The Executioner's Song - The Executioner's Song Part 81
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The Executioner's Song Part 81

Chapter 36.

MICKEY FROM WHEELING, AND EUDORA FROM PARK HILL.

As soon as the Attorney General's people were in the courtroom, the panel of three Judges came out from their chambers. With Lewis were Judges William E. Doyle and Gene S. Breitenstein. Earl glanced at his watch. It was ten to seven.

Bob Hansen stood up, introduced his assistants, and began to present the basic background. One of the Judges interrupted. Would he get immediately to the merits? Bob nodded, and asked Earl to present the first portion of the case.

Earl started to make his opening comment. At that point, Judge Lewis looked down from the high bench and remarked that no one was present for the ACLU. It was bewildering. Their counsel table was empty. No one knew where they were. That left Earl up on the podium by himself.

He was furious. Everybody had to recognize the urgency. The ACLU must be deliberately attempting to delay the hearing. Earl stood there, three minutes, five minutes, six, then seven minutes ticking away. The longer he waited, the angrier he became. Finally, Judy entered the courtroom with the other ACLU attorneys, and he glared at her. In fact, he got into a staring contest with her. She stared back in equal fury.

Coming into the building, the first thought in Judy's head had been, Where do I meet my people? Everything was up in the air. The separate parts of the case had been assigned on the telephone. Now, soon as she got into the lobby, a charming young lady whose name she never caught whisked Judy down the hall to four ACLU lawyers who were waiting for her in the attorneys' lounge. They had just barely sat down when Schwendiman came rushing in with the Clerk and said, "They've started. You're wanted in Court." Oh, my God, thought Judy, what a way to start out, Contempt of Court already.

Then she tried to walk in without being too obtrusive about it, but the atmosphere was pompous. The Judges were wearing robes and sitting way up on a bench higher than any she'd ever seen before. Must have been six feet above the floor. Looking up to address them, you felt as if you were on your knees.

Then Dorius began to glare at her. At seven o'clock in the morning!

Judy could always put on a perpetual glare at that hour. She just said to herself, "I hate and despise him," and glared back as good as she got.

Earl proceeded through his opening statement. "Members of the Court," he said, "we have a severe time problem. Mr. Gilmore is scheduled to be executed at seven-forty A.M." It was now 7 A.M.

Judge Lewis informed him he would have fifteen minutes to offer argument, but Earl didn't take ten. The pressure, he felt, was intensifying his argument. He said plaintiffs had commenced their action at 9 p.m. the evening before, and that was a little late to be concerned about a dramatic abuse of the rights of taxpayers. He felt full of the truth of this remark. "The ACLU," he continued, "is using the device of a taxpayers' action for the purpose of delaying a lawful exercise of State power." He felt attuned to his indignation. No standing, no standing whatsoever!

Judge Ritter, he argued, had grossly abused judicial discretion.

Nobody had been able to demonstrate that any specific Federal monies were being spent on this execution. Moreover, Judge Ritter had assumed that the Utah statute was unconstitutional. Yet the constitutionality of this statute had, in effect, been before the United States Supreme Court already. The Court would hardly have ruled that Gary Gilmore could waive his right to appeal if they thought the statute defective.

Bill Barrett was supposed to speak next and show why the ACLU had no standing. The Court, however, said they wanted to hear from the ACLU first. So, Steve Pevar, one of the ACLU lawyers, tried to plead that this case was not properly before the Court. He had been back and forth on the phone with Jinks Dabney from three in the morning until dawn, and they had come to the opinion that the State of Utah couldn't ask for a Writ of Mandamus because Ritter had not acted beyond his authority. If the Governor of the State of Utah had been ordered to move the Capitol Building three blocks south because some little law was being broken, that would fit Mandamus.

But this, at least on the face of it, was a bona fide lawsuit. A motion had been made and granted. Why, the Attorney General's office wouldn't have even dared to bring in a Writ of Mandamus if it wasn't Willis Ritter. So the more Dabney and Pevar discussed it, the more they felt in good shape.

When Pevar tried to bring out these arguments, however, Judge Breitenstein grew incensed. Ooh, Judith couldn't believe the man's face. "I know what the law is here," he told Pevar. "What do you think we've been reading since five-thirty this morning?" Classic. A young lawyer being keelhauled by an old Judge. "We don't need you to instruct us on the law, blah, blah, we've heard enough from you, blah, blah. Please get on with the merits of the case." That was how Judith heard it. One testy Judge. Pevar kept trying to get back to the point that you couldn't slap Writs of Mandamus on Judges for too little, but the Court did not accept it. Another few minutes, and the ACLU was warned that they were prolonging the case. One of their attorneys stood up then, and said Ms. Wolbach would proceed.

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.

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 Prison. 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.

