The Executioner's Song

  Dabney had tried two jury trials in front of Ritter and been in his Court twenty-five or thirty times. Maybe it was the legends, but you never got over the anxiety that you might run into one of Ritter's sore spots. He could rule against you right then. Given the Judge's love of dispatch, Dabney knew he was taking a chance in talking a lot tonight, but in variety lay the strength of his frail case.

  "Your Honor," Dabney began, "we have attempted to obtain justice in virtually every Court in this country, and this is the final effort to stop what we consider to be a clear unconstitutional exercise by the State of Utah to execute a man before the death penalty statute has been examined by either the Utah Supreme Court or the Supreme Court of the United States . . ."

  Dabney did not have his argument written out. What he had to say was placed in five piles of paper. Once he got going, he could reach for a group of notes, and explore their points, but first he had to summarize the complaint. Since it was a taxpayers' lawsuit, his argument had to be that public funds were being spent "unlawfully." So now he said that if the Utah statute was found unconstitutional the State could yet be found liable.

  Having completed his introduction, Dabney decided to add a ghost claim, not present in his brief. "It has recently," he said, "come to our knowledge that Mr. Gilmore might consider fighting for his life, if Nicole Barrett were to indicate to him that he ought to do so." Since the only way this knowledge had come was through discussion with a few other ACLU attorneys, plus a quick unprofitable talk with Stanger, Dabney added quickly, "We are not positive that we really have a basis upon which we can ask for this relief, but if Mr. Gilmore is of that particular state of mind, we ought to allow him to have some kind of access to Miss Barrett in the presence of her attorney or court-appointed psychiatrist, to determine whether he would change his position. It seems to me that's a very small request considering that we're confronted with the execution of a man."

  Dabney threw it in because it sounded good. It could have the effect of moving the Judge's stomach over a little nearer to ruling in the ACLU's favor. Often, to win a case like this, you not only had to give a Judge good legal reasons to satisfy his mind, but also something that appealed to his gut. Dabney would soon give his argument why Utah's death statute was not valid, and Ritter might decide the ACLU was right, yet still say, "Gary Gilmore wants to die, so what the hell?" If, however, you could suggest that Gilmore could change his mind about dying, and all it would take was one meeting with Nicole!—well, Dabney thought that might appeal to Ritter.

  Now, the lawyer went into the legal merits. The Utah statute, he said, had no mandatory review. That removed a vital precaution. You had to appeal a death sentence, regardless of a defendant's wishes. How else could you protect other defendants in later cases? The original Judge might have made some serious legal error that could be repeated.

  Dabney next brought in the Constitution. Everyone knew that Judge Ritter had been keeping a tattered copy in his desk since law school days fifty years ago. So Jinks remarked that the Eighth and Fourteenth amendments were going to be violated by this case. They had a requirement that the death penalty not be "capricious or arbitrary."

  Earl Dorius was certainly going to quote the majority opinion of the Supreme Court in the Bessie Gilmore case. Dabney, therefore, did it himself: "Gary Gilmore, knowingly and intelligently, with full knowledge of his right to seek an appeal in the Utah Supreme Court, has waived that right," Dabney read aloud. These words, he said, meant that Gilmore had a right to appeal and chose not to use it. But one had to keep in mind that the question of mandatory review had not been brought before the Court. Indeed, Justice White had even said that Gilmore was not able "to waive the right to state appellate review." Burger had then added: "The question is simply not before us." So the Supreme Court, Dabney argued, had not decided the issue in the Bessie Gilmore case. To the contrary. On the basis of their decisions in Gregg v. Georgia, Proffitt v. Florida, and Jurek v. Texas, the Supreme Court had upheld statutes that called precisely for mandatory appellate review, and, in addition, Collins v. Arkansas and Neal v. Arkansas had been sent back by the Supreme Court for just such lack of mandatory review.

  "Your Honor," Dabney said, "this Court is the last chance for justice to prevail." He had concluded his opening statement.

