The Executioner's Song (122 page)

he’d known for years, and a few old reporters. Ever since the mons had raised those accusations against him back in Harry man’s administration, Ritter had stayed away from everyone. only time anyone had ever seen him with a number of people one year on Christmas Eve when Ritter insisted Craig Smay and wife come to dinner. When they got to the hotel, a room had rented, and inside were twenty-five people around a big table, people with their sons and daughers and grandchildren. was calling him Bill. They were friends from the taste he’d been boy. Up to that moment, Craig Smay never thought of the Judge one of those human beings who naturally have a first name.

Given the length of this wait, it was better to remember those tales about Ritter that could warm you. So Dabney was to savor the story about Ritter and the wild mustangs. Some had sued the Federal government for rounding up a few mustangs on their reservation and sending them off to the yards. Ritter had given the Indians $oo a horse. The

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appealed and Ritter was overturned, but the case came back to him. In the next trial, one of the tribal chieftains testified that the horses were ceremonial ponies. On that basis, the Judge decided they were each worth $4oo.

Ritter later confided to a few friends that the evidence which caused him to think the government ought to pay, and pay well, was that the horses had been packed into a truck with open boards, and one mustang’s leg was sticking through the slats. The people who were doing the job could have opened a door to extricate the horse, but that would have been a lot of work, so somebody just took a chain saw and cut the horse’s leg off. Those animals were going for dog food anyway. Ritter said, “This shows the cavalier attitude of the government toward our horses.”

What Ritter gave you, Dabney told himself now, was excitement. After leaving his courtroom, you could say to yourself, “There isn’t another Bench like this in the whole country.” Whether you won or lost didn’t have to be so important as that you had a hell of an experience. Why, Judge Learned Hand had written that Willis Ritter possessed one of the finest minds he had ever known on the Bench, That was what you had to count on.

Considering it was well after ten o’clock on Sunday night, Earl thought Judge Ritter looked surprisingly spry when he finally showed up in Court. Judy Wolbach was impressed with his God-like voice. Ritter said no more than “The papers appear to be in order. I’ll hear you,” but she fell in love. A slow, deep voice with a lot of resonance. Such a plump, nice, stem-looking man. He would make a good Lord for the flood, if God was close to eighty.

Gil Athay happened to be in Court, Judy noticed, and some of the top liberal lawyers in town like Richard Giauque and Danny Berman, his partner, about as Salt Lake Establishment as you could get, ffyou were also a liberal. Jinks, with them for an audience, would be off to a good start. He loved trial work, and under this kind of pressure,

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didn’t falter a bit. Began with a dry, perfect presentation, exactly the reason he was a successful attorney. If she had been up there, Judy thought, she would have wasted time carrying on about how Attorney General Hansen didn’t even have the nerve to appear, which proba bly would have been a mistake. Instead, Jinks went right into his argument.

Dabney had tried two jury trials in front of Ritter and been in his Court twenty-five or thirty times. Maybe it was the legends, but you never got over the anxiety that you might run into one of Ritter’s sore spots. He could rule against you right then. Given the Judge’s love of dispatch, Dabney knew he was taking a chance in talking a lot to night, but in variety lay the strength of his frail case.

“Your Honor,” Dabney began, “we have attempted to obtain jus tice in virtually every Court in this country, and this is the final effort to stop what we consider to be a clear unconstitutional exercise by the State of Utah to execute a man before the death penalty has been examined by either the Utah Supreme Court or the preme Court of the United States …. “

Dabney did not have his argument written out. What he had say was placed in five piles of paper. Once he got going, he reach for a group of notes, and explore their points, but first he h summarize the complaint. Since it was a taxpayers’ lawsuit, his gument had to be that public funds were being spent “unlawfully,7 So now he said that if the Utah statute was found unconstitution the State could yet be found liable.

