by Gary Kinder
The evening was warm and mild. At seven o’clock the Ogden High School Orchestra played “Pomp and Circumstance” as the members of the graduating class began filing into their reserved section of the bleachers, half coming in slowly from the north entrance, the other half from the south. Byron picked out Cortney immediately from among the black robes. He was limping, but his limp had more of a bounce than usual, his tassle jumping at the side of his face. In over two years his father had not seen Cortney so animated.
After the class was seated, the program went quickly: beginning with the Invocation, followed by the student speakers and the commencement address. When finally the time came for handing out the diplomas, Principal Claire Fisher rose and asked the audience to hold their applause until the last student had been called. At that time the graduates would be presented as a group and the people in the stands could applaud the class of 1976.
On cue, the first row of thirty graduates then stood and began the walk across the cinder track to the edge of the stage, where they waited for their names to be announced. When a name was read over the loudspeaker, the graduate climbed the steps to the stage and proceeded across the stage in front of the crowded bleachers to shake hands with the principal and other dignitaries.
Well over half of the class had received their diplomas when Cortney rose with his row and walked down the stadium steps, taking them one at a time, limping noticeably on his right leg, but still seeming to bounce. When he got to the bottom of the stadium, he proceeded across the ramp to the stage and waited for his name to be called.
“Byron Cortney Naisbitt.”
The applause started with the 491 members of his class. As Cortney limped across the stage dragging his right foot and trying to uncurl his right hand, the class suddenly stood and continued clapping, and their applause was joined by the families in the bleachers and the people onstage. Everyone in the stadium had risen and was clapping, and the television cameras were following Cortney across the stage as he made his way slowly toward the principal, who was waiting to shake his hand.
After they read my name, my dad said that everyone in the bleachers stood up and started clapping. I didn’t see it because I was concentrating so hard on trying to get my hand open.
EPILOGUE
Over eight years have passed since the murders. The Hi-Fi Shop is gone, bulldozed flat to make room for a new downtown shopping mall. Even the old red brick building that once was St. Benedict’s Hospital sits on the east bench in darkness, the hospital now located in a new and larger facility miles away. In the spring of 1978, Byron Naisbitt married an obstetric nurse, a woman with a masters in nursing and seven children of her own. Gary too has remarried; his new wife is a bank executive with two sons from a former marriage. At present Gary is enrolled in a doctoral program in chemistry at Brigham Young University. Claire’s husband Scott completed his residency in obstetrics in 1979, and the couple moved to Ogden where Scott is now a practicing physician in obstetrics and gynecology. They are the parents of three little girls, the eldest of whom has just turned six. Brett is now the vice-president of an investment and development firm, and he and Diane have adopted two more babies, both of them boys. Natalie had her eighth birthday in November of 1981.
Brett: Natalie has a picture of Mother in her room, and she loves to hear the story of when she was adopted. Part of the story is Mother coming over every five minutes. She wanted us to be alone, Diane and I, when we got the baby, but the lawyer said he’d be there at three or something. So at three-oh-five Mother showed up. “He’s not here Mother, but come on in and wait with us.” “No, no, no, no,” she’d say, “this is your minute.” So, she’d take off. She must have gone around the block and just sat there and paced or something. You know. Five minutes later she ivas back. That went on for about twenty minutes. She just couldn’t control herself. Finally, the lawyer showed up about three thirty. By then she had been back and forth and back and forth. So Natalie loves to hear that story about once a month. And she likes to hear how Grandma helped Di change her diapers for the first time and all that other stuff. “Tell me about when I was adopted.” She could recite it by heart.
As she grew up, we’d tell her the story about her adoption, and she’d say, “Where is Grandma?” “Well, Grandma’s dead.” “Oh, really? I won’t see her?” “No, you won’t see her.” Slowly we told her little bits and pieces of the story. So she knows how Grandma died. She knows that they were in a holdup situation. That some bad men came in with guns and hauled them off and made them drink some terrible stuff and then shot them and killed them. She just slowly accepted that that’s what happened to Grandma and there are bad people and things can be bad out there, it’s not all good. She doesn’t think that everybody’s out to get her, but she knows what happened to Grandma.