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 1:05 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 17th, 1977."

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, 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 Hansen. 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.

Chapter 37.

GOING DOWN THE ROAD.

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?!" 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.

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 office number rang up for an interview. Deamer said he would call 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.

Around 7:55, Gordon Richards 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.

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 deterrent 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.

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 order. If the other side ever raised the issue that Judge Bullock's new order had been obtained improperly because they never had a hearing on this point, Deamer didn't see any reason to beef up their argument. The closer to sunrise that Gilmore was executed, the better.

The law didn't like to make too much out of too little. 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 if 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 instance, 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 Gilmore 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 if he was in favor of capital punishment, 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 following 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 Republican 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 fail 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 individual today, a preparation for what might be a large weight of responsibility in the future.

In Washington, at the Supreme Court, Al Bronstein's papers went in to Justice White about 9:40, which was 7:40 in Denver. In ten minutes 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 application to Justice Marshall. It was sent back in a few minutes signed, "Application denied."

Now, Bronstein asked it be given to Justice Brennan for submission to the entire Court. Michael Rodak went out with it, and a minute later, Francis Lorsen, the Deputy Chief Clerk, came back to tell Bronstein that the Supreme Court had been in the robing room, ready to start a regular session, but that they had turned back in order to consider Bronstein's application. That was highly unusual.

Five minutes later, Rodak handed Bronstein a short letter. It said that the full Supreme Court, through Chief Justice Burger, had denied the Stay at 10:03. It was now three minutes after eight in Utah, and every last legal resource had been used. Nothing could prevent the execution of Gary Gilmore.

Chapter 38.

THE TURKEY SHOOT.

In the Minimum Security room to which Schiller had been escorted by the guards were a lot of people he didn't recognize. One by one, they would pass in, try not to look confused, take a folding chair and sit down. Nobody was talking to anyone else. It did not have the atmosphere of a funeral, but there was an utter and polite calm.

Then Toni Gurney walked in. For the first time, Larry saw somebody he could say hello to and chatted with her. It was not so much that he was the man who broke the ice, but at least one conversation had begun, and soon a lot of people began to converse.

After a while, Vern came over and pointed out a fellow Schiller had noticed, a rather icy-looking man, wearing an obvious toupee, accompanied by two severe-looking women. Schiller assumed the fellow was a mortician, but Vern said, "That's the doctor who's going to take Gary's eyes out."

Then Stanger came into the room and he was furious. Judge Bullock had delayed the order. Now, Gary could be executed at any time during the day. "Would you believe that, Larry?" Schiller could see that Stanger didn't want Gary to be executed, and, in fact, when Moody came up, Ron still maintained that this would be another dry run. The execution was simply not going to come down. Schiller heard someone in the corner say, "They may keep us here three hours."

Just then a guard came running in from the back door and yelled some words over his shoulder. "Overturned," he cried out. "It's on."

At that moment, Stanger, for the first time, understood that Gary Gilmore was going to be shot. It went through him like he had been kicked in the chest. Then he felt chilled. It was an appalling sensation.

The strangeness of the reaction went all through him. For the first time in his life, Ron could feel the ends of his nerves. His heart could have been caked in ice. He looked over at Schiller taking notes on the back of some paper and thought, "I'm sure glad he's recording all this, because I can't even move. I don't know if I can walk."

Then they started to transfer the guests. As they led him to the car, Stanger knew he must look ready to throw up. He felt as close to death as breathing, and wondered if he were going mad, because he would have bet a million Gary Gilmore would never be executed. It had made his job easy. He had never felt any moral dilemma in carrying out Gary's desires. In fact, he couldn't have represented him if he really believed the State would go through with it all. It had been a play. He had seen himself as no more important than one more person on the stage.

Out in the parking lot, the reporters were being awakened. There was a lot of banging on the doors of vans. "The firing squad is coming," someone shouted.

Robert Sam Anson, covering it for New Times, was taking notes: "Once again, everyone is running. A hundred yards away, in Maximum, a police car, followed by a van, has pulled close to the gate. Now Sam Smith strides toward the building, erect, determined, coatless, oblivious to the cold. At 7:47, a small party of people emerges from the Maximum door, even at this distance, Gilmore can be seen quite distinctly. He is wearing white pants and a black T-shirt" 'It all looks pretty good,' one of the guards comments. 'All that's left now is the paper work,' his partner answers.

"With the appearance of Gilmore, the reporters become a mob, a herd spooked into stampede. Camera lights tilt crazily up into the air as their bearers struggle to shift them into position. Producers are shouting orders. Directly in front of the prison building, Geraldo Rivera, attired in black leather jacket and jeans and looking cool, the way only Geraldo Rivera can look cool, is shouting into his mike.