  Dorius began his reply, They were here in Court because "Federal monies are being expended unlawfully . . . for the purpose of executing Gary Mark Gilmore." However, Earl stated, "We know of no Federal money that has been appropriated specifically for the execution."

  The argument had come to the place where it could be decided at a stroke. Judge Ritter spoke for the first time. "What," he asked, "do you say to that, Mr. Dabney?"

  "If it please the Court, our information is that the Division of Corrections' budget for the fiscal year 1976-1977 contains a Federal grant in the amount of $50,000."

  Dorius replied that this was a general appropriation. "The plaintiffs," he said, "are unable to show that any of these particular monies have been designed for the carrying-out of this execution."

  Dabney was ready to say, "Half a million dollars in Federal funds was given to the Utah Bureau of Prisons. I assume the Utah Bureau of Prisons has something to do with the proposed execution of Gary Gilmore," but when Ritter made no comment, and seemed ready to let them remain in Court, Dabney let it go.

  Earl Dorius would certainly attack the point again, and in reserve, Dabney had an elegant Supreme Court decision to introduce. It could dignify standing in the most dubious taxpayers' suit. Dabney, however, did not want to put it out too early. The decision was more than ten years old, and later Supreme Court decisions had weakened it. Better to save it for the end, so as not to give the other side too much room to chip away.

  Dorius's next argument was that "These issues that are being raised tonight, under the guise of an eleventh-hour appeal, are issues known to these plaintiffs at least two months." There had been a tremendous delay in filing the action. In Gomports v. Chase, a 1971 Supreme Court decision in a school desegregation case, Justice Marshall stated that "under normal circumstances, the injunction would issue," but the case had come in too late. So, Justice Marshall denied it. The ACLU, in submitting this action "just nine hours prior to the execution, is very analogous to the Gomports case. The plaintiffs have sat on their rights too long," said Dorius.

  For the Attorney General's office, it was Bill Evans's turn next. The Supreme Court, he argued, had only insisted on two conditions for death-penalty cases. One was the need for a separate trial and Mitigation Healing. Utah had that. The other requirement was that whoever determined the sentence must be provided with standards for guidance. That element was also in the Utah system. Besides, the Supreme Court had never said that mandatory appeal was the only system to satisfy them.

  Bill Barrett was next. "With this taxpayers' suit, the plaintiff is attempting to stop an execution, not stop the wrongful expenditure of tax dollars. They have not established that they have a good-faith pocketbook action." It was a short point and a strong one. Dabney felt the time had come to produce his special argument.

  "If I may, Your Honor," said Dabney, "Mr. Barrett left out a very significant case when discussing the standing question. That is Flast v. Cohen, a decision of the United States Supreme Court in 1968. In that case, Your Honor, which was a taxpayers' case to prevent the expenditure of certain funds by Congress and the Senate, Mr. Chief Justice Warren wrote that the only basis upon which this particular action was brought was that the plaintiffs were taxpayers of the United States government. Nonetheless, Chief Justice Warren found that there was, in fact, adequate standing." Judge Ritter looked up.

  "Tell me that again," he said.

  Here was the crux, Dabney felt. He would emerge with or without standing. The basis upon which Chief Justice Warren found for the taxpayers, he explained, was "a balancing concept between the amounts of money on the one hand, with the type of legal interest on the other." If you had a taxpayers' suit
where the danger to public rights was not important, but a lot of money was involved, that was a legitimate suit with good standing. "On the other hand, if the legal interest is of extreme importance, then the Court does not have to become so concerned with the financial interest." If low on one side you had to be high on the other. Since the death penalty was the ultimate sentence, it seemed to Dabney that you did not need very much taxpayers' money to have standing. The right was so important that the sum of money could be small.

  After that, Dabney felt stronger. Ritter did not reply, but Dabney felt standing grow underneath his toes. Now he could attack other aspects of the case.

