The Executioner's Song

  THE COURT Mr. Gilmore, do you desire to take the stand at this time?

  MR. GILMORE It isn't that I have such burning desire to take the stand, but I was simply unprepared for counsel to rest the case at the point they did yesterday. I mean, I'm on trial for my life and I have been expecting all along to present some sort of a defense. And when they rested yesterday, man, it appeared to me to be in effect tantamount to a plea of guilty to a First-Degree Murder charge, because I don't see where the Jury could return any other verdict at that stage. And why have a trial? I mean I—

  THE COURT What evidence do you have that you want to present?

  MR. GILMORE Apparently I don't have any, according to my lawyers.

  THE COURT Do you have any or do you not?

  MR. GILMORE God, I don't know . . . I have feelings and beliefs and I guess these doctors don't concur with them.

  THE COURT Now, Mr. Gilmore—

  MR. GILMORE You have to let me finish.

  THE COURT Yes. Yes. Go ahead.

  MR. GILMORE I feel myself that I have a good insanity defense or at least a basis of it. But apparently the doctors don't concur. But the conditions that I talked to the doctors under were adverse. There were inmates present. The whole thing was not right. It wasn't fair to me, really. And it blew my whole defense off. I don't want to just plead guilty to First-Degree Murder and accept a First-Degree Murder conviction. It will take them less than a half an hour to find that, the way I see it right now. That's what I'm saying. That's what I feel, man. I mean I have been expecting all along to present some sort of case even if it's meager. And I think that probably the best thing I could possibly do would be to talk to them myself. I could do that at the Mitigation Hearing, but that's after they find me guilty. I'd like them to at least consider what I have to say before they go out.

  THE COURT You can take the stand, if you care to. But if you do so you should understand fully the consequences of it.

  MR. GILMORE Man, I'm not, you know, telling you I'm burning to get on the stand. I just would like to present a defense That's been my expectation all along.

  THE COURT Do you want to take the witness stand and testify?

  MR. GILMORE I want to present a defense. I just don't want to sit here mute and be—

  THE COURT My question to you is: Do you want to have the Court reopen the case—

  MR. GILMORE Right.

  THE COURT —be sworn as a witness and testify?

  MR. GILMORE Yeah. Yeah. Right If that's the way you've got to ask me, okay

  THE COURT Now and I want you to fully understand that if you do that then you are subject to cross-examination by the State's attorney. Do you understand that?

  MR. GILMORE Yes.

  THE COURT And you'll be compelled to answer the questions that he asks.

  MR. GILMORE Yes.

  THE COURT And those questions and your answers may be incriminating to you. Do you understand that?

  MR. GILMORE I understand it. You know. I understand all that you are going to say. I understand all that you've said.

  MR. SNYDER Your Honor, may I make one other statement?

  THE COURT Yes, you may.

  MR. SNYDER I want Mr. Gilmore to understand perfectly that Mr. Esplin and I have contacted Dr. Howell, Dr. Crist, Dr. Lebegue, Dr. Woods, we have discussed with them in detail their examination and findings and we have reviewed their entire file at the Utah State Hospital, which is approximately three inches thick. The very best that they really can do is that they will testify that he has a form of mental disorder known as a psychopathic or antisocial behavior. We have discussed that with the defendant. We have told him in our opinion and according to the law that that is not a defense, as far as insanity is concerned. And we have advised the defendant that we have no witnesses that we can call in the line of expert witnesses, doctors, psychiatrists, psychologists who would help the defendant in that regard, and that without that type of expert testimony the Court will not give an instruction even for the Jury to consider on the sanity plea. And I want to make the record clear on that, and I want to advise Mr. Gilmore of those items.

  MR. GILMORE I'll withdraw my request. Just go ahead on with it like it was.

  THE COURT You what?

  MR. GILMORE I withdraw my request to reopen it.

  THE COURT You do?

  MR. GILMORE Yeah.

