PART SIX.
The Trial of Gary M. Gilmore
Chapter 23.
SANITY.
Esplin and Snyder had been offered a crack at distinguishing themselves in a big case, in fact, the most prominent case either of them had yet taken on. They certainly thought they were working hard.
The legal community that met informally each morning and afternoon in the Provo Courthouse coffee shop in the basement hall across from the foot of the marble stairs was a group to pay attention to the upcoming trial. It was some time since Provo had had a case of Murder in the First Degree, and a young lawyer could do service or injury to his reputation among colleagues.
So they were eager to put their skills to work, and not without awe at the responsibility. A man's life would depend on their presentation. It was frustrating, therefore, to discover they had an uncooperative client.
He wanted to live-at least they assumed he wanted to live-he talked about getting off with Murder in the Second Degree, even being found Not Guilty. Yet he would not offer new material to improve a weak defense.
The prosecution had circumstantial evidence that was tightly knit. If perfect evidence could run from A to Z without a letter missing, then here, perhaps no more than a letter or two was smudged, and only one was absent. The fingerprint on the automatic was not clear enough to be established as Gary's. Everything else brought the case together-most particularly the shell casing found beside Benny Bushnell's body. That could have come only from the Browning found in the bushes. A trail of blood led from those bushes to the service station where Martin Ontiveros and Norman Fulmer had seen Gary's bloody hand.
There was direct evidence as well. At the Preliminary Hearing on August 3, Peter Arroyo testified to seeing Gary with a gun in one hand and a cash box in the other. Arroyo made a perfect appearance.
He was a family man who spoke in a clear and definite voice. If you were filming a movie and wanted a witness for the prosecution who could hurt the defense, you would cast Peter Arroyo. In fact, after the Preliminary Hearing, Snyder and Esplin ran into Noall Wootton in the coffee shop, and they joked about the witness's talents the way rival coaches might talk of a star who played for one of them.
The confession Gary gave to Gerald Nielsen had also hurt a great deal. Snyder and Esplin were not concerned Wootton would try to bring such a confession into the trial. If he did, they thought they could show Gerald Nielsen had violated the defendant's rights. In fact, Esplin delivered a pretty potent plea at the Preliminary Hearing.
"Your Honor," he said, "the police can't lay out a case before a suspect and say this is the evidence we've got, and wait for him to make a statement, and then say we didn't actually ask him anything. Why, the inflection of one's voice can lead one to believe he's being asked a question."
The Judge came close to agreeing. He said, "If I was sitting as a trial judge, I'd exclude it . . . but for the purposes of a Preliminary Hearing, I'm going to admit it."
Wootton would probably not even bring the confession into court now. It could taint the case sufficiently to have a conviction overthrown on appeal.
Even so, the confession had done its damage. Much of the promise was out of the defense. A lawyer without a reputation for probity might be able to ignore the fact that half the legal community of Provo now knew, after the Preliminary Hearing, that Gilmore had confessed, and the other half, via the coffee shop, would soon find out. That was bound to inhibit any really imaginative defense. It would not be comfortable before the fact of such a confession to work up the possibility that Bushnell's death was an accident in the course of a robbery.
The most telling evidence against Gary was the powder marks that proved he had put the gun to Bushnell's head. Otherwise, you could argue the murder took place because Benny Bushnell had the bad luck to walk into the office just as Gary was robbing the cash box. That would be Second-Degree Murder, a homicide committed in the heat of a robbery. It was hardly as bad as ordering a man to lie down on the floor, then pulling the trigger. That was premeditated.
Ice-cold.
Nonetheless, you could still work up a defense from those facts.
Automatics had the most sensitive triggers of any handguns. Since Gilmore, a few minutes later, would shoot himself by accident with just such a sensitive trigger, you might still argue that he had been surprised by Bushnell and had taken out his gun. Trying to decide what to do next, he told Bushnell to lie down. When Bushnell started to say something, he threatened him by putting the gun to his head.
Then the gun, to his horror, went off. By accident. It might have been a defense. It could have created some reasonable doubt. It would, at least, tone down the most powerful detail, emotionally speaking, in the prosecution's case. Yet, that argument could now be employed only as one of several possibilities during a general summation to the Jury. You could not build your case on it, not when many a lawyer in Provo, given the existence of the confession, would see such tactics as sleazy.
