The Executioner's Song

by Norman Mailer

  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."

  That was Schiller's unvoiced address to Gary Gilmore. He said it in his head several times a day. He knew it was a logic Gilmore could recognize.

  On his side, Gilmore was certainly being unreasonable about the letters. They were intrinsic to the transaction, and as far as Schiller was concerned, part of his capital. So he felt no compunction about acquiring them however he could. At the end of the first week in December he went over to see Moody and Stanger, and explained what he wanted.

  They replied that they did not know how to obtain them.

  Now, Larry lost his temper with the lawyers for the first time.

  "Don't give me that," he yelled. "You're Gary Gilmore's attorneys. You just ask Noall Wootton to turn them over. Do you mean to say this state has no laws of discovery? You're allowed a copy of everything the prosecution is holding against your client."

  It was getting to Schiller that Stanger, in particular, had not done anything. Not only had he not picked up the letters, but he had done nothing about getting a transcript of Gary's trial. Gary didn't want a transcript, Stanger replied.

  This had nothing to do with Gary's defense, Schiller explained. It concerned the book and the movie. How could you do the trial without a transcript? Besides, Schiller pointed out, they had a legal duty to perform. What if Gary changed his mind and wanted to appeal? If they had no transcript, and were not familiar with Snyder and Esplin's notes, they could lose a crucial week. A man's life might be lost. He got hysterical in his indignation. "I want you guys to get on the goddamned phone," he said, "and start pulling things together."

  He could see they didn't like it one bit, but they also knew that
any additional money further down the road was going to come from him.

  Schiller couldn't get over the way these lawyers worked. Wootton had never bothered to transcribe the trial. What if the Supreme Court of the United States needed the record? A little later, Moody's secretary called back to say that the legal stenographer thought the job would cost $600. "I'll pay for it," said Schiller, "don't worry." What was more important was that Wootton agreed to turn over the originals of the letters if they would provide him with a set of Xeroxes. So Stephanie went over as Moody's messenger and picked the lot up.

  After Larry looked them over, he estimated that Gary must have written through August, September, October, and November, up to the suicide attempt, an average of ten pages a day. Quite a few letters actually went on for twenty of those big, yellow office-pad pages. The total had to be well over a thousand pages. He just skimmed. He could see Gilmore was writing about everything. One place he'd give Nicole a college education with essays on Michelangelo and Van Gogh, in another, pages of fuck talk. Must be tons of meat and potatoes in those envelopes. Schiller figured that he would need at least six complete copies, one for Wootton, one for himself, one for the future writer of the book, and at least three others for sale in different places. He called the main office of Xerox in Denver and asked about the fastest machine they had, and who might have it. He was prepared to fly Stephie to Denver, Dallas, San Francisco, wherever, when damn if they didn't tell him that right in Provo, the Press Publishing Company had just such a machine. Right in fucking Provo. A Christmas card company. Schiller shook his head. Sometimes these things happen.

  Obviously he was not going to tell a Christmas card company that Gary Gilmore was what he intended to use their machine for. He merely asked to rent the machine from eleven at night until three in the morning, and used Moody and Stanger as references. Stephie and he went in with a man from the plant and it ended up taking six and a half hours.

  There was magnitude to the job. Gary's letters were so carefully folded, it was unbelievable. One small white prison envelope might hold a dozen legal-sized pages. Gary had not only folded the sheets that closely, but Nicole maintained the folds. Schiller began to feel the relationship of Gary and Nicole in the way those letters had been opened and put back, opened and put back.

  Later, when he had a chance to read more, Schiller began to feel a little security. Even if the Supreme Court took back their stay and Gary was executed in a week or so, these letters still offered the love story. He not only had the man's reason for dying but Romeo and Juliet, and life after death. It might even be enough for a screenwriter.

  The next problem was where to sell some of them. The National Enquirer had made a firm offer for sixty grand to Scott Meredith, but Schiller was debating whether he should offer a package to Time instead.

  He could probably get no more than a third as much, but at that price, Schiller liked Time. It was not only the prestige. In essence, Time magazine was a sales letter printed everywhere in the world. Gilmore's importance would be amplified internationally. That alone could pick up the $40,000 difference.

  All the while, he was playing with the Enquirer on the side.

  Their offer had gone from sixty to sixty-five. Schiller needed more money the way a farmer without a tractor needs a tractor, but he hated how the Enquirer would cheapen the property. In the interval, Time looked like they might even go to $25,000.

  Then he got the idea to sell an in-depth Gary Gilmore interview to Playboy. That ought to be worth another twenty. Splicing the rope with Time and Playboy, plus the ABC money already spent, plus whatever he could pick up in Europe by selling the letters ought to come to more than a hundred thousand total. That should be enough to take care of all expenses, past and pending.

  The lawyers, however, were having their difficulties. Schiller's admission to the press that he was a Hollywood producer had turned everything around at the prison. Sam Smith said he was going to see that nobody profited from the execution of Gary Gilmore. "Not while I'm Warden." He began to put a lot of restrictions on the visits.

