The Executioner's Song (50 page)

“Hit me,” said Gibbs.

Well, Gary would point out that prior to their arrests, they had both been living with 2o-year-old divorc6es. Each of them had met the girl through her cousin. Each of the girls had two children. The first was a 5-year-old daughter, brunette, whose name started with an S. Each girl had a 3-year-old son by another marriage. Both little boys were blonds and their names started with a J. Both Nicole and Gibbs’s girlfriend had mothers whose first name was Kathryne. And each of them had moved in right after he met the girl.

After comparing these coincidences, Gibbs did stop and think. He even started to wonder. Maybe there was sense in what Gary was saying.

Of course, Gary hadn’t hit the difference. Gibbs’s girl was nothing to look at, and Nicole was beautiful. After Gibbs saw the way she put herself out for Gary, he decided she must also be beautiful inside. Why, when she didn’t have money for stamps, she would hitchhike down to the jail to bring Gary a letter. If they needed coffee, Tang, writing paper, pens, whatever, Gibbs had only to tell the jailer to

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release money from his account and Nicole would go right out and buy the things and bring them back.

One time, making up the list, Gibbs asked if there was anything that had not been mentioned, and Gary said, “Do you like that instant hot chocolate? …. Yeah,” Gibbs replied, “it’s all right.” Actually he preferred cold drinks like Tang but said, “Have Nicole get a carton of those packets of hot chocolate.” He could see how embarrassed Gary was to want something or need it. Got all choked up. “Gibbs,” Gary said now, “you are one of the best sons of bitches I ever met in twenty years of lockup. Mark my words, somehow, someday, you’ll be repaid for being so good to others.”

Gibbs could see that Gilmore was really looking for some way to repay these favors. He even began to speak of fixing Gibbs’s teeth, which rattled in his sleep. “Well,” said Gibbs, feeling uncomfortable, “I like to play with them.” He had a full upper plate, but he had sure broken it in two. Shortly before he came to the slammer, he had been driving along in his Eldorado, drunk as a skunk, got sick and had to puke. Too lazy to stop. What the hell, he was doing 8o on the Interstate. He just opened the window, heaved, and must have gone another too yards before he realized his teeth had gone out with the cakes. Slammed to a stop on the shoulder and ran back in the dark, until he found a stream of vomit. The false teeth were in two pieces in the middle of it.

Now he played with them. Made a Clickety-click sound like castanets. Sometimes Gibbs would poke the whole job out at people just to watch their expression when his front teeth split apart in front of them.

He wouldn’t kid this way around Gary, however. Gilmore was too self-conscious about his own teeth. It even took him a couple of days to get around to telling how he worked in the dental lab at Oregon State. If Nicole could buy a kit in a pharmacy, Gilmore could repair his denture. Gibbs released the money right off.

After her visit, she sent back a box of Denture-Weld, which contained a bottle of liquid, tube of powder base, eyedropper, plastic cup, