The Executioner's Song (128 page)

Judith gave her case. It was just a rush and a repeat of what Jinks had presented, and she glared at Earl Dorius as she presented her points. He irritated her profoundly this night, but not because of anything he had done. It was because he thought he was right.

MICKEY FROM WHEELING, AND EUDORA FROM PARK HILL

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When Judith sat down, another member of the ACLU team spoke against the death penalty in general. The Justices cut him short. Now the case started rushing faster and faster. Bill Barrett tried again to discuss the issue of standing, but the Court said they were familiar with that. Would the Attorney General’s office move ahead? Bill Evans began to defend the constitutionality of Utah’s statute. The Judges stopped him. That issue was not, they said, relevant to the case before them. It was getting more and more abrupt. When one of the ACLU lawyers tried to discuss capital punishment, the Panel cut him off, and declared a recess. The Judges would now write their opinion.

Just before he left the Bench, Judge Lewis spoke. “Among other people who have rights,” he said, “Mr. Gilmore has his own. If an error is being made in having the execution go forward, he has brought it upon himself.” Then they went out.

Now, Earl Dorius turned to Dave Schwendiman and told him to get Gordon Richards on any phone he could find. He would first have to identify himself with the code words “Eudora from Park Hill,” and then tell Gordon to wait on the line. Schwendiman went out immediately to the Clerk’s office, trying all the while to walk rather than run. No one but a secretary was there, so he sat down at an unoccupied desk and placed a collect call to Richards at Utah State Prisbn. After he gave the password, he said it looked like they were going to prevail, Keeping the line open, they chatted and Richards told him how cold the night had been, and that the van which would carry Gilmore and the automobile that would transport the witnesses were both ready, respectively, outside Maximum and Minimum Security. Their motors were on.

Waiting in the courtroom for a verdict, Earl was certain his side had won. He even felt calm for the first time in the last several days, and turned to Bob Hansen and started thanking him for pushing them all to do the job, and getting to Denver. As he spoke, he had so much more emotion than expected that he had. a momentary panic he might look tearful. He was certainly thankful to have an Attorney General who was willing to get this involved in a case and wasn’t hesitant to push his staff to their utmost limits.

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THE EXECUTIONER’S SONG

The Judges were back in three minutes. They did not read their verdict. The Clerk of the Court, Howard Phillips, did it for them in a dry offhand voice. As he spoke, Judy thought that of all the things they did not do, they didn’t have a Court Reporter. There would be no transcript. Awful. Zap! The Judges had moved out. Zap! They had moved back. She sat there, listening to the Clerk.

“It is ordered: One, the Writ of Mandamus is granted. The Temporary Restraining Order entered at about i :o5 this morning by the Honorable Willis W. Ritter, Judge of the District Court of the State of Utah, is vacated, set aside, and held for nought. The Honorable Willis W. Ritter is ordered to take no further action in any manner, of any kind, involving Gary Gilmore unless such matter is presented by the duly accredited attorney for Gilmore, or by Gilmore himself. Done at 7:35 A.M., January i7th, I977.”

Earl raced out of the courtroom, banged into a couple of newsmen, screamed at them to get out of his way.

Dave Schwendiman heard a rush in the hallway, and Earl came tearing in, seized the phone, and said to Gordon Richards that the Writ had been granted. The prison should commence all activity necessary to carry out the execution.

On the other end of the line, Richards sounded extremely tense. He kept asking whether this was final and whether the other side was going to appeal to the Supreme Court. Earl kept repeating in greater detail precisely what had happened, and told Richards to order the execution to commence. Gordon said it would take at least half an hour. Was it essential that it be carried out by sunrise? Cause they couldn’t make it by then. Dorius said the conclusion reached was that the only thing essential was the day, not the time of day. Richards still seemed unsure. Said he would speak to Deamer. Dorius agreed. Check it with Deamer.

Richards, however, still sounded tense. Could the ACLU, he asked, obtain a Stay in the next half hour from the U.S. Supreme Court?

