The Executioner's Song

  The problem, which you could not explain to a newspaper man too easily or to a Judge either—not if it was Judge Ritter—was that tension in the prison often resulted from attention being focused on one inmate. He could get to be like a baseball star who wouldn't obey his manager. The risk of media exposure went deeper than Gilmore being able to shoot off his mouth—the risk was in the reaction of other inmates. Anytime a convict became bigger than the prison, it had to create disciplinary episodes all over the place.

  On December 1st, Earl sent off his petition for a Writ of Mandamus to the Tenth Circuit Court in Denver. Earl pointed out that Judge Ritter had made extensive findings of fact in the Tribune case when no evidence had been taken. Same morning he received a phone call from Leroy Axland, representing ABC News. Axland was going to file a suit in State Court tomorrow for a temporary restraining order like the Tribune's, so ABC could also interview Gilmore.

  Next morning, the Deseret News joined ABC in the action and Robert Moody appeared for Gary Gilmore. Even Larry Schiller was present. Plenty of legal power against Earl that day. He wasn't happy with his performance.

  Earl's largest weakness, in his own eyes, stood out again. He started to cross-examine Lawrence Schiller, but got so mad that he could not keep composed. Schiller, right on the heels of having sneaked into the prison as a phony consultant, now had the gall to say on the stand that he had interviewed many inmates in many prisons and had always complied with the rules and regulations of the place. Earl knew he should walk the witness through a calm cross-examination, but became so angry he began to lead his own argument. With a little skill, he might have led Schiller to admit to stretching the rules at Utah State but got so angry, at thinking of how on the prison's side, there was all this sincerity and on his opponent's side blatant cynicism for the rights of others, that he started to harangue the man, and the Judge, Marcellus Snow, cut him off.

  Earl was not surprised, therefore, when Judge Snow granted the restraining order. A TV interview with Gilmore would be conducted that evening.

  MOODY Okay. We've been in Court all day with Schiller, ABC-TV, and numerous attorneys. Judge Snow is signing an order permitting the press to interview tonight. Larry took the stand as a witness, and I think he's the one that convinced the Judge to let him go ahead.

  GILMORE Well, I imagine that the guy would do a pretty good job anywhere. He knows how to talk to anybody. What time we do it?

  MOODY Beginning at nine.

  GILMORE I hope it ain't any later than that. Man, I get tired and like I wake up at five in the morning . . . When you talk to some syndicate like ABC you got to be at your best . . . Does Larry sit in a position that he can give me signals? If he doesn't want me to answer the question, just rub his chin, that's cool.

  As soon as Earl got back from Judge Snow's court, he started writing another Mandamus. To his pleasure, when he looked up the State law, procedures were the same as for Federal. All he had to do was paper-doll the documents he'd written for Denver and put in new names. He had his secretary type it through lunch hour, and was ready to file appeal by early afternoon.

  He went upstairs to the Utah Supreme Court Clerk, and told Chief Justice Henriod that Judge Snow's order might not be ready until late afternoon and so if the Court didn't stay open past five, there would be no way to stop reporters from getting interviews with Gilmore tonight. It was not normal procedure, but Judge Henriod indicated he'd keep things going. Dorius said, "I'll run from Judge Snow's Court as fast as I can."

  He did. But first he was obliged to go over a few other hurdles.

  Judge Snow's proposed order had been drafted by the news media lawyers and while Earl was arguing over a couple of their points, the Court Clerk handed him a note. Damn if the Tenth Circuit wasn't going to hear the Writ of Mandamus against Ritter tomorrow afternoon. Earl would have to make an appearance in Denver just when everything would be argued here.

  On top of that, comes 4 P.M. Judge Snow decided to move the proceedings over to a big media room where he could broadcast his decision. That began to use up the clock. Finally, Dorius said to himself, "The Judge has signed the order, whether he had handed it out or not." He told an assistant to grab a signed copy as soon as he could, and Earl sprinted up the Hill to Utah Supreme Court.

  Three Justices were sitting and they read his document, and granted a temporary Stay for this evening. The Mandamus, they said, could be argued tomorrow. That would stop TV from interviewing Gilmore tonight.

