The Executioner's Song (121 page)

                That was very important. They did not want some crank or overmotivated party to be able to call Utah State Prison at the last moment and claim they were the Supreme Court and announce a Stay of Execution.

                The prison had to know it was the Clerk, and only the Clerk, of the U.S. Supreme Court speaking. So Michael Rodak now told Dorius that his nickname was Mickey, and he had been raised in Wheeling, West Virginia. The code would be "Mickey from Wheeling, West Virginia, is calling."

                Friday afternoon, two cases landed on Earl. The first was from Gil Athay representing his Death Row client, Dale Pierre, one of the hi-fi killers convicted for pouring Drano down customers' throats in a stereo and hi-fi store. Athay was arguing the execution of Gary Gilmore would create a public atmosphere that would injure his client's chances for appeal.

                Just as Dorius was walking over to Hansen's office to discuss this development, another call came. The ACLU was bringing a taxpayers' suit before Judge Conder in State District Court. Two cases and one afternoon to do them in.

It was decided Bill Evans and Earl Dorius would oppose Gil Athay, and Bill Barrett and Michael Deamer would argue the other.

A couple of hours later they came back with victories in both cases. It was mainly, Earl thought, because the plaintiffs couldn't show any rights denied by the execution. Gilmore's immediate family might be able to claim standing, but there it ended. You simply couldn't have everybody going to Court. Thank God for standing, thought Earl. That afternoon, he had argued the public would be harmed by any further delay of execution, and he meant it. The nightmare of public circuses was that the longer they went on, the more they could make everything worthwhile look ridiculous.

Friday afternoon after Court, Phil Hansen found himself thinking again about Nicole and Gary Gilmore. After a couple of meetings with Nicole had failed to come off, he had kept thinking about Gilmore and assumed his girl friend would get in touch with him for the appeal. Hansen was so busy with his own practice that it was hard to sit down on any given day and take positive steps about something not even in his office. Before he knew it, therefore, Gilmore was refusing to appeal. At that point, Phil began to wonder how he could possibly step in. Could you save a man who didn't want it? Still, the idea of Gilmore being executed was personally offensive. Phil hadn't spent his years saving a few lives nobody else could—it was in fact the pride of his career—without deciding that the death sentence was an obscenity. If you were a devout Catholic, and a great football coach, it would be obscene if you were coaching Notre Dame and they lost 79-0. This particular week, the execution had been hanging over every puff of cigar smoke in the corridors of every Court in Salt Lake. Hansen came to the end of Friday afternoon with the realization he had had three cases back to back before Judge Ritter, and, in fact, two of the Juries had even been out while the third case was being tried. So, by Friday afternoon, Hansen said to Ritter at the bench, "You worked my ass off all week long. You owe me a drink." Ritter laughed and invited him back to his chambers where he poured quite a few for Phil—Ritter not drinking much anymore—and they talked about Gilmore and waited for a call from Dick Giauque, and tried to find Giauque's partner, Daniel Berman, who was doing legal work for Judge Ritter, and then tried to call Matheson, the new Governor, and all the while, such calls failing to reach anybody, Hansen was brooding over the idiocy of the oncoming execution. "Yes," he said, "Sam Smith will never die of a brain tumor." And chuckled through his cigar smoke, and said, "If all else fails, I'm going to bring a suit that I believe is a novelty."

                When he used to be Attorney General—one of the small irritations of Phil Hansen's life these days is that people still kept mixing him up with Bob Hansen—he used to bring in suits as the Attorney General, even called it an Attorney General's suit, on matters affecting the public good. Thinking on it now, his impression was that it might be feasible to start a suit as a citizen of the United States who happened to live in the State of Utah. "Why," he said to Ritter, "do I have to have a title to bring it in? Why can't a citizen just stop the execution?"

                They talked about it awhile, and Hansen finally decided that what with the ACLU sending in a new plea tomorrow after losing this afternoon, he would save his bid for a last resort.

LOS ANGELES TIMES

Crochety or Creative?

Utah Judge Is a Caution

Salt Lake City—Somewhere between the charge by his enemies that he is a mean-tempered old man and the claim by his friends that he is a creative legal scholar, probably lies the truth about U.S. District Judge Willis W. Ritter.

                For 28 years the controversial Ritter has been a dominant force in Utah legal affairs, despite the fact he is a liberal, anti-Mormon Democrat in a state ruled principally by conservatives and strongly influenced by the Church of Jesus Christ of Latter-day Saints.

                "He has been lord of the manor and Utah has been his fiefdom," former U.S. Atty. Ramon Child said.

                Now, however, the judge, 78, is facing an unprecedented challenge to his authority by federal and state officials.

                State Atty. Gen. Robert B. Hansen has filed petitions with the 10th Circuit Court of Appeals in Denver asking that Ritter be disqualified from hearing any cases to which the United States or the state of Utah is a party.

                The petitions accuse Ritter of repeated misconduct on the bench, a strong prejudice against the state and federal governments, and, generally, behaving erratically.

                Utah Sen. Jake Garn, a Republican who has called Ritter a "disgrace to the federal judiciary," is leading efforts in Congress to dilute the judge's authority.

                But in a letter last October to Rep. Peter W. Rodino Jr. (D.N.J.), chairman of the House Judiciary Committee, Ritter outlined how he sees his problems.

                "Malice, Mormonism, McCarthy-Nixon dirty tricks are written all over it by extreme rightist elements in the Republican Party," Ritter wrote.

                "The Mormon church has taken over practically every other public office in the State of Utah. They have been trying for a long time to take over the federal court for the district of Utah."

