by Gary Kinder
“Why do you want to do that?” asked Jacobsen.
“I just want,” said Byron, “just to look those guys in the eye, just to look them right in the eye and see what kind of guys they are.”
“We want to see who could pull such a cowardly trick as that,” said Lynn.
Jacobsen could see that neither of the men was carrying a gun, but looking at the depression and anger in Byron’s face, the tears in his eyes, he wondered whether the man, if given the chance, might try to kill Pierre or Andrews with his hands. The chief had no love for the suspects either, but he knew that allowing Byron and Lynn upstairs would solve nothing and might lead to a scene embarrassing for them later. Yet, because he sympathized with them, he was reluctant to tell them simply to go home; he wanted them to decide for themselves that they didn’t want to look at Pierre and Andrews, after all.
“I can understand why you want to see them,” he said, “but let’s not have that kind of trouble.”
Byron wasn’t sure what the police chief meant: he didn’t even know himself why he wanted to see the killers.
Lynn said, “I’d just like to give the bastards what they’ve got coming.”
“I’d want to do the same thing if this happened to me,” said Jacobsen. “I know how you feel inside, I know what you want to do. I would, too. But I’d be sorry for it later.”
Jacobsen assured them that the evidence against Pierre and Andrews was substantial and growing. He reviewed for them the items the police already had found in the Hill Field Dumpster, and the stolen equipment they had recovered from the storage unit rented by Pierre. With that kind of evidence against them, Jacobsen explained, Pierre and Andrews would not go free.
“If you want,” he added, “I’ll give a call to the sheriff upstairs and tell him you’re coming. But I’d like to put a stop to this whole thing right now.”
“All we want to do,” said Byron, “is look at them.”
“And why do you want to do that?”
“I don’t know,” said Byron.
Jacobsen paused for a moment, looking at Byron. Then he said, “Dr. Naisbitt, if I let you in to see Pierre, would you kill him?”
The question startled Byron. “No,” he said. “Hell, why would I want to kill him? I just want to look at him.”
“Do you want to get in the cell with him?” asked Jacobsen.
“Nope,” said Byron, “I don’t. I just want to look at him eye to eye.”
That’s an odd sensation to ask to see somebody that’s murdered your wife and damaged your son. You know. I think that’s odd. And I don’t think I’d do that again. When they asked me if I saw him if I’d kill him, I thought: What the hell would I want to do that for? If I had that in mind, I’d be just like he was. That wasn’t the purpose. And when I come to think about it, I’m not even sure what the purpose was. There was no real purpose. Nothing could have been gained by seeing him. When they said, “Would you kill him?” that made me realize right then, I was down there foolishly. Foolishly, foolishly. No reason to be there.
“I didn’t come to kill anybody,” said Byron. “That’s the farthest thing from my mind. I think maybe I’d just like to see what kind of a guy would do this kind of thing.”
“If it’s that important to you, then, I can have someone take you up,” said Jacobsen. He asked Byron, “Is it that important to you?”
Byron didn’t answer at first, just continued looking at the chief. After a moment he said: “No, I guess it isn’t. Not to me.” He dropped the envelope containing Carol’s jewelry into his pocket and turned to his brother-in-law.
“Let’s get out of here.”
Before they left, Byron told Chief Jacobsen that he appreciated the police work that had tied up the killers so quickly.
“I figured you would find them,” he said, “but I didn’t know it would happen this fast. Now these guys will get a trial and I guess that will determine what happens to them.”
We followed their counsel and went home. They had good judgment, and it was poor judgment on my part. I started to feel, This is ridiculous, what the hell am I doing here? So we went home, and I was glad we did. And I never discussed it again with anybody, about going down there, or wanting to, or the reasons, or anything else. I don’t know what I was expecting to happen if I’d been allowed in. I’m not even sure. Not even sure. I don’t know how they would have reacted. I don’t know how I would have reacted, how I would’ve felt. I felt that I would have had plenty of control, there’s no question about that. Regardless of what they did or said, I probably would’ve never even spoken or made a sound. Just looked at ‘em.