  When they talked to Gary these days, there was always a guard present. The lawyers would put down the phone and refuse to talk until the guard got the hell out of there. Sometimes the fellow would go to the opposite end of the room, but then, you had to be paranoid that the phones were bugged. It was hell talking around a corner to a client whose face you couldn't see. One day, Moody even went to the mat with Sam Smith over his right to tape-record visits with Gary.

  "For executing his Will," complained Bob, "I have to record his remarks in case he changes his mind." He knew the argument was a waste of time, but he did it to keep pressure off the unauthorized tape recordings he was already making. They were difficult enough at best. You had to sneak the machine into the prison under your coat, and then there was the apprehension that a guard could notice the little rubber recording cap that had been slipped onto the earpiece of the phone, Discovery would leave them professionally embarrassed.

  Of course, the Bar Association hadn't done anything with Boaz and probably wouldn't start up with them, but all the same, if you valued your reputation this became one more uncertainty to carry around.

  Other times, the guards would try to inspect their attaché cases as they walked in. Then they would have to put on a real show. They were Gilmore's lawyers, and their briefcases were not to be touched!

  It meant they had to psych themselves up every time they came to the prison gate.

  One occasion, Ron got into a hell of a fight with Sam Smith. "I'm going to interview my client the way I want," Ron told him, "and you're not going to tell me how to do it." "Look," said Smith, "this is my prison." Ron said, "Piss on that." He started yelling. Smith tried to calm him down. "Now, Ron," he said, "now Ron," said Sam, and Ron answered, "Bullshit, you're not going to tell me how to conduct an interview. I've got to have a record. If my man gets executed, and somebody sues, I want these talks on record. I'm going to handle my client the way I want." "Well," said Sam Smith, "you're going to have to go to Federal Court to find out if you have that right." Ron said, "Buddy, if I have to, I'm going."

  It was a hell of a yelling match, and got them nowhere. The Warden would never tell you what you could or couldn't do. He would just say, when asked, that it was against policy. Ron even had a go with Ernie Wright, the Director of Corrections. Ron was one of the five members of the State Building Board, and that was real leverage.

  Any time the prison needed a new facility or, hell, even a new shed, they had, like any other State institution, to get permission from the State Building Board. So, Ron had had a day-to-day acquaintance with Sam and Ernie for some time. On this one, however, he ran into a wall. Ernie Wright finally said, "No movie producer is going to make one dime out of Gilmore. It's not fair. We're the ones who take the criticism, and nobody is going to make any money out of this." It got as emotional as that.

  "Where is it against policy?" Bob would ask. "In which book?"

  "Oh, it isn't written," Ernie Wright said just like Sam, "it's just prison policy."

  Moody and Stanger discovered they could get a lot more done by working with Assistant Wardens and Lieutenants. The two prison Chaplains were also useful. Campbell, the Mormon, was fighting the prison half the time, so you could expect him to become frustrated and walk around in a pout with a tight steely face. But, the other Chaplain, the Catholic, Father Meersman, was an old boy, and he would tell the lawyers, "Butter 'em up. Don't ask whether you can or can't. Just go as far as you can. When they cut you off, try some other time." Father Meersman had worked in the prison for years and enjoyed a smooth relationship, a pleasant-faced man, gray-haired man, not tall, not short, not heavy, not slim, moderate in every one of his physical details. "Just say, 'whatever is fair, Warden, whatever's fair.' "

  Of course, Gary could get caustic about Father Meersman. "The padre," he said to Moody and Stanger one day, "gave me a cross to die with. Specially made. Fits in the palm of your hand
. That papist prick ought to be a used-car salesman."

  Moody also got a little pressure in Mormon circles. He was a member of the High Council, one of twelve Elders to advise the President of his Stake in Provo, but now and then words would come back that some people thought he should be kicked off the High Council for accepting blood money. On the other hand, Church members in good standing would say, "You're doing a fine job. We admire you for that." Half and half.

  Moody brushed it off. It was like the flak he took when he defended one man for killing another while driving under the influence of alcohol. "How could you do that?" he was asked, "You're a Mormon. You don't drink." Some Church people didn't understand the system or his role in it.

  Still, it wasn't all bad. By this time, Ron Stanger could hardly wait to get home and catch himself on the tube. He frankly enjoyed the publicity more than Moody. Bob wasn't so much in love with his bald head that he wanted to rush over to see his image, but the kids liked it. "There's Daddy," they'd scream. Fun to see them having pleasure. And, of course, at the courthouse and on the street, everybody was asking how they were doing, everybody said they saw them on TV. It was a good feeling for Moody to run into attorneys he had gone to school with, who were now, perhaps, making more money than him, and be able to chat about the case. On the whole, he felt relaxed. Gilmore hurt his practice, and helped it. Changed it. Moody liked to think of himself as a man who wasn't paralyzed by the idea of change.

  GILMORE You tell Larry Schiller I want that phone call to Nicole. I'm sure that Schiller can put pressure on people if he wants to.