The Executioner's Song (133 page)

                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."

Chapter 34

OVER THE MOUNTAINOUS ABODE

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.m. 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 divvying 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 Gilmore in November. Now he only had to plug in the facts of the current case to procedural steps already learned. It was the simple absence 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 hellish to hand over such a sloppy piece of typewriting. He was relieved when the Salt Lake Sheriff's dispatcher sent over two girls to help.

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

A new anxiety began to weigh on the Assistant Attorney Generals. Bob Hansen planned to get them in to Denver by 6 A.M., but the execution was scheduled for today's time of sunrise, 7:49. In the hour and fifty minutes after landing, how could they drive to Court, conduct the case, and have the Judges come back with a decision? They had a law clerk named Gordon Richards spending the night out at the prison as a stand-in for Earl, and Dorius called him now. Richards said that unless Sam Smith got word by 7:15, he could not, repeat, definitely could not, bring the execution off by 7:49. Also, Gordon would need a code message like "Mickey from West Virginia," to make certain any phone calls he received from Denver were legitimate. Dorius knew that Howard Phillips, the Clerk of the Tenth Circuit, lived on Eudora Street in a suburb called Park Hill, so he gave Richards: "Eudora from Park Hill."

                Now, Dorius began to research whether it was imperative that Judge Bullock's order be in fact carried out at 7:49. He looked up the appropriate statutes in the Utah code. Sure enough, the two relevant ones were in conflict. Section 77-36-6 said the Court would declare a day on which the execution was to take place. Another, 77-36-15, said the Warden was to execute the judgment at the specified time. Earl had a legal chestnut: Day versus Time.

                Odds were Judge Bullock had set the execution at sunrise merely to put a little frontier flavor into the judgment. Essentially, it was gratuitous language. In this particular instance, Earl felt it could be ignored, especially since the second statute said that if the execution was not carried out on the day set, then there had to be a new 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 Attorney 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 Bernstein, 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 overturn 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 General, and every other principal 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 motion for the citizens' suit.

Judith Wolbach and Jinks Dabney had not been prepared for Denver. They had gone out into the street from Judge Ritter's Court arm in arm, but when they got to the plaza, it was jammed with newsmen. They had to run to Jinks's office to get away. Judith liked press people, but Jinks didn't, had a distaste of getting bogged down in something like that, so they fled to the library. The press was already in his outer office. Then a call came from Jinks Dabney's wife to say that Bob Hansen wanted to notify him about the new move.

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

                She was quite surprised. Of course, there was quite a count of people you heard about through the years, who got smashed to bits flying light aircraft over the Rockies. You could even take the view there were spooks in the mountains. It was a phobia she had run across before, and normally she could almost sympathize, but right now, her problem was that she didn't know enough law. She would have to stand up and argue all by herself in Tenth Circuit Court. Never been to Tenth Circuit before, or any other Circuit. God, it was 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 was speaking of Judge Lewis's wooden golf clubs. Judy heard them go back and forth about drivers and niblicks, and how wood was coming into its own again. The man's world! She ought to ask the Judge about some tournaments he'd been in, and say, By the way, I've got this client I'd just as soon you didn't shoot.

                She had heard Lewis was a Utah Republican appointed to the Tenth Circuit by President Eisenhower. He was sure conservatively dressed, a modest, keen-looking, clean-shaven face, a silver fox. Had the kind of gray demeanor that would make him perfectly happy in a boardroom some place. Right now, he and Bob Hansen were talking like sixty about everything but the case. All very nice and fair, but she had a recollection of Judge Lewis's being quoted in the papers about Judge Ritter. Something uncomplimentary.

At the Salt Lake Airport, they drove around the main terminal out to one of the small light plane depots. When they arrived, it was only to discover that Hansen's deputies were not yet there. Judge Lewis looked somewhat concerned about the time.

Dorius, Barrett, Evans, and Schwendiman had all been waiting for the last pages to be Xeroxed. At 4 A.M., Schwendiman put the documents in a cardboard box, and they raced through the hails to the exit. Newsmen surrounded them outside, and the glare of camera lights. A Highway Patrol car was waiting by the south door. They were off. Turning on his flasher, the trooper took a route to the airport through back streets Earl had never seen before. They have traveled 60 miles an hour past those sleeping homes.