  THE COURT All right. Will you bring the Jury back in, please? Yes, and the others may come in.

  They were bewildered. The defense attorneys, the prosecutor, the Judge, conceivably the defendant himself. It was as if a resignation had come over him as he argued, a gloom, and he now saw the case as Snyder and Esplin had seen it weeks before.

  On this morning, as Gary was making his statement, Noall Wootton was at a loss to figure it out.

  He liked to go at a case as though he were the defense lawyer.

  Sometimes it gave him a few inspirations on what the others would be up to. In this situation, he had been looking for the defense to find a better motive for Gilmore than robbery when he went to the City Center Motel. Going, for instance, to get a room, or dropping by to resume a dispute. Maybe Bushnell had once refused to rent to Gilmore because he was intoxicated. In that case, having come in with no intent to rob, he could have shot Bushnell without premeditation.

  The robbery would have been an afterthought. That would be Murder Two. Wootton expected such a defense as a matter of course.

  He had not really known what he could do to refute it if Gary got on the stand and told a convincing tale.

  Only later did Wootton find out that Gary wouldn't cooperate with his lawyers. At this point, he could hardly understand why they had rested, but decided the reason they didn't put Gilmore on the stand had to be his personality. He must have an explosive temper.

  So, this morning, as soon as Gary said he wanted to testify, Wootton decided yes, might as well have him there. It could be a way to get in the fact that Gilmore had ordered his victim to lie down, then shot him.

  Maybe Gary saw the look in his eye, maybe Gary felt his confidence. Wootton was twice flabbergasted after Gary changed his mind again. It was like dealing with a crazy pony who was off on a gallop at every wind. Then wouldn't move.

  Wootton kept his closing statement short. Reviewed what his witnesses had established the day before, laid out the chain of evidence, and put emphasis on the testimony of Dr. Morrison.

  "In his opinion," said Wootton, "Benny Bushnell died of a single gunshot wound to the head. But he told you something much more important than that. He told you that the gun had been placed directly against Benny's skull when the trigger was pulled . . . this tells you that it was not a wild shot fired across the room, it was not a shot fired to intimidate or frighten, it was a shot intending to kill and kill instantly. Okay." He took a breath.

  "Think about the case deeply," he said in conclusion, "and judge it fairly. But when I say judge it fairly, I don't mean just judge it fairly from the point of view of Gary Gilmore, although that's important; you judge it fairly from the point of view of Benny Bushnell's widow and his child and the child yet to be born." The State was done.

  Mike Esplin began by complimenting the Jury. Then he went looking for weak places in the evidence Noall Wootton had put together.

  MR. ESPLIN Consider the lateness of the hour Seems reasonable to infer that the motel manager wasn't even in the office to start off. It's possible . . . he was back here in his living room and whoever was in the office, maybe he was in the act of taking money from the box and the manager came upon him and was shot. That is not robbery, it's a theft. So I submit on that question there is a reasonable doubt. The State has not proved that. Now they have witnesses they could have called and established that . . .

  He was making a reference to Debbie Bushnell.

  . . but they have not done so. Again, they indicated $125 missing, and they also indicated they arrested the defendant for this offense later on the same night. They haven't produc
ed one bit, one cent of that money. They haven't indicated that they searched him. This defendant is charged with taking money. Where is it? Another matter: this gun, whoever placed it in the bush, when they placed it in that bush it went off accidentally, it discharged. Doesn't that place a possible inference in your mind that there's a gun going off accidentally?

  They have to show an intentional killing. These things have not been answered. There is no one that actually saw the incident. The only thing that Mr. Arroyo could testify to is that he saw a person who he identified as the defendant in the office with a gun similar to this one. He said that he couldn't testify that that was the same gun . . . All he could say was he remembers his face and remembers seeing a gun in his hand.