But that was a mistake. And I’ve been glad a lot of times that I never did see those guys. Because after I got home and thought about it, I really didn’t care about seeing them. It wasn’t that important to me. I had plenty to do with my wife being dead and Cortney on the verge, without worrying about those guys, and I figured that the sooner and the farther they were out of my mind, the better my life was going to be. Because there was nothing I could see to be gained by confronting them. If they could have done Cortney any good I’d have confronted them in a second. If they could have done him any good at all, I’d have confronted them ten times a day. Or whatever it would take. But it wasn’t going to change his situation, and it wasn’t going to change mine. I was swayed a little bit by someone else, and I didn’t let that ever happen again. I tried to have complete control over how I felt and thought and acted from that point on.
Shortly after Byron Naisbitt and Lynn Richardson left the police station, Pierre and Andrews were taken from their ninth-floor cells to the city courtrooms four floors below, where they were to be arraigned on charges of first-degree murder. The Information citing the charges against them was read and then each of the defendants was asked if he would like to consult with an attorney. Andrews requested an interview with the public defender’s office, and Pierre stated that he had an attorney from another case but hadn’t been able to contact her. To allow Pierre and Andrews time to contact their attorneys, the judge continued their arraignments until the following day, Thursday, and they were returned to their cells on the ninth floor.
Pierre’s attorney was Rita James, a bright young woman who talked fast, smoked continuously, and punctuated her speech with short bursts of laughter. She had recently been divorced from an Air Force lawyer at Hill Field and was practicing law in a remodeled house in Ogden. That week she was away on vacation.
“See I was in Georgia visiting my parents when the Hi-Fi Shop happened,” she said later. “And you know how you get these weird feelings? Well, when I read about it in the paper, I had this weird feeling I was going to be involved in it somehow, and that’s not hindsight, because I told my mother that at the time. And then the next day it came out that Dale had been arrested, and he was waiting for his attorney to get back from vacation. [Laugh] You know, I’m reading this in the Warner-Robbins paper in the middle of Georgia.
“Prior to this there were a couple matters that he needed some counseling on, and of course he was in the military so he went to the base lawyers, the JAG office, and they felt that he ought to talk to civilian counsel about it. So he came to me. The first time, he was one of several suspects in this other homicide out at the base. They wanted him to take a polygraph on the deal, and none of the JAGs out there were that familiar with polygraphs. I don’t even think I opened up a file on him at the time. The only thing I recall is the police saying something about Dale having a set of keys to Jefferson’s apartment and cars and everything, you know, a complete set of the man’s keys. And then several months later he was arrested for auto theft and had me represent him on what later turned out to be three auto theft counts.
“Now the auto thefts were in January of ‘seventy-four, two Rivs and a Corvette. The MO was really brilliant. Bear in mind Dale always denied having stolen the cars. But the MO was go out in your uniform to a car lot, give them your correct name, test-drive a car that you couldn�
�t conceivably afford with the number of stripes you got on your sleeve, tell ‘em you want it and you’re going to go to the credit union to get the money; then the car disappears that night. Then it’s found on the base with a temporary sticker on it that you get. That’s an incredibly dumb way to go about stealing a car. He didn’t strike me as being that stupid. Nor did he strike me as being violent or nasty or evil or anything like that. You know, some people do give you the willies when you meet them. But he didn’t. He never struck me as being anything but quiet. Maybe a little strange. Even though he maintained he hadn’t stolen these cars, he couldn’t come up with any sort of credible explanation for what they were doing [laugh] with his license plates on them, and his temporary stickers on them. He seemed to have more intelligence than that, so I was trying to see if there might be any possibility of, you know, not so much an insanity defense, that obviously wasn’t there, he didn’t strike me as being insane, but some mitigating mental problems so he could cry on the judge’s shoulder. [Laugh] You know, and perhaps try to get some sort of help for him as opposed to a prison sentence. But I never could really get enough information out of him to be very helpful.”