2.
A trial for murder in Utah was conducted in two parts. If the defendant was found Guilty in the First Degree, a Mitigation Hearing had to be held right after. One could then introduce witnesses who were there to testify to the character of the accused, good or bad. After such testimony, the Jury would go out a second time, and decide between life imprisonment and death.
If Gary was found guilty, his life would depend on this Mitigation Hearing. Yet here he became uncooperative. He would not agree to calling Nicole as a witness. They tried to discuss it. There, in the little visitor's room at County Jail, he did not listen to Snyder and Esplin's argument that they had to be able to make the Jury see him as a human being. Who better than his girl friend could show he was a man with a good side? But Gilmore would not allow bringing her into the case. "My life with Nicole," he seemed to be saying, "is sacred and sealed."
He was not forthcoming. He did not suggest witnesses. When he gave up a few details of how he lived in Provo, the details were dry.
He did not offer the names of friends. He would say, "There was this kid I work with, and we had a beer." He sat on his side of the visiting room, remote, soft voiced, not unfriendly, hopelessly distant.
On the other hand, he did show some curiosity about his lawyers' backgrounds. It was as if he preferred to ask the questions. In the hope of priming him, Snyder and Esplin were ready, therefore, to talk about themselves. Craig Snyder's father, for instance, had run a nursing home in Salt Lake, and Craig had gone to the University of Utah. While there, he made head cheerleader, he told Gary with a self-effacing grin. His wife had been president of a sorority. He was still an avid football and basketball fan. Played golf, paddle ball and tennis, gin rummy and bridge. After law school, he moved to Texas and worked in the corporate tax department of Exxon, but came back to Utah because he liked being a trial attorney more.
"Any kids?" asked Gilmore.
"Travis is six, and Brady is two." Craig's expression was round and serious, friendly and cautious.
"Yeah," said Gilmore.
Esplin had wanted to be a sports hero, but suffered hay fever as a child. He grew up on a ranch, and went to England on a mission.
When he came back at twenty-one, he got married. Long before, by the time he was thirteen, he had read all the Perry Mason books he could find. Erle Stanley Gardner made Mike Esplin a lawyer, but private practice seemed to consist of bankruptcies and divorce cases.
So, for the last year, he had worked full time in Provo as a Public Defender.
Gilmore nodded. Gilmore took it in. He did not give a great deal back. Did not think there was anything they could use from his prison years. Only the prison record and that wasn't written for him but for the institution. His mother might make a good witness, he allowed, but she was arthritic, and could not travel.
Snyder and Esplin got in touch with Bessie Gilmore. Gary was right-she could not travel. There was the cousin, Brenda Nicol, only Gary was angry at her. At the Preliminary Hearing on August 3, he had waved to her across the Court. Thought she was there to see him. Soon learned that Noall Wootton had called her. On the stand, Brenda told of the phone call Gary made from the Orem Police Station. "I asked him what he would like me to tell his mother," Brenda had said on the stand. "He said, 'I guess you can tell her it's true.' " Mike Esplin tried to get Brenda to agree Gary meant it was true he had been charged with murder. Brenda repeated her testimony, and took no sides. Gary found that hard to forgive.
Still, the lawyers tried. They talked to Brenda on the phone.
Snyder thought she was flippant and more than a little frightened of Gilmore. He had told her, she said, that he would get even with her for turning him in. Lately, there had been an orange van following her car. She thought it might be a friend of Gary's.
She said she had gone out on a limb to get Gary out of prison, and felt he'd kind of stabbed her in the back. She loved him very much, she said, but thought he was going to have to pay for what he had done.
Later, the lawyers phoned again. On the Monday night that Gary came to her house with April, did he seem to be under the influence of drugs or alcohol? Those were mitigating circumstances. Brenda repeated what April had said, "I'm really afraid of you when you get that way, Gary." She liked Gary, Brenda repeated, but he deserved what he was going to get. At best, Brenda would be a dangerous witness, decided Snyder and Esplin, They called Spencer McGrath, and he said he liked Gary, but was very disappointed over the turn of events. The mothers of a couple of young fellows he had working for him were indignant that he had hired a criminal. He was now catching about all the trouble he needed. People would stop him on the street and say, "How's it feel, Spencer, to have had a murderer on your payroll?" That wasn't helping his projects any.