  Couldn't make much of the testimony of Martin Ontiveros. He said that Gary Gilmore arrived at the service station to have his truck fixed. It seems kind of ridiculous. I submit if Mr. Gilmore's intention was to go down and rob the City Center Motel he would not have left his truck there at the service station where he could easily be placed at the scene or near the scene of the crime.

  Esplin was feeling emotion. This closing argument became, to his surprise, the most emotional thing he had ever done. His voice cracked in several places. Afterward, people said to him in the recess, "How did you put on an act like that?" "It wasn't fake," Esplin added.

  He had noticed, and he felt some hope, that several jurors were in tears.

  As you go to the jury room take the questions that you have, consider them, and if you do have doubts about it, any reasonable doubts, then I suggest that your obligation is either (1) find the defendant guilty of the lesser included offense of second degree criminal homicide, Murder in the Second Degree, or (2) to acquit the defendant. Thank you.

  MR.WOOTTON We'll waive rebuttal.

  (Whereupon, the Jury retired to deliberate at 10:13 o'clock A.M., October 7, 1976.)

  After the Jury had left, Esplin stood up again.

  MR. ESPLIN Your Honor, there is one point: we would object to the comment made by the prosecutor in his closing arguments where he referred to doing justice for Benny Bushnell and his widow and so forth as being prejudicial to this Jury, and would at this point move for a mistrial based on that reasoning.

  THE COURT The motion for mistrial is denied. Anything further? All right. Then we'll be in recess until such time as the bailiff notifies us that the Jury has reached a verdict.

  The Jury had recessed at 10:13 A.M. An hour and twenty minutes later, they brought back a verdict of Guilty in the First Degree.

  Since it was close to lunch, Judge Bullock recessed the trial until 1:30 in the afternoon, when the Mitigation Hearing to determine whether Gary would receive life imprisonment or the death sentence would begin.

  Chapter 29

  THE SENTENCE

  Until now, the courtroom had been half-empty, but during the lunch recess word must have passed through the coffee shop, for the Mitigation Hearing was crowded. A legal process would decide a man's life—that had to be an awesome afternoon.

  As Judge Bullock explained, the aim of the Mitigation Hearing was to discover whether the defendant, having been found guilty of First-Degree Murder, would now receive the death sentence or life imprisonment. For that reason, hearsay evidence, at the discretion of the Court, would be admissible.

  Since hearsay could prove injurious to Gary, Craig Snyder (who was doing the Mitigation Hearing even as Mike Esplin had handled the trial) was trying his best to lay grounds for appeal. Snyder objected often, and Judge Bullock overruled him almost as often. Let one ruling by the Judge be declared in error by a higher Court, and Gary could not be executed. So Craig Snyder was counting as much on the strength of future appeal as on his chances of avoiding the death sentence now.

  He took, therefore, a continuing objection to the testimony of Duane Fraser who had just made a long-distance call during the lunch recess to the Assistant Superintendent of Oregon State Penitentiary. Duane Fraser testified that he had been told in this phone call how Gilmore "assaulted someone with a hammer," and "on another occasion, assaulted a dentist" and therefore "was removed from Oregon State Prison and taken to Marion Prison in Illinois." Snyder had a continuing objection to all of that as inexpert and imprecise.

  Albert Swenson, a professor of chemistry at BYU, testified that a sample of Gary Gilmore's blood, obtained after arrest, showed less than seven-hundredths of a gram of alcohol per hundred grams of blood. That was not a high level. He would be well aware of what he was doing. Since the sample, however, had been taken five hours after the crime, Professor Swenson told Wootton the content at the time of shooting might have been thirteen-hundredths. That, he testified, was a level at which the defendant would still know what he was doing, but would care less.

  On cross-examination, Snyder succeeded in getting Professor Swenson to admit the level could easily have been as high as seventeen-hundredths, which was more than twice the level at which the State found a man guilty of driving under the influence of alcohol.

  Taken in combination with Fiorinal, such a man's intoxication would be greater.

  On balance, Swenson's testimony might prove a plus for Gary.

