The Executioner's Song (134 page)

                On arrival, they were caught up in a roaring of questions from newspapermen, and shouts, noise, and blue-white lights so intense neither Dorius or Schwendiman could see where they were going as they followed the others out of the hangar, across the tarmac and into the plane, a twin-engine King-Air which they boarded about 4:20 A.M. amid another flurry of newsmen and lights. Bob Hansen, Bill Barrett, Bill Evans, Dave Schwendiman, Jack Ford who was a newsman with KSL, Judge Lewis, Judy Wolbach and Earl took off almost immediately. By now they were running ten minutes late.

                Soon as they were airborne, Bob Hansen began this conversation with the copilot. Wanted to know the speed of the plane, the velocity of the tailwinds, and the anticipated arrival time. Then, he asked the pilot to check on his radio to see if taxis would be there to meet them.

                Did the drivers know exactly which part of the airport to go to? Were they up on the best route to the courthouse? He wasn't leaving anything to chance.

                What made it all the more annoying to Judy was the way they were seated. Judge Lewis, in order to avoid getting into, or even hearing, conversations with either side, had selected the most uncomfortable spot on the plane, a little jump seat at the back that was terribly cramped. Then there was a reporter in front of him. Then a long curving seat like a bench running from fore to aft so you sat sideways.

                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 possibility. 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.