The Executioner's Song - The Executioner's Song Part 43
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The Executioner's Song Part 43

Gary put the gun away and ruffled Mikal's hair. "C'mon," he said, "I'll drive you home."

On the way, Gary started to honk at a car that was going too slow, and when the driver slowed down a little more, to spite him, Gary whipped around a turn on the wrong lane and went right into the path of an approaching van. At the last instant, he escaped collision by driving their car up on the sidewalk.

"You almost got us killed," Mikal shouted.

Gary was breathing deeply. He lay his forehead on the steering wheel. "Sometimes," he said, "you have to be able to face that."

A couple of nights later, Mikal heard over the news that Gary had been arrested for armed robbery. Back he went to prison. Months later, Bessie and Mikal attended his trial. Just before sentencing, Gary made a speech to the Court. Mikal never forgot it.

I would like to make a special appeal for leniency. I've been locked up for the last nine and a half calendar years and I have had about two and a half years of freedom since I was fourteen years old. I have always gotten time and always done it, never been paroled. I have never had a break from the law, and I have come to feel that justice is kind of harsh, and I have never asked for a break until now.

Your Honor, you can keep a person locked up too long just as you can keep them long enough. What I am saying is there is an appropriate time to release somebody or give them a break. Of course, who is to say. Only the individual himself really knows, it's more a matter of just convincing somebody. There have been times when I felt if I had had a break, right then I would probably never have been in trouble again, but like I said, I don't feel that I have ever had a break from the law. Last September, I was released from the Penitentiary to go to school in Eugene at Lane Community College and study art, and I had every intention of doing it. One day I'm in the pen for nine years, and the next day I'm free, and I was kind of shook. I had a couple of drinks and I realized that this was a pretty stupid thing to do. I just got out, and I was afraid to go to the halfway house with booze on my breath. I thought I would be taken back to the pen immediately and to be honest, I guess I kind of wanted to continue drinking, it tasted kind of good. Well, anyway, I split. It wasn't long before I was broke, and I spent a couple of days looking for a job, but I couldn't find one. I didn't have any work background. When you are free, you can afford to be broke for a few days, and it doesn't matter, but if you are a fugitive you can't afford to be broke at all. I needed some money. I am not a stupid person, although I have done a lot of stupid and foolish things, but I want freedom enough to realize at last that the only way I can have it and maintain it is to quit breaking the law. I never realized it more than I do now. If you were to grant me probation on this sentence, you wouldn't be turning me loose right now. I still have additional time, but like I said, I have got problems, and if you give me more time, I'm going to compound them."

The Judge sentenced him to nine additional years. "Don't worry," said Gary to his mother, "They can't hurt me any more than I've hurt myself." Mikal shook hands with him through the handcuffs, and Gary said, "Do me a favor. Put on some weight, okay? You're too goddamned skinny." Mikal would not hear his voice again for close to four years, not until he made a call to Utah State Prison in the middle of November 1976. By that time, Gary Gilmore was a household name to half of America.

BOOK TWO.

EASTERN VOICES.

PART ONE.

In the Reign of Good King Boaz

Chapter 1.

FEAR OF FALLING.

On November 1, the day that Gary Gilmore first stated in Court that he did not wish to appeal his conviction, Assistant Attorney General Earl Dorius was at his desk in the Utah Attorney General's office, in the State Capitol, Salt Lake City. It was a monument of a building with a golden dome, a rectangular marble palace whose interior had a parquet marble floor from the center of which you could look up to the stories above with their polished white balustrades. Earl liked working in all that marble. He was not averse to working there for the rest of his responsible life.

That afternoon, Earl received a call from the Warden of Utah State Prison. Since Dorius was legal counsel for the prison, the Warden talked to him frequently, but this time Sam Smith seemed nervous.

His transportation officer had just taken an inmate, Gary Gilmore, to Provo for a Court hearing, and Gilmore apparently told the Judge that he didn't want to appeal his death sentence. So the Judge confirmed the execution date. It was only two weeks away. The Warden was concerned. That didn't give a lot of time to get ready. Could Dorius verify the story?

Earl called Noall Wootton and they had quite a conversation.