Mother would have really enjoyed the grandkids, too. And that’s too bad, because she would have made things fun for them, and done things for them, and it’s a shame she’s not going to get that. Because the only grandchild she had at that point was Natalie. All of five months.
Things didn’t really settle down a whole lot until after the trial. Until I knew that those guys had been convicted. I didn’t go to the trials because I didn’t want to get into all that. I think if I had gone down there and listened to the testimony, just knowing what I know about the facts, I think I would have been just fit to be tied. But I recovered quickly. I’ve been getting on with my life and doing the things I have to do, and I don’t get myself bogged down thinking, “When are they going to get those guys, when are they going to get them?” I’m just not going to sit here and waste my time, because it’s not going to change anything. It has dragged on and dragged on, but they’re going to get it when they’re going to get it. It’s just frustrating that they haven’t gotten it yet. If that makes any sense at all.
You’ve got to block it out of your mind. But it still comes up. Like when I’m introduced to people. “Naisbitt, Naisbitt. Is your mother the one... ? is your brother the one... ?” And it’s been over eight years. People still know me by that. I don’t think it’s gone away in anybody’s mind.
“Yeah, that was my mother and my brother.” And they ask me, “When are they going to execute those guys?” And I say, “I don’t know, your guess is as good as mine.” Almost without fail, everybody comes up with that question. Even now, I’ll bet that happens once a month. Back then it was a lot more. But between those times, I try not to live with it. You learn to accept it, you know. I had to learn to accept it eight years ago.
There are still things that pop up, like going to the cabin at Solitude. You get flashes up there. I do anyway, because Mother liked the cabin. I can still picture her standing on the bar waiting for the mice to go away. She hated mice and when she saw them it was bar time. We’d go skiing and we’d come back and she’d be up on the bar, mice buzzing around. Maybe she hadn’t seen a mouse for an hour, but she’s still on the bar. I picture that a lot, just lots of little odds and ends, some of the things that she really liked and enjoyed. There were mannerisms too that Mother had that were kind of unique to her. I mean she’d do funny things. She’d do a funny walk, and click her tongue, that was one. Those things bring back memories and you have to put them out of your mind.
I’m sure if she’d just gotten sick and died or something it would have been different. We’d probably have had more feelings like Diane had when her mother died. “Well, gee, Mother would have really liked to do this, or seen this, or gotten such a kick out of the kids.” But in our case you have to put a lot of that on the shelf because of the circumstances of the way Mother left us. It’s just different. When you think about Mother, you always get the flashback of that night. How grotesque it was. I think that takes away a lot of the tendency to daydream about things. Because it doesn’t always come back quite as fun as maybe Diane pictures her mother. When I think of my mother, sometime in that daydream I always flash back to her getting shot in the Hi-Fi Shop.
I d
on’t know how Gary or Claire or Cort do it, but I don’t like to remember her and think about her being down there. Yet it’s too big of a thing just to block out. Regardless how old I get, when I have to think about Mother, I’m going to also have to think about the way she died. And I don’t think I’ll ever get over that.
* * *
A convicted murderer condemned to death in the state of Utah will have his case taken through at least eight major levels of appellate review, nine if the final authority of the Board of Pardons is considered. In addition the defendant can bring numerous interim actions outside the established appellate process, each requiring briefs and argument before one or more courts.
The first appeal to follow conviction and sentence in the trial court goes automatically to the Utah Supreme Court. If the defendant loses there, then a petition for certiorari is filed with the United States Supreme Court. Assuming the Supreme Court refuses to hear the case, the defendant then may come back to the state district courts, and begin with the state postconviction remedies. If the petition is denied at this third level, an appeal is filed again with the Utah Supreme Court. Once the Utah Supreme Court has heard the case for the second time and still has refused to overturn the conviction, remand the case for a new trial, or impose a life sentence instead of the death penalty, the case goes again to the United States Supreme Court. Upon the second denial by the United States Supreme Court, the case then enters the federal system, going to the Federal District Court, District of Utah on a writ of habeas corpus. If the writ is denied at this first level in the federal judicial system, it advances to the Tenth Circuit Court of Appeals in Denver. From there the case will make its way for the third and final time to the United States Supreme Court. The three-member Board of Pardons, appointed by the governor, then has the power to commute the sentence to life.
