The Executioner's Song - The Executioner's Song Part 37
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The Executioner's Song Part 37

As you go to the jury room take the questions that you have, consider them, and if you do have doubts about it, any reasonable doubts, then I suggest that your obligation is either (1) find the defendant guilty of the lesser included offense of second degree criminal homicide, Murder in the Second Degree, or (2) to acquit the defendant. Thank you.

MR.WOOTTON We'll waive rebuttal.

(Whereupon, the Jury retired to deliberate at 10:13 o'clock A.M., October 7, 1976.) After the Jury had left, Esplin stood up again.

MR. ESPLIN Your Honor, there is one point: we would object to the comment made by the prosecutor in his closing arguments where he referred to doing justice for Benny Bushnell and his widow and so forth as being prejudicial to this Jury, and would at this point move for a mistrial based on that reasoning.

THE COURT The motion for mistrial is denied. Anything further? All right. Then we'll be in recess until such time as the bailiff notifies us that the Jury has reached a verdict.

The Jury had recessed at 10:13 A.M. An hour and twenty minutes later, they brought back a verdict of Guilty in the First Degree.

Since it was close to lunch, Judge Bullock recessed the trial until 1:30 in the afternoon, when the Mitigation Hearing to determine whether Gary would receive life imprisonment or the death sentence would begin.

Chapter 29.

THE SENTENCE.

Until now, the courtroom had been half-empty, but during the lunch recess word must have passed through the coffee shop, for the Mitigation Hearing was crowded. A legal process would decide a man's life-that had to be an awesome afternoon.

As Judge Bullock explained, the aim of the Mitigation Hearing was to discover whether the defendant, having been found guilty of First-Degree Murder, would now receive the death sentence or life imprisonment. For that reason, hearsay evidence, at the discretion of the Court, would be admissible.

Since hearsay could prove injurious to Gary, Craig Snyder (who was doing the Mitigation Hearing even as Mike Esplin had handled the trial) was trying his best to lay grounds for appeal. Snyder objected often, and Judge Bullock overruled him almost as often. Let one ruling by the Judge be declared in error by a higher Court, and Gary could not be executed. So Craig Snyder was counting as much on the strength of future appeal as on his chances of avoiding the death sentence now.

He took, therefore, a continuing objection to the testimony of Duane Fraser who had just made a long-distance call during the lunch recess to the Assistant Superintendent of Oregon State Penitentiary. Duane Fraser testified that he had been told in this phone call how Gilmore "assaulted someone with a hammer," and "on another occasion, assaulted a dentist" and therefore "was removed from Oregon State Prison and taken to Marion Prison in Illinois." Snyder had a continuing objection to all of that as inexpert and imprecise.

Albert Swenson, a professor of chemistry at BYU, testified that a sample of Gary Gilmore's blood, obtained after arrest, showed less than seven-hundredths of a gram of alcohol per hundred grams of blood. That was not a high level. He would be well aware of what he was doing. Since the sample, however, had been taken five hours after the crime, Professor Swenson told Wootton the content at the time of shooting might have been thirteen-hundredths. That, he testified, was a level at which the defendant would still know what he was doing, but would care less.

On cross-examination, Snyder succeeded in getting Professor Swenson to admit the level could easily have been as high as seventeen-hundredths, which was more than twice the level at which the State found a man guilty of driving under the influence of alcohol.

Taken in combination with Fiorinal, such a man's intoxication would be greater.

On balance, Swenson's testimony might prove a plus for Gary.

The next witness was Dean Blanchard, District Agent for Adult Probation and Parole. He was appearing in place of Mont Court who was away on vacation. Mr. Blanchard said, "I don't know where he's at." Blanchard then said that he had had "very little direct contact with Mr. Gilmore." At this point Snyder said he had a continuing objection to his testimony.

Detective Rex Skinner took the stand. Then there was a long argument between Snyder and the Court. Skinner's testimony, said Snyder, "would be entirely prejudicial to the defendant."

MR. WOOTTON Mr. Skinner . . . did you assist in the investigation of . . . the shooting death of one Max Jensen?