  The next witness was Dean Blanchard, District Agent for Adult Probation and Parole. He was appearing in place of Mont Court who was away on vacation. Mr. Blanchard said, "I don't know where he's at." Blanchard then said that he had had "very little direct contact with Mr. Gilmore." At this point Snyder said he had a continuing objection to his testimony.

  Detective Rex Skinner took the stand. Then there was a long argument between Snyder and the Court. Skinner's testimony, said Snyder, "would be entirely prejudicial to the defendant."

  MR. WOOTTON Mr. Skinner . . . did you assist in the investigation of . . . the shooting death of one Max Jensen?

  MR. SKINNER Yes, sir. I did . . .

  MR. WOOTTON Where did that take place?

  MR. SKINNER At the Sinclair service station on 800 North in Orem.

  MR. WOOTTON When you got there did you observe the body of Max Jensen?

  MR. SKINNER Yes, sir. I did.

  MR. WOOTTON Would you describe where it was, sir, and how it was lying as you observed it?

  MR. SNYDER Your Honor, I'm going to object.

  THE COURT Objection sustained.

  MR. WOOTTON Did you observe any injuries about the body?

  MR. SNYDER Objection, Your Honor.

  THE COURT Objection sustained.

  MR. WOOTTON Do you know whether it was a homicide?

  MR. SNYDER I'd make the same objection, Your Honor.

  THE COURT He may answer.

  MR. SKINNER Yes, sir.

  MR. WOOTTON How do you know?

  MR. SNYDER Your Honor, I'm going to object to any testimony beyond that point.

  THE COURT I think that is so. If he knows it's a homicide. He said yes. Proceed.

  MR. WOOTTON Mr. Skinner, did you cause anybody to be arrested in connection with that incident?

  MR. SKINNER Yes, sir.

  MR. SNYDER Your Honor, I'm going to object to that.

  THE COURT He may answer.

  MR. WOOTTON Who did you arrest?

  MR. SKINNER Gary Gilmore.

  MR. SNYDER No questions.

  THE COURT No questions? Very well, you may step down.

  MR. WOOTTON Call Brenda Nicol.

  Brenda was in misery. She had asked Noall Wootton not to call her. He had, he said, a subpoena for her, and she better get her ass down to Court. So she came, and all the while she was testifying, Gary glared at her. He gave the Kerby look that made your blood clabber on the spot. If a look in somebody's eyes could kill you, then you had just been killed. Wiped you out like an electric shock.

  "Oh, Gary," said Brenda in her heart, "don't be so angry with me. My testimony means nothing," and once again she told how Gary had asked her to call his mother. "Gary, she's going to be upset," she testified to saying, "Your mother's going to ask me, are these charges true?" And she told
how Gary had said, "Tell her that it's true," and once again Esplin got her to agree, even as she had agreed in the Preliminary Hearing, that she couldn't be certain whether Gary meant it was true that he committed murder, or true that he was charged with murder. All the while she felt Gary glaring at her as if this mild testimony, which wasn't going to move things one way or the other, was the most heinous crime she could ever have committed.

  She was also worrying what Nicole might do if Gary got angry enough to sic her on. To please Gary, there was nothing at which Nicole would stop, Brenda had come to believe.

  Wootton rested the case for the State. John Woods now testified for Gary.

  MR. SNYDER If you had an individual who was a psychopathic personality, would that person have the same capacity to appreciate the wrongfulness of conduct . . . as a quote-unquote "normal person" would have? . . .

  DR. WOODS He would have the capacity but would most likely not choose to.

  MR. SNYDER And if you added at that point alcohol and medication such as Fiorinal, would that increase or decrease this person's capacity to appreciate and to understand the wrongfulness of his conduct?

  DR. WOODS Hypothetically, it would impair his judgment and would loosen the controls on a person that already has very poor control of himself . . .

  MR. SNYDER Dr. Woods, did the defendant relate to you any childhood experiences which were particularly considered in the course of your evaluation?