The Executioner's Song (62 page)

                Wootton took another look at the Jury now and knew he'd be surprised if Gilmore didn't get death. Wootton had been watching that Jury all the way, and while they had not been looking at Gilmore before he testified, which to Wootton meant they felt uneasy at sitting in judgment on him, they were now staring at him like crazy, almost stunned, particularly one of the two women Wootton had selected to work on all through the case.

In talking to a Jury, Wootton's strategy was to pick one member who was strong and intelligent and one who, in his opinion, wasn't.

                You tried to present your case in story form to the juror who was not intelligent, whereas you argued the contradictions before the one who was. This latter lady was now really watching Gilmore. The expression on her face was all Wootton could have desired. It said: "You are as bad as the prosecutor says you are."

After that cross-examination Wootton was careful not to make his summation too long.

                "Benny Bushnell did not deserve to die," Wootton told them, "and it's hard for me to get across to you the real grief that this kind of behavior on the part of Gary Gilmore has caused to Benny's wife and his children."

MR. SNYDER       Your Honor, I object to the introduction of that kind of prejudicial statement in the argument by counsel . . .

THE COURT        All right. I'll reserve a ruling on your motion. I'll ask Mr. Wootton to omit any further reference to that matter.

MR. WOOTTON                Let's look at the kind of man the defendant is. For the last twelve years he's been in prison. All rehabilitation attempts apparently have been a total dismal complete failure. Now if you can't rehabilitate somebody in twelve years, can you expect to ever rehabilitate them at all? He tells you he killed Benny. He tells you he doesn't know why. He tells you how. He told him to lay down on the floor, put a gun to his head and he pulled the trigger. That's pretty cold-blooded. Now he's been convicted on two prior occasions of robbery.

                He served time for those. And he's learned something because of that time. Do you know what it is? He's going to kill his victims.

                Now that's smart. If you are going to make your living as a robber, that just makes sense, because a dead victim's not going to identify you. He'd have gotten away with this most likely free and clear except for some dumb bad luck. He accidentally shot himself. Those things happen, I suppose, when you have been drinking a little bit, and fooling around with guns. Now he's also got a history of escape, three times from some sort of Reform School and once from the Oregon State Penitentiary. Now what does that tell you? If you people tell us lock Gary Gilmore up for life, whatever that means, we can't guarantee it. We cannot guarantee that he won't escape again.

                He's got a history of it. He's apparently pretty good at it. If he's ever free again, nobody who ever comes in contact with him is going to be safe, if they happen to have something that he happens to want. Now he's got a history of violence in the prison. Even the other prisoners, if you tell us to send him to prison, cannot be guaranteed safety from his behavior. What then is the point at this time of allowing him to continue to live? Rehabilitation is hopeless. He's a danger if he escapes, he's a danger if he doesn't. Obviously, nothing can be done to save this man at this point. He's an extremely high escape risk. He's an extreme danger to anybody. Without even considering all these factors, however, I submit to you this: for what he did to Benny Bushnell and the position that he's put Bushnell's wife in, he has forfeited his right to continue to live any longer and he should be executed, and I recommend that to you.

Wootton sat down, and Snyder came toward the Jury to give his final remarks. He spoke with considerable emotion.

MR. SNYDER I suppose that nobody feels worse about what happened to Ben Bushnell and to his family than I do. This has been a very difficult case for me personally to even try. I think that it puts the Jury in a position that I would not want to be in, because in spite of the fact that this type of crime was committed in this particular case, what we are dealing with here is human life. Mr. Gilmore is a person, too. And although Mr. Gilmore has a history of prior conduct which hopefully we can all learn something from and which hopefully none of us will have to come in contact with again, he is a person and, in my opinion, he has a right to his life. I don't think there's anything more personal to any individual than his right to live. And you are in the position at this point where you have to decide whether to take that life from Gary Gilmore or whether to let him live. I don't excuse what Mr. Gilmore did, I don't even pretend to try to explain it, but I think he does have the right to live and I would ask that you give him that opportunity. I think the sum of what Mr. Wootton says is well taken. I think that Mr. Gilmore's history is certainly something that he's not to be proud of. I don't think any of us are . . . Mr. Gilmore does have something maybe he can't cope with, but it's not something that we ought to take his life for . . .

                Mr. Gilmore is the type of person that needs treatment more than he does to be killed. He needs, I think, to be punished for what he does, and the law provides for that by a term of life imprisonment. And I don't think that Mr. Wootton's fears about rehabilitation or that if he ever gets out again, that type of thing, are founded. Mr. Gilmore's thirty-six years old.

MR. GILMORE    Thirty-five.

MR. SNYDER       Thirty-five years old. He is going to be incarcerated, if you will, for life. That's a long long time. And though I suppose at some point in the future after many years he may be eligible for parole, that's a long long ways away. I think he deserves the same opportunity really that Benny Bushnell should have had. And I think and I would strongly recommend to the Jury that you award Mr. Gilmore his life. I would point out to you as is indicated in the Instructions that in order to impose the death penalty it does require a unanimous vote of all twelve of you. If one of you does not vote to impose the death penalty, then the sentence will be life imprisonment and will be imposed by the Court as such. I would ask each of you to search your own conscience and to impose in this case life imprisonment.

THE COURT        Mr. Esplin, do you care to make any comments?

MR. ESPLIN         I think Mr. Snyder has accurately portrayed my feelings.

Now, Judge Bullock asked the defendant if there was anything he would like to say to the Jury. It would be his last opportunity to speak of repentance.

