The Executioner's Song (125 page)

fuckers, take advantage of opportunities. They see you, see how pretty you are, think I’m going to be dead, they want your money, they want you, there’s something about you that anybody would want, I hope, God I hope, oh my God, I just fucking hope.., man, I want you, baby.” He started to cry right there. “Oh, fuck,” he whispered, “I feel so bad right now. I thought I was going to be dead in a few hours.., free to join you… I don’t care if you want to go on living.., you got children, I’m not telling you.., to come out and

commit suicide, I have such a hard thing to do ” Now, he whis pered, “I just don’t want anybody to fuck you, I want you to be mine,

only, only.., only, mine. Oh, baby, I want to be fucking free of this

planet …. I gave all my money away, a hundred thousand dollars… I didn’t want to tell you about that, I didn’t want to seem like I’ was bragging, you got more money than I do, I just want to be honest with you, I thought they was going to kill me, the chickenshit sorry cocksuckers.., fucking sleazy motherfuckers…” The words wore down. He was droning into the tape recorder, “Nicole, I don’t know

what’s happening. Maybe we’re supposed to live a little longer, listen, I tool everything you gave me … twenty-five Seconals, ten .D, al-mane at midnight. I don’t have to but I know so many hymns It s a Catholic hymnal.., the priest come out last night and said a Mass,

God, nothing more boring than Mass Nicole… you’re mine,

God, I feel such power in our love.., baby, I asked yoo. to love me

with all that you are. I miss you so fucking bad, I want only you, and

I swear to God, I’ll have you. I ain’t going to the planet Uranus. I

don’t care what I have to go through, the demons I have to fight, no

matter whatever I have to overcome, I’m going to make myself plain

to you. I don’t give a shit what I have to do, torture, suffer, how many

lives, you can know if I love you tenderly and softly, wildly and

rowdy, naked, wrapped around me …. “

Vern had been watching Gary carefully. After everybody else began to sleep, Gary turned on the radio so loud it was practically offensive Then he lay down and pretended to sleep himself, but it was obvious he couldn’t. A little while later, he got up, shut the radio off, milled

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around, glowered, looked like he might throw a punch at the wall, then tried once more to sleep.

Evelyn Gray, who was a nice lady, a slender, middle-aged lady with eyeglasses and short curled red hair like she went to the beauty parlor regularly, went up to Gary now and tried to console him. “Gary,” she said, “is there anything I can possibly do for you?” Gary looked up at her and said, “All I ever wanted was a little love.” Evelyn Gray came away so touched, she had moved over into tears. “There you go,” said Vern to himself. “All I ever wanted was a little love.”

Earlier in the evening, when the guards brought Gary out from his cell to meet the company, they also, since he would not go back to Death Row, carried in his belongings. Those filled several cartons, and a number of plastic bags contained his mail. Now, after trying to rest for a little while, he got up and said to Vern, “I want to show you some stuff.”

They sat there, side by side, while Gary went through trinkets and foreign coins. Then he asked Vern to help him in taping up a package for Nicole. They started to pick out letters and special items. When done, Gary rearranged the cartons. He looked up at one point and said, “Vern, if they don’t do it, I’m committing suicide.” Said it so quietly and evenly that Vern finally decided it would be that day and Gary wasn’t going to wait too long after the hour was passed. “One way or another,” Vern put it to himself, “dead before noon.” They went through the papers a last time, and Gary took off the Robin Hood hat that Vern had bought him and put it in the box for Nicole. Then he taped her carton. “I want you to swear that this will all go to her,” said Gary, and Vern said, “You know I’ll do what you want.”

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Earl, Bill Barrett, Mike Deamer, and the others had hardly gotten back to the office when Bob Hansen phoned. Judge Lewis, he said, had agreed to hear an appeal in the next few hours, but stipulated that that serious a decision would have to be made by a three-man Court in Denver. Therefore, Hansen was letting the boys know that all legal documents had to be finished in time for departure from Salt Lake by 4 A.M. Given the speed of a small plane, it would be a two-hour flight over the mountains, and they would get in before dawn at 6 A.t. Not much time to draft a paper of quality to submit to the Tenth Circuit Court.

