Dabney replied: “I think the State of Utah does not really have an appreciation for the question we have raised. We’re not concerned with Gary Gilmore’s waiver of appeal. The question is whether the State can execute an individual in violation of the Eighth and Four teenth amendments. Can they do it capriciously or arbitrarily? The only way you examine that question is by comparing all death-penalty cases at the appellate level,” but at this point Judge Ritter in terrupted. “I think,” he said, with the first touch of acerbity in his voice, “I think I understand it.” Dabney nodded. He had been given his warning. “With that, Your Honor, I will conclude my arguments and simply indicate that we believe we’ve established what we think is a good lawsuit. We would simply indicate that this is the last chance we have, We respectfully request the Court to sign an appro priate Temporary Restraining Order staying the execution of Mr, Gil more. Thank you.”
The State had nothing further and Judge Ritter declared a recess at i i :39 P.M.
At first Judith thought they had won. It had been such a good case, and both sides had had a full hearing. No attempt to rush anyone, and no innuendos from the Bench. Judge Ritter had hardly said a word, then he had gone out. The only trouble was that now he stayed out. When he didn’t come back in twenty minutes, Judy Wolbach began to worry.
When he didn’t return in an hour, she couldn’t understand what was going on. If Ritter was taking this long, he must be ruling
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against them. After Dabney’s fine work, it would be very difficult for Ritter, ethically and morally, she thought, to go along with Gilmore’s execution. If the Judge was taking this long, he must be ashamed to come out. Judy began to feel all over again how very weak their case had to be.
On the other side of the courtroom, Earl Dorius had come to the opposite conclusion. Precisely because the Judge was taking so long. Usually, Ritter didn’t write out his opinions. He released them from the Bench. Sometimes, it was a split second after the attorneys had finished. The fact that he was writing an opinion suggestedhe was trying to put out a paper sufficiently well reasoned to hold up on appeal. Mike Deamer agreed with Earl. He went out to phone Bob Hansen with the prediction they would lose. If so, Hansen told Deamer, they should all go over to the State Capitol Building after the verdict was read.
It got to be a very long recess. The lawyers mingled with the news reporters. Everyone seemed uneasy. It was sinking in on Earl how extremely fatigued he felt from the last few days. One suit after another, faster than birds flying overhead.
About this time, fifty miles away, Noall Wootton went to bed. But he could not sleep. In the quiet night of Pr0vo, he lay awake after midnight. Wootton was waiting for 6 A.M. to come and his investigator to pick him up and drive him out to the State Prison to witness the execution.
GILMORE’S LAST TAPE
About one o’clock in the morning, with everybody half asleep, Gary moved into Lieutenant Fagan’s office and got a call out to Larry Schiller at the TraveLodge Motel. Schiller, who had been waiting by the phone, seized it with all the questions of the last month in his throat. “How are you, champ?” were his first words.
“All right,” said Gilmore, “What do you want to ask me. What do you want to know?”
“I’d like to go over a couple of things.”
“May I tell you something personally?”
“Yeah, I’d like you to tell me something personally.”
“You offended my brother,” said Gary, “and I don’t like it.” “Yeah, I heard that on the tape,” Schiller told him. “Well, I wanted to tell you personally. I didn’t like that.”
Schiller thought, “He doesn’t sound that mad. He’s really saying, ‘Let’s get on with it.’ “
Larry cleared his throat. “Okay, I can take it from there, okay?” “Go ahead.”
He got to the subject fast. “At this point, Gary, at one in the morning …..
“Pardon,” said Gilmore.
“At one in the morning,” Larry continued, reading off a card, “do you think you still have to hide anything about your life?”
“Like what?”
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“I’m not asking you to tell me what it is, you see? I’m just sking if there’s the feeling that you want to hold back something.”
Gilmore sighed. “Do you have anything specific?” he asked.
“Well, let’s say,” said Schiller, “did you ever kill anybody besides Jensen and Bushnell?”
Maybe it was more of his romanticism, but he had the idea that if a man was about to die, he would be ready to reveal himself, and Schiller really wanted to know if Gilmore had ever killed anyone before.
“Did you?” repeated Schiller.
“No,” said Gilmore.
