The Executioner's Song (98 page)

                Mikal could only request Gary to ask Dennis Boaz to give a ring.

That night the lawyer called and brought Mikal up to date on a few details, but it was not much of a conversation. As soon as the Utah Supreme Court made its decision, Mikal asked, would Boaz phone again?

                "Is it okay if I call collect?" said Dennis, "I'm a poor man."

                Boaz never did call. Mikal learned the outcome by watching TV.

                When Mikal phoned Boaz to complain, the lawyer said he'd been swarmed with calls. When Mikal wanted to know where Boaz had practiced in California, Dennis said he found Mikal's attitude "belligerent." After that call, Mikal had to recognize that Gary had cut the family off. He decided to wait.

A few days later, a lawyer named Anthony Amsterdam phoned Bessie to express his interest in the case, and said he would soon be talking to her son. Mikal was ready, therefore, when the call came.

                He had already looked into Amsterdam's credentials. They certainly seemed prestigious. The man was a professor of law at Stanford University and an expert on capital punishment. A friend of Mikal's who was going to law school said Amsterdam had won a famous Supreme Court case called Furman v. Georgia which showed that black prisoners on Death Row were being executed in numbers far out of proportion to white prisoners with the same sentences. The case had produced a landmark decision by the Supreme Court that ruled out capital punishment for a while.

Over the phone, Tony Amsterdam now explained to Mikal that he was associated with an organization called the Legal Defense Fund and they had contacts with a nationwide network of lawyers willing to cooperate on death cases. When one of these situations took off, Amsterdam usually heard about it from several sources. In the last couple of weeks, he had certainly heard quite a bit from Utah. There had been an early call from Craig Snyder to "inform" him of the problem, and another from a prominent Salt Lake attorney named Richard Giauque. In the last few days, half a dozen lawyers he respected had gotten in touch to say the case was shocking. So Amsterdam thought it might be time to get in touch with Bessie Gilmore.

                He had been, he said, considerably affected by that conversation.

                Bessie Gilmore had impressed him as a person of great strength who was in great pain. One had to respect the spiritual and psychic stress of this ungodly situation. He told Mikal that he believed his mother would welcome a little help, but was not yet certain she wanted to assert herself in Gary's case. So she had asked him to discuss it with her youngest son.

Mikal knew this exposition was accurate, since Bessie had told him much the same, although with some suspiciousness of strangers calling. In turn, Mikal spoke to Amsterdam of his concern that people interested in abolishing capital punishment might not care about Gary so much as they were looking for an ideological ax to grind.

                Amsterdam answered that he was not about to subordinate Gary's interest to the service of ideology. He was not a man to sacrifice the individual for abstract issues. However, he said, there was a limit to how much you could or even wanted to convince somebody over the phone. If Mikal was willing to talk further, Amsterdam would like to meet him.

                Mikal was not unimpressed, but said he wanted to discuss the matter with his mother and sleep on it. In the meantime, he was curious how much the fees might come to. Amsterdam explained that his practice was exclusively pro bono. He accepted no fees. In fact, he would write into the retainer that all services were to be rendered free of cost of any sort.

                They agreed to speak again two days later.

Over the period, Bessie came to think it would be a good idea to retain Amsterdam. She liked, she said, the voice of this man very much. She could feel confidence in it. Next morning she heard of Gary and Nicole's suicide attempt.

Mikal phoned the prison a few days later and Gary was in a terrible temper. He had just fired Boaz. Hoping this might prove an opening, Mikal said that the affair had become a circus. It was taking away any claim Gary could have to dignity. It was also wreaking its toll on the family. The last remark was a mistake. "What do I owe you?" Gary snapped. "I don't even think of you as a brother."

                "You're running," said Mikal, "over a lot of people's lives."

                Gary hung up. Mikal brooded about it. After a day or two, he decided to authorize Anthony Amsterdam to take action on Bessie Gilmore's behalf.

Amsterdam laid out to Mikal the moves he proposed to make. He was going to ask them to consider a Next Friend petition. They were going to claim that Mikal's mother was acting on behalf of an individual who was not able to protect his own interest. That gave them a right to sue the State of Utah. Next Friend was just a legal term to indicate closeness to the person on whose behalf they were suing, It did not have to be next of kin, but as a practical matter, that was good, since a Court would be more sympathetic to the idea if the Next Friend wasn't a crank or meddler, but, in fact, a close relative.

Discussing the brief he would file, Tony Amsterdam said he must touch upon a delicate point. In his opinion, Gary was a sick man and not acting in a competent manner. The fact that he'd been certified as sane came to no more than three form reports turned in by three form shrinks writing three form conclusions. It didn't tell you a goddamned thing. Even then, the doctors couldn't ignore the fact that Gary was suicidal. Having talked to Craig Snyder, Amsterdam would judge that discharging a competent lawyer, when you are under a death sentence, is a form of suicide in itself. Gary had raised questions about free will and self-determination, but wasn't the situation analogous to watching a distraught woman getting ready to jump off the San Francisco Bay Bridge? These were strong words to use, and he certainly would not speak in this fashion to Bessie Gilmore, but he wanted to underline that the question of whether Gary was mentally competent had not been satisfactorily settled.

                Such incompetence, however, was not going to be the foundation of the suit. There were two other very important elements. Gary, in these recent dramatic days, had been receiving his legal advice from Dennis Boaz who was writing about this damn thing. If Gilmore became the first man to be executed in ten years, Boaz had a great deal to gain. That would also be true of the lawyers now retained by the uncle, Vern Damico. For that matter, the uncle was in the same position Gary had not been and was still not being advised adequately.