By the time a petition is filed with a court, and briefs are written and submitted, and the court has either refused to hear further arguments, or has set a date, heard arguments, and rendered a decision, a year to a year and a half will pass. At each level of appeal a stay of execution is virtually automatic until the court renders a decision, and once that decision is rendered, assuming it goes against the defendant, an execution date is again set, to be vacated later when the next court agrees to hear the petitioner’s appeal and the execution is again stayed. Each time the execution date is rescheduled, court is reconvened, and the defendant is brought under guard from the state prison to the county in which he was convicted to appear again before the sentencing judge.
Nearly eight years after they were convicted of murdering three people and sentenced to die, Dale Pierre and William Andrews are still in maximum security at Utah State Prison. The date for their execution has been set five times, and though they once came within two days of facing a firing squad, their sentence has yet to be carried out. Twice their appeal has been argued before the Utah Supreme Court and twice it has been denied. Twice their petition for review has gone to the United States Supreme Court, and twice it too has been denied. Their appeal is currently being held in suspension at the sixth level in the appellate process, before the Federal District Court in Salt Lake City, while a separate appeal on their behalf is taken to the Utah Supreme Court. If their sentence is ultimately carried out, at least twelve years will have elapsed since they committed their crimes.
Claire: I don’t talk about it really very much now. People don’t ask me. Well, even if they do, I don’t tell ‘em. Most of the time they just say, “Well, how are things?” And I say, “Oh, just fine.” Because they are, basically. I mean, there are problems, but there’s nothing they can do about it. It’s just not something they need to hear. Who wants to sit around listening to that stuff. So you just say, “Well, they’re just fine.” And really they are. You think of Cortney’s progression, what he’s come from and where he is. And it’s just a miracle. That he’s even here. I know that. But he’s got a long ways to go. And you just hope that he gets there. Because it’s gonna be real hard on him if he doesn’t. It’s going to be harder on him than anybody. I don’t even know if he can see that yet.
Maybe I should take it more personally. But I don’t think I would be revengeful. I don’t think I’d ever feel like, “Well, I’m glad they finally got it,” or something like that. Because I don’t think I really feel like that at all. I just feel terrible that anybody would bring that upon themselves. And I think it’s their own decision. I’m sure his family must feel just terrible, too. I’m sure they are real sad. They must hurt.
I probably think about it every day. I just think about my mom or what we could be doing, or think about Cort, or something, you know, some part of it. I’m not basically a morbid person, I don’t think. But, you just do. Someday maybe I won’t. I mean there’s nothing you can do about it. I don’t think bad things. Like sometimes, it’s so funny, I think, Oh, my mom and I’ll go do that. And then I think, oh. No, maybe we won’t. You know what I mean? Like I still think she’s around. Lots of times I’ll think that. It just seems like she’s just downtown sometimes. I guess it doesn’t seem like that that much anymore. But for the longest time I just thought: Well, my mom’s not here ‘cause she’s downtown. She’ll be home for dinner. Isn’t that crazy? I guess it’s just because that’s what you’re used to. But even after you know it and you accept it, you’re just so accustomed to things that this is your first reaction. It’d catch me off guard, you know? Like I say, I don’t do it as much anymore. But still I think about all the things we could do. Then I think about doing them with the girls and how fun that will be. That will be fun. We always go places together. Go play in the snow, go to the zoo, and stuff like that. So it’ll be fun. It would have been more fun if she was there, too. She could help me out, take the girls, and we’d all go together. She really would have gotten a big kick out of that. But some other time.
