Judy had been placed there between Hansen and Schwendiman, which couldn't help but give her a little claustrophobia. If there was one lawyer she was not mad about in the State of Utah, it was Bob Hansen. He had such a strong, righteous groundwave, a good-looking man with a stiff, numb face, dark horn-rimmed glasses, black hair, business suit, all saying, "I am a total bureaucrat, total executive, total politician." That was Judy's kindly view of him.
Schwendiman on the other side was all right, she thought, a sweet man, really, whom she had known in law school, but she didn't want to embarrass him now by admitting to any friendship. Across the aisle was that eager beaver, Dorius, just as neat as a terrier with a mustache, all perky and ready to go, and Bill Evans, another lamb in the mold of gung ho. Then Bill Barrett, a tall skinny fellow with glasses and a mustache. God, she was surrounded by Attorney Generals and Assistant Attorney Generals, and were they dumb!
Right in front of her, Hansen was asking Dorius if he had done any research on delay of execution, and there again, right in front of her, Dorius replied that the relevant cases seemed to indicate an execution was legal even if it took place after the exact hour and minute.
Hansen said this information ought to be communicated to Warden Smith. Judith then said, did Hansen really think it fair to place that heavy a burden with the Warden, "on such dubious grounds"?
It had been tense enough in the cockpit before this. Adversary lawyers should never be thrust so close together before an important hearing, especially in a pukey little plane, but after "dubious grounds," the atmosphere was heavy. Hansen did not respond to her directly, yet a little later, he instructed Schwendiman to get to a phone as soon as possible after landing to telephone the Warden and Judge Bullock and County Attorney Wootton so that they could arrange for the order of execution to be amended. Then he dictated the language to be used: "At such time later on this date, when the legal impediment shall be removed, or as soon as possible thereafter." Judith took out a pad and pencil to write his words down. She expected Hansen to react when she stated that she was recording his instructions verbatim, but he didn't make a move. Merely told Schwendiman to be sure that Ron Stanger was also asked to stipulate to this amendment.
Hansen was worrying again about the scheduling of the execution. "As soon as we get there," he repeated to Schwendiman, "I want you on the phone." Judith was thinking: The Utah law says you must go before the Court, but it's all being done by telephone. This is spooky.
She decided to be as nasty as she could. Kept turning to them with a smile to ask, "What did you say again?" Hansen would reply, "I said to call this person," gave the name. She wrote it all down. She was feeling awfully hostile. When he asked the pilot if the motor was in good enough shape to keep up its present air speed, she thought: It ought to be, brother. It's half Mormon-owned, just like half of downtown.
Mormonism, thought Judy, plain old primitive Christianity. So literal. She thought of devout Mormons, like her grandparents, still wearing undergarments they never took off, not even when they went to bed or copulated. Once a week, maybe, they dared to expose their skin to the contaminating air. Might just as well be Pharisees.
Always the letter of the law.
She hated blood atonement. A perfect belief for a desert people, she thought, desperate for survival, like those old Mormons way back. They had believed in a cruel and jealous Lord. Vengeful. Of course, they grabbed onto blood atonement. She could hear Brigham Young saying, "There are sins that can be atoned for by an offering on an altar . . . and there are sins that the blood of a lamb, or a calf, or of a turtle dove, cannot remit. They must be atoned for by the blood of a man."
Yessir, satisfy your blood lust, and tell yourself you were good to the victim because blood atonement remitted the sin. You gave the fellow a chance to get to the hereafter, after all. This business of living for eternity certainly contributed to capital punishment, brutality, and war. Why, Brigham Young with his countless wives pining on the vine had the gall to state that if you discovered one of your women in adultery, it would behoove you as a good and Christian act to hold her on your lap and run a knife through her breast. That way she'd have her whack at the hereafter. Wouldn't be relegated to the outer darkness. Judy made a noise of disgust. Primitive Christianity!
She was glad she'd gone to Berkeley.