They never talked to Vern Damico. Gary kept saying that his relationship with his relatives had not been that good. Besides, the lawyers received a report of a conversation with Vern from Utah State Hospital: Mr. Damico gave me the following information regarding Gary Gilmore: He doesn't like to be defeated, and when he is, he will not forget it and won't forgive. He is also very revengeful and has Mr. Damico's family very frightened as they were the ones who turned him in. He has written a letter to his cousin and told her he hopes she has nightmares for turning him in. The family is also a little concerned that he will break out of jail or the hospital as he has a history of that in the past.
3.
They were down to searching for a psychiatrist who would declare Gilmore insane. Failing that, Snyder and Esplin were looking to find a paragraph in one of the psychiatric reports or even a sentence they could use.
PSYCHOLOGICAL ASSESSMENT.
Dates of Assessment: August 10, 11, 13 and 14, 1976 Assessment Procedures: Interviews with patient Minnesota Multiphasic Personality Inventory Bipolar Psychological Inventory Sentence Completion Shipley Institute for Living Bender-Gestalt Graham Kendall Rorschach Mr. Gilmore said at one point, "All week long I had this unreal feeling, like I was seeing things through water, or I was watching myself do things. Especially this night, everything felt like I had this unreal feeling, like I was watching at a distance of what I was doing . . . I had this cloudy feeling. I went in and told the guy to give me the money, and I told him to lay down on the floor, and then I shot him . . . I know it's all real, and I know I did it, but somehow or other, I don't feel too responsible. It was as though I had to do it. I can remember when I was a boy I would put my finger over the end of a BB gun and pull the trigger to see if a BB was really in it, or stick my finger in water and put it in a light socket to see if it really would shock me. It seemed like I just had to do it, that there was a compulsion for me to do these things."
Intellectual Functioning: Gary is functioning in the above-average to superior range of intelligence. His vocabulary IQ was 140, his abstraction IQ was 120, and his full-scale IQ was 129. He said that he had read an awful lot in his life, and indeed, he missed only two words on the vocabulary test . . .
Personality Integration: On the paper-pencil personality test, Gary shows himself to be an individual who is very hostile, socially deviant, currently unhappy with his life, and insensitive to the feelings of other people. He has a high hostility component toward the establishment . . .
Summary and Conclusion: In summary, Gary is a 35-year-old Caucasian single male . . . of superior intellect. There is no evidence of organic brain damage. Gary is basically a personality disorder of the psychopathic or antisocial type. I think, however, that there may be some substance to his talk about the depersonalization symptoms that he experienced during the week that he was separated from Nicole and during the shooting of these two people. It is clear, however, that he knew what he was doing . . . I see no alternative other than to return him to court for further legal processing.
Robert J. Howell, Ph.D.
I8 August 1976 Neurologic Consultation He indicated he occasionally has jagged lines across his visual fields, especially on the right, followed by inability to see for about 10 minutes followed by severe headache, which is occasionally accompanied by a dizziness. Headache lasts an hour or so, then goes away.
The headache always follows a visual experience, but he also has other headaches which are sometimes "real bad," which come without this and may occur at any time. These occur with considerable variability, and at times he has used Fiorinal almost every day because this usually stops it, whereas aspirin, Tylenol, and other things have not seemed to help. He has been struck in the head in some fights, but has not been knocked out. A few months ago he suffered a laceration in the left eyebrow region, which has healed well. As a youth, his brother tended to hit him on the back of the neck and he thinks he may have a vertebra out of place, and has recurring neck aches.
He reports that from his youth he has had a tendency towards compulsive behavior. He would get a thought in his mind and not be able to keep himself from doing it. He gives as an example going out to the middle of a train trestle and waiting until the train came to the end of the trestle before starting to run in the opposite direction to get off the trestle before the train caught up with him. While in the penitentiary on a fifth tier, he would get a compulsion to stand up on a railing and touch the ceiling above, with the possibility of failing 50 feet to the floor below . . .
