jury. So, even as Dr. Morrison was saying that he did not need to know the gun nor the ammunition since, in this case, neither affected the result, so Esplin gained the admission that Dr. Morrison had not examined the weapon. That might bother some of the panel.

  Martin Ontiveros came next and established that Gary had left his truck at the service station two blocks from the motel and went away for half an hour. When he returned, Gary had blood on his left hand.

  Ned Lee, a patrolman, had found the gun by retracing Gilmore's trail of blood from the service station to the bushes. "Anything liquid has a tendency to flow in the direction you are traveling," he said, so he had been able to determine that Gilmore's movements had been from the place in the bush where the gun was hidden on eastward to Fulmer's gas station. Again, there was little for the defense to do with his testimony.

  Detective William Brown received the cartridge case and gun from Patrolman Lee and had them photographed in the position they were discovered. Wootton offered the photograph as Exhibit Three.

  MR. ESPLIN Officer Brown, did you take that photograph?

  OFFICER BROWN No, sir.

  MR. ESPLIN Do you know who took it?

  OFFICER BROWN No, sir. I don't.

  MR. ESPLIN We object, Your Honor, Improper foundation.

  MR. WOOTTON I've laid a foundation. Your Honor, I don't have to establish when or under what circumstances it was taken. All I've got to establish is he was looking at the bush and he looked at the photo and it's the same.

  Still, it was a small gain. One more exhibit slightly tainted. You never knew when a few small gains could contribute to the final effect.

  MR. ESPLIN You did dust the weapon for fingerprints, is that correct?

  OFFICER BROWN Yes, sir.

  MR. ESPLIN Did you find any prints?

  OFFICER BROWN I found one.

  MR. ESPLIN Did you transmit that to the FBI laboratory?

  OFFICER BROWN I did . . .

  MR. ESPLIN What were those results?

  OFFICER BROWN They needed a better comparison.

  MR. ESPLIN In other words they couldn't make a determination?

  OFFICER BROWN Right.

  MR. ESPLIN No further questions.

  When Gerald Nielsen came on, Wootton did not ask him about the confession. Nielsen merely testified to the existence of a fresh gunshot wound on Gilmore's left hand at the time he was arrested.

  Gerald F. Wilkes, a Special Agent with the FBI, was an expert on ballistics.

  MR. WOOTTON Would you tell the Jury, please, what your conclusions were?

  MR. WILKES Based on my examination of these two cartridges, I was able to determine that both cartridge cases were fired with this weapon and no other weapon.

  Esplin had no recourse but to ask questions that might bring back damaging answers.

  MR. ESPLIN Is there a certain number of marks which must be on a particular item of evidence . . . before you are able to say beyond a reasonable doubt that the cartridge was fired by the same gun?

  MR. WILKES No, sir. I fix no minimum number of microscopic marks to effect an identification.

  MR. ESPLIN Do you have any idea of how many marks, similarities or points of similarity you found between Exhibit No. 12 and the test cartridge which you fired in the laboratory?

  MR. WILKES The marks of similarity were contained around the entire circumference of the cartridge case. It's so many microscopic marks in fact that it left no doubt in my mind as to the conclusion I reached.

  Peter Arroyo testified to seeing Gary in the motel office.

  MR. WOOTTON How far away from him were you at that time?

  MR. ARROYO Oh, somewhere near ten feet.

  MR. WOOTTON Was he inside the office?

  MR. ARROYO Yes.

  MR. WOOTTON And you were out in the driveway?

  MR. ARROYO Yes.

  MR. WOOTTON Did you observe anything in his possession at the time?

  MR. ARROYO Yes.

  MR. WOOTTON Tell us what you saw.

  MR. ARROYO In his right hand he had a pistol with a long barrel. In his left hand he had a cash box from a cash register.

  MR. WOOTTON Are you able to describe the pistol for us?

  MR. ARROYO Yes.

  MR. WOOTTON Tell us how you observed it.

  MR. ARROYO He actually stopped when he saw us. I looked right at him, I looked at the gun, and I looked up at his face to see what he was going to do with the gun. I thought he worked in the office and he was fooling around with the gun. I was concerned about that. So I looked right at his eyes. And he just stopped and looked at me. And after a few seconds he turned around and walked back around the counter.

  MR. WOOTTON What did you do?

  MR. ARROYO We kept on walking right to the car . . .

  MR. WOOTTON Mr. Arroyo, do you see the individual in the courtroom now that you observed with the gun and the cash box at that time?

  MR. ARROYO Yes.

  MR. WOOTTON Would you identify him for the Court and the Jury, please?

  MR. ARROYO The man with the red jacket and the green shirt. (Indicating)

  MR. WOOTTON Seated at the counsel table opposite me?

  MR. ARROYO Yes.

  MR. WOOTTON Your Honor, may the record reflect that the witness is identifying the defendant?

  THE COURT It may so show.

  MR. WOOTTON Your witness.