After Ms. Wolbach stopped asking questions, Earl went over portions of his oral argument, then tried to get a little sleep. But it was a dark night and a bumpy flight. A very strong tailwind kept slamming them through more and more turbulence. With the engines now souped up to full thrust, a full load of sound vibrated through the cabin. Dorius began to worry that the craft might be getting unmanageable. It certainly was flying in heavy, erratic fashion. Fifteen or twenty minutes from Denver, they hit exceptionally powerful turbulence, and dropped several hundred feet in one big jolt. Dorius happened to be looking to the rear when it happened, and saw Judge Lewis fly up in the air, bang his head against the low ceiling, and immediately throw the documents he was reading onto the floor so he could hold onto the roof of the fuselage and keep from banging his head again.
Earl was terrified. The sound was the most violent caterwauling of wind and motor, and the turbulence had to be the worst he had ever flown through. The thought passed through his head, Boy, if I go down and Gilmore lives—wouldn't that be something!
Earl didn't see God as rewarding people for righteousness or punishing them for misconduct. In fact, it might even be the reverse.
Religion didn't make you safer, not that way. The current leader of the Mormon Church, Spencer Kimball, had had, for instance, a life of one tragedy after another. His mother died when he was twelve, and he came down, in later years, with throat cancer, and half his throat was removed. Yet, he continued to be an orator. Then, he had open-heart surgery. A man of impeccable virtue, but he had passed through one catastrophe after another. It could be that the more righteous you were in your life, the greater the challenge you posed for the Adversary. The Adversary worked harder to get at righteous people. So this turbulence, while Earl wouldn't dignify it as a force any greater or more sinister than natural elements, was still cause for some private thoughts. This was the worst plane trip ever.
On the jump seat, sitting literally on a padded cushion over the john, Judge Lewis was having his own rough trip, and after he banged his head, decided to bum a cigarette. In his job, traveling the six-state Circuit, he had flown a million miles, but hadn't been in a prop plane for a long time. Whether it was the noise, or the way neither he nor Mrs. Lewis had gotten any sleep since Saturday afternoon, the phone going constantly after that Athay hearing, calls ringing in at ungodly hours—newspapers had a right to know what was going on in a Federal Court—he found himself looking for the solace of a cigarette. Hadn't wanted one this bad in a year.
Judge Lewis broke down. Maybe the bump on the head did it.
That roller-coastering through typhoon gulch. He called forward for a cigarette, and the pilot replied that he had a whole carton, why not take a pack? The Judge did, lit his first cigarette in a year, and knew before he lit his second that he was smoking again, and would be for quite a while. Lighting that cigarette was like going home.
Judge Lewis's father had been a Judge and his older brother a lawyer, and he had grown up with never a question in his mind that he, too, would be a lawyer, and possibly a Judge. In his family, the law was equal to a feeling for one's own land. It gave roots. So Lewis always felt he understood Ritter to some degree. Lewis had even studied under Ritter at the University of Utah Law School. He could comprehend Ritter's ruling tonight. You wouldn't find Lewis highly critical of a Judge who thought any execution was outrageous. Why, working against the clock in a capital case had to be the most traumatic thing a Judge could get into. You always needed time to feel free and clear of any sentiment that the examination had not been sufficiently thorough.
This morning, however, they would have to come to grips with the other po
ssibility. Maybe it was cruel to put Gilmore through his execution again and again. Lewis lit his third cigarette. That shifted his thoughts.
Now he was worrying whether an execution today, the first in many, many years, would be an encouragement to return to the old bloodbath. Would this start a new bang, bang, bang and get rid of a lot of men on Death Row in a hurry? That could hardly aid any world image of the United States. Lewis was glad two of his brothers would be sitting in Denver with him for this one.
Then, he had had to wake Breitenstein in Denver at 2 A.M. this night to tell him they must be in Court at dawn, and listen to Breitenstein use a few words you couldn't call judicial. It was no news with which to wake a colleague. Still, something had to be done about Gilmore. These Stays were beginning to come under the head of cruel and unusual punishment.
