The Executioner's Song (52 page)

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.

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.

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 . . .