The Executioner's Song (95 page)

                He supposed the reason he now took pride in Gilmore was that the convict also respected the situation. It would be disagreeable to work on something this momentous and feel the individual at the very center was nothing but a con artist with shoddy motives.

                Gilmore's desire, if genuine, was in line with a few of Earl's own objectives.

In recent years, some of the Justices of the U.S. Supreme Court had been saying that the most poorly represented client in the country was state and local government. That teed Earl off personally.

                He wanted to improve the image of people who worked in government offices. If he had an ambition, it was not to get into politics, or see his name in lights, but to become known as the best advocate before the Utah Supreme Court. Be an authority on prison law. He wanted to establish a reputation for thorough research and high competence. In fact, if there was a constructive criticism he would make of his work, it was that he tended to research an assignment to death. It killed him to turn in sloppy work. For as long as Gary Gilmore was occupying his working life, therefore, Earl knew he would be putting in fourteen- and fifteen-hour days. Even his kids understood it had to cut into family life. Now, if the children picked up the phone, they could expect half the time to hear a stranger asking for their father.

When he and his wife went to a party, everybody wanted to know the ins and outs. For that matter, Earl didn't mind telling. After all the hard work, it was kind of a fun payment to fill people in on what he was doing. Still, he also tried to get the idea across, as reasonably as possible, that they weren't a gang of boobs over at the A.G.'s. Were actually trying to do a job they could be proud of.

Earl knew better than to announce to the world that he was in the job he wanted, and his work gave him the roots he had always craved. During those years in law school when, to keep his young family afloat, he had had to put in killing hours working as a law clerk afternoons and nights, there had been one driving force to carry him through, one dream to take him through missionary work, college, marriage and law school, the idea that finally he would be able to settle down somewhere and get a few things established. Now he had a home instead of an apartment, and was the father of a growing family, liked his job, was proud of his wife, and spent a lot of the with his children. It could be seen, he knew full well, as a reaction to the continuous moving around of his youth.

                Earl's father—and he didn't say this to be critical, but simply accurate—had been somewhat of a loner. His dad's idea of entertainment had been to take his easel and canvas and go off on his own, then come back at the end of the day with a beautiful landscape.

                All through Earl's childhood, living around Virginia, Los Angeles and Salt Lake, his father had been an attorney with the Pentagon, and they kept him moving, Since Earl had no brothers, and his only sister was married by the time he was thirteen, he was practically an only child, and had an oddball inner life. He became, for instance, the best cartoonist of his school in the fifth grade, and wrote letters to Walt Disney asking if they would hire his talent despite his youth.

In high school in Virginia, however, he did get to be popular. He played in a dance band and was pretty good at high-school sports, got heavily involved in basketball and track until he broke his leg giving a gymnastic demonstration. It wiped out his athletic career, but got him elected junior class president and he was about to run for student body president, was even dating the head cheerleader, when boom! family had to move to Los Angeles. His dad was being relocated, and Earl, once more, was being dislocated.

He was a nobody going to University High School in West Los Angeles. Huge student body. He ate lunch alone, didn't know a soul.

                It was the one time in his life when he felt like being disobedient. He wanted to return to Virginia and live with his uncle and see his girl again.

                His father was saddened by this unhappiness. Maybe that was enough recognition. Earl said, "I'm sorry, I'll stay," and did, but his senior year in high school was not the happiest.

Then his dad had a transfer to Utah. That was not as bad. His folks, being LDS, had always kept a little place in Salt Lake where they would go for summers. Since the cheerleader back east was no longer a viable alternative, Earl began to date the sister of his best friend in Salt Lake. They never stopped dating until they were married.

He figured life had left him more stable than the average man his age, but only because he knew his faults. Knew he had a temper.

                These days, he contented himself by screaming at the TV set. "Look at that imbecile," Earl would shout at the tube. But only in the privacy of the family. When he was younger, his father would take him aside, counsel him, and refine that temper, to the point where now, conducting an oral argument in front of a Court, he never shouted at his opponent. It was all right to be forceful, but Earl tried to keep contention out of the presentation. That was why he took such pride in Gilmore at the Pardons Hearing. It was as if, within his mind, he kept telling Gilmore to hold his anger.

Earl knew what he could do well and what he couldn't, and cross-examining witnesses had never been his strongest point. One reason he liked the Gilmore business was that he was drawn to cases which required analysis of new legal facets but didn't ask you to get bogged down by resistant testimony. Earl knew he was weak at framing questions in such a way that he could use the witness's answers against him ten questions later. He wanted to get right to the heart of the issue. Maybe he had been interrupted a couple too many times in his young life, but he knew that, as lawyers went, he had no large ability to set up pertinent questions and then lead an adversary down the primrose path. He thought it was corollary to how he kept his acquaintances limited. Even now, the circle of his family and friends didn't go beyond his wife, his brother-in-law, their immediate friends, a few neighbors, and office acquaintances. Most of his closest friendships were made through work.

                His alliance with Sam Smith was a good example. He could almost describe the Warden as a dear friend, yet they never saw each other socially. It was more that the two of them had practically learned their prison law together. Sam had been made a Warden just about the time Earl first came to work in the Attorney General's office.

                Getting to know Sam, Earl had also learned a great deal about prison problems, and thought the Warden was more liberal than people gave him credit for. For one thing, he allowed contact visits in Maximum.

                That was exactly what had made Gilmore's suicide attempt possible.