The plane arrived just ten minutes late, and Judy decided the only way to hold up proceedings now was to fall down while disembarking and break her leg. Then they'd have to stop. Of course, they might not. Anyway, she was too big a coward. Before she'd break her own leg, she'd have to be her own client.
They taxied to a halt at the Beechcraft-Texaco Small Plane Airport. At the parking area, some extremely bright spotlights were on, and as they stopped, more lights came up, and the atmosphere, Dave Schwendiman noted, became surrealistic. They had departed out of such a scene in Salt Lake, and now they were back in the same scene. Had crossed through a dark sky in a terrible storm only to return to incandescence on the ground. The door to the plane came open, bright as the lights in a dream of spotlights. Media-men everywhere. Blinded, the lawyers headed toward taxicabs waiting with their motors running.
At the courthouse, other media-men swarmed over the plaza with movie cameras and microphones. An anchorman from Salt Lake City, Sandy Gilmour of Channel 2, had taken his own plane and flown to Denver ahead of them. Now, he kidded them. What took so long? Good God! Other comedies ensued. Judge Lewis had difficulty obtaining entrance to the building. The security guard on duty only worked nights and he had never seen the Chief Justice of the Tenth Circuit before. So the guard wasn't in a rush to let anybody in at this hour.
Finally, the doors were opened and the Judge told them to take the elevators to the fourth floor. They literally had a footrace with the media to the courtroom.
About this time, close to 9 A.M. in Washington, AI Bronstein at the office of the Clerk of the Supreme Court, Michael Rodak, produced a handwritten application addressed to Justice White. Bronstein had captioned his paper, "The Honorable Willis W. Ritter vs. The State of Utah," and told Mr. Rodak that they had a peculiar procedural posture here. To his knowledge, the Court of Appeals in Denver had not yet acted, but time was running short, and he wanted to be here with the paper in case there was need for it. Rodak said, "Fine, we'll get together," and set up a little temporary office for Bronstein.
Chapter 35
Dawn
Toni had gotten home from the prison early enough to have a little time with Howard before he had to be up at 4:30 to start for south Utah and Monday morning's work. Under these circumstances, however, they hardly had any sleep before they were out of bed again.
Then back at the prison this third visit, they told her it was too late to see Gary again. His visitors, she was told, would soon be leaving Maximum so they couldn't bring her in. That was ridiculous.
They kept her waiting a long time in Minimum Security before Dick Gray was brought in and said, "Toni, don't try to get back. Remember him like you did last night." She shook her head. "I got to say good bye." "No," Dick Gray told her, "that could just make it harder for Gary to go to his execution. If you break down, maybe he would too."
At that moment, Toni had the feeling Gary was real scared, and didn't want to die,
When Schiller got to the gate at 5:45, the guards couldn't believe it. "I never went in last night," Schiller said. "Oh," they said, "yes, you did."
"Well," Schiller agreed, "yeah, I went in at five-thirty, but I came out five minutes before six." That was his answer. They shrugged.
They knew he was lying, but what could they do? An officer came to guide him to the holding area. Schiller parked his car and they began to walk all the way down to Minimum Security in the ice-cold night with the sun just starting to stir somewhere beyond the ridge. It was dark still, but the sky was turning pale way to the east.
In these mountains, it might be only half an hour to the dawn, but two hours to the rise of the sun, and Schiller kept walking. The guard was really nice. He seemed to sense that Schiller hadn't slept for a long time, and said, "If you want to stop and rest, you can."
Schiller didn't know whether they were all getting near some kind of release, but this guard had a nice personality. "You want some coffee?" he asked. Just a guard walking him down, but Schiller was feeling a calm and a serenity he had never experienced in a prison before. It was five minutes to six, and when he turned around, the sky had come up another shade of blue from dark to light. There was a clear light on the eastern horizon and the buildings of the prison around him began to feel like a monastery.