After Cortney’s surgery the night of the murders Dr. Hauser had warned the Naisbitts that if Cortney survived till morning, the next major crisis would occur Wednesday night or early Thursday, when the swelling in Cortney’s brain would reach its peak and the brain would begin distorting into the cavity at the base of his skull. If the pressure did not subside quickly, the respiratory center would shut down and Cortney would die.
When Dr. Hauser returned to the ICU late Tuesday morning to examine Cortney after his surgery, he found that Cortney was beginning to respond to verbal commands. But later that night he again visited and entered the following note on Cortney’s chart:
While rt. sided weakness persists, he is now moving all extremities on command. For several reasons, suggest that in spite of continued improvement, his official status be continued as critically ill.
Dr. Hauser was always pessimistic with the families of head-injury patients. Insults to the brain were not only serious but unpredictable. In Cortney’s case, underlying all of Hauser’s usual reservations was his original diagnosis upon examining Cortney in the emergency room: he had never seen a patient exhibit those same signs and live.
The nurses continued to check Cortney for signs of the swelling in his brain, looking into his pupils to see if they were equal and reactive to light. What made it difficult to compare Cortney’s pupils was that his right eye had filled with blood and drifted off to the side.
Early Tuesday evening one of the nurses noted that Cortney’s eyes were open and he was moving his lips, as if trying to form words. But the eyes did not track and there was no sign he could comprehend what was happening around him. After a few moments he closed his eyes again and sank back into his bed.
Through the quiet hours of Tuesday night and Wednesday morning, Gary stayed at the hospital after his family had departed. At two thirty in the morning he was in the room with Cortney, watching the nurses work around his brother, watching his brother’s mouth pucker and open, then close again. At six o’clock he was back in Cortney’s room, and Cortney opened his eyes and appeared to recognize him. But the moment was brief. The seeming recognition quickly faded and Cortney’s eyes closed. When Gary had seen Cortney earlier in the night, Cortney had been breathing on his own, free of the respirator. Now he was back on the machine and assisting it only sporadically.
Shortly after Cortney had been put back on the respirator early Wednesday morning, his father returned to the hospital and was in ICU accompanied by Dr. Wallace. They watched as Cortney breathed off the respirator, only occasionally initiating the breath himself. A nurse turned Cortney and positioned him. At seven fifteen Dr. Hauser was back at his bedside. He examined Cortney again and found the boy’s condition to be as he had predicted. He wrote on the chart:
Apparently, at some point since I last saw him he has required MA-1 to take over. This is doubtless a reflection of increased intracranial pressure. This cerebral edema is expected to reach its maximum—assuming it is reversible—sometime tonight.
The doctors feared that even if the pressure in Cortney’s head peaked and later subsided, his respiratory center still might be destroyed. Cortney then would be dead, except for his lungs filling every few seconds with air from the respirator. Byron told Gary he had given instructions to the ICU staff to allow Cortney to die if that’s what he was going to do. He didn’t want his son artificially supported by a respirator if the boy’s brain had ceased to function to the point that it no longer had the primitive capacity to ask for oxygen. Wednesday afternoon Dr. Rees wrote an order on the chart that Cortney was to be taken off the respirator every hour for fifteen minutes to see if he was continuing to breathe on his own. The order was to run until the critical period had passed.
After predicting that Cortney’s cerebral edema would reach its maximum sometime Wednesday night, Dr. Hauser returned to the hospital at six thirty that same evening. He noted that while Cortney still opened his eyes occasionally, he would not follow verbal commands as he had twenty-four hours earlier. The pressure inside Cortney’s head seemed to be mounting despite the large doses of steroids he was receiving.
During the night Cortney alternated between what appeared to be intervals of sleep and fits of restlessness, the difference between the two being little more than a contortion of the face or a twitch of the arm. The monitor next to his bed indicated that his heart was in sinus tachycardia, beating faster than one hundred times a minute. Following Dr. Rees’s order the nurses continued to take Cortney off the respirator for fifteen minutes each hour.
