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 wo
n'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.
Wootton took another look at the Jury now and knew he'd be surprised if Gilmore didn't get death. Wootton had been watching that Jury all the way, and while they had not been looking at Gilmore before he testified, which to Wootton meant they felt uneasy at sitting in judgment on him, they were now staring at him like crazy, almost stunned, particularly one of the two women Wootton had selected to work on all through the case.
In talking to a Jury, Wootton's strategy was to pick one member who was strong and intelligent and one who, in his opinion, wasn't.
You tried to present your case in story form to the juror who was not intelligent, whereas you argued the contradictions before the one who was. This latter lady was now really watching Gilmore. The expression on her face was all Wootton could have desired. It said: "You are as bad as the prosecutor says you are."
After that cross-examination Wootton was careful not to make his summation too long.
"Benny Bushnell did not deserve to die," Wootton told them, "and it's hard for me to get across to you the real grief that this kind of behavior on the part of Gary Gilmore has caused to Benny's wife and his children."
MR. SNYDER Your Honor, I object to the introduction of that kind of prejudicial statement in the argument by counsel . . .
THE COURT All right. I'll reserve a ruling on your motion. I'll ask Mr. Wootton to omit any further reference to that matter.
MR. WOOTTON Let's look at the kind of man the defendant is. For the last twelve years he's been in prison. All rehabilitation attempts apparently have been a total dismal complete failure. Now if you can't rehabilitate somebody in twelve years, can you expect to ever rehabilitate them at all? He tells you he killed Benny. He tells you he doesn't know why. He tells you how. He told him to lay down on the floor, put a gun to his head and he pulled the trigger. That's pretty cold-blooded. Now he's been convicted on two prior occasions of robbery.
He served time for those. And he's learned something because of that time. Do you know what it is? He's going to kill his victims.
Now that's smart. If you are going to make your living as a robber, that just makes sense, because a dead victim's not going to identify you. He'd have gotten away with this most likely free and clear except for some dumb bad luck. He accidentally shot himself. Those things happen, I suppose, when you have been drinking a little bit, and fooling around with guns. Now he's also got a history of escape, three times from some sort of Reform School and once from the Oregon State Penitentiary. Now what does that tell you? If you people tell us lock Gary Gilmore up for life, whatever that means, we can't guarantee it. We cannot guarantee that he won't escape again.
He's got a history of it. He's apparently pretty good at it. If he's ever free again, nobody who ever comes in contact with him is going to be safe, if they happen to have something that he happens to want. Now he's got a history of violence in the prison. Even the other prisoners, if you tell us to send him to prison, cannot be guaranteed safety from his behavior. What then is the point at this time of allowing him to continue to live? Rehabilitation is hopeless. He's a danger if he escapes, he's a danger if he doesn't. Obviously, nothing can be done to save this man at this point. He's an extremely high escape risk. He's an extreme danger to anybody. Without even considering all these factors, however, I submit to you this: for what he did to Benny Bushnell and the position that he's put Bushnell's wife in, he has forfeited his right to continue to live any longer and he should be executed, and I recommend that to you.
Wootton sat down, and Snyder came toward the Jury to give his final remarks. He spoke with considerable emotion.
MR. SNYDER I suppose that nobody feels worse about what happened to Ben Bushnell and to his family than I do. This has been a very difficult case for me personally to even try. I think that it puts the Jury in a position that I would not want to be in, because in spite of the fact that this type of crime was committed in this particular case, what we are dealing with here is human life. Mr. Gilmore is a person, too. And although Mr. Gilmore has a history of prior conduct which hopefully we can all learn something from and which hopefully none of us will have to come in contact with again, he is a person and, in my opinion, he has a right to his life. I don't think there's anything more personal to any individual than his right to live. And you are in the position at this point where you have to decide whether to take that life from Gary Gilmore or whether to let him live. I don't excuse what Mr. Gilmore did, I don't even pretend to try to explain it, but I think he does have the right to live and I would ask that you give him that opportunity. I think the sum of what Mr. Wootton says is well taken. I think that Mr. Gilmore's history is certainly something that he's not to be proud of. I don't think any of us are . . . Mr. Gilmore does have something maybe he can't cope with, but it's not something that we ought to take his life for . . .