MR. SKINNER Yes, sir. I did . . .

MR. WOOTTON Where did that take place?

MR. SKINNER At the Sinclair service station on 800 North in Orem.

MR. WOOTTON When you got there did you observe the body of Max Jensen?

MR. SKINNER Yes, sir. I did.

MR. WOOTTON Would you describe where it was, sir, and how it was lying as you observed it?

MR. SNYDER Your Honor, I'm going to object.

THE COURT Objection sustained.

MR. WOOTTON Did you observe any injuries about the body?

MR. SNYDER Objection, Your Honor.

THE COURT Objection sustained.

MR. WOOTTON Do you know whether it was a homicide?

MR. SNYDER I'd make the same objection, Your Honor.

THE COURT He may answer.

MR. SKINNER Yes, sir.

MR. WOOTTON How do you know?

MR. SNYDER Your Honor, I'm going to object to any testimony beyond that point.

THE COURT I think that is so. If he knows it's a homicide. He said yes. Proceed.

MR. WOOTTON Mr. Skinner, did you cause anybody to be arrested in connection with that incident?

MR. SKINNER Yes, sir.

MR. SNYDER Your Honor, I'm going to object to that.

THE COURT He may answer.

MR. WOOTTON Who did you arrest?

MR. SKINNER Gary Gilmore.

MR. SNYDER No questions.

THE COURT No questions? Very well, you may step down.

MR. WOOTTON Call Brenda Nicol.

Brenda was in misery. She had asked Noall Wootton not to call her. He had, he said, a subpoena for her, and she better get her ass down to Court. So she came, and all the while she was testifying, Gary glared at her. He gave the Kerby look that made your blood clabber on the spot. If a look in somebody's eyes could kill you, then you had just been killed. Wiped you out like an electric shock.

"Oh, Gary," said Brenda in her heart, "don't be so angry with me. My testimony means nothing," and once again she told how Gary had asked her to call his mother. "Gary, she's going to be upset," she testified to saying, "Your mother's going to ask me, are these charges true?" And she told how Gary had said, "Tell her that it's true," and once again Esplin got her to agree, even as she had agreed in the Preliminary Hearing, that she couldn't be certain whether Gary meant it was true that he committed murder, or true that he was charged with murder. All the while she felt Gary glaring at her as if this mild testimony, which wasn't going to move things one way or the other, was the most heinous crime she could ever have committed.

She was also worrying what Nicole might do if Gary got angry enough to sic her on. To please Gary, there was nothing at which Nicole would stop, Brenda had come to believe.

Wootton rested the case for the State. John Woods now testified for Gary.

MR. SNYDER If you had an individual who was a psychopathic personality, would that person have the same capacity to appreciate the wrongfulness of conduct . . . as a quote-unquote "normal person" would have? . . .

DR. WOODS He would have the capacity but would most likely not choose to.

MR. SNYDER And if you added at that point alcohol and medication such as Fiorinal, would that increase or decrease this person's capacity to appreciate and to understand the wrongfulness of his conduct?

DR. WOODS Hypothetically, it would impair his judgment and would loosen the controls on a person that already has very poor control of himself . . .

MR. SNYDER Dr. Woods, did the defendant relate to you any childhood experiences which were particularly considered in the course of your evaluation?

DR. WOODS Yes. He related some childhood experiences, and I would say that I would think that some people might think that they were peculiar.

MR. SNYDER For example, would you give us an example of one of those?

DR. WOODS The one that comes to mind was the experience in which he would walk out on a train trestle and wait for a train to come, and then he'd race to the end of the train trestle to see if he could beat the train before the train would knock him off the train trestle into the gorge below.

Wootton was next: MR. WOOTTON Sir, you prepared and filed in the Court on September 2nd of 1976 a summary of your report.

DR. WOODS Yes, sir.

MR. WOOTTON Was it an accurate summary, in fact, of your analysis of this man?

DR. WOODS Yes, sir.

