The Executioner's Song

  Ron knew he didn't want to talk to Gary now. Nor did Moody. A sense of death had come into the visitors' room. It had been there before, but it gave everyone strength. Now it was as if it came creeping like smoke beneath the door. It was getting late. Things had quieted. The record player was not going, and Vern had gone to sleep. Dick and Evelyn Gray were snoozing. Ron went to the kitchen to talk to the guards. It was then that Gary came over to Bob.

  "You wouldn't change clothes with me, would you?" he said, and Bob answered, "No, I wouldn't." Gary began to describe how he could get out, if Bob would just give him the clothes. The guards were paying no attention. He could walk through those twin gates as Bob Moody, be out the door of Maximum and over that barbed-wire fence faster than you could ever believe. He would just climb up the wire, then do a forward roll over the roll of barbed wire at the top, pick up a hole or two in his skin, nothing, and be running, man.

  They would not find him. It was a somber moment. "I know," said Gary, "that I can get out of here if you will do it." Bob just had to get his clothing from the locker and put it over in the corner. If Bob wanted, it would also help if he took Gary's crazy Robin Hood hat and wore it for a while. That would be about all a sleepy guard would look for in the way of Gary Gilmore. "No," said Bob Moody, "I can't do it, Gary, and I won't do it."

  Cline Campbell had been in and out all night so he saw the change in mood. For the first couple of hours you would have thought it was Christmas morning. But Campbell had to leave by 7:30 that evening to give a lecture in Salt Lake, and didn't get back until close to midnight. By then it had all changed. Earlier, a guard had been sitting at the head of a cot, Gilmore in the middle, and Campbell at the foot. In the middle of talking away about nothing at all, Gilmore reached under the pillow and came up with a sample bottle of whiskey. "Oops," said Campbell and looked away. "I see no evil, hear no evil, speak no evil. But have at it, partner, just have at it." Gilmore laughed. That was earlier.

  After the speaking engagement, Campbell rushed back to the prison without stopping to eat, and discovered everybody had gone through the pizza. There was none left. He and Gilmore were the only two with empty bellies. When they were alone, Campbell said, "it looks like this time will be it,"

  "It'll go through," said Gary. "They can't stop it now."

  "You know," said Campbell, "we're to meet again. It will be the same for you and me, no matter what's on the other side." They were in Lieutenant Fagan's office and Gary was still wearing the hat with a feather that looked like it belonged to Chico Marx. "It doesn't matter," said Campbell, "whether what you feel, religiously, is right, or what I feel, either way, we're going to see each other again. In whatever form, Gary, I want you to know I think you're a good guy." It was awful, thought Campbell, the more time he spent with Gilmore the less he was able to remind himself that Gary was a man capable of murder. In fact, by now, most of the time, Gilmore looked not at all capable of that, at least not compared to most of the faces Cline Campbell saw every day in uniform and out.

  Father Meersman said to Moody and Stanger that he had this advantage over almost everybody else that he'd been through two other executions. He explained to them how he succeeded in convincing the Warden and his staff that it was necessary to walk through the procedure on this night for every step ought to be taken equal to those steps which would be taken in the morning when the real execution took place, and they had done that. Some of the prison officials had agreed to a dry run and taken the steps so that it would be calm and dignified when they all participated. They had gone through the whole thing and somebody had a stopwatch and timed it, and that was a normal thing to do for such an important procedure. It was important to have a run-through of the whole mechanics of the execution.

  Chapter 32

  THE ANGELS AND THE DEMONS MEET THE DEVILS AND THE SAINTS

  More than twelve hours earlier, before noon that Sunday, Earl Dorius had received a phone call from Michael Rodak that Gil Athay was seeking a Stay. A little more than an hour later, Rodak called again.

  Justice White had denied Athay's application. When no further word came from Washington, Earl felt confident Athay had used up his legal actions, and therefore went with his wife and children to her parents' house, and relaxed for the first time that day. Returning home, however, early in the evening, there was a phone call from Bob Hansen to say that Jinks Dabney wanted a hearing that night on a taxpayers' lawsuit. It would be in Ritter's Court.