  The corridors of the floor of the State Capitol Building were beginning to look like a political convention. Nothing but microphones, marble walls, TV lights. Earl gave a couple of interviews, then rushed downstairs to the Attorney General's office to start educating a couple of his fellow attorneys into what had to be done in Utah Supreme Court tomorrow. He had been handling all this material up to now.

  That evening, at home, Dorius reminded himself that Gilmore's execution was probably only four days off. The sixth of December. If they could just keep the press out another four more days, the prison would be able to make its point. Reporters didn't go barging into a bank president's office to say, "Tell us what you know." But they couldn't comprehend that a Warden might have the same interest in decorum.

  Sam Smith called right on these thoughts to say that he appreciated the work Earl had done with force-feeding, but was going to wait awhile. Gilmore, at the moment, seemed in no danger of dying. In fact, fasting made him more feisty. He was throwing back his food trays at the guards. It was reassuring, therefore, Sam Smith said, to know they could force-feed if and when they had to. Wasn't a pleasant prospect to execute a man who hadn't had a meal in two weeks.

  Earl went to sleep thinking that he would have to argue tomorrow against Donald Holbrook. The lawyer was a close friend of Earl's family, and had even bought his parents' house. He supposed that if there was any individual he idolized in his profession, it was Holbrook, who had a tremendous reputation in Salt Lake. Earl hoped he'd be worthy of the confrontation.

  Next morning Earl got a phone call from his office. The largest kind of news. The United States Supreme Court had just put a Stay on Gary's execution. It seemed Gilmore's mother had filed a petition through Richard Giauque, and they were asking the Court to grant Certiorari. Mulling it over on the airplane, Earl didn't know if he was ready for this large a new development. The burden of working twelve and fourteen hours a day had certainly caught up. It annoyed him, for instance, that Holbrook was sitting in first class, and had plenty of room to spread out his legal documents, while Earl, a government servant, was jammed back in economy in these narrow seats. All the while he was trying to get his mind off the U.S. Supreme Court and onto today's work in Denver.

  For that matter, the atmosphere in Tenth Circuit Court was awesome enough, but after a while Earl calmed down. He could see that no conclusion would be reached in Denver this day, since the Tribune was claiming favoritism had been shown to Schiller and Boaz by the prison. Earl thought that was a big mistake for the other side. It called for fact-finding which meant delay. Besides, Schiller had gotten in by misrepresenting himself to the guards, so the affidavits when gathered would weaken the newspaper's case. Earl flew back to Salt Lake feeling fairly good, but wondering how well he could take on the prodigious work to be done this weekend for the U.S. Supreme Court pleas. He would have to rally some very tired energies.

  When he got in, he found out, however, that Bill Barrett had been assigned. Earl should just take a rest, he was told. He had earned it.

  Well, Dorius knew he needed the time off. What with the eighty-hour weeks he had been putting in, he was not in shape to tackle a brief of this dimension. All the same, he felt like he'd been left on a siding.

  The real momentous Supreme Court stuff would go roaring by.

  STANGER Gary, have you seen the petition for the Stay of Execution that has been filed by your mother?

  GILMORE I heard about it on the radio.

  STANGER The attorney is Richa
rd Giauque. Remember that blond-haired guy from the ACLU who represented all the ministers and rabbis? Do you have any idea how he got to your mother?

  GILMORE I don't know. I'd like to talk to my mother. Anything further on me getting to talk with Nicole?

  STANGER Yes. The hospital director, Kiger, called back about two hours ago. You've got his back up so tight, he won't move at all. What do you think about bringing some public pressure on him?

  GILMORE I think it's a damn good idea. That's why I haven't been eating. I was hoping that the hospital would be besieged with public pressure.

  STANGER Yes.

  GILMORE I'd like to shoot Kiger.

  STANGER He's kind of weird.

  GILMORE Well, all them doctors are weird. You ever met a psychiatrist who had all his marbles?

  STANGER God, he's crazier than those he treats.