All Earl could feel was fatigue. They would have to do it right there in the middle of the night, no secretaries present. Ironically, that was the worst part. They had already researched the law. By div vying up the assignments, they could certainly write the papers in the time they had. Earl, for example, could save three hours on his Writ of Mandamus because he had already drafted one back when Judge Ritter granted the Tribune those exclusive interviews with Gil more in November. Now he only had to plug in the facts of the cur rent case to procedural steps already learned. It was the simple ab sence of secretaries, however, that could hold you up. Schwendiman and Dorius began to type, awfully slow going. Earl had to suffer at the idea of turning in a document so filled with typographical errors to a Court as high as the Tenth Circuit Court of Appeals in Denver. While he had been told to just get any kind of paper done, still it was

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hellish to hand over such a sloppy piece of typewriting. He was lieved when the Salt Lake Sheriff’s dispatcher sent over two girls to help.

Other problems came up. A phone call from Gary Gilmore. course, they didn’t take it. Everybody in the office had the same tion: Don’t talk to him. All they needed was for the State to with the condemned man. Just the same, Earl was impressed. He still been expecting Gilmore to say at the last second, “I want to peal.” Having conned society one way, he would turn them around the end. But now in the bottom of the night, Earl began to that maybe Gilmore really wanted his sentence carried out.

A new anxiety began to weigh on the Assistant Attorney erals. Bob Hansen planned to get them in to Denver by 6 n.M., the execution was scheduled for today’s time of sunrise, 7:49. In hour and fifty minutes after landing, how could they drive to conduct the case, and have the Judges come back with a They had a law clerk named Gordon Richards spending the ni at the prison as a standin for Earl, and Dorius called him Richards said that unless Sam Smith got word by 7:I5, he could repeat, definitely could not, bring the execution off by 7:49. Gordon would need a code message like “Mickey from West ginia,” to make certain any phone calls he received from Denver legitimate. Dorius knew that Howard Phillips, the Clerk of the Circuit, lived on Eudora Street in a suburb called Park Hill, so gave Richards: “Eudora from Park Hill.”

Now, Dorius began to research whether it was imperative Judge Bullock’s order be in fact carried out at 7:49. He looked up appropriate statutes in the Utah code. Sure enough, the two ones were in conflict. Section 77-36-6 aid the Court would day on which the execution was to take place. Another, said the Warden was to execute the judgment at the specified Earl had a legal chestnut: Day versus Time.

Odds were Judge Bullock had set the execution at merely to put a little frontier flavor into the judgment. Essentiall, was gratuitous language. In this particular instance, Earl felt it be ignored, especially since the second statute said that if the tion was not carried out on the day set, then there had to be a

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time declared. That certainly seemed to indicate “time” was being used as a synonym for day. It didn’t make any sense to assume that if you set a date for execution and it wasn’t carried out, then the next execution had to be more specific, that is, done at a given minute. Such a practice could lead to chaos. What if you had the Warden with his hand up and he was one second late? Unworkable! Earl decided that the intent of these statutes had to signify day, not time. Judge Bullock’s “at sunrise” could legally, therefore, be declared gratuitous language. That was his thinking on the problem.

He talked about it quickly with Mike Deamer. As Deputy Attor ney General, Deamer would be holding the fort in Salt Lake, while Bob Hansen and Schwendiman and Barrett and Evans and himself flew to Denver. But it was a hurried conversation. They were, after all, caught in the pressure of getting out their papers. Already, they were running late. Bob Hansen’s takeoff at 4 A.M. would have to be delayed. That hand moved around the clock like anxiety circulating in one’s chest.

In Washington, Al Bmnstein, an ACLU lawyer, was phoned at 5 A.M., Eastern Standard Time. That, of course, was three in the morning in Utah. The call came from Henry Schwarzschild, head of the National Coalition Against the Death Penalty, and he now told Bronstein of Bob Hansen’s intention to fly to Denver. Schwarzschild had just learned the news himself and hadn’t seen any papers, but he thought the Attorney General would have to apply for a Writ of Mandamus against Judge Ritter, and he wanted Bronstein to go to the Supreme Court and be available there in the event the Tenth Circuit did over° turn the Judge. So, Bronstein spent the last of this night trying to prepare legal papers without knowing the name of the case, nor the caption on it. Completely without the starting, point of Who versus Whom. He called the Supreme Court which, by law, technically, was open 24 hours a day, but there was no answer.