Having completed his introduction, Dabney decided to add ghost claim, not present in his brief. “It has recently,” he said, to our knowledge that Mr. Gilmore might consider fighting for life, ff Nicole Barrett were to indicate to him that he ought to do Since the only way this knowledge had come was through with a few other ACLU attorneys, plus a quick unprofitable Stanger, Dabney added quickly, “We are not positive that we have a basis upon which we can ask for this relief, but if Mr. is of that particular state of mind, we ought to allow him to some kind of access to Miss Barrett in the presence of her or court-appointed psychiatrist, to determine whether he

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change his position. It seems to me that’s a very small request con sidering that we’re confi’onted with the execution of a man.”

Dabney threw it in because it sounded good. It could have the ef fect of moving the Judge’s stomach over a little nearer to ruling in the ACLU’s favor. Often, to win a case like this, you not only had to give a Judge good legal reasons to satisfy his mind, but also something that appealed to his gut. Dabney would soon give his argument why Utah’s death statute was not valid, and Ritter might decide the ACLU was right, yet still say, “Gary Gilmore wants to die, so what the hell?” If, however, you could suggest that Gilmore could change his mind about dying, and all it would take was one meeting with Nicole! — well, Dabney thought that might appeal to Ritter.

Now, the lawyer went into the legal merits. The Utah statute, he said, had no mandatory review. That removed a vital precaution. You had to appeal a death sentence, regardless of a defendant’s wishes. How else could you protect other defendants in later cases? The orig inal Judge might have made some serious legal error that could be repeated.

Dabney next brought in the Constitution. Everyone knew that Judge Ritter had been keeping a tattered copy in his desk since law school days fifty years ago. So Jinks remarked that the Eighth and Fourteenth amendments were going to be violated by this case. They had a requirement that the death penalty not be “capricious or arbi trary.”

Earl Dorius was certainly going to quote the majority opinion of the Supreme Court in the Bessie Gilmore case. Dabney, therefore, did it himself: “Gary Gilmore, knowingly and intelligently, with full knowledge of his right to seek an appeal in the Utah Supreme Court, has waived that right,” Dabney read aloud. These words, he said, meant that Gilmore had a right to appeal and chose not to use it. But one had to keep in mind that the question of mandatory review had not been brought before the Court. Indeed, Justice White had even said that Gilmore was not able “to waive the right to state appellate review.” Burger had then added: “The question is simply not before us.” So the Supreme Court, Dabney argued, had not decided the issue in the Bessie Gilmore case. To the contrary. On the basis of their decisions in Gregg v. Georgia, Proffitt v. Florida, and Jurek v.

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Texas, the Supreme Court had upheld statutes that called

for mandatory appellate review, and, in addition, Collins v.

and Neal v. Arkansas had been sent back by the Supreme Court just such lack of mandatory review.

“Your Honor,” Dabney said, “this Court is the last chance justice to prevail.” He had concluded his opening statement.

Dorius began his reply, They were here in Court because monies are being expended unlawfully … for the purpose of exo ecuting Gary Mark Gilmore.” However, Earl stated, “We know of no Federal money that has been appropriated specifically for execution.”

The argument had come to the place where it could be

at a stroke. Judge Ritter spoke for the first time. “What,” he asked “do you say to that, Mr. Dabney?”

“If it please the Court, our information is that the Division of,. Corrections’ budget for the fiscal year i976-i977 contains a Federal grant in the amount of $5o,ooo.”

Dorius replied that this was a general appropriation. “The plain tiffS,” he said, “are unable to show that any of these particular monies have been designed for the carrying-out of this execution.”

Dabney was ready to say, “Half a million dollars in Federal funds was given to the Utah Bureau of Prisons. I assume the Utah Bureau’ of Prisons has something to do with the proposed execution of Gary Gilmore,” but when Ritter made no comment, and seemed ready to let them remain in Court, Dabney let it go.

Earl Dorius would certainly attack the point again, and in re serve, Dabney had an elegant Supreme Court decision to introduce. It could dignify standing in the most dubious taxpayers’ suit. Dabney, however, did not want to put it out too early. The decision was more than ten years old, and later Supreme Court decisions had weakened

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it. Better to save it for the end, so as not to give the other side too inuch room to chip away.