His unusual behavior in response to a sense of compulsion and his alleged spotty amnesia will require further appraisal from the psychiatric point of view, but at this point it seems quite unlikely that they represent any sort of seizure manifestation.
MADISON H. THOMAS, M.D.
August 31, 1976 Staff Presentation: DR. HOWELL How many ECTs did you get?
ANSWER Well, they told me they gave me one series of six . . . the doctor they had working there at the penitentiary, the psychiatrist, that was his cure-all for everything. If you got violent or got out of line or whatever, or he figured you needed to be a little more passive, he would, you know, hook you up to Bonneville Dam.
DR. WOODS So a lot of guys got hooked up to Bonneville Dam.
ANSWER Yeah, while he was working there. One hell of a lot of guys.
DR. LEBEGUE Now why did you get the Prolixin? What happened there?
ANSWER Well, there was another riot. It happened in the hole and it took them about 11 days to contain it. I was chained for two weeks, and during that time they came in and shot me with Prolixin. They were giving me 2 cc's twice a week, and I had lost 50, maybe a little bit more, 50 pounds by the time they finally let me up out of that nightmare.
DR. HOWELL About how many would you guess you had?
ANSWER They were giving me two shots a week for four months.
DR. KIGER You have got clean psychiatric reports eleven out of twelve. The whole time you have been in the prison system except one. One report . . . said you had a paranoid psychotic state. Do you recall when that one was?
ANSWER God, it's so easy to be accused of being paranoid in prison. I mean maybe I had a disagreement with somebody and they were in a position to say I was paranoid and thereby dismiss whatever the thing was. I don't know.
DR. HOWELL During that time you don't see yourself as having been mentally ill.
ANSWER A lot of those guards are mentally ill.
DENNIS CULLIMORE, MEDICAL STAFF WORKER Was there anything either of the evenings of the murders about your mental state that was different than usual?
ANSWER Well, I didn't have-all of the strings had been cut, like I didn't have control of myself. I mean I was just going through motions. I wasn't planning anything. These things were just occurring . . .
DENNIS CULLIMORE, MSW At what point did you know that you were going to shoot him?
ANSWER When I shot him. I didn't know it before then . . . it just seemed like it was the next move in a motion that was happening, you know.
DR. KIGER Have you had other emotionally charged episodes where you didn't remember all that happened at that time?
ANSWER I'm not really excitable, you know, I don't get emotional. Some things I let weigh on me pretty heavy, but it's not the sort of thing that mounts and builds, you know. It's not a spur of the moment thing.
DR. LEBEGUE That feeling that you described to several of us about somehow things being unreal like seeing through water, has that happened to you before this summer?
ANSWER Not, not really . . . only there have been times when life seems to slow down and you can watch movement more intensely. Like if you get in a tight situation, a fight situation, or something like that, the feeling there is somewhat similar to this.
DR. KIGER Anything similar to when you are on grass?
ANSWER When you are on grass, you just trip along and everything is fine, but when you're in a tense situation, I don't know. No, I can't say that I have really experienced that feeling before.
DR. LEBEGUE So, it was something new to you.
ANSWER Yeah, I would say so.
DENNIS CULLIMORE, MSW Does anyone have anything else? OK.
DR. WOODS Thanks for coming in, Gary.
ANSWER All right.
Comprehensive Treatment Plan A report will be made to the court stating that the patient is both competent and responsible.
BRECK LEBEGUE, M.D.
Resident in Psychiatry Formulation: This is a 35-year-old white male who is here for psychiatric evaluation. There is no evidence of thought disorder or psychosis, amnesia, organic brain damage, seizures, or any other behavior of pathology which would prevent him from conferring with his attorney and standing trial on the charges. He is aware of the circumstances and of his actions. He does describe some symptoms of depersonalization during the actions, but it is not uncommon for those who murder to undergo a temporary process of dehumanization. I feel that he was responsible for his actions at the time of the incident.
Staff Diagnosis: Personality disorder of the antisocial type.
BRECK LEBEGUE, M.D.
Resident in Psychiatry
4.
Gilmore gave off no aura of the psychotic. The more Snyder and Esplin searched these staff reports and transcripts, the less they encountered madness, and the more he appeared grim, ironic, practical.