Mr. Gilmore is the type of person that needs treatment more than he does to be killed. He needs, I think, to be punished for what he does, and the law provides for that by a term of life imprisonment. And I don't think that Mr. Wootton's fears about rehabilitation or that if he ever gets out again, that type of thing, are founded. Mr. Gilmore's thirty-six years old.
MR. GILMORE Thirty-five.
MR. SNYDER Thirty-five years old. He is going to be incarcerated, if you will, for life. That's a long long time. And though I suppose at some point in the future after many years he may be eligible for parole, that's a long long ways away. I think he deserves the same opportunity really that Benny Bushnell should have had. And I think and I would strongly recommend to the Jury that you award Mr. Gilmore his life. I would point out to you as is indicated in the Instructions that in order to impose the death penalty it does require a unanimous vote of all twelve of you. If one of you does not vote to impose the death penalty, then the sentence will be life imprisonment and will be imposed by the Court as such. I would ask each of you to search your own conscience and to impose in this case life imprisonment.
THE COURT Mr. Esplin, do you care to make any comments?
MR. ESPLIN I think Mr. Snyder has accurately portrayed my feelings.
Now, Judge Bullock asked the defendant if there was anything he would like to say to the Jury. It would be his last opportunity to speak of repentance.
Gilmore replied, "Well, I am finally glad to see that the Jury is looking at me." When this remark was received in silence, he added, "No, I have nothing to say."
"Is that all?" the Judge asked.
"That's all."
Now that the Mitigation Hearing was over and the Jury had gone to the jury room, Vern and Ida went outside and milled around the courthouse with other people waiting for the verdict. They had not planned to be in Court at all, but Gary had called Ida days ago and asked her to be there, and after that, nothing could have kept them
Inside the courtroom, Mike Esplin arranged with the guards for Nicole to be able to sit near Gary. That way, he was able to talk to her across the railing. While they waited, they joked. They even held hands. It impressed Mike Esplin. The fellow was waiting to find out whether he was going to be executed or not, yet he was acting like a cavalier.
Craig Snyder got curious what Gary and Nicole might be talking about, and got near enough to hear Nicole say, "My mother wants you to paint her a picture." "Oh," said Gary, "I didn't think your mother really liked me." "Well," replied Nicole, "she doesn't. She just wants it so she can say, 'Gary Gilmore painted that picture.' " Gary laughed. Craig couldn't get over it. To have Nicole near seemed more important to Gary than anything in the trial. He looked so happy.
&
nbsp; A little later, he wanted to go to the bathroom, and so the two guards got up with him, and they filed off slowly, Gary in lockstep, the shackles keeping his feet from moving quickly. Brenda came up.
"Gary," she said, "don't be such a sore-ass. Just because I turned you in, and testified against you, is no reason to be mad, is it?" He arched his neck and looked down at her. It was awful to see him chained.
She reached out and touched his handcuffs tenderly, but he pulled his hand back, and gave her a look that ate at her for a long time and never stopped bothering her.
For weeks to come, she would be standing at the sink doing the dishes, and she would start to cry. Johnny would walk over and put his arm around her and say, Honey, try not to think about it so much.
All she could see was Gary behind bars again, deeper than he'd ever been.
Word came that the verdict was ready, and they all returned to the courtroom. The Jury walked in. The Bailiff read the verdict. It was Death. The Jury was polled. In turn, each one of the twelve said: Yes, and Gary looked across at Vern and Ida and shrugged. When the Judge asked him, "Do you have an election as to the mode of death?"
Gary said, "I prefer to be shot."
Then Judge Bullock replied, "Very well, that will be the order."
The sentence was set for Monday, November 15, at eight o'clock in the morning of this year, and Gary Gilmore would be remanded to the Sheriff of Utah County for delivery to the Warden of Utah State Prison.
The news lived in the air of the courtroom. It was as if there had been one kind of existence in the room, and now there was another: a man was going to be executed. It was real but it was not comprehensible. The man was standing there.
Gilmore chose this moment to speak to Noall Wootton. This was the first time he had addressed him in weeks. Gary looked over calmly, and said, "Wootton, everybody around here looks like they're crazy. Everybody but me." Wootton looked back and thought, "Yes, at this moment, everybody could be crazy, except Gary."
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