Wootton said it was not only true, but he was trying to figure Gilmore's angle. The statute called for execution in not less than thirty and not more than sixty days. Now that Gilmore had no appeal in, what would happen if they didn't execute him by December 7, sixty days after October 7, the last day of his trial? Gilmore could ask for an immediate release. The only sentence he had received, after all, was death. That was not a prison term. Technically, they would have nothing to hold him on. He could get out on a Writ of Habeas Corpus.

Of course, Gilmore wasn't going to get loose that easy, the lawyers agreed, but it sure could prove embarrassing. The State would look ridiculous and incompetent holding him in jail on one pretext or another while the law was straightened out in the Legislature and the Courts.

Earl Dorius called Sam Smith back and said, "You better start preparing for an execution." The Warden was awestruck.

Nonetheless, Sam Smith started asking some good questions.

How many members of the firing squad would there be, he inquired?

From where could he draw them, out of the community at large or from the ranks of police officers?

The Warden had also looked up the appropriate statutes and they left something to be desired. They didn't, for example, tell the Warden whether it was possible to conduct the execution outside the prison walls. They were not precise on a host of matters. A lot would have to be decided. Gilmore, for instance, wanted to donate a few of his body organs to the University Medical Center. Could Earl look up the law on that?

Dorius was excited. He realized he was sitting on a very hot case, and started going around the office telling people, "You won't believe this, but we have a potential execution on our hands." He went down to the Attorney General's office, but the A.G. was out, so he had to tell the secretaries. Earl was a little disappointed with the reaction. It was as if they really didn't get the import of what he was saying. First execution in America in ten years! You couldn't exactly shout that at people.

November 1 Hi Baby Just wrote a letter to Warden Smith asking for a little more visiting time. I told him it meant a great deal to both of us. It would probably help if you would talk to him too. I don't know what kind of guy he is, and I didn't know how to approach him in my letter. I simply told him I expect to be executed as scheduled Nov. 5 and that the only request I have to make is that l be allowed to see you more . . . I told him that you and me have a real good understanding and that we don't depress each other with our visits in spite of the circumstances I'm in. I sorta felt it mite be good to say that cause you know how these people sometimes think Baby you said in a letter a couple of days ago that no woman ever loved a man more than you love me. I believe that. I feel blessed with your love. And Angel no man ever loved a woman more than I love you. I love you with all that I am: And you keep making me more than I am.

Early on the morning of the 2nd, Election Day, Earl got a telephone call from Eric Mishara of the National Enquirer. He had called the Warden who referred him to the prison's legal counsel.

Mishara said he wanted to interview Gilmore right away.

He was too forceful for Dorius's taste. The moment Earl tried to slow him down, Mishara began to talk about what he was going to do to the prison if they attempted to keep him out.

A case came right into mind: Pell v. Procunier. It was a United States Supreme Court decision which said that members of the news media had no special right of access to inmates. The prison, Dorius told Mishara, would be taking that position-Gary Gilmore could not be interviewed.

Immediately, Mishara said, 'I'll sue." He started to talk about high-powered attorneys in New York. Dorius said, "I don't care where your attorneys are from. You have them look up Pell versus Procunier. I think they'll agree with me."

Earl didn't hear from Mr. Mishara for some time after that.

DESERET NEWS.

Carter Wins Election Judge Orders Test of Convicted Slayer Utah State Prison, Nov. 2- . . . If Gilmore gets his way he will be the first person executed in Utah in 16 years.

On November 2, the day he was driving to Utah, Dennis Boaz read in the papers about Gary Gilmore, and soon afterward, had this experience with death. That seemed a little synchronistic.

He was moving along in the left lane and thinking about the course he was going to give at Westminster College in Salt Lake City. Dennis was into alliteration these days, so he was going to call it: Society / Symbolism / Synchronicity. Just as he said the last word to himself, a trailer truck slammed to a stop just ahead and he had to take his car around on the right. After he passed, there was this incredible sight in the mirror: a torso of a man hanging through the windshield, arms outstretched to the ground.

Then another sight!