'Kill the Rona segment. Get rid of it. Give me air. You'll be able to hear the shots. I promise. You'll be able to hear the shots.' "

When Gary came out of Maximum Detention, he was escorted to the van and seated behind the driver. Meersman sat next to him and then Warden Smith came in, and three new guards. The van drove slowly with the seven men, the only car moving in all that quarter mile of prison streets from Maximum Detention to the cannery.

As soon as they started, Gary reached in with both manacled hands to a pocket of his pants and took out a folded piece of paper and put it on his knee so that he could look at it. It was a picture of Nicole clipped from a magazine, and he stared at it.

When the driver of the van turned the key for the motor, the radio, having been on before, now went on again. The tension in the van was sufficient that everyone jumped. Then the words of a song were heard. The driver immediately reached down to turn the radio off, but Gary looked up and said, "Please leave it on." So they began to drive and there was music coming from the radio. The words of the song told of the flight of a white bird. "Una paloma blanca," went the refrain, "I'm just a bird in the sky. Una paloma blanca, over the mountains I fly."

The driver said again, "Would you like me to leave the radio on?" Again Gary said, "Yes."

"It's a new day, it's a new way," said the words, "and I fly up to the sun."

As they drove along slowly, and the song played, Father Meersman noticed that Gary no longer looked at the picture. It was as if the words had become more important.

Once I had my share of losing, Once they locked me on a chain, Yes, they tried to break my power, Oh, I still can feel the pain.

No one spoke any longer and the song played through.

No one can take my freedom away, Yes, no one can take my freedom away.

When it was done, they drove in silence and got out at the cannery, one by one, disembarking in the way they had practiced in the early hours of the morning when these same prison guards had walked through the scene with a model standing in for Gary. Now, they brought him into the cannery, very, very smoothly. Meersman felt that the practice had paid big dividends.

Last nite I flew in my dream like a white bird through the window . . .

Tonite i will tell my soul to fly me to you.

All through the trip from Maximum to the cannery, all the while "La Paloma Blanca" was playing, Father Meersman did not have any particular feelings as such. Like anything else, one had to proceed to each particular stage in order that it all run smoothly. That was the uppermost thing in his mind, to be thinking ahead to the next step, so that even getting into the van, there wouldn't be any stumbling.

It had been beautifully planned, Father Meersman thought.

Even to the care with which they had arranged that as the vehicle with Gary Gilmore in it moved from Maximum to the cannery, all the traffic in the prison compound would stop with no vehicles moving while this one vehicle made its way, so that for the purposes of security, everything was protected. The authorities had timed this transfer with a stopwatch whereby they knew as far as you can humanly know how long it would take for the van to go to this corner and then to that corner, and Father Meersman had occupied himself so intensely in the logic of these steps that he did not have a feeling he could really reflect on other than his paramount concern that Gary Gilmore not be upset in any way through this whole thing. It was Gary Gilmore's calm frame of mind he wanted to carry through the procedure smoothly and have finished smoothly, and on the flow of such quiet thoughts, his black wintertime coat wrapped around him, Father Meersman arrived with the others at the cannery.

Now, it was important to make sure that the van be as close to the steps as possible. Gary would be wearing shackles, and uppermost in Father Meersman's mind was that he should not have a long, slow, painful walk. In fact, Father Meersman did not take his mind away from the mechanics of these activities until the entire procedure had come to its conclusion and they had mounted the nine or ten wooden steps that would take them into the room of execution, and Gilmore was set in that chair. Then Father Meersman felt they were home, and everything would go smoothly.

Noall Wootton left the Warden's office to walk over to the cannery. He was taking his time. With luck, it might all be over before he got there, but the Utah County Sheriff made a point of stopping to pick him up, and they drove to a door in a warehouse where the Assistant Warden, Leon Hatch, waved Wootton in. It was a big room with gray cement-block walls. That was all he could see, for he went immediately to the rear. Noall was struck with how many people were there. A lot of huge guys were in front of him. Wootton couldn't see a thing. That was fine. He didn't want to get in anybody's way. He just stayed in the back with the empty paint cans, the old tires, and the discarded machinery.

Out in Denver, Earl Dorius was wandering down the corridor when he noticed Jack Ford of KSL on the telephone. As soon as Jack came out of the booth, Earl inquired what was going on at the prison, and heard that they were proceeding, and the car carrying Gilmore had just reached the cannery.

This was the first time, during what Earl thought of as the entire ordeal, that it became real a man was about to be killed. Now he felt in his own nerves the tension that Gordon Richards had felt when Earl first gave him the message, and these feelings also gave Earl a clue to the sentiments of the prison personnel. He passed through a very heavy feeling of anguish for the Warden. It would not be easy for his friend, Sam Smith, to order the execution of a man.

Earl decided that he, however, really did not feel any pity for Gilmore.