                Even if he was mentally sound, he was still a layman making a legal decision to kill himself without the benefit of unbiased legal advice.

Then there was a third point. When Gary appeared before the Utah Supreme Court, the proceedings had failed to satisfy what the United States Supreme Court had said, over and over again, was a necessary procedure for a defendant to follow if he wanted to waive any important rights.

Amsterdam said he was offering this advisedly. It was not a matter of his bias or his opinion, but advisedly these Utah Supreme Court Judges were not trial Judges. They were not accustomed to warning people and making proper trial records. They were an Appellate Court and, in this case, they did it all wrong. The proceeding failed by a country mile to measure up to U.S. Supreme Court standards.

Following this conversation, events moved quickly. Amsterdam needed a lawyer in Utah to file the Next Friend petition in the Supreme Court and chose Richard Giauque. Next thing Mikal knew, the Supreme Court had granted the Stay. It all seemed to happen overnight.

By Monday, December 6, Earl was feeling the benefit of a weekend without work, and went to the prison and took affidavits from the guards who let Schiller in, and flew then to Denver. Next day, the Tenth Circuit Court granted the Writ of Mandamus against Ritter, and the media was again barred from contact with Gary. Even though Bill Barrett had just sent off the Attorney General's brief to the Supreme Court, and office talk was all about that, Earl still felt the day was a high point for him. He had won a case against Holbrook.

                It was now Bill Barrett's turn to be exhausted. The answer to the Supreme Court had had to be filed by 5:00, Tuesday, December 7.

                There had only been four days and two hours to get the job done.

                That Friday evening, four days ago, Barrett had called all available law clerks into his office, sat them down, and said, "Let's divide this thing up." He broke the issues down, assigned them out, and everybody proceeded to work his tail off. It was a little tricky in the beginning because they hadn't seen Giauque's papers yet, but they did read the brief Giauque had submitted to George Latimer at the Board of Pardons and it looked like mental incompetency would be the brunt of the attack. "Allowing a defendant to waive judicial review of a death sentence," Giauque had said in that brief, is tantamount to committing suicide. The Talmud, Aristotle, Augustine, and Aquinas all characterize suicide as a grievous private and public wrong. At common law, suicide was held as a felony, and was attended by forfeiture of property and burial on the highway. A criminal defendant such as Gilmore, who declines to pursue legal proceedings which could save his life is, in fact, choosing to commit suicide, and the overwhelming majority of psychiatric opinion regards the impulse to suicide as a form of mental illness."

Barrett never computed how many hours were expended that weekend. He was afraid to. All through Saturday and Sunday, law clerks came in while others went home, and Monday, three of them stayed up all night to prepare the final draft. Next morning they distributed the typing among four secretaries. It got so close to the deadline, they had to contact Michael Rodak, the Supreme Court Clerk, to tell him they couldn't get it to D.C. in time by air.

                Arrangements were made instead with Senator Gam's office.

                Law clerks started shuttling pages down to his office five blocks away, and using his telecopier to get it to Washington. Into the brief, they had thrown everything, including—Barrett was sure he could find it—the kitchen sink, but the main emphasis was that Bessie Gilmore did not have the authority to act on behalf of her son. It was his case, not hers.

Whereas, the other side, sure enough, was arguing that Gary was mentally incompetent, and that gave Mrs. Gilmore the right to step in. It was one heavy issue. It worried Bill Barrett. Since the attempted suicide on November 16, no psychiatrist had assessed Gilmore So there was, at present, no solid base for the condemned man's sanity or lack of it. Between the 7th of December, when they handed it in, and Monday, the 13th, when the Supreme Court was likely to come back with an answer, there would be lots of time for worry.

Still, through these days of waiting, Barrett reread the four-day brief, and felt pretty good about certain sections:

All suicides aren't pathological or an indication of incompetence.

                The U.S. Supreme Court in the recent case of Drope vs. Missouri, 420 U.S. 6 (975)noted:

                " . . . the empirical relationship between mental illness and suicide is uncertain and a suicide attempt need not always signal 'an inability to perceive reality accurately.' " 40 U.S. at 8.

Mr. Gilmore had sufficient experience of prison life to estimate . . . what it would be like for him to languish in prison. Historical, religious, and existential treatises suggest that for same persons at some times, it is rational not to avoid physical death at all costs.

                Indeed the spark of humanity can maximize its essence by choosing an alternative that preserves the greatest dignity and same tranquility of mind.

Chapter 15

FAMILY LAWYERS

Schiller had been going over finances to see what he would require for releases, motel and hotel bills, stenographers, and office equipment, and decided he was going to need another $60,000 above ABC's contribution. There was only one way to raise that. Acquire Gary's letters to Nicole and sell them.

                The ethics, however, as far as Schiller was concerned, were a trade-off. After all, he had trusted Gilmore. He had turned over a $52,000 check in one shot, a dramatic way of showing that he would not dole out the money. Schiller had his reasons. He didn't want everybody to keep thinking of David Susskind. Once Gary's lawyers could call the bank and know the check was good, they would be ready to see Larry Schiller as a big businessman, not a small one. This was his sensible motive. He also had what he called his romantic motive.

                Romanticism, after all, turned him on, songs like "The Impossible Dream," and the lyrics of Oklahoma and Carousel, "The Sound of Music" with the Alps in the background. So he wanted to show that he wasn't trying to out-con a con, but instead was delivering his best thing, was saying, "I'm smart enough not to try to feed you a hundred dollars a week. I don't want to put your mind onto thinking how to outfox me. I want to deal with you, the man. The money is only mechanics. Here it is, up front. You can rip me off now, but you won't because I trust you. A nice businessman in an office will cheat me faster than you."