  GILMORE You know I spent $160 today on canned foods and all kinds of different snacks and stuff like that and I have them locked in the cell next to me and as soon as I get my phone call to Nicole I'm going to have them open that cell. I've got a can opener and I'm going to have at it. Now, I'm a pretty hungry son of a gun and if you can do anything to facilitate that phone call . . . I'll accept whatever restrictions they want to put on it. But it's got to be a conversation, not a tape recording, and, uh, then I can go eat my food.

  Chapter 13

  BIRTHDAY

  Two nights earlier, Schiller had arranged to meet Dave Johnston at the Salt Lake Airport. He wanted somebody besides himself to work on questions for Gilmore. Since Dave had been of help earlier in November, and then had done an agreeable piece for the L.A. Times, Schiller felt he might be the one available top-notch professional who was sympathetic to his purposes. Tonight, Johnston was coming in from San Francisco for the hearing next day where Schiller would appear, but for now he greeted Schiller with a big grin, and a list of the new questions in his hand.

  Talking on the cab ride to the Hilton, it was obvious Johnston knew a lot about Salt Lake, so much in fact that Schiller was curious where Dave, who came from Michigan, and was now writing for a Los Angeles paper, got all this knowledge about Latter-Day Saints.

  But Johnston just gave a tough genial smile and said, "I'm a Mormon myself." It didn't surprise Schiller completely. He had already taken a peek at the questions, and one of them certainly stood out. "Do you fear what a reincarnated Benny Bushnell may do to you?" That might be a heavy Mormon concept. It stimulated Schiller to write the subsidiary question, "What do you believe will happen to you after death?"

  Later that night, alone in his room, Schiller began to think of criticism he had run into a few years ago after making his film with Dennis Hopper, The American Dreamer. That had been a study of Hopper's life, and the underground papers plus the Village Voice and Rolling Stone were all at the press showing. Rolling Stone even gave four full pages to the article. Their critic said the film was very good, but added that producer-director Schiller didn't understand an important side of Hopper. "Schiller went absolutely blank on Dennis Hopper's more mystical ideas."

  What Larry called the Dennis Hopper light now went on in his head. Schiller didn't believe in heaven or hell, didn't think about it particularly. If you died, your soul, so to speak, ceased to function. He had an occasional moment when he thought about death, but didn't see himself going any place afterward. So, as he reread Johnston's questions, he kept saying, "There is a whole side of Gary Gilmore involving life after death. The guy really believes in it." Schiller shook his head. A whole other side of the coin. For the first time it hit him that Gilmore might want to go all the way. Up to then he had assumed Gilmore would accept his execution because he was a proud con trapped in a role. Now he understood that Gary might expect to find something on the other side. Not only willing to gamble on it, but gamble everything. It must be, Schiller thought, the way he sometimes felt shooting craps when he knew he was coming up with a seven. Yes, Schiller decided, that was close to feeling like Gilmore.

  Sometimes, just before rolling, he could see the seven on the cloth.

  But this kind of thinking left Schiller disturbed. He preferred not to deal with ideas too far out of his own domain. It might be that he would need help. The thought came to him of hiring Barry Farrell, and he put it off for further reflection. Time enough to decide when he saw how Barry had written about him in New West.

  Next day, after Court, Schiller heard the first tape Moody and Stanger had done with Gary. He was not encouraged. Moody and Stanger looked like they were developing a rapport with their client, but it might have nothing to do with journalism. Just legal discussions, and man-to-man jokes. Not in a rush to touch charged subjects.

  So Schiller decided not to insert Dave Johnston's ten questions and his own twenty or more into the lawyers' next interview with Gary, but instead would ask for handwritten replies. On the basis of those few letters to Nicole printed in the Deseret News, Schiller thought Gilmore took pains in his writing.

  WHY DID YOU KILL JENSEN AND BUSHNELL?

  There is so much similarity between Jenkins and Bushnell: both mid 20's in age, both family men, both Mormon missionaries. Perhaps the murders of these men were meant to occur.

  To answer your question:

  I killed Jenkins and Bushnell because I did not want to kill Nicole.

  WAS BUSHNELL A COWARD? WHAT DID HE SAY?