                Ritter was a law professor at the University of Utah when he was appointed a federal judge in 1949 by President Harry S. Truman, but the appointment was hotly contested by Mormon forces. Ritter was accused of personal immorality and public corruption.

                When Congress mandated age 70 as the retirement age for federal judges in 1958, it exempted 32 sitting chief judges. Ritter is now the lone survivor of that action.

Bob Hansen was just as annoyed when people mistook him for Phil Hansen. There was no doubt what he thought about Ritter. The Judge, he would say, had real malice of the heart. Of course, Hansen would not argue that Ritter was not brilliant. Maybe he was even a genius. It was possible that if you took guys with brains, Ritter was in the upper one-tenth of one percent among them, but he was also a perpetual fury machine. In fact, Ritter was so violently anti-Mormon that the Church had become, in Hansen's opinion, oversensitive to the idea that when it came to Ritter, they had to lean over backward.

                Hansen considered that a policy of appeasement. He wasn't about to let Ritter take over the Gilmore business if he could find a way to outmaneuver him.

Chapter 29

SATURDAY

On their last visit, Gary gave Mikal a drawing of an old prison shoe.

                "My self portrait," he said. They were still on the phone when Warden Smith came into Gary's booth and began to discuss the exact moment when the hood would have to be put on Gary's head. After Mikal could listen to that no longer, he rapped on the glass and said he would have to leave soon. He had to catch his plane. Would the Warden allow a final handshake?

                At first, Smith refused. Then he said yes, but on condition Mikal agree to a skin search.

                When that was over, two guards brought Gary in. They told Mikal to roll up his sleeve before they shook hands. It could not be, the guards warned, anything more than a handshake. So soon as Gary grasped his palm, however, he squeezed it close to crushing, and a light came into his eyes, and he said, "I guess this is it." He leaned over and kissed Mikal on the mouth. "See you in the darkness," he said.

                Mikal knew he couldn't stop crying and turned away. He didn't t want Gary to see it. The guard handed over The Man in Black, a book by Johnny Cash, that Gary wished to give to Bessie, and then a drawing of Nicole. Mikal could feel Gary's eyes following him toward the double gate. "Give my love to Mom," Gary called, "and put on some weight. You're still too skinny."

This same Saturday morning Schiller had been listening to the tape of the lawyers talking to Gary on Friday afternoon. There had been quite a bit about Melvin Belli's rhinestone cowboy boots, "He buys his clothes," Gary said, "at Nudi's in Hollywood."

                "What is," asked Stanger, "the biggest item you ever smuggled into a cell?"

                "A 340-pound Norwegian woman wrestler."

                They all laughed.

                Schiller listened to talk about good guards and bad guards and what made the Warden tick. Schiller heard conversation about legal moves, and personally inscribed Bibles that came to Gary in the mail.

Then Stanger dropped by the TraveLodge and asked what Larry thought of the interview.

                "Stanger," Schiller shouted, "why don't you get off your ass?"

                "You, Schiller," Stanger replied, "can stick it up your ass." He stormed out.

"I'm never going to speak to Schiller again," said Stanger on the drive out to the prison. He was seething. Stanger considered himself a damn good cross-examiner. So was Bob Moody. Either one of them could rip through Gilmore, cut him left and right, exactly how Larry wanted. But there were a couple of things in the way. One was the questions Schiller and Farrell were so proud of. They seemed stupid to Stanger. Bore very little relation, from his point of view, to what Gilmore was all about.

Schiller had this huge operation going, and might end up with too little, and Ron could see the point of Schiller's worries, but his job was to build up, not break down Gilmore's confidence.

                Gilmore was his client, and he was there to fill his wants, Larry looked for questions that would make Gilmore react. Stanger didn't feel like going out to prison to get the guy angry. It was okay to seek information, but not all right to probe Gary like a lab rat and keep poking wires into him. Gary was already caged up all day long.

                "I'm not going to interview him today," said Stanger to Moody.

                "Goddammit," said Moody, "if we're going to do a job, we're going to do it."

                That was probably as large a difference between them as ever shared on any trip to Maximum.

Moody also thought they were doing a hell of a job, under the circumstances, even if Schiller and Farrell didn't agree. All the same, Schiller was right. There were only two days left and all kinds of valuable material to get. Moody sighed.

GILMORE            Look . . . is this on the recorder?

MOODY               Yes, uh huh.

GILMORE            The Warden told me I could invite five people. I named 'em and he said, "Don't you want any clergymen there?"

MOODY               The statute's very clear that you're entitled to two clergymen and in addition, five people.

GILMORE            I don't want the clergymen to get barred. They've been looking forward to this all along.

MOODY               Come on, as if anybody looks forward to it. I think ah . . . it would make them feel they were fulfilling their duties.

GILMORE            I don't care what their motives are. They both want to come.

MOODY               It's just gonna be a damn painful forty-eight hours for everybody.

GILMORE            Man, I'm not in pain.

MOODY               I know you're not, but others are. Your Uncle Vern, your Aunt Ida are going through hell. (pause) Others are physically ill.

GILMORE            Who?

MOODY               Well, I am, Rod Stanger is, Father Meersman.

GILMORE            It's no big deal.

MOODY               We know it's no big deal, but it's empathy for you.

GILMORE            I'd like to see Nicole. The sucker won't give me an answer.

MOODY               I think that's your answer, you're just not going to face reality.

GILMORE            I didn't hear.

MOODY               I think that's the Warden's answer. He's not going to answer you. Period. That's no reason to shut out everything else. You still have forty-eight hours to live. Well, live it.