                Gilmore replied, "Well, I am finally glad to see that the Jury is looking at me." When this remark was received in silence, he added, "No, I have nothing to say."

                "Is that all?" the Judge asked.

                "That's all."

Now that the Mitigation Hearing was over and the Jury had gone to the jury room, Vern and Ida went outside and milled around the courthouse with other people waiting for the verdict. They had not planned to be in Court at all, but Gary had called Ida days ago and asked her to be there, and after that, nothing could have kept them

Inside the courtroom, Mike Esplin arranged with the guards for Nicole to be able to sit near Gary. That way, he was able to talk to her across the railing. While they waited, they joked. They even held hands. It impressed Mike Esplin. The fellow was waiting to find out whether he was going to be executed or not, yet he was acting like a cavalier.

                Craig Snyder got curious what Gary and Nicole might be talking about, and got near enough to hear Nicole say, "My mother wants you to paint her a picture." "Oh," said Gary, "I didn't think your mother really liked me." "Well," replied Nicole, "she doesn't. She just wants it so she can say, 'Gary Gilmore painted that picture.' " Gary laughed. Craig couldn't get over it. To have Nicole near seemed more important to Gary than anything in the trial. He looked so happy.

A little later, he wanted to go to the bathroom, and so the two guards got up with him, and they filed off slowly, Gary in lockstep, the shackles keeping his feet from moving quickly. Brenda came up.

                "Gary," she said, "don't be such a sore-ass. Just because I turned you in, and testified against you, is no reason to be mad, is it?" He arched his neck and looked down at her. It was awful to see him chained.

                She reached out and touched his handcuffs tenderly, but he pulled his hand back, and gave her a look that ate at her for a long time and never stopped bothering her.

                For weeks to come, she would be standing at the sink doing the dishes, and she would start to cry. Johnny would walk over and put his arm around her and say, Honey, try not to think about it so much.

                All she could see was Gary behind bars again, deeper than he'd ever been.

Word came that the verdict was ready, and they all returned to the courtroom. The Jury walked in. The Bailiff read the verdict. It was Death. The Jury was polled. In turn, each one of the twelve said: Yes, and Gary looked across at Vern and Ida and shrugged. When the Judge asked him, "Do you have an election as to the mode of death?"

                Gary said, "I prefer to be shot."

                Then Judge Bullock replied, "Very well, that will be the order."

                The sentence was set for Monday, November 15, at eight o'clock in the morning of this year, and Gary Gilmore would be remanded to the Sheriff of Utah County for delivery to the Warden of Utah State Prison.

The news lived in the air of the courtroom. It was as if there had been one kind of existence in the room, and now there was another: a man was going to be executed. It was real but it was not comprehensible. The man was standing there.

                Gilmore chose this moment to speak to Noall Wootton. This was the first time he had addressed him in weeks. Gary looked over calmly, and said, "Wootton, everybody around here looks like they're crazy. Everybody but me." Wootton looked back and thought, "Yes, at this moment, everybody could be crazy, except Gary."

                Noall had this bothersome feeling now. It was in the impression he had had all the way that Gilmore was more intelligent than himself. Wootton knew damned well that Gilmore was more educated.

                Self-educated, but better educated. "Jesus Almighty," Wootton said to himself, "the system has really failed with this man, just miserably failed."

After that, people were going out and Nicole was crying in the corridor, and Nicole and Ida met, and they embraced, and broke down, and Nicole said, "Don't worry, everything is going to be all right." Vern was walking around in a state of shock. He had expected it all, but he was shocked.

A girl, a young reporter, came up to Gary and asked, "Do you have any comments?" He said, "No, not particularly." She said, "Do you think everything was fair? Is there anything you'd like to say?"

                Gary said, "Well, I'd like to ask you a question." She said, "What's that?" He said, "Who the hell won the World Series?"

The State Patrolman who would escort Gary back to jail and then take him up to the prison was named Jerry Scott, and he was a big, good-looking man. He had a personality clash with Gary right from the start.

                When he went into the courtroom to pick him up, Gilmore didn't have leg shackles on, or handcuffs, so Scott knelt and attached the stuff, and asked him to stand so the restraining belt could be locked.

                Scott thought it was easier and more comfortable for the prisoner if you could put on a restraining belt and hook the handcuffs through the hole in front rather than pinion a man with his arms behind his back. But when Gary stood up, he said, "You've got the leg irons too tight. I'm not going anywhere."

                Jerry Scott reached down. He could move the irons back and forth a little, so he knew they were not binding. "Gary," he said, "they're okay." At which point, Gilmore replied, "Either get those shackles off me, or you're going to carry me out."

                Scott said, "I'm not carrying you anywhere. I'll drag you out."

                Scott was disgusted. Everybody around Gilmore had been saying Yes, Sir, and No, Sir, as if committing the murder made him a special person.

                You had to be firm with prisoners was one thing Scott had decided a long time ago, and here was everybody hovering over backwards to be extra nice to this fellow. Maybe it was because he was always staring you right in the eye like he was innocent or something.

Gilmore was really starting to act up now and using profanities in the courtroom. Scott didn't want to fight him all the way down the stairs and into the elevator with everybody watching, so he loosened the cuffs and shackles after all. Gilmore complained again, and now Scott had them really loose, and Gilmore was still complaining. Scott got suspicious, especially when Gilmore repeated, "You're going to have to carry me out of here."

                "I'm not loosening them any further," Scott said. "Just get your ass in gear. We're going down whether you like it or not, and if you don't, I'll drag you, but I won't carry you. The decision," Scott said, "is up to you."