  Nonetheless, Earl's initial reaction was not one of great alarm. Dabney couldn't show that any Federal tax monies at all were being spent on the execution. The whole thing had the dank smell of a last-ditch attempt.

  When Dorius and Bill Barrett walked into the lobby of the Newhouse Hotel Jinks Dabney was already there with his co-counsel, Judith Wolbach. Bob Hansen was present, and Bill Evans, and Dave Schwendiman, plus the bellcap. That was it. They sat around in the nineteenth-century decor of the Newhouse's lobby, real elegant Wild West. Halfway between a palace and a brothel. There was overstuffed furniture in bright red velvet, and red rugs and a double white stairway that fanned out in two half circles before coming together at the mezzanine level, a large and formal room, a little shabby now, but the hotel was famous for being the lair of Judge Ritter. After a couple of hours, however, it was no great place to wait.

  Ritter was up in his room and he must have known the ACLU and the Attorney General were downstairs, but no further word was coming. Bob Hansen, thinking what to do if Ritter gave the Stay, called Judge Lewis. As a member of the Tenth Circuit Court, he would be a tier above Ritter, and could override him. Hansen asked if the Judge would convene a special hearing later that evening in Salt Lake.

  Judge Lewis, however, said he would not hold such a hearing by himself. It was too great a responsibility for one Federal Judge to overrule another, especially when you were sending a man to death by such a decision.

  By nine o'clock, Dabney got up his nerve, and told the desk clerk to inform Judge Ritter once more that they were there, and he was sending his legal documents upstairs. In less time than Dabney expected, Judge Ritter telephoned down that everyone was to go across the street to the courtroom. A security guard would let them in.

  There was nothing rousing in the way Dabney gave Hansen this news. Originally from Virginia, his name was V. (for Virginius) Jinks Dabney, a bland-looking fellow with horn-rimmed glasses, who wore seersuckers in summer and tweed jackets in winter. He had a perky, remote way of speaking as if he might know you for ten years but that was no reason to raise his voice. It was obvious he downplayed drama. Did it so well, he could make his lack of it dramatic. All the same, when Earl heard the news, he had a dramatic reaction—a sure feeling the case was lost. He had honestly supposed Judge Ritter wouldn't even consider it. The legal arguments were so thin, and the thing had been submitted so late. Then his gloom increased with the knowledge that Bob Hansen wouldn't even be with them. Thought it would literally hurt their chances if his face was seen in Court. So, Bob left. He was going to get some sleep. That depressed Earl further. Bob sounded like he expected to be needing that sleep later!

  It was spooky going down the halls of the courthouse in the dark, with just a few maintenance lights on, but by the time the lawyers had settled at their tables, a number of crime reporters started filtering in. Everybody was beginning to feel more serious by the moment. Then began a long wait for Ritter.

  At the table for the Assistant Attorney Generals, which in this case was the defendant's table, Earl sat watching Jinks Dabney and Judith Wolbach on the plaintiff's side. Earl was trying to quiet his temper, and reminded himself of the time he had failed to cross-examine Schiller properly. No matter, he was furious. It was outright unfair of the ACLU, he felt, to wait until now to go to Court. He didn't mind that their case was weak. It was ethical to bring in anything that was remotely plausible. You could try, even if 99 percent of the facts and the law were against you, but it was unfair to wait till the night before an exec
ution. What if Earl's office had not devoted good working hours to troubleshooting these issues? Without such foresight, the ACLU would have caught them unprepared. That would have been unfair to the State of Utah.

  Over at the plaintiff's table, Judy Wolbach was also feeling pretty mad. Jinks Dabney was a good courtroom attorney, but she herself had little experience in cases of this sort, and she was pissed off at her own ACLU. Why, in a major case like this, could they only come up with herself, unqualified, and with Jinks, only partially willing?

  He was an awfully good lawyer, but not exactly an enthusiastic adherent of the ACLU. Jinks had a promising career ahead in Salt Lake, and it didn't help a rising young legal talent to be known among all these gung-ho Mormons as a civil liberties advocate.