Just before midnight a resident on his surgical rotation stopped in the ICU to look at Cortney. He had been in the operating room the night of the murders, assisting Dr. Hauser in placing the burr holes in Cortney’s head. Since then he had frequently checked on Cortney’s progress. That night Cortney was responding to pain in his right Achilles for the first time, an improvement since the resident had seen him earlier that morning. As the resident was examining him, Cortney suddenly opened his eyes and the resident thought he mouthed the word “hi.” The movement of Cortney’s lips was so indistinct, the resident actually wasn’t sure what he had mouthed, or even if the movement had been purposeful. But on Cortney’s chart he wrote, “Definite code,” meaning that if Cortney stopped breathing or his heart went into fibrillation, every effort should be made to save him. Later, Dr. Hauser would request that the resident cease from writing on Cortney’s chart.
When Dr. Hauser saw Cortney again during rounds the following Thursday morning, the swelling in Cortney’s brain appeared to be subsiding and he seemed vaguely more responsive than the evening before. The monitor to his heart was still indicating sinus tachycardia, but he was tripping the MA-1 on every breath. After examining Cortney, Hauser and the other doctors surmised that Cortney’s period of continuous reliance on the respirator had possibly been caused not so much by the pressure on the respiratory center of his brain as by his total exhaustion. His body had been so tired it simply lacked the energy to draw a breath. Hauser remained chary of Cortney’s condition and gave no hope to the Naisbitts for Cortney’s survival. But he recorded on Cortney’s chart:
Holding his own. Feel the point of maximum cerebral edema has passed.
Claire arrived at the hospital later that morning, and when she found that the swelling in her brother’s brain already had peaked and he was still alive, she was overjoyed, thinking that now Cortney would live and recover. I remember one thing I was told. I think it was one of the doctors said, “Well, we think that if he lives till Thursday, he’s going to make it.” I guess they were worried about his brain, you know, whether it would start going down by then, or something, the edema. I guess that’s why they told me that, and I thought, “Really?” You know? I mean, I really took it to heart. And when he lived till Thursday, I thought, “Wow, that is
really neat!” But Dad’d say, “That’s only one milestone, you don’t know what he’s got to go through.” And I really didn’t.
Thursday morning the Ogden City courtroom was packed with spectators, many of them standing. But before the armed guards would bring Pierre and Andrews down from their ninth-floor cells for arraignment, the room had to be cleared and everyone searched before they were permitted to reenter. Once inside, no one was allowed to leave. Pierre’s attorney, Rita James, had not yet returned from Georgia, and Andrews still had not qualified for representation by the public defender’s office. The judge again granted a continuance until Monday to allow the two defendants an opportunity to confer with their lawyers. Afterward, outside the courtroom, Prosecutor Robert Newey told reporters that if Pierre and Andrews were convicted, he would demand the death penalty.
Like most death penalty statutes in existence at the time, Utah’s was new and untested. Two years earlier, in June 1972, the Supreme Court of the United States had handed down its famous decision in Furman v. Georgia, a decision that appeared to the general public to hold the death penalty unconstitutional. But the Furman decision had not been nearly so decisive. The court had split five to four against the Georgia death penalty statute, each of the nine justices writing a separate opinion, a rare occurrence on the high court. Two of the five justices striking down the statute would have declared unconstitutional any statute authorizing capital punishment on the sole ground that capital punishment was “cruel and unusual.” But the remaining three members of the majority indicated in their opinions that the aspect of the statute which they objected to was not the penalty itself but the amount of discretion left with the judge or jury in deciding who would die and who would not. The arbitrariness inherent in this discretion, not that the death penalty was cruel and unusual, was at the core of their rejection of the Georgia statute. The implication derived from their three opinions was that should the death penalty be administered according to stricter guidelines for judge and jury, guidelines that allowed less discretion and more uniform application, these three justices would not be opposed to the implementation of the death penalty.