  "They say that Mr. Gilmore had a hearing before the Utah Supreme Court," said Dabney. "The only hearing had there, Your Honor, was questions to Mr. Gilmore: 'Do you want to appeal or not appeal?' And he said, 'I don't want to appeal.' They said, 'Do you know what you're doing?' He said, 'Yes, I do.' And they said, 'All right, we'll dismiss your appeal.' Now that's the hearing they had up there. The fact that Mr. Gilmore doesn't want to take an appeal does not dismiss the Utah Supreme Court from taking it. There must be mandatory, meaningful appellate review, and a twenty-minute hearing before the Utah Supreme Court cannot in any way be so construed. Regardless of what Gilmore wanted, the Utah Supreme Court had to take that case. When they didn't, we couldn't know whether the sentencing of Mr. Gilmore to death was in contravention to the Eighth and Fourteenth amendments of the United States Constitution, as interpreted by the United States Supreme Court. The only way to know if it's capricious or arbitrary is to compare Gilmore's case with every other case on appeal involving the death penalty. The Gilmore case has not been compared with anything. I'm at a loss to understand why the Utah Supreme Court didn't even have a transcript of the trial or the sentencing."

  Evans stood up. "Your Honor, we submit that it is patently illogical for the U.S. Supreme Court to rule that Mr. Gilmore has intelligently and voluntarily waived his right to appeal if, in fact, the Court is of the opinion that he must have an appeal. That is patently illogical. One completely eliminates the other in our opinion."

  Dabney replied: "I think the State of Utah does not really have an appreciation for the question we have raised. We're not concerned with Gary Gilmore's waiver of appeal. The question is whether the State can execute an individual in violation of the Eighth and Fourteenth amendments. Can they do it capriciously or arbitrarily? The only way you examine that question is by comparing all death-penalty cases at the appellate level," but at this point Judge Ritter interrupted. "I think," he said, with the first touch of acerbity in his voice, "I think I understand it." Dabney nodded. He had been given his warning. "With that, Your Honor, I will conclude my arguments and simply indicate that we believe we've established what we think is a good lawsuit. We would simply indicate that this is the last chance we have. We respectfully request the Court to sign an appropriate Temporary Restraining Order staying the execution of Mr. Gilmore. Thank you."

  The State had nothing further and Judge Ritter declared a recess at 11 :39 P.M.

  At first Judith thought they had won. It had been such a good case, and both sides had had a full hearing. No attempt to rush anyone, and no innuendos from the Bench. Judge Ritter had hardly said a word, then he had gone out. The only trouble was that now he stayed out. When he didn't come back in twenty minutes, Judy Wolbach began to worry.

  When he didn't return in an hour, she couldn't understand what was going on. If Ritter was taking this long, he must be ruling against them. After Dabney's fine work, it would be very difficult for Ritter, ethically and morally, she thought, to go along with Gilmore's execution. If the Judge was taking this long, he must be ashamed to come out. Judy began to feel all over again how very weak their case had to be.

  On the other side of the courtroom, Earl Dorius had come to the opposite conclusion. Precisely because the Judge was taking so long. Usually, Ritter didn't write out his opinions. He released them from the Bench. Sometimes, it was a split second after the attorneys had finished. The fact that he was writing an opinion suggested he was trying to put out a paper sufficiently well reasoned to hold up on appeal. Mike Deamer agreed with Earl. He went out to phone Bob Hansen with the prediction they would lose. If so, Hansen told Deamer, they should all go over to the State Capitol Building after the verdict was read.

  It got to be a very long recess. The lawyers mingled with the news reporters. Everyone seemed uneasy. It was sinking in on Earl how extremely fatigued he felt from the last few days. One suit after another, faster than birds flying overhead.

  About this time, fifty miles away, Noall Wootton went to bed. But he could not sleep. In the quiet night of Provo, he lay awake after midnight. Wootton was waiting for 6 A.M. to come and his investigator to pick him up and drive him out to the State Prison to witness the execution.