  Where were all the big ACLU boys from the big firms in the East who were supposed to contribute their massive liberal expertise? She couldn't comprehend it. A case as big and interesting as this, being left to the local talent.

  Judy had tried every trick she knew, including the release she gave to the newspapers of her conversation with Melvin Belli to throw a scare into Bob Hansen. It could be disastrous for the Attorney General if Utah lost a few million bucks because of him. All she had gotten for her pains, however, was a truly weird and pompous response. Hansen said there was no question as to the constitutionality of Utah's death penalty statutes. No question? Why, only an idiot Legislature could pass a statute that didn't insist on an appeal for the death penalty. The whole idea, even among conservatives, was to be cautious about capital punishment. Nobody wanted bloodbaths anymore.

  Even from a conservative point of view, the best way to obtain your capital punishment was by emphasizing every safeguard against killing a man for too little. Yet, Utah—good old Utah—had neglected to make the appeal mandatory. What could be more defective, an idiot child?

  All the same, this taxpayers' action was awfully hokey for a suit, Judith thought. The only good thing about it was the letters she'd been able to send to the Governor, the Lieutenant Governor, the Attorney General, and the Warden! All accused of wrongful acts and unlawful expenditures. She wished she could have seen their faces.

  Those letters had been delivered by her own daughter, who, bless her heart, maybe because of the Jewish blood of her father, was a very politically conscious young lady, and had been upset when she discovered her mother was practicing law to make money. Thought that was wrong. One should not worry about money. One should just go ahead and file political suits. Bless her heart, Judy Wolbach thought. Thank God she feels that way. Still, the measure of how picayune were ACLU resources was that Judy might not have gotten those letters out to any defendants this Sunday without her daughter to serve as runner.

  While he was waiting, Jinks Dabney began to think of stories he had heard about Judge Ritter. According to the gossip that came back to him from people who knew the Judge well, Ritter regarded himself as an outpost of good sense in a desert of craziness. The accusation that he was carrying on a vendetta against the Latter-Day Saints wasn't true, he would say. He didn't regard Mormons as worthy of a vendetta. While born a Catholic, and now a subscriber to no religion but the U.S. Constitution, the Judge had no patience with any desire to sway people's minds through religious doctrine. Still, he actively disliked the manner in which the Mormon Church owned the land, ran the banks, and controlled the politicians. That offended him more than their religious doctrine. That he merely considered silly. All those Joseph Smith miracles. On the other hand, he would never decide against them just because they were Mormons. Liked to think he had too profound a respect for the facts in a case.

  Ritter's attitude toward incompetence among lawyers, however, was enough to put fear into the stomach of many a good member of the bar, Mormon or not. One time he became disgusted with the job a lawyer was doing and asked how much he had charged his client.

  When Ritter heard it was $500, he said, "That will be the fine." To the client, he said, "You have already paid your fine. Don't give your counsel another penny." The poor lawyer wanted to crawl under the desk. Another advocate kept speaking in so low a voice that Ritter asked him, "Why are you whispering?" The fellow answered, "Because I'm scared." A veteran trial lawyer would go into Judge Ritter's courtroom the way common mortals went to the dentist, but then Ritter had a mind that could see where arguments were leading faster than a dentist could locate decay. He gave hell to people who wasted his time. You not only had to do a good job, but do it quickly.

  That impatience, even Ritter's defenders would say, got the old Judge in a lot of trouble. Once a legal matter became clear, he was going to make his judgment. Just would not plod through the production of a long careful opinion with fifty or one hundred citations. Then the Tenth Circuit would complain that the record was not complete, and reverse him. Later, the Supreme Court would affirm him. His affirmance rate with the U.S. Supreme Court was exactly the opposite of his reversal rate with the Circuit Court. "They're just too stupid to see I'm right," he would say of the Tenth Circuit.

  Of course, this contempt for Judges he considered unintelligent closed Ritter off from recognizing that the party for whom he had found was the one hurt the most by the reversal. By the time the Supreme Court affirmed Ritter two or three years later, it was often too late to do the original fellow any good.