                If they had kept Gilmore away from people, the drugs might never have passed through. Earl had spoken about that, but Smith said, "Oh, well, it hurts those boys in their rehabilitation if they can't have any physical contact with the outside world." From Earl's point of view, the Warden, if anything, erred on the side of benevolent administration and that was what got him into situations where people would call him incompetent.

                In Earl's belief, the bottom line of Warden Smith's secret story was that he was all heart. Far from being strict or stern, Earl wondered how many Wardens got up early to go over and have breakfast in Medium Security with their inmates rather than take it with their own family. It was one reason Earl felt he had to protect Sam from all those newspaper suits to gain access to Gilmore.

The problem, which you could not explain to a newspaper man too easily or to a Judge either—not if it was Judge Ritter—was that tension in the prison often resulted from attention being focused on one inmate. He could get to be like a baseball star who wouldn't obey his manager. The risk of media exposure went deeper than Gilmore being able to shoot off his mouth—the risk was in the reaction of other inmates. Anytime a convict became bigger than the prison, it had to create disciplinary episodes all over the place.

On December 1st, Earl sent off his petition for a Writ of Mandamus to the Tenth Circuit Court in Denver. Earl pointed out that Judge Ritter had made extensive findings of fact in the Tribune case when no evidence had been taken. Same morning he received a phone call from Leroy Axland, representing ABC News. Axland was going to file a suit in State Court tomorrow for a temporary restraining order like the Tribune's, so ABC could also interview Gilmore.

Next morning, the Deseret News joined ABC in the action and Robert Moody appeared for Gary Gilmore. Even Larry Schiller was present. Plenty of legal power against Earl that day. He wasn't happy with his performance.

Earl's largest weakness, in his own eyes, stood out again. He started to cross-examine Lawrence Schiller, but got so mad that he could not keep composed. Schiller, right on the heels of having sneaked into the prison as a phony consultant, now had the gall to say on the stand that he had interviewed many inmates in many prisons and had always complied with the rules and regulations of the place. Earl knew he should walk the witness through a calm cross-examination, but became so angry he began to lead his own argument. With a little skill, he might have led Schiller to admit to stretching the rules at Utah State but got so angry, at thinking of how on the prison's side, there was all this sincerity and on his opponent's side blatant cynicism for the rights of others, that he started to harangue the man, and the Judge, Marcellus Snow, cut him off.

                Earl was not surprised, therefore, when Judge Snow granted the restraining order. A TV interview with Gilmore would be conducted that evening.

MOODY               Okay. We've been in Court all day with Schiller, ABC-TV, and numerous attorneys. Judge Snow is signing an order permitting the press to interview tonight. Larry took the stand as a witness, and I think he's the one that convinced the Judge to let him go ahead.

GILMORE            Well, I imagine that the guy would do a pretty good job anywhere. He knows how to talk to anybody. What time we do it?

MOODY               Beginning at nine.

GILMORE            I hope it ain't any later than that. Man, I get tired and like I wake up at five in the morning . . . When you talk to some syndicate like ABC you got to be at your best . . . Does Larry sit in a position that he can give me signals? If he doesn't want me to answer the question, just rub his chin, that's cool.

As soon as Earl got back from Judge Snow's court, he started writing another Mandamus. To his pleasure, when he looked up the State law, procedures were the same as for Federal. All he had to do was paper-doll the documents he'd written for Denver and put in new names. He had his secretary type it through lunch hour, and was ready to file appeal by early afternoon.

He went upstairs to the Utah Supreme Court Clerk, and told Chief Justice Henriod that Judge Snow's order might not be ready until late afternoon and so if the Court didn't stay open past five, there would be no way to stop reporters from getting interviews with Gilmore tonight. It was not normal procedure, but Judge Henriod indicated he'd keep things going. Dorius said, "I'll run from Judge Snow's Court as fast as I can."

He did. But first he was obliged to go over a few other hurdles.

                Judge Snow's proposed order had been drafted by the news media lawyers and while Earl was arguing over a couple of their points, the Court Clerk handed him a note. Damn if the Tenth Circuit wasn't going to hear the Writ of Mandamus against Ritter tomorrow afternoon. Earl would have to make an appearance in Denver just when everything would be argued here.

                On top of that, comes 4 P.M. Judge Snow decided to move the proceedings over to a big media room where he could broadcast his decision. That began to use up the clock. Finally, Dorius said to himself, "The Judge has signed the order, whether he had handed it out or not." He told an assistant to grab a signed copy as soon as he could, and Earl sprinted up the Hill to Utah Supreme Court.

                Three Justices were sitting and they read his document, and granted a temporary Stay for this evening. The Mandamus, they said, could be argued tomorrow. That would stop TV from interviewing Gilmore tonight.

The corridors of the floor of the State Capitol Building were beginning to look like a political convention. Nothing but microphones, marble walls, TV lights. Earl gave a couple of interviews, then rushed downstairs to the Attorney General's office to start educating a couple of his fellow attorneys into what had to be done in Utah Supreme Court tomorrow. He had been handling all this material up to now.

That evening, at home, Dorius reminded himself that Gilmore's execution was probably only four days off. The sixth of December. If they could just keep the press out another four more days, the prison would be able to make its point. Reporters didn't go barging into a bank president's office to say, "Tell us what you know." But they couldn't comprehend that a Warden might have the same interest in decorum.