The Hi-Fi Murder Trial, though probably the most sensational criminal prosecution in Utah’s history, was not by most standards an expensive trial. The jury was not sequestered in a hotel, and rarely did they eat more than lunch at public expense. The $15,000 charged to the county by Pierre’s attorneys for fees and expenses was “perhaps the lowest fee in the state’s history for a case of this magnitude,” according to the judge who presided at the trial.
The transcript of the Hi-Fi Murder Trial ran forty-four hundred pages and cost $16,480.20. Jury fees for the trial were $5,953.80, and the jurors’ meals another $819.95. Witness fees came to $826.80. Weber County received a bill for $4,837.36 from the Sheriff’s Department in Davis County (where the trial was held) for providing security for the defendants at the trial. The Weber County attorney and the bailiff were reimbursed $221.80 for travel expenses to and from Davis County. Pierre’s defense attorneys received a flat sum of $15,000 for fees and expenses. Miscellaneous expenses for overhead and indirect support costs for the trial were an additional $10,215.
The total cost directly attributable to the Hi-Fi Trial was $54,354.91.
Other expenses were not directly attributable to the Hi-Fi Trial, but involved the time and resources of institutions supported by public funds. The Weber County public defender’s budget for 1974 was $60,000, $12,000 of which went to John Caine, Andrews’s attorney. For six months a large portion of Caine’s time was devoted to preparing for and trying the case on behalf of his client. Judge Wahlquist’s salary was $36,000 a year; a little over six weeks of that year was spent presiding over the hearings and trial of the Hi-Fi murderers. He estimated the costs of his time and travel at $4,968. The use of equipment and the number of man-hours times an average hourly wage for police officers involved in arresting the defendants and conducting the follow-up investigation came to $30,000, an approximation which Police Chief Jacobsen estimated was within ten percent of the actual cost. The Weber County Sheriff’s Department listed expenses of $3,724.22, the majority of which went to housing the three prisoners for seven months at $4.50 per day, the flat rate paid by the government for h
olding a federal prisoner in a county jail in 1974. County attorney, Robert Newey, provided a figure of $15,494.84 for pretrial preparation, his assistants, an investigator, and approximately one-third of his $17,500 salary for that year. So the additional costs proportionately attributable to the Hi-Fi Trial were approximately $60,187.06.
While Pierre, Andrews, and Roberts sit in prison, their appeals continue, and though Pierre’s attorney has received no additional monies for taking the case through the appellate process, the Utah Attorney General’s Office must respond at each level of appeal. Earl Dorius has argued the case on behalf of the state since the first appeal to the Utah Supreme Court. For the past seven years he has spent three months each year researching, writing, and arguing the Hi-Fi case and companion capital cases on behalf of the state. His salary during his first year in the Attorney General’s Office, 1974, was $12,000. It is now $38,500. When he is working on these cases, he keeps two secretaries and two law clerks busy for most of the three months and once, faced with a barrage of writs filed by defense attorneys, required the assistance of five law clerks. The law clerks work twenty and sometimes forty hours a week and earn $6 an hour. The secretaries make between $10,000 and $16,000 a year. Photocopying alone for a single level of appeal, thirty copies of a two-hundred-page brief plus specially printed covers, runs over $500.
Since the day after they were sentenced Pierre and Andrews have been incarcerated in maximum security at the Utah State Prison. After being held in maximum for his own protection, Roberts eventually was transferred to the medium security wing where he is presently housed. Because it would be too costly and an unnecessary expenditure, the prison has never conducted a cost accounting to determine the expense of confining a single prisoner. The only method by which the approximate cost per prisoner can be calculated is to divide the total number of prisoners housed at the facility by the prison’s fiscal budget. Since 1974 the population at the Utah State Prison has averaged each year just under 1,000, and the cost per prisoner for running the prison has remained between $9,000 and $10,000. For prisoners in maximum security this figure would be slightly higher. The proportionate cost of supporting Pierre, Andrews, and Roberts for the eight years of their imprisonment, then, is approaching a quarter of a million dollars.