Dorius’s next argument was that “These issues that are being raised tonight, under the guise of an eleventh-hour appeal, are issues known to these plaintiffs at least two months.” There had been a tremendous delay in filing the action. In Gomports v. Chase, a 197I Supreme Court decision in a school desegregation case, Justice Mar shall stated that “under normal circumstances, the injunction would issue,” but the case had come in too late. So, Justice Marshall denied it. The ACLU, in submitting this action “just nine hours prior to the execution, is very analogous to the Gomports case. The plaintiffs have sat on their rights too long,’! said Dorius.

For the Attorney General’s office, it was Bill Evans’s turn next. The Supreme Court, he argued, had only insisted on two conditions for death-penalty cases. One was the need for a separate trial and Mitigation Healing. Utah had that. The other requirement was that whoever determined the sentence must be provided with standards for guidance. That element was also in the Utah system. Besides, the Supreme Court had never said that mandatory appeal was the only system to satisfy them.

Bill Barrett was next. “With this taxpayers’ suit, the plaintiff is attempting to stop an execution, not stop the wrongful expenditure of tax dollars. They have not established that they have a good-faith pocketbook action.” It was a short point and a strong one. Dabney felt the time had come to produce his special argument.

“If I may, Your Honor,” said Dabney, “Mr. Barrett left out a very significant case when discussing the standing question. That is Flast v. Cohen, a decision of the United States Supreme Court in I968. In that case, Your Honor, which was a taxpayers’ cage to prevent the ex penditure of certain funds by Congress and the Senate, Mr. Chief Justice Warren wrote that the only basis upon which this particular action was brought was that the plaintiffs were taxpayers of the United States government. Nonetheless, Chief Justice Warren found that there was, in fact, adequate standing.” Judge Ritter looked up. “Tell me that again,” he said.

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Hem was the crux, Dabney felt. He would emerge with or with out standing. The basis upon which Chief Justice Warren found for the taxpayers, he explained, was “a balancing concept between the amounts of money on the one hand, with the type of legal interest on the other.” If you had a taxpayers’ suit where the danger to public rights was not important, but a lot of money was involved, that was a legitimate suit with good standing. “On the other hand, if the legal interest is of extreme importance, then the Court does not have to become so concerned with the financial interest.” If low on one side,. you had to be high on the other. Since the death penalty was the ul timate sentence, it seemed to Dabney that you did not need very much taxpayers’ money to have standing. The right was that the sum of money could be small.

After that, Dabney felt stronger. Ritter did not reply, but standing .grow underneath his toes. Now he could attack aspects of the case.

“They say that Mr. Gilmore had a hearing before the Utah preme Court,” said Dabney. “The only hearing had them, Honor, was questions to Mr. Gilmore: ‘Do you want to appeal or appeal?’ And he said, ‘I don’t want to appeal.’ They said, ,Do know what you’re doing?’ He said, ‘Yes, I do.’ And they right, we’ll dismiss your appeal.’ Now that’s the hearing they there. The fact that Mr, Gilmore doesn’t want to take an appeal not dismiss the Utah Supreme Court from taking it. There mustt mandatory, meaningful appellate review, and a twenty-minute ing before the Utah Supreme Court cannot in any way be strued. Regardless of what Gilmore wanted, the Utah Supreme had to take that case. When they didn’t, we couldn’t know the sentencing of Mr. Gilmore to death was in contravention Eighth and Fourteenth amendments of the United States tion, as interpreted by the United States Supreme Court. way to know if it’s capricious or arbitrary is to compare Gflmom’s with every other case on appeal involving the death penalty. Gilmore case has not been compared with anything. I’m at a

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understand why the Utah Supreme Court didn’t even have a tran script of the trial or the sentencing.”

Evans stood up. “Your Honor, we submit that it is patently illogi cal for the U.S. Supreme Court to rule that Mr. Gilmore has intelli gently and voluntarily waived his right to appeal if, in fact, the Court is of the opinion that he must have an appeal. That is patently illogical. One completely eliminates the other in our opinion.”