A rear-mirror view of a second truck driver running toward the first truck. Dennis didn't stop. There were too many cars behind. But just before it happened, he had been thinking of the date, November 2nd. In his mind, he was writing it as 11/2. That, of course, added up to thirteen. In the major arcana of the tarot, thirteen was the card for death.

So the word had been running through his mind even as he saw the dead man. He thought, "Wow! God! I bet the next road sign will be another indication." When the exit came up on the shoulder, it said: Star Valley and Deeth. That had to be as much synchronicity as anybody's synapses could take.

On the evening of the second, he got to Salt Lake early enough to vote for Carter on the Independent line. Then, on the morning of the third, he woke up thinking about Gilmore. "God, here I am," Dennis thought, "right in the juncture of something really important." He could see the possibilities extending out. "It's a tremendous opportunity for a writer," he thought, "and I ought to send Gilmore a letter!"

Boaz did. A few years ago when he had been a young prosecutor, Dennis had actually been against capital punishment, but now he had come to believe that even in an ideal society, we might still need the death penalty. Capital punishment, properly applied, could say a lot about being responsible for one's actions, and the thing was to get back to responsibility. Boaz didn't put all this in his letter, but did say he supported Gilmore in his right to die.

On those evenings that Timber Oaks Mental Health would let April out, Kathryne would take her to Nicole's apartment for a couple of hours. Sometimes April would say, "Sissy, are they really going to shoot Gary? Why doesn't Gary want to live, Sissy?" Nicole would be real calm about it. "Oh, I don't know," she'd say. Real calm. Like it didn't even bother her. It bothered Kathryne so bad, she'd bawl at night. Couldn't stand seeing the announcer on TV talking about it.

There, right in the middle of the commercials. It made everybody on TV look crazy.

Sometimes, Nicole would come to Kathryne's with the kids and sleep over. She would never talk. Not even to her aunt Kathy. She would put Sunny and Jeremy to bed and then write poetry. That was all. Writing and writing at poetry. She was never abusive to the kids, just didn't pay much attention.

Right in the first week of November, Kip died. Killed in a fall down a mountain. Rock-climbing. Kathryne was getting ready for work on November 4, when she heard a name on the radio, Alfred Eberhardt, and said to herself, "Oh, my God, that must be Kip." All day at work, she worried how Sissy might be taking it. In fact, she went straight over to Springville from her job, and there was Nicole with her little lamp off, writing, writing. Kathryne went in and said, "What are you doing in the dark?" Nicole said, "Oh, I hadn't noticed." She turned on the light, got coffee, was laughing and joking around. Kathryne didn't know how to ask her if Alfred Eberhardt was Kip. Finally had to pop it. Nicole just said, "Yeah, yeah." Kathryne said, "That's what I was afraid of." Nicole said, "Yeah." Kathryne didn't think Nicole was showing what she ought.

A little later, however, Nicole looked up and said she'd like to call Kip's folks. Soon as Kathryne was all for it, Nicole said, "I don't know. What would I say to them?"

It did hurt, Kathryne said to herself. She does care.

Nicole was remembering back to that day years ago when she left Barrett and went out with all she owned in a pack on her back, and Sunny, an infant, on her arm. When Kip picked her up hitchhiking, their romance started right that night. He had been a stud in the beginning. A real first night.

The next day they found themselves driving in the Colorado Rockies, and Kip stopped the car and took Nicole and Sunny on a mountain trail. At one point they could see a fellow who was trying to climb a rock wall up a cliff. There was a little ledge about three feet off the ground that this fellow kept stepping onto, but then he would lose his nerve about going higher, and step back.

A couple of hours later, when they came down the trail, the fellow was still there. "He's stoned," said Kip, trying to laugh, but looked bothered. There were other fellows high up on the rock wall now with ropes, maybe as high as the eighth or tenth floor of a building, just hooked into the wall. Kip couldn't take his eyes off. Nicole could see him get depressed. It was like here he was with a new chick, a super chick, and these dudes were showing him up. In fact, Nicole wouldn't have minded meeting one of them. They looked super-daring.

The radio report said Kip was a novice climber. Nicole began to wonder if he had been doing it with ropes, or was like that poor stoned fellow stuck at the bottom of the ledge getting nowhere.

