The Executioner's Song (59 page)

The Judge was referring to the second scheduled debate between Jerry Ford and Jimmy Carter.

THE COURT        In the interests of everyone I will instruct in the morning rather than tonight and then we'll complete the case tomorrow.

October 6

I just got back from court.

                Wow!

                I had told you that I didn't expect much from Snyder and Esplin but I was not prepared for the fact that they intended to put up absolutely no defense at all.

                To say I was surprised when Esplin rested the case would be a hell of an understatement.

                They never told me that they were gonna do that—offer no defense at all.

                I couldn't believe it!

                I figured on some sort of defense—no matter how meager.

                I thought they would at least try to get a second degree conviction.

                Its a dead certain cinch right now that I'll be convicted on first degree—and Esplin and Snyder knew this when they rested today.

                They never told me they were gonna pull that shit.

                They acted guilty and defensive as a motherfucker when I confronted em about it after the trial.

                They didn't even try.

                All they want to do is leave theirself a case for appeal and they haven't even done that.

                That's the way it is with court appointed lawyers.

As soon as Court had adjourned, there had been a conference, and Gary let them know he was not happy.

                "I thought you'd call a psychiatrist or something."

                They explained again. They would call one at the Mitigation Hearing tomorrow. There had been no point to do it in the trial itself.

                No doctor would say he was legally insane, so they'd only be making it easier for the Jury to convict. This way, a few of the jurors might have their own questions of his sanity.

                "Couldn't we have called somebody?" he asked, "just for appearance's sake?"

They laid out their strategy. His situation might not be as bad as it looked, they said. Number one—the prosecution hadn't tested Gary's blood against the blood found on the trail. If it had come out O, which was Gary's type, that would have been another nail in. Two, said Craig Snyder, they didn't have fingerprints off the gun. Therefore, the gun had not been attached to his hand beyond a shadow of a doubt. Three: the prosecution had neglected to put in the money from the robbery as an exhibit. They had the money, but hadn't introduced it. Fourth, Wootton hadn't dared to use Gary's confession to Gerald Nielsen. The Jury, said Craig, his eyes getting serious behind his glasses, still had to cross the bridge to find him guilty.

                Not easy to sentence a man to death, was their unvoiced remark.

                Who could speak of what it would do to your dreams? A Jury really had to get itself up to go across the bridge, So, if the case could be conducted with decorum, and the proceedings kept calm, the atmosphere might give a Jury pause. It would be hard to sentence a man to death if no strong feelings were flowing,

                At this point, Gary said he wanted to make a statement to the Judge. He wanted to testify.

It was against their advice. This way, said Craig Snyder, he was 99 percent convicted. If he testified, it was 100 percent,

                Gary looked gloomy for a moment. "I did it," he said, "that's it."

                He insisted again on taking the stand.

They tried to think of what it would be like to reopen the case.

                Messy. Once more they thought of calling Nicole, but had lived so long with the idea of not calling her that the thought of having her on the stand was unsettling. It could boomerang. If it ever came out that Gary had guns in the car and was driving with children. No, Nicole was also a bad gamble.

                Any decision was left up in the air. Each of the three men slept by his own best means.

Chapter 28

A DEFENSE

Nicole hadn't been in Court that morning for good cause. She was still feeling sick over the way Gary had acted the day before.

                She thought the first day of the trial would be the whole trial, but instead, the first day was spent picking a Jury. There weren't any witnesses called. It was just one long dull stretch and she didn't even get to speak to Gary until the second recess when they let her sit on the other side of the railing from him. All of a sudden, he brought up the letter she had written a week before, the one where she told him she would rather be dead than cause him pain by being with other men.

                Now, out of nowhere, he was nasty about it. "You talk about dying, but it's just words, baby," he said, and gave her a look as if to say she was safe on her side of the fence.

Then she told him that if he wanted to, he could kill her right there in the courtroom where she stood. In fact, she said, trying not to cry, it was killing her that he could think the way he did. Real sarcastically he said, "How would I go about killing you right now? With my arms in handcuffs and my legs in shackles?" She felt foolish.

                Later, he winked at her. It didn't seem to mean anything to him. Like he'd had a vicious spasm and it was gone.

But she didn't sleep all night. In the morning, after leaving the kids with her neighbor, she dozed some, and woke up feeling dopey, and her body out of sorts.

                Sure enough, when she got to the courtroom, he couldn't have been happier to see her. He had completely forgotten the day before.

                Nicole just sat there in a trance. She didn't even know what was going on. At the end of the day, she felt further away from Gary than at any time since their worst days in Spanish Fork.

                That night Sue came over and announced she would take Nicole out and get her drunk. Cheer her up.

Nicole realized she really wanted to get loose, really wanted to dance. It wasn't all that good of an idea, but there was Sue. Nicole let herself be taken out.

                They passed through the Silver Dollar and went on to Fred's Lounge. Nicole liked the tension in the place. A lot of Sundowners were around, and she danced with a couple of them and liked them.

                Dapper, the way they stroked a pool ball.