  Some of these stories were legend in Salt Lake law courts. But Dabney also had talked to people who knew Ritter well enough to tell you about the Judge's personal life, where the legends were not true. Ritter, actually, led a lonely life. Most days, he only crossed the street from his rooms at the Newhouse Hotel to his chambers at the Court. He had the reputation of being a drinker and a womanizer, and maybe he had been some of that in the old days when he taught at the law school, but nobody had seen him in recent years with a woman, and he rarely drank. It had been said for years that the best bar in town was Judge Ritter's chambers, and it was true that Willis Ritter had some nice things located under his desk, and there were times when he might invite a lawyer to have a glass with him, but he was hardly an alcoholic. It had been years since the doctors had told him he couldn't drink much, and he didn't. In fact, nobody, when you got down to it, had seen him drunk in years. Once on a trip to San Francisco, Craig Smay, his law clerk, had gone to some pains to find a bottle of Ritter's favorite Scotch, Glen Livet, but the bottle sat under the desk for six months, and Ritter finally gave it back to Smay unopened.

  Couldn't drink it. His health forbade. He would get heart attacks, or have to go into surgery every three or four months, yet for all that he'd be back on the bench two weeks later looking like an old Olympic athlete, white hair, ruddy face. You couldn't believe the man's capacity to recuperate.

  Yet always a lonely man. He had for friends only a few lawyers he'd known for years, and a few old reporters. Ever since the Mormons had raised those accusations against him back in Harry Truman's administration, Ritter had stayed away from everyone. The only time anyone had ever seen him with a number of people was one year on Christmas Eve when Ritter insisted Craig Smay and his wife come to dinner. When they got to the hotel, a room had been rented, and inside were twenty-five people around a big table, older people with their sons and daughters and grandchildren. Everybody was calling him Bill. They were friends from the time he'd been a boy. Up to that moment, Craig Smay never thought of the Judge as one of those human beings who naturally have a first name.

  Given the length of this wait, it was better to remember only those tales about Ritter that could warm you. So Dabney was trying to savor the story about Ritter and the wild mustangs. Some Indians had sued the Federal government for rounding up a few hundred mustangs on their reservation and sending them off to the stockyards. Ritter had given the Indians $200 a horse. The government appealed and Ritter was overturned, but the case came back to him.

  In the next trial, one of the tribal chieftains testified that the horses were ceremonial ponies. On that basis, the Judge decided they were each worth $40
0.

  Ritter later confided to a few friends that the evidence which caused him to think the government ought to pay, and pay well, was that the horses had been packed into a truck with open boards, and one mustang's leg was sticking through the slats. The people who were doing the job could have opened a door to extricate the horse, but that would have been a lot of work, so somebody just took a chain saw and cut the horse's leg off. Those animals were going for dog food anyway. Ritter said, "This shows the cavalier attitude of the government toward our horses."

  What Ritter gave you, Dabney told himself now, was excitement. After leaving his courtroom, you could say to yourself, "There isn't another Bench like this in the whole country." Whether you won or lost didn't have to be so important as that you had a hell of an experience.

  Why, Judge Learned Hand had written that Willis Ritter possessed one of the finest minds he had ever known on the Bench. That was what you had to count on.

  Considering it was well after ten o'clock on Sunday night, Earl thought Judge Ritter looked surprisingly spry when he finally showed up in Court. Judy Wolbach was impressed with his God-like voice.

  Ritter said no more than "The papers appear to be in order. I'll hear you," but she fell in love. A slow, deep voice with a lot of resonance.

  Such a plump, nice, stern-looking man. He would make a good Lord for the flood, if God was close to eighty.

  Gil Athay happened to be in Court, Judy noticed, and some of the top liberal lawyers in town like Richard Giauque and Danny Berman, his partner, about as Salt Lake Establishment as you could get, if you were also a liberal. Jinks, with them for an audience, would be off to a good start. He loved trial work, and under this kind of pressure, didn't falter a bit. Began with a dry, perfect presentation, exactly the reason he was a successful attorney. If she had been up there, Judy thought, she would have wasted time carrying on about how Attorney General Hansen didn't even have the nerve to appear, which probably would have been a mistake. Instead, Jinks went right into his argument.