Somewhere after four in the morning, Phil Hansen got out of bed and put the radio on, and God, all of a sudden, he could hear this thing on KSL that the Attorney Gene,ral, and every other principal

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were going to fly over to Denver. Of course, he phoned Ritter and the Judge said he should have second-guessed it, should have known in his dreams they would pull that. At any rate, the more they discussed the situation, the less risky it seemed. As they calculated the time, there wasn’t any means by which the Tenth Circuit would be able to get through every step before 7:49. It was hardly more than three hours away now. Not possible to execute him on time. The Tenth Circuit, at worst, would resentence him for the future. Tomorrow thought Phil Hansen, there would be time to put his wheels in

tion for the citizens’ suit.

Judith Wolbach and Jinks Dabney had not been prepared

fhey had gone out into the street from Judge Ritter’s Court arm aim, but when they got to the plaza, it was jammed with

They had to run to Jinks’s office to get away. Judith liked press ple, but Jinks didn’t, had a distaste of getting bogged down in thing like that, so they fled to the library. The press was already his outer office. Then a call came from Jinks Dabney’s wife to that Bob Hansen wanted to notify him about the new move.

Judith stayed in the library trying to check out procedures Tenth Circuit Court while Jinks called the airlines. He came say there were no commercial flights. Therefore, he couldn’t go. Hansen had procured a plane, but it was uninsured. He in it. Judy said, “Jinks, you’re the one with Circuit better for you to handle this case.” Dabney told her nothing worth it. He wouldn’t take that kind of personal risk.

She was quite surprised. Of course, there was quite a people you heard about through the years, who got smashed to flying light aircraft over the Rockies. You could even take there were spooks in the mountains. It was a phobia she hadi across before, and normally she could almost sympathize, but now, her problem was that she didn’t know enough law. She have to stand up and and argue all by herself in Tenth

Never been to Tenth Circuit before, or any other Circuit. God,

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like leaving her alone on an expert trail. Hey, she felt like yelling, I’m just an ex-anthropology student. This law is too rarefied for me.

She hardly knew the man, but it was crystal clear Jinks was not going to fly in that little plane. “Nothing is worth it,” he repeated quietly.

Before she left, Judy Wolbach grabbed a copy of the Tenth Circuit rules and a couple of volumes from American Jurisprudence. That was sort of a ground-level legal encyclopedia. She and Jinks did get through on the phone to some ACLU lawyers in Denver who had considerable experience with the Tenth, and they promised to meet her at the Federal Courthouse. They would argue the technical aspects, they said. Judy was impressed with the ACLU people in Denver. What a gift to have such good lawyers ready to pitch in on short notice.

Getting to the plane, however, turned out to be gross. Hansen called to say he would pick her up and they would drive together to Judge Lewis’s house, then all go out to the airport. Judy had no desire to fly with the Attorney General’s people, but there was no choice. So Hansen came by, picked her up, and she began to do a slow boil. Instead of traveling west toward the airport, they had to cut back all the way across Salt Lake to the East Bench for Judge Lewis. This was time Judith could have used doing research instead of pooting around these Ivy League streets, Harvard Avenue and Yale Crest, with these big homes patterned after New England townhouses. All Judy was seeing were a lot of empty elm tree branches waving in the middle of the night. Thought it was petty of Hansen to pull a trick like this, and almost told him so except Hansen would probably say he wanted a witness to the fact he had no prior conversation with the Judge.

Well, in the time it took him to walk up to the Judge’s door, which was set back quite far on the lawn, and then chat with the man in the vestibule before they finally came out to the car, he had time to say anything he wanted. Talk of influencing the man, Hansen and Judge Lewis were into fishing, and how things were going in each other’s office, and Judy was thinking, Boy, I’d really like to get a Word in edgewise and tell the Judge what’s going on, but no, Hansen