  MR. ESPLIN Sir, could you describe the individual that you observed in the motel office that night?

  MR. ARROYO Yes. He appeared to be a little taller than I am.

  MR. ESPLIN What other characteristics would you describe?

  MR. ARROYO He had a Vandyke-type beard and long hair.

  MR. ESPLIN What other distinguishing characteristics do you recall?

  MR. ARROYO His eyes.

  MR. ESPLIN What do you recall about his eyes?

  MR. ARROYO When I looked at his eyes, it's kind of hard to describe. I'd never forget those eyes.

  MR. ESPLIN Did you see the color of his eyes?

  MR. ARROYO No. Just the look.

  Not hard to comprehend what Arroyo meant. Gilmore had been glaring at Wootton throughout the testimony.

  After Arroyo stepped down, the prosecution rested its case. Esplin stood up and said the defense would also rest.

  THE COURT You do not intend to put on any evidence?

  MR. ESPLIN No, Your Honor.

  THE COURT Very well. Both sides having rested, then it would be the duty of the Court to instruct the Jury . . . I am ready but it would take half an hour and require us to again go into the evening quite late. My understanding is that there are the great
debates on tonight.

  The Judge was referring to the second scheduled debate between Jerry Ford and Jimmy Carter.

  THE COURT In the interests of everyone I will instruct in the morning rather than tonight and then we'll complete the case tomorrow.

  October 6

  I just got back from court.

  Wow!

  I had told you that I didn't expect much from Snyder and Esplin but I was not prepared for the fact that they intended to put up absolutely no defense at all.

  To say I was surprised when Esplin rested the case would be a hell of an understatement.

  They never told me that they were gonna do that—offer no defense at all.

  I couldn't believe it!

  I figured on some sort of defense—no matter how meager.

  I thought they would at least try to get a second degree conviction.

  Its a dead certain cinch right now that I'll be convicted on first degree—and Esplin and Snyder knew this when they rested today.

  They never told me they were gonna pull that shit.

  They acted guilty and defensive as a motherfucker when I confronted em about it after the trial.

  They didn't even try.

  All they want to do is leave theirself a case for appeal and they haven't even done that.

  That's the way it is with court appointed lawyers.

  As soon as Court had adjourned, there had been a conference, and Gary let them know he was not happy.

  "I thought you'd call a psychiatrist or something."

  They explained again. They would call one at the Mitigation Hearing tomorrow. There had been no point to do it in the trial itself.

  No doctor would say he was legally insane, so they'd only be making it easier for the Jury to convict. This way, a few of the jurors might have their own questions of his sanity.

  "Couldn't we have called somebody?" he asked, "just for appearance's sake?"

  They laid out their strategy. His situation might not be as bad as it looked, they said. Number one—the prosecution hadn't tested Gary's blood against the blood found on the trail. If it had come out O, which was Gary's type, that would have been another nail in. Two, said Craig Snyder, they didn't have fingerprints off the gun. Therefore, the gun had not been attached to his hand beyond a shadow of a doubt. Three: the prosecution had neglected to put in the money from the robbery as an exhibit. They had the money, but hadn't introduced it. Fourth, Wootton hadn't dared to use Gary's confession to Gerald Nielsen. The Jury, said Craig, his eyes getting serious behind his glasses, still had to cross the bridge to find him guilty.

  Not easy to sentence a man to death, was their unvoiced remark.

  Who could speak of what it would do to your dreams? A Jury really had to get itself up to go across the bridge, So, if the case could be conducted with decorum, and the proceedings kept calm, the atmosphere might give a Jury pause. It would be hard to sentence a man to death if no strong feelings were flowing,

  At this point, Gary said he wanted to make a statement to the Judge. He wanted to testify.

  It was against their advice. This way, said Craig Snyder, he was 99 percent convicted. If he testified, it was 100 percent,

  Gary looked gloomy for a moment. "I did it," he said, "that's it."

  He insisted again on taking the stand.

  They tried to think of what it would be like to reopen the case.

  Messy. Once more they thought of calling Nicole, but had lived so long with the idea of not calling her that the thought of having her on the stand was unsettling. It could boomerang. If it ever came out that Gary had guns in the car and was driving with children. No, Nicole was also a bad gamble.

  Any decision was left up in the air. Each of the three men slept by his own best means.

  Chapter 28

  A DEFENSE

  Nicole hadn't been in Court that morning for good cause. She was still feeling sick over the way Gary had acted the day before.

  She thought the first day of the trial would be the whole trial, but instead, the first day was spent picking a Jury. There weren't any witnesses called. It was just one long dull stretch and she didn't even get to speak to Gary until the second recess when they let her sit on the other side of the railing from him. All of a sudden, he brought up the letter she had written a week before, the one where she told him she would rather be dead than cause him pain by being with other men.

  Now, out of nowhere, he was nasty about it. "You talk about dying, but it's just words, baby," he said, and gave her a look as if to say she was safe on her side of the fence.