“No,” repeated Schiller. One more frustration. There was a silence. No way to continue. He had to try another line of inquiry.
“Is there anything about your relationship with your mother or father,” he asked, “that is so personal to you, that even at the moment of death you’d rather not talk?” What kind of relationship could a mother have, he was thinking, that she would not come to see her son? Even if she had to arrive by stretcher! Schiller couldn’t comprehend it. There had to be some buried animosity-something Gary had done to her, or she to him. If he could only get a clue to that. But nobody got to Bessie Gilmore. Dave Johnston had gone up to Portland on his own for the L.A. Times and couldn’t speak to her. When Johnston failed, you had a woman not ready to talk.
“Goddammit,” said Gilmore over the phone, “I’m getting pissed off at that kind of question. I don’t give a damn what anybody else has said. I’ve told you the fucking truth. Man, my mother’s a hell of a woman. She has suffered with rheumatoid arthritis for about years and she’s never bitched about it at all. Now, does that tell anything?”
“That tells me a fucking lot, right now,” said Schiller hoarsely. “My dad got thrown a lot in jail, when we was kids,” said more. “He was a rounder. My mother would say, ‘Well, he walked out,’ and she let it go at that. She did the very goddamned best could, and man, she was always there, we always had something
eat, we always had somebody to tuck us in.” “Okay,” said Schiller, “I believe you.” “What about your mother?” asked Gilmore.
GILMORE’S LAST TAPE
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“My mother,” said Schiller, “was a rough, hard woman. She worked every day. She used to put me in the movies with my brother. We’d watch movies every day while she scrubbed floors for my dad.” Much of human motivation, he had decided for himself in later years, came from the idea of behavior that movie plots laid into your head. When you could make remarks that brought back those movie plots, people acted on them. So the story he told Gilmore was something of a film scene. In actuality, his family had been in financial straits for only a few years, and in that period, his mother had to scrub floors at times, but the idea of a life spent on one’s knees certainly mollified Gilmore.
“My mother,” said Gary, “worked as a buswoman. She didn’t have any money, and she was trying to hold on to a beautiful house that we had with a nice swing-around driveway where you drive up and it makes a circle. She wanted that. She wanted some things. She lost it. When she did, she moved into a trailer. She never bitched about it.”
“You really love her, man, don’t you?” said Schiller.
“Goddammit, yes,” said Gary. “I don’t want to hear any fucking bullshit that she was mean to me. She never hit me.”
At that moment there was an interruption on the phone. “Hello,”
said a voice. “Hello,” said Gary. “Is this Mr. Fagan?” said the voice. “Who’s this?” asked Gary. “This is the Warden.”
“This is Mr. Gilmore,” said Gary modestly, “I’m making a phone call that Mr. Fagan approved.”
“Okay, thank you,” said Sam Smith, “pardon me,” and he hung up. There was something in the Warden’s voice that sounded like he was just about holding on to himself. It gave Schiller the feeling he had better hurry.
Next to Schiller, lying on the floor under the table, was Barry Farrell listening to the conversation through an earpiece attached by a short wire to the tape recorder. Schiller wanted to see Barry’s face and get his reactions, but all he could manage from the angle at which he sat was the occasional sight of Barry’s hand writing on a 3 x5 card.
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Schiller took his last crack at the question they could not get Gilmore to respond to. “I believe you had rough breaks,” said Schiller. “You got into trouble, and had a temper and were impatient, but you weren’t a killer. Something happened. Something turned you into a man who could kill Jensen and Bushnell, some feeling, or emotion, or event.”
“I was always capable of murder,” said Gilmore. “There’s a side of me that I don’t like. I can become totally devoid of feelings for others, unemotional. I know I’m doing something grossly fucking wrong. I can still go ahead and do it.”
It wasn’t exactly the answer Schiller was hoping to hear. He wanted an episode. “I still,” he said, “don’t understand what goes on in a person’s mind who decides to kill.”