They could. Unlikely, but possible. Such a message, said Dorius,

MICKEY FROM WHEELING, AND EUDORA FROM PARK HILL

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if it came, would arrive from the Supreme Court itself.“‘Mickey from Wheeling, West Virginia” would be calling. Richards repeated that he would call Deamer.

Then the ACLU attorneys came running in. They wanted to call the Supreme Court. Howard Phillips, who had arrived with them, said, however, that it was not permitted to use his phone. Immediately, the ACLU guys laid a finger on Earl. He had been using it, they said, why couldn’t they? Phillips replied that he had not known, and asked Earl to get off. He did, promptly. By that time, Phillips was so unhappy he told the ACLU people he had a pocket full of quarters. They were welcome to use them for a coin phone.

After they were gone, Dorius went out to the hall and looked out one of the windows in the corridor of the fourth floor. He could see reporters down in the plaza below interviewing Bob Hano sen. The sun was coming up in Denver, and Dorius felt a real warm sense of gratification that the argument just presented was the best they could have made under the circumstances. By his reflection in the window, he noticed he had a growth of whiskers, and his eyes were bloodshot. He needed a bath, but he felt good.

Judge Lewis was thinking it had been very unpleasant. Probably the most traumatic and emotional few moments he had ever had on the Bench. Then he said to himself, “Well, the Supreme Court never got into it. They had every opportunity, but they didn’t.” There was a reasonable certitude that he and his two brothers of the Bench were right.

back, but the reporter kept asking questions, not rude but persistent enough that, finally, to get off the phone, Deamer had to say, Yes, we’re going to execute him. Didn’t want to refuse the reporter entirely.

GOING DOWN THE ROAD

Around 7:55, Gordon Pdchards called again. Gilmore had now been moved to the execution area, and Sam Smith was ready to proceed. What did Deamer advise? Again, Mike was surprised at how fast everything was moving. He confirmed to Richards that he had heard nothing about any other Stays, and told Richards to go ahead. Call him as soon as it was over.

Gordon Richards called Mike Deamer at 7:35 A.M. and said Denver

had lifted Ritter’s Stay. Could they now go ahead with the execution? Deamer had a complete sense of surprise. He shouted into the phone,

“They did? I” He was totally shocked.

Deamer had never expected it to happen that fast. He half thought it would be pushed off another thirty days, or if it did take place it would be much later in the morning. Near noon, say, there might be clear word. Now, however, he recovered quickly and told Richards the Warden could move. Richards, however, was troubled. He said the American Civil Liberties Union was trying an appeal to the Supreme Court. Should they wait on that? Deamer replied that the only lawful order in effect at present was Judge Bullock’s revised time of execution. He did not see any legal impediment to going ahead. They were not required by law to anticipate a Stay from any Court, including the Supreme Court. Deamer knew it was going to take at least half an hour to move Gilmore from Maximum Security over to the cannery. Since Denver had spoken, he saw no reason not to get started.

Deamer felt it was important that he take the responsibility. Gordon Richards was just a third-year law student. If he gave legal counsel to the prison, in something as big as this, it could prove a deter° rent on his later ability to practice law. The State Bar Commission would never forgive a student for rendering advice. So Deamer was making it clear that he, Deamer, was the one saying, Execute Gilmore. If the ACLU later filed a Wrongful Death action, he would be the man who had taken the responsibility. Deamer could, of course, have tried to get in touch with Bob Hansen, but Bob and he thought very much alike on nearly all topics, and he was certain Bob would not say anything different than he had. So, he thought, let them sue us. They know where to find us.

Now, he could also have called Governor Matheson to ask if there was any change of mind in that quarter, but he had had a couple of conversations with the man already, and the Governor’s position was that he didn’t want to get involved. So why give him the opportunity now? For all he knew, Matheson was home in bed asleep. Deamer didn’t want to wake the Governor and have him sit there early in the morning and possibly get disturbed, and suddenly decide, Yeah, I’d better do something, and call the prison. He thought he’d just as soon keep the Governor out of it entirely.

