The Executioner's Song (135 page)

                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."

                He was calm. He put out his hands and Campbell left to go to the waiting car. After Cline passed through the gates, however, he turned around and could see a scuffle going on. Over the leg shackles.

                Moody saw it clearly. "Look," said Gary to the guards, "I'll walk out. You don't really need those things." The guards were saying, "This is prison procedure. We're following orders." It was a mistake. Gary was all the way down from the speed by now. Just about crashing. It was the wrong time to push.

                Before it was over, it looked like a gang rape. It was like he had to have one final fight to show the guards he was not going to take it ever again. Moody wanted to cry out, "Couldn't you just come in and say, 'Okay, Gary, it's time,' and see if he'll walk out like a man? If he doesn't, then go to the shackles? Dumb, dumb gorillas." They kept grabbing ahold of Gary, and Gary kept saying, "I'm not ready to go yet." He was looking to pick up some last object, whatever it was.

                Then they seized him and took him through another door. Other guards were requesting Moody to exit, and he passed outside and into the vehicle that would carry him to the appointed place.

Chapter 36

MICKEY FROM WHEELING, AND EUDORA FROM PARK HILL

As soon as the Attorney General's people were in the courtroom, the panel of three Judges came out from their chambers. With Lewis were Judges William E. Doyle and Gene S. Breitenstein. Earl glanced at his watch. It was ten to seven.

                Bob Hansen stood up, introduced his assistants, and began to present the basic background. One of the Judges interrupted. Would he get immediately to the merits? Bob nodded, and asked Earl to present the first portion of the case.

                Earl started to make his opening comment. At that point, Judge Lewis looked down from the high bench and remarked that no one was present for the ACLU. It was bewildering. Their counsel table was empty. No one knew where they were. That left Earl up on the podium by himself.

                He was furious. Everybody had to recognize the urgency. The ACLU must be deliberately attempting to delay the hearing. Earl stood there, three minutes, five minutes, six, then seven minutes ticking away. The longer he waited, the angrier he became. Finally, Judy entered the courtroom with the other ACLU attorneys, and he glared at her. In fact, he got into a staring contest with her. She stared back in equal fury.

                Coming into the building, the first thought in Judy's head had been, Where do I meet my people? Everything was up in the air. The separate parts of the case had been assigned on the telephone. Now, soon as she got into the lobby, a charming young lady whose name she never caught whisked Judy down the hall to four ACLU lawyers who were waiting for her in the attorneys' lounge. They had just barely sat down when Schwendiman came rushing in with the Clerk and said, "They've started. You're wanted in Court." Oh, my God, thought Judy, what a way to start out, Contempt of Court already.

                Then she tried to walk in without being too obtrusive about it, but the atmosphere was pompous. The Judges were wearing robes and sitting way up on a bench higher than any she'd ever seen before. Must have been six feet above the floor. Looking up to address them, you felt as if you were on your knees.

                Then Dorius began to glare at her. At seven o'clock in the morning!

                Judy could always put on a perpetual glare at that hour. She just said to herself, "I hate and despise him," and glared back as good as she got.

                Earl proceeded through his opening statement. "Members of the Court," he said, "we have a severe time problem. Mr. Gilmore is scheduled to be executed at seven-forty A.M." It was now 7 A.M.

                Judge Lewis informed him he would have fifteen minutes to offer argument, but Earl didn't take ten. The pressure, he felt, was intensifying his argument. He said plaintiffs had commenced their action at 9 p.m. the evening before, and that was a little late to be concerned about a dramatic abuse of the rights of taxpayers. He felt full of the truth of this remark. "The ACLU," he continued, "is using the device of a taxpayers' action for the purpose of delaying a lawful exercise of State power." He felt attuned to his indignation. No standing, no standing whatsoever!

                Judge Ritter, he argued, had grossly abused judicial discretion.

                Nobody had been able to demonstrate that any specific Federal monies were being spent on this execution. Moreover, Judge Ritter had assumed that the Utah statute was unconstitutional. Yet the constitutionality of this statute had, in effect, been before the United States Supreme Court already. The Court would hardly have ruled that Gary Gilmore could waive his right to appeal if they thought the statute defective.

                Bill Barrett was supposed to speak next and show why the ACLU had no standing. The Court, however, said they wanted to hear from the ACLU first. So, Steve Pevar, one of the ACLU lawyers, tried to plead that this case was not properly before the Court. He had been back and forth on the phone with Jinks Dabney from three in the morning until dawn, and they had come to the opinion that the State of Utah couldn't ask for a Writ of Mandamus because Ritter had not acted beyond his authority. If the Governor of the State of Utah had been ordered to move the Capitol Building three blocks south because some little law was being broken, that would fit Mandamus.

                But this, at least on the face of it, was a bona fide lawsuit. A motion had been made and granted. Why, the Attorney General's office wouldn't have even dared to bring in a Writ of Mandamus if it wasn't Willis Ritter. So the more Dabney and Pevar discussed it, the more they felt in good shape.

                When Pevar tried to bring out these arguments, however, Judge Breitenstein grew incensed. Ooh, Judith couldn't believe the man's face. "I know what the law is here," he told Pevar. "What do you think we've been reading since five-thirty this morning?" Classic. A young lawyer being keelhauled by an old Judge. "We don't need you to instruct us on the law, blah, blah, we've heard enough from you, blah, blah. Please get on with the merits of the case." That was how Judith heard it. One testy Judge. Pevar kept trying to get back to the point that you couldn't slap Writs of Mandamus on Judges for too little, but the Court did not accept it. Another few minutes, and the ACLU was warned that they were prolonging the case. One of their attorneys stood up then, and said Ms. Wolbach would proceed.