“Hey, look,” said Gilmore, “listen. One time I was driving down the street in Portland. I was just fucking around, about half high, and I seen two guys walk out of a bar. I was just a youngster, man, 19, 2o, something like that, and one of these dudes is a young Chicano about my age and the other’s about 4o, an older dude. So I said, Hey, you guys want to see some girls? Get in. And they got in the back. I had a ‘49 Chevrolet, two door, you know, fastback? And they got in. And I drove out to Clackamas County, a very dark … now I’m telling you the truth, I ain’t making this up, I’m not dramatizing, I’m going to be blasted out of my fucking boots, and I swear to Jesus Christ on everything that’s holy that I’m telling you the truth verfuckingbatim. This is a strange story.”
“Okay.”
“They got back there,” said Gary, “and I got to telling them about these broads, I was just embroidering how they had big tits and liked to fuck and had a party going and how I left the party to get some guys to bring out there because they were short on dudes, and these two were about half drunk, and I drove ‘em down this pitch-black fucking road, it had gravel on it, you know, not a rough road, black, smooth, flat, chipped fucking concrete, that’s how I remember it, and I reached down under the seat-I always kept a baseball bat or a pipe, you know — and I reached down under the seat.., just a minute.”
Schiller was not following the story. He knew they were getting it on tape, and so he leaned over the table to see if Barry had a quesGILMORE’S LAST TAPE ] 935
tion for Gilmore, and as he did, he was listening to something about a pipe, a baseball bat, or whatever it was, and then he heard Gary say, “Jesus fucking Christ.”
Schiller could feel a shift in the silence.
“Lieutenant Fagan just told me that Ritter issued a Stay,” said Gary. “Son of a bitch. Goddamn foul motherfucker.”
“Okay,” said Schiller, “let’s just hold this shit together. You can hold it. You’ve held it together before, man.” Now, he wanted to hear the story.
Instead, he had to listen to Gary talking to Fagan. “Ritter definitely issued a Stay,” Gary said to Larry finally. “Says it’s illegal to use taxpayers’ money to shoot me.”
“Yeah,” said Schiller softly. There was a long pause and then he declared, “You couldn’t define what the roughest torture is. What Ritter just did, is.” “Yeah,” said Gilmore, “Ritter’s a bumbling, fumbling fool. Yeah, yeah,” he said, “yeah, yeah, yeah, yeah, yeah, yeah. Foul cocksuckers. A taxpayers’ suit. I’ll pay for it myself. I’ll buy the bullets, rifles, pay the riflemen. Jes.usfuckinggoddamnedChrist, man, I want it to be over.” He sounded like he was close to crying.
“You have a right for it to be over,” said Schiller, “an inalienable right.”
“Get ahold of Hansen,” said Gilmore.
“Get on the fucking phones, girls,” shouted Schiller to Lucinda and Debbie. “Get an attorney in Salt Lake City named Hansen.”
Gilmore said, “He’s the fucking Attorney General of the State of Utah.”
“Attorney General of the State of Utah, okay?” Schiller repeated to the girls.
“Tell him to go to the next highest Judge, and get Ritter’s bullshit thrown out.”
“Maybe,” Schiller thought, “I’ve seen too many movies myself.” He could hear his voice exhorting Gary to live. It was the kind of pep talk he had heard in many a flick.
“Gary,” Schiller was saying, “maybe you’re not meant to die. Maybe there’s something so phenomenal, so deep, in the depths of your story, that maybe you’re not meant to die right now. Maybe ttlere are things left to do. We may not know what they are. Maybe by not dying you may be doing a hell of a lot for the whole fucking
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world, Maybe the suffering that you’re doing now is the way you’re giving back those two lives. Maybe you’re laying a foundation for the way society and our civilization should proceed in the future. Maybe the punishment you’re going through now is a greater punishment than death, and maybe a lot of fucking good’s gonna come from it.” Abruptly, he realized he was affecting himself a good deal more than he was moving Gilmore, “Oh, am I going to sound like a schmuck in the eranscript,” thought Schiller, and aloud he said, “You’re not listening to me, are you?”
“What?” said Gary. “Yeah,” he said, “I’m listening.”
“Let’s look at the other side of it,” said Schiller, “Let’s get through the next hour together. You know they’re making you suffer like nobody’s suffered.”
Gary’s voice sounded like it was close to snapping. “Do me a favor,” he said. “I got to get off this fucking phone. Because Mr.
Fagan wants to use it. Get ahold of your gifts.”