One fellow who was real together told her that he was an ex-president of the Sundowners in Salt Lake. A sweet talker. He was good looking, and fun to dance with. But she kept going back to her own table, and sipping on her vodka and grapefruit juice.

                Then Sue disappeared, and Nicole was left alone with all her own business to mind. That was when the ex-president started talking about going over to Salt Lake. Nicole thought she would like to see what that club was all about. For years, she'd been hearing about the Sundowners' house in Salt Lake. Maybe she'd get a little bit loose and meet the people.

                She tried to think clearly about where this might end. It was already two in the morning. It would take nearly an hour to get to Salt Lake, then there would be more of a party there. She figured daylight would arrive before there'd be trouble.

                Sure enough, when they got to Salt Lake, she just sat around and listened to people, talked a little bit, lit up, drank beer, just got wasted in a nice quiet way. She felt sleepy, sitting on the sofa, an old beat-up ragged sofa, It was all right at that clubhouse, a place to enjoy the vibes, sort of like a bar set up right in the living room, and a bunch of motorcycles in the living room too. Their beat-up old carpet had a little gas and oil on it. She just closed her eyes a few times and maybe nodded off. It must have been five in the morning when she said, "I want to get some sleep."

                The ex-president talked her into going downstairs, and that felt kind of safe. It was just a big room with mattresses, and people crashing all over. Maybe some of them were getting it on. Too murky to see. She started to wake up a little, and wonder how the hell she was going to get out of Salt Lake by herself. Then the guy got down on the same mattress, and there was no way she could make him understand that she had no desire. Whatever she tried to say bounced off. He just kept asking why she had her clothes on and he didn't.

                She tried to compromise her way out of it, but he had had too much grass. Couldn't get off that way. She finally had to let him in. She really blew the idea that she was going to be faithful to Gary in life and in death.

When she woke up, she felt as raw as she had ever felt. She wasn't scared that Gary would find out, she was just scared, period.

                She was living in this awful place inside herself where everything was shitty. She would have cried but it would have made the most awful crappy moaning sound.

That was a long morning. She had to get the ex-president of the Sundowners waked up to take her back to Court, and she didn't get in until it had started. Riding from Salt Lake to Provo on the back of his bike, she knew that she would never lie about this to Gary if he asked, but she didn't want to tell him. She shivered at the thought he would ask.

                Riding behind this strange guy's back, she decided that she would never sleep with another guy for the rest of her life.

                She never would let herself get into anything again that would make her feel this uneasy personally. One of these days, on one of her visits, Gary might look her in the eye and ask if she had made it with anybody. She did not know if she could tell him the truth. She didn't want to think of the damage it would do inside to him and to her if she actually lied point-blank while looking right into his face.

                She had enough worms right now.

MR. ESPLIN Your Honor, we request that the courtroom be cleared for this matter. It's a matter of some delicacy.

THE COURT        Mr. Gilmore, do you request that the courtroom be cleared?

MR. GILMORE    Yes.

THE COURT        I will do so. I'll ask everyone to leave except Court personnel, security people.

                (Whereupon, the courtroom was cleared at 9: o'clock A.M.)

MR. ESPLIN Your Honor. The defense rested its case yesterday . . At that time it was our opinion and our advice that Mr. Gilmore not testify in this case, that he exercise his right to remain silent throughout this trial . . . After discussing the matter last night and becoming aware of his desire to take the stand, again we . . . both gave our considered opinions . . . that he not take the stand . . . and put the State to its proof. But again we assured him that was his decision and . . . he had a right to take the stand against our advice. We advised him to consider his decision overnight. We met with him again this morning . . .

THE COURT        Mr. Gilmore, do you desire to take the stand at this time?

MR. GILMORE    It isn't that I have such burning desire to take the stand, but I was simply unprepared for counsel to rest the case at the point they did yesterday. I mean, I'm on trial for my life and I have been expecting all along to present some sort of a defense. And when they rested yesterday, man, it appeared to me to be in effect tantamount to a plea of guilty to a First-Degree Murder charge, because I don't see where the Jury could return any other verdict at that stage. And why have a trial? I mean I—

THE COURT        What evidence do you have that you want to present?

MR. GILMORE    Apparently I don't have any, according to my lawyers.

THE COURT        Do you have any or do you not?

MR. GILMORE    God, I don't know . . . I have feelings and beliefs and I guess these doctors don't concur with them.

THE COURT        Now, Mr. Gilmore—

MR. GILMORE    You have to let me finish.

THE COURT        Yes. Yes. Go ahead.

MR. GILMORE    I feel myself that I have a good insanity defense or at least a basis of it. But apparently the doctors don't concur. But the conditions that I talked to the doctors under were adverse. There were inmates present. The whole thing was not right. It wasn't fair to me, really. And it blew my whole defense off. I don't want to just plead guilty to First-Degree Murder and accept a First-Degree Murder conviction. It will take them less than a half an hour to find that, the way I see it right now. That's what I'm saying. That's what I feel, man. I mean I have been expecting all along to present some sort of case even if it's meager. And I think that probably the best thing I could possibly do would be to talk to them myself. I could do that at the Mitigation Hearing, but that's after they find me guilty. I'd like them to at least consider what I have to say before they go out.