  No, I wouldn't say Mr. Bushnell was a coward. He did not seem a coward. I remember he was anxious to comply. But I don't remember anything he said except he asked me to be quiet and not alert his wife who was in the next room.

  He was calm, even brave.

  DO YOU WISH YOU HAD NOT KILLED BUSHNELL?

  Yes.

  Wish I hadn't killed Jenkins, too.

  DID JENSEN RESIST AND DID JENSEN SHOW FEAR?

  Jenkins did not resist.

  He did not show undue fear.

  I was struck by his friendly, smiling, kind face.

  DID JENSEN AND BUSHNELL DIE LIKE MEN? LIKE YOU WANT TO DO?

  They showed no more fear than you'd expect from a man being robbed.

  I'm almost certain they didn't know they were going to die until it was done.

  DO YOU RECALL ANY FILMS OR NEWS REELS IN WHICH YOU'VE SEEN MEN DIE BEFORE A FIRING SQUAD?

  Private Slovak—

  Sure said a lot of Hail Marys, didn't he?

  IF YOU HAD A CHOICE, WOULD YOUR EXECUTION BE ON TELEVISION?

  No.

  Too macabre.

  Would you like your death televised?

  At the same time, I really don't give a shit.

  WHAT DO YOU BELIEVE WILL HAPPEN TO YOU AFTER DEATH?

  I could speculate, but I don't know—if the knowledge of death is within me, as I believe it is, I can't consciously bring it to the surface.

  I just think it will be familiar . . . I must keep my mind singular and strong—In death you can choose in a way that you can't choose in life. The biggest mistake you could make when you die is to be afraid.

  DO YOU FEAR WHAT A REINCARNATED BENNY BUSHNELL MAY DO TO YOU?

  I have pondered that—But I don't fear it. Fuck fear. I may meet Bushnell if I do, I will never avoid him. I recognize his rights.

  WHY DID YOU KILL, AND COULD YOU HAVE STOPPED YOURSELF FROM KILLING IF YOU WANTED?

  I never felt so terrible as I did in that week before I was arrested.

  l had lost Nicole. It hurt so fucking bad that it was becoming physical—I mean I couldn't hardly walk, I couldn't sleep I didn't hardly eat. I couldn't drown it. Booze didn't even dull it. A heavy hurt and loss. It got worse every day. I could feel it in my heart . . . I could feel the ache in my bones. I had to go on automatic to get thru the day.

  And it grew into a calm rage.

  And I opened the gate and let it out.

  But it wasn't enough.

  It would have gone on and on.

  More Jenkins, more Bushnells.

  Lord . . .

  It didn't make any sense??
?

  Gary said over the phone to Vern, "Some of this is getting too damned personal."

  Vern replied, "If you don't want to answer, just tell him. He's not going to twist your arm."

  "Yeah, I know," Gary said, "but I still don't like the questions."

  "Say," said Stanger, reading the replies. "It's Jensen, not Jenkins."

  "Did I say Jenkins? Dammit," said Gary, "I hate getting his name wrong."

  "That's fantastic stuff," said Stanger when he brought the answers to Schiller. "Don't you think?"

  "I'm not so sure," said Schiller. "He's still giving it off the top."

  The last answer had been interesting, but many of the others were flat.

  HOW DID YOU FEEL WHEN YOU GOT YOUR SENTENCE? WAS IT FAIR?

  I probably felt less than anyone in the courtroom.

  HOW WOULD YOU DESCRIBE YOUR PERSONALITY?

  Slightly less than bland.

  YOUR GREATEST ACCOMPLISHMENT?

  He had not answered that one. Blank space was there to look back at Schiller. Gilmore was still selling himself as a tough con, heartless, no weakness. Shooting down targets. Schiller wanted to get beyond these cold con answers. It wasn't much warmth to find in a man on his birthday.

  DESERET NEWS

  Utah Slayer, Now 36, Still Wants to Die

  Point of the Mountain, Dec. 4—Condemned killer, Gary Mark Gilmore, still professing his wish to die, observed his 36th birthday in the Utah State Prison today.