MR. WOOTTON Part of that report indicated that, I'm reading from it: "We do not find him to be psychotic or 'insane.' We can find no evidence of organic neurological disease, disturbed thought processes, altered perception of reality, inappropriate affect or mood, or lack of insight . . . We do not feel that he was mentally ill at the time of the alleged acts. We find that at the time of the alleged act he had the capacity to appreciate the wrongfulness of the act and to conform his behavior to the requirements of the law. We have carefully considered his voluntary use of alcohol, medication (Fiorinal) at the time of the act and do not feel that this altered his responsibility." Is that still your opinion?

DR. WOODS Yes, sir.

MR. WOOTTON You go on to say: "We have likewise considered his alleged partial amnesia for the alleged event on 7/20/76 and feel that it is too circumspect and convenient to be valid." Is that still your opinion?

DR. WOODS Yes, sir.

MR. WOOTTON Thank you. That's all.

The defense had one special possibility: It was to call Gerald Nielsen to the stand. In the notes from which Nielsen had read at the Preliminary Hearing was testimony that Gary had said, "I really feel bad," and there had been tears in his eyes. "I hope they execute me for it," he had said to Nielsen. "I deserve to die." Such contrition might influence the Jury.

Still, they did not think long or hard of calling Nielsen. He knew too much. Nielsen could testify to how Gary had abused the clemency of police officers, probation officers, and judges. Then Wootton could make the point that Gilmore's repentance came after he was caught. On balance, it was too great a risk. The defense, therefore, brought Gary to the stand. His best chance today would come with his own testimony.

MR. SNYDER Mr. Gilmore, did you kill Benny Bushnell?

MR. GILMORE Yes, I guess I did.

MR. SNYDER Did you intend to kill Mr. Bushnell at the time that you went to the City Center Motel?

MR. GILMORE No.

MR. SNYDER Why did you kill Benny Bushnell?

MR. GILMORE I don't know.

MR. SNYDER Can you tell the Jury how you felt at the time these events were occurring?

MR. GILMORE I don't know. Just how I felt, I don't know for sure.

MR. SNYDER Go ahead.

MR. GILMORE Well, I felt like there was no way that what happened could have been avoided, that there was no other choice or chance for Mr. Bushnell. It was just something that, you know, couldn't be stopped.

MR. SNYDER Do you feel like you had control of yourself or your actions?

MR. GILMORE No, I don't.

MR. SNYDER Do you feel like-Well, let me ask you this: Do you know why you killed Benny Bushnell?

MR. GILMORE No.

MR. SNYDER Did you need the money?

MR. GILMORE No.

MR. SNYDER How did you feel at the time?

MR. GILMORE I felt like I was watching a movie or, you know, somebody else was perhaps doing this, and I was watching them doing it . . .

MR. SNYDER Do you feel like you were seeing someone else do it?

MR. GILMORE A little, I guess. I don't really know. I can't recall that clearly. There were spots that night that I don't recall at all. Some of it is sharp and some of it is totally blank.

MR. SNYDER Mr. Gilmore, do you recall a childhood experience such as the one that Dr. Woods described, standing in the middle of a railroad track with a train coming towards you and then you would run across a trestle to beat the train?

MR. GILMORE Yes. I didn't tell him that to be traumatic or anything. I was trying to give him a comparison to the urge and the impulse that I felt on the night of July 20th. I sometimes feel I have to do things and seems like there's no other chance or choice.

MR. SNYDER I see. And is that similar to the way you felt on the night of July 20, 1976.

MR. GILMORE Similar. Very similar. Yeah, it would be. Sometimes I would feel an urge to do something, and I would try to put it off, and the urge would become stronger until it was irresistible. And that's the way I felt on the night of July 20th.

MR. SNYDER Felt like you had no control over what you did?

MR. GILMORE Yes.

It was possible his testimony had helped. They had put him on the stand in the hope he might say he was sorry and appear remorseful, or at least would lead the Jury away from the idea that he was a heartless animal. He had hardly accomplished that task, but maybe he had served himself. Maybe. He had been calm on the stand, probably too calm, too solemn, even a little remote. Certainly too judicious. He might just as well have been one of many experts at this trial. Snyder gave him over to Wootton.