As soon as he and Richards were finished speaking, however, he did call the Tenth Circuit and spoke directly to Howard phillips, asked him to verify the Court Order. Phillips read it aloud to him over the phone. Right after, a UPI reporter who had Deamer’s private of-rice number rang up for an interview. Deamer said he would call

All the while, Deamer was hoping that they would get it done close to 7:49. Bringing it in near to sunrise would make the problem cleaner. While Deamer was familiar with Earl Dorius’s argument that time meant day, he also thought there was a counterargument which would claim that there had to be some degree of specificity to an

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order. If the other side ever raised the issue that Judge Bullock’s new order had been obtained improperly because they never had a hear ing on this point, Deamer didn’t see any reason to beef up their ar gument. The closer to sunrise that Gilmore was executed, the better. The law didn’t like to make too much out of too lltde. There would be less exposure to counterargument if they missed execution by a few minutes rather than a few hours.

After he told Gordon Richards to go ahead, however, he realized he was sitting at the desk with Gary Gilmore’s heart beating in his hands. It was a moment of truth, really. Deamer had been in the Army Reserve six years, with six months of active duty in artillery, but he had never been in combat. So he wondered now ff his present feeling might be equal to the kind of emotion you might have if you were about to kill somebody right in your sights. He certainly had more of a mixed reaction than he expected. It was difficult, for in stance, to stay in his seat after he hung up. Too quiet and lonely in the office. He’d worked all through the night, he told himself, was dead tired and felt awful grubby. He had a considerable growth of stubble and smelly socks. Not only tired but near used up. Sundays were a big demand. He was number-two man in Bob Hansen’s office and also second counselor to his Bishop. Church activities took twenty-five to forty hours a week except when legal duties like Gil more consumed sixty to seventy. Even so, he had spent the whole of yesterday in church, and now all this last night working into Monday dawn. It came over him that even ff he was in favor of capital punish ment, he had been going through a long emotional drain. Somehow he had always expected to be the one to carry out the sentence. After all, he believed in it.

Deamer felt we were here on earth to be tested on whether we could live righteously. Repentance was the key. An individual had to make restitution in his lifetime for what he’d done wrong, except for those few crimes for which you could not obtain forgiveness in this life, One was murder. You could obtain forgiveness for murder, but not in this life. It had to come in the next. To repent, you had to allow your

life to be taken. Deamer didn’t feel, therefore, that by giving the go-ahead, he was rendering null and void the existence of Gary Gilmore. Rather, he was enabling Gilmore to pass on to a spiritual sphere where at some point down the read of eternity, the man would obtain forgiveness for these murders.

Sitting in his office all alone, contemplating the scruffiness of his big body, Deamer might be bone tired, but in line with his goals and ambitions, he also felt that an individual occupying his position had to be able to make a decision and stand by it. So, while he waited fol lowing that last call from Gordon Richards, he said to himself, “Maybe I’ve been given this job for a reason. Maybe I’m the one who is able to handle it.” That was the kind of thought which occurred to him about everything he did. He liked to think he had been sent to earth as a person with a mission to do some good for the betterment of society. It was his hope he had been foreordained to be part of a larger plan.

Whenever Bob Hansen chose, therefore, not to run for Attorney General, Deamer was going to be ready. He had been active in Repub lican politics for years and he had his ambitions. Eventually, they would include being Governor. While the Church had a belief in free will, it did instruct that God has plans which are foreordained, and will happen, unless individuals fat to carry them out. If he, Deamer, ever became a government leader, then it was likely he had been foreordained to do so, and was truly carrying out the plan. It could even be part of his mission to take the weight of executing this indi vidual today, a preparation for what might be a large weight of re sponsibility in the future.

In Washington, at the Supreme Court, A1 Bronstein’s papers went in to Justice White about 9:4o, which was 7:4o in Denver. In ten min utes the papers came back. Justice White had denied the application for a Stay. Bronstein was prepared. In a case involving a Circuit Court, you first had to appeal to the Supreme Court Justice directly over that Court, in this case, White. Now, he resubmitted the same