  Chapter 33

  GILMORE'S LAST TAPE

  About one o'clock in the morning, with everybody half asleep, Gary moved into Lieutenant Fagan's office and got a call out to Larry Schiller at the TraveLodge Motel. Schiller, who had been waiting by the phone, seized it with all the questions of the last month in his throat. "How are you, champ?" were his first words.

  "All right," said Gilmore, "What do you want to ask me. What do you want to know?"

  "I'd like to go over a couple of things."

  "May I tell you something personally?"

  "Yeah, I'd like you to tell me something personally."

  "You offended my brother," said Gary, "and I don't like it."

  "Yeah, I heard that on the tape," Schiller told him.

  "Well, I wanted to tell you personally. I didn't like that."

  Schiller thought, "He doesn't sound that mad. He's really saying, 'Let's get on with it.' "

  Larry cleared his throat. "Okay, I can take it from there, okay?"

  "Go ahead."

  He got to the subject fast. "At this point, Gary, at one in the morning . . ."

  "Pardon," said Gilmore.

  "At one in the morning," Larry continued, reading off a card, "do you think you still have to hide anything about your life?"

  "Like what?"

  "I'm not asking you to tell me what it is, you see? I'm just asking if there's the feeling that you want to hold back something."

  Gilmore sighed. "Do you have anything specific?" he asked.

  "Well, let's say," said Schiller, "did you ever kill anybody besides Jensen and Bushnell?"

  Maybe it was more of his romanticism, but he had the idea that if a man was about to die, he would be ready to reveal himself, and Schiller really wanted to know if Gilmore had ever killed anyone before.

  "Did you?" repeated Schiller.

  "No," said Gilmore.

  "No," repeated Schiller. One more frustration. There was a silence.

  No way to continue. He had to try another line of inquiry.

  "Is there anything about your relationship with your mother or father," he asked, "that is so personal to you, that even at the moment of death you'd rather not talk?" What kind of relationship could a mother have, he was thinking, that she would not come to see her son? Even if she had to arrive by stretcher! Schiller couldn't comprehend it. There had to be some buried animosity—something Gary had done to her, or she to him. If he could only get a clue to that. But nobody got to Bessie Gilmore. Dave Johnston had gone up to Portland on his own for the L.A. Times and couldn't speak to her. When Johnston failed, you had a woman not ready to talk.

  "Goddammit," said Gilmore over the phone, "I'm getting pissed off at that kind of question. I don't give a damn what anybody else has said. I've told you the fucking truth. Man, my mother's a hell of a woman. She has suffered with rheumatoid arthritis for about years and she's never bitched about it at all. Now, does that tell anything?"

  "That tells me a fucking lot, right now," said Schiller hoarsely.

  "My dad got thrown a lot in jail, when we was kids," said more. "He was a rounder. My mother would say, 'Well, he walked out,' and
she let it go at that. She did the very goddamned best could, and man, she was always there, we always had something eat, we always had somebody to tuck us in."

  "Okay," said Schiller, "I believe you."

  "What about your mother?" asked Gilmore.

  "My mother," said Schiller, "was a rough, hard woman. She worked every day. She used to put me in the movies with my brother. We'd watch movies every day while she scrubbed floors for my dad."

  Much of human motivation, he had decided for himself in later years, came from the idea of behavior that movie plots laid into your head.

  When you could make remarks that brought back those movie plots, people acted on them. So the story he told Gilmore was something of a film scene. In actuality, his family had been in financial straits for only a few years, and in that period, his mother had to scrub floors at times, but the idea of a life spent on one's knees certainly mollified Gilmore.

  "My mother," said Gary, "worked as a buswoman. She didn't have any money, and she was trying to hold on to a beautiful house that we had with a nice swing-around driveway where you drive up and it makes a circle. She wanted that. She wanted some things. She lost it. When she did, she moved into a trailer. She never bitched about it."

  "You really love her, man, don't you?" said Schiller.