November 3 Just listen-and don't become rebellious or stubborn or independent as is often your immediate reaction when told to do or not to do a thing. Okay. What I am telling you is this: You are not to go before me. You mention this in your letter and I always take you serious. I don't like to tell anyone, but especially you, to do or not to do anything. Without giving them a reason. The reasons are this: I desire to go first. Period. I desire it. Second, I believe I may know a bit more ABOUT THE TRANSITION FROM LIFE TO DEATH than you do. I just think I do. I intend and expect to become instantly in your physical presence wherever you are at the time. I will do all in my power to calm and soothe your grief, pain, and fear. I will wrap my very soul and all of the tremendous love I feel around you. You are not to go before me, Nicole Kathryne Gilmore. Do not disobey me.

A letter also came to Vern. In it Gary wrote that neither Vern nor Ida had come to visit him after his death sentence, "so that's self-evident that you're ashamed of me." Then Gary added, "You haven't even put a frame on the portrait I gave you. I want you to take that picture and give it to Nicole. I don't want to have anything to do with you."

When Ida got her bearings, she wrote, "I cherish the drawings you gave me. That's the only thing I have of you. As far as me giving. them up and giving them to Nicole, you can just go sit on it, I won't do it. They're mine."

Vern added a note to Ida's letter, "I don't know what's gotten into you. We tried to see you down at the jailhouse and the only person you wanted to see was Nicole, so we gave up. That's a true fact. I'm going to back Ida all the way. We're not giving the pictures up."

Nicole, l hope it didn't develop into a hassle or a bad scene. I got a letter from Vern and Ida today-Ida would have you picked up if you "caused any trouble." (Her words, not mine.) Jesus, baby, I'm sorry. I'm sorry I got relatives like that. I hope you did not have to go thru an unpleasant thing with either Vern or Ida. Fuck them. Forget it, let them keep the pictures. They know they ain't welcome to them but I ain't gonna have you go thru a hassle with them. I'm embarrassed about it.

Gary also wrote Brenda to give Nicole his oil painting, and she asked Vern what to do. Vern told her to follow her conscience. She sent Gary a letter: "I don't want to, but if you insist I will. If it doesn't mean that much to you, it sure don't mean that much to me. Up your bucket. I don't want it. If that's how nasty and selfish and childish you want to be about it, I'll take it and stuff it over Nicole's head. Then she can really wear it and enjoy it."

4.

On the 3rd of November, Esplin got a letter from Gary. It read: "Mike, butt out. Quit fucking around with my life. You're fired."

PROVO HERALD.

Nov. 4-Despite being dismissed, the two defense attorneys later Wednesday filed a notice of appeal-in their names-with Fourth District Court Judge J. Robert Bullock.

They said it was "in the best interest" of the defendant.

That story produced numerous phone calls for Earl Dorius. The press kept asking what position the Attorney General's office intended to take on Gilmore. Dorius replied that Snyder and Esplin could try to file an appeal without their client's consent, but he thought they would lack standing.

Earl had the feeling "standing" was soon going to be a big legal word in the office. Even if Snyder and Esplin moved off the case, he figured other groups-whether Gilmore wanted it or not-would soon try to appeal. Then, standing-one's right to take a case to Court-was going to be very important.

November 4 Hi Baby.

Today when I was going to talk to Fagan about extra visits, this dude who was dressed sorta like a girl called to me from one of the other sections as I passed by . . . this cat's on Max for beating the shit out of a guard lieutenant. I guess he's a man in most respects, a solid convict from all I hear about him, but also a sissy, queen, or whatever you wanta call 'em. Tonite at chow he sent over this little note I'm enclosing for you to read-That you might get a kick outa it.

Hi, Gil, I have been reading about you in the paper and I must say that you are an exception to all rules. People just don't know what to think of you, hell they just don't know us Texans, do they, for we can handle anything in this fucking world, huh.

I made the remark this morning, that I was wanting to talk to you, to see what made you tick!

Sugar, don't pay any attention to some of the shit that I come off with, for you know how a dizzy bitch is.

What do you do over there all the time besides a lot of thinking? I guess that I shouldn't be asking you a lot of old foolish questions, but you know how a whore is, always wanting something!

