The Executioner's Song (61 page)

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.

                The transformation was abrupt. It was as if Gilmore would never forgive Wootton for trying to keep Nicole out of the courtroom. Hostility came back with every speech.

                "How did you kill him?" Wootton began.

                "Shot him," said Gilmore.

                "Tell me about it," said Wootton, "tell me what you did."

                "I shot him," said Gilmore with contempt for the question and man who would ask such a question.

MR. WOOTTON                Did you lay him down on the floor?

MR. GILMORE    Not with my own hands, no.

MR. WOOTTON                Did you tell him to get down on the floor?

MR. GILMORE    Yes, I guess I did

MR. WOOTTON                Face down?

MR. GILMORE    No, I don't know if I went into all that much detail.

MR. WOOTTON                Did he lay down face down?

MR. GILMORE    He laid down on the floor.

MR. WOOTTON                Did you put the gun up against his head?

MR. GILMORE    I suppose I did.

MR. WOOTTON                Did you pull the trigger?

MR. GILMORE    Yeah.

MR. WOOTTON                Then what did you do?

MR. GILMORE    I left

MR. WOOTTON                Did you take the cash box with you?

MR. GILMORE    I don't recall taking the cash box with me.

MR. WOOTTON                But you saw it in the courtroom, didn't you?

MR. GILMORE    Yes, I saw what you said was the cash box sitting there.

MR. WOOTTON                You don't ever remember seeing that before?

MR. GILMORE    No.

MR. WOOTTON                Did you take his money?

MR. GILMORE    I don't recall that either.

MR. WOOTTON                Do you remember taking any money?

MR. GILMORE    I don't recall that either, I said.

MR. WOOTTON                Do you remember having some money on you when were arrested later that night?

MR. GILMORE    I always had money on me. 

MR. WOOTTON                How much did you have on you?

MR. GILMORE    I don't know.

MR. WOOTTON                You don't have any idea?

MR. GILMORE    I don't have a bank account. I always just carry my money in my pocket.

MR. WOOTTON                You don't know where it came from?

MR. GILMORE    Well, I got paid Friday. That wasn't too long before that.

MR. WOOTTON                You said you were pushed out of shape that night over a personal matter. Why don't you tell us about that?

MR. GILMORE    I'd rather not.

MR. WOOTTON                Are you refusing?

MR. GILMORE    Right.

MR. WOOTTON                Even if the Court tells you that you have to, you won't?

MR. GILMORE    Right.

Walking away, Wootton thought Gilmore had certainly been damaging to his own chances. He had come across as very cold.

                Wootton wanted to be objective, but he was feeling pretty good. He thought his cross-examination had been very effective, particularly that first question, "How did you kill him?" and the answer, "I shot him." No remorse at all. Not the smartest way to fight for your life.