  Then she told him that if he wanted to, he could kill her right there in the courtroom where she stood. In fact, she said, trying not to cry, it was killing her that he could think the way he did. Real sarcastically he said, "How would I go about killing you right now? With my arms in handcuffs and my legs in shackles?" She felt foolish.

  Later, he winked at her. It didn't seem to mean anything to him. Like he'd had a vicious spasm and it was gone.

  But she didn't sleep all night. In the morning, after leaving the kids with her neighbor, she dozed some, and woke up feeling dopey, and her body out of sorts.

  Sure enough, when she got to the courtroom, he couldn't have been happier to see her. He had completely forgotten the day before.

  Nicole just sat there in a trance. She didn't even know what was going on. At the end of the day, she felt further away from Gary than at any time since their worst days in Spanish Fork.

  That night Sue came over and announced she would take Nicole out and get her drunk. Cheer her up.

  Nicole realized she really wanted to get loose, really wanted to dance. It wasn't all that good of an idea, but there was Sue. Nicole let herself be taken out.

  They passed through the Silver Dollar and went on to Fred's Lounge. Nicole liked the tension in the place. A lot of Sundowners were around, and she danced with a couple of them and liked them.

  Dapper, the way they stroked a pool ball.

  One fellow who was real together told her that he was an ex-president of the Sundowners in Salt Lake. A sweet talker. He was good looking, and fun to dance with. But she kept going back to her own table, and sipping on her vodka and grapefruit juice.

  Then Sue disappeared, and Nicole was left alone with all her own business to mind. That was when the ex-president started talking about going over to Salt Lake. Nicole thought she would like to see what that club was all about. For years, she'd been hearing about the Sundowners' house in Salt Lake. Maybe she'd get a little bit loose and meet the people.

  She tried to think clearly about where this might end. It was already two in the morning. It would take nearly an hour to get to Salt Lake, then there would be more of a party there. She figured daylight would arrive before there'd be trouble.

  Sure enough, when they got to Salt Lake, she just sat around and listened to people, talked a little bit, lit up, drank beer, just got wasted in a nice quiet way. She felt sleepy, sitting on the sofa, an old beat-up ragged sofa, It was all right at that clubhouse, a place to enjoy the vibes, sort of like a bar set up right in the living room, and a bunch of motorcycles in the living room too. Their beat-up old carpet had a little gas and oil on it. She just closed her eyes a few times and maybe nodded off. It must have been five in the morning when she said, "I want to get some sleep."

  The ex-president talked her into going downstairs, and that felt kind of safe. It was just a big room with mattresses, and people crashing all over. Maybe some of them were getting it on. Too murky to see. She started to wake up a little, and wonder how the hell she was going to get out of Salt Lake by herself. Then the guy got down on the same mattress, and there was no way she could make him understand that she had no desire. Whatever she tried to say bounced off. He just kept asking why she had her clothes on and he didn't.

  She tried to compromise her way out of it, but he had had too much grass. Couldn't get off that way. She finally had to let him in. She really blew the idea that she w
as going to be faithful to Gary in life and in death.

  When she woke up, she felt as raw as she had ever felt. She wasn't scared that Gary would find out, she was just scared, period.

  She was living in this awful place inside herself where everything was shitty. She would have cried but it would have made the most awful crappy moaning sound.

  That was a long morning. She had to get the ex-president of the Sundowners waked up to take her back to Court, and she didn't get in until it had started. Riding from Salt Lake to Provo on the back of his bike, she knew that she would never lie about this to Gary if he asked, but she didn't want to tell him. She shivered at the thought he would ask.

  Riding behind this strange guy's back, she decided that she would never sleep with another guy for the rest of her life.

  She never would let herself get into anything again that would make her feel this uneasy personally. One of these days, on one of her visits, Gary might look her in the eye and ask if she had made it with anybody. She did not know if she could tell him the truth. She didn't want to think of the damage it would do inside to him and to her if she actually lied point-blank while looking right into his face.

  She had enough worms right now.

  MR. ESPLIN Your Honor, we request that the courtroom be cleared for this matter. It's a matter of some delicacy.

  THE COURT Mr. Gilmore, do you request that the courtroom be cleared?

  MR. GILMORE Yes.

  THE COURT I will do so. I'll ask everyone to leave except Court personnel, security people.

  (Whereupon, the courtroom was cleared at 9: o'clock A.M.)

  MR. ESPLIN Your Honor. The defense rested its case yesterday . . At that time it was our opinion and our advice that Mr. Gilmore not testify in this case, that he exercise his right to remain silent throughout this trial . . . After discussing the matter last night and becoming aware of his desire to take the stand, again we . . . both gave our considered opinions . . . that he not take the stand . . . and put the State to its proof. But again we assured him that was his decision and . . . he had a right to take the stand against our advice. We advised him to consider his decision overnight. We met with him again this morning . . .