Under it, Gary wrote: Hey Baby Nicole don't go getting any kind of jealous feelings now!

Jimmy Carter is the new Pres. Ain't that somethin! I didn't believe Ford could lose I think it's only the second time in history of the entire universe that an incumbent president lost an election.

DESERET NEWS.

Nov. 5-Utah officials of the American Civil Liberties Union (ACLU) and the NAACP said they will try to have their attorneys assist in the appeal process.

ACLU spokesman Shirley Pedler said, "Our stance is that the state does not have the right to take his life regardless of his choices or decisions."

November 5 I met an Indian today who I've known for years. His name's Chief Bolton. He was a guard in the Oregon joint when I knew him several years ago. He's a great big fucker. 300 pounds or so, a purty good man, even if he is a guard, and.. he told me he can easily understand my feelings-Indians understand death more easily than white people I think.

I also got a letter from a Dennis Boaz in Salt Lake. He's a former lawyer from California. He seems to fully understand my situation and feels I have the right to make the ultimate decision without interference from any legal source. This guy Boaz is now a freelance writer and wants to do an article for national publication. He said he would split any money he receives for his story with anyone I choose.

Well I reject that outright . . . I simply refuse to capitalize on this in any way . . . This is a personal thing, it is my life Nicole. I can't help getting some publicity but I'm not looking for any.

Warden Smith asked me today what I might like for a last meal.

I always thot that was somethin they just did in the movies. I told him I don't know but I would like a couple cans of Coors, he said he didn't know about that-but maybe . . .

Actually, Barrett felt helpless. It was all so incongruous. His job was to see that the man got executed, so they were working on the same side, yet they weren't.

Some bug caught up with Earl, and he had to stay home from work.

It was the same day, November 5, that Gilmore phoned the office! In the evening, Earl watched a couple of newscasts where Bill Barrett, his associate-no relation to Jim or Nicole Barrett, Earl would yet have to tell people-got interviewed with respect to Gilmore's phone call. Earl was discouraged that he had not been in the office to take it himself. Barrett might be his best friend at work, and they had made a good team this last year-what the heck, they always joked, Barrett being tall and thin next to Earl who was short and well built, how could they help but bring separate points of view to a problem? Still, it was frustrating to be legal counsel to the prison, do all the work, and yet miss a high spot like Gilmore calling up.

The call came in from Deputy Warden Hatch. A little later, Maximum Security was on the line with Lieutenant Fagan who introduced the convict. Barrett heard this soft-spoken man who sounded very rational. He didn't rant, rave, yell or scream. In fact he kept saying, Mr. Barrett.

First thing he asked about was getting a new lawyer.

"Mr. Gilmore," said Barrett, "I believe I understand your situation, but this office can't do anything. A new appointment is up to the Court."

"Well, Mr. Barrett," said Gilmore, "it is not a spur-of-the-moment decision. I have given a lot of thought to this, and I feel I should pay for what I have done."

"The difficulty, Mr. Gilmore," Barrett said, "is that it may not be routine to convince a lawyer that he ought to help you get executed. However, if there are any developments that I feel you should know about, I'll keep you informed. I am sympathetic to your position."

Barrett only spoke to Gary for four or five minutes, but as he later told Earl, it was one of those things in his life that he didn't know if he'd ever get over.

A reporter hanging around the office picked up the story. After it was printed, Barrett got calls from all over the country. ABC correspondent Greg Dobbs rang in from Chicago and said, "I'll be out this weekend, can I interview you? Can I come to your home?" Before it was over, they set a time. Radio stations in the Deep South interviewed him by telephone. In Utah!

Work hit Earl like never before. In the criminal division of the Attorney General's office, there were only two full-time attorneys, Barrett and himself, plus a few law clerks and secretaries. That was not much staff to take on all that was coming in. Right next day, for instance, Dorius ran into two well-known Salt Lake lawyers named Gil Athay and Robert Van Sciver, and they were holding a press conference out in the hall of the Utah Supreme Court a floor above the Attorney General's office. Earl heard them saying to the cameras that they intended to request a Stay of Gilmore's execution on behalf of all other Death Row inmates at Utah State Prison. Athay's client was one of the "hi-fi killers."