They led him to the visitors' room in Minimum Security, where he was one of the first to enter. As he sat and thought of the notes he was going to have to take on the execution, he reached inside his pocket to get his pad, the very pad he'd taken out with him two days before when he decided to write without looking at the paper, but all he had with him was his checkbook. He would have to take notes on the backs of checks. At that recognition, his bowels flared up like a calf bawling. Of all the fat-ass things to do. There were tears in his eyes from the effort of holding his gut through the spasm. If a reporter ever saw him now with checks in hand.
There was a bathroom near the visitors' room, and his condition had him going back and forth every five minutes. In addition, he had a near to overwhelming desire to urinate, but nothing was coming out. Nothing. All his insides were fucked up. He had never felt like this in his life. Everything was going crazy.
Mike Deamer, who had stayed behind in Salt Lake, was holed up in his office with whatever library he could get together to research the question of how late past sunrise you could still have a lawful execution.
He was getting more and more discouraged to discover he could find nothing. If Deamer was the man to sweat, now was the time, there alone with such an important argument to make, and no materials to base it on. At 6:30 however, a call came from Schwendiman in Denver with Hansen's message. They would not have to rely on a legal opinion if Noall Wootton could get Judge Bullock to rewrite his order.
Wootton had lain in his bed through the night, hating the thought of morning. Felt like there was no reason for him to witness the shooting. Didn't want to. Days ago, he had conferred with Judge Bullock, who interpreted the word "invite" in the statute as an offer that could not be refused. Wootton went to another Judge who said, "You've got a moral obligation. You started it." Still another Judge remarked, "Tell them to go to hell." So, Noall spoke to Warden Smith and said, "I respectfully decline the invitation." Sam Smith replied, "I'd appreciate it very much if you'd be here. The Attorney General says it should be you." That was it.
The hours went by. He didn't sleep, but then he didn't turn on television or radio either. It was only when Brent Bullock, his investigator, arrived in the morning to accompany him to the prison that he heard of Ritter's Stay and decided to go out anyway and see what was happening.
When he popped into Administration he learned that Bob Hansen had gone to Denver. Just as the Warden asked what to do in the event they weren't ready to proceed by 7:49, a call came from Deamer in Salt Lake. They wanted Noall to get the language changed in the Death Warrant.
Judge Bullock, however, had to be brought up to date. He was startled. Had not expected anybody to take an airplane in the middle of the night. Didn't think you could get Judges out of bed for things like that (nor out of a bar, for that matter) but didn't even voice the thought to himself. Now Noall was asking if he were ready
to change his order of execution because of the sunrise problem. Judge Bullock didn't have time to ponder it, but felt the old agonizing begin to come back. You don't have to sentence him again, he told himself, that decision has already been made. The only question now is the hour. So he said yes to Wootton—he would change the order, and even remembered how back in October he had set the time for eight in the morning, but by December when they ran past the sixty days, the Warden said, "If we ever do this again, can you make it sunrise? Eight o'clock interferes with breakfast and cleaning up in the prison. It sure would help from the standpoint of administration to have it real early." Judge Bullock had said, "Sure, any time, early or late. Have it at midnight, it's 'all right with me." Sunrise was just a military thing, there wasn't a good hour to execute anybody. You didn't have to be the devoutest Mormon in the world to feel a little uneasy at consigning a man to death when you might have to meet him on the other side.
About ten of seven, some guards came into the visiting room at Maximum Detention and told everybody they would have to say goodbye to Gary. The Warden had sent word to proceed as though the execution was on. So they began to get him ready. Of course, until word came from Denver, nobody would know for sure. It was a funny leave-taking, therefore. Kind of scattered. Evelyn and Dick Gray had already left, and now Ron and Vern went out through the double gate and into a waiting car. Cline Campbell and Bob Moody remained, while Gary shook hands with his regular guards. Even put his arm around one. "You've been great, you know," he said, and to another he grinned, and stated, "You're sort of a black bastard, but I like you anyway." The black guard took it with good humor. Here were these tough, rough young fellows and they were almost crying. Then this other damned gang of officers had to come in. They stood there with shackles in their hands, dressed in maroon jackets, real big fellows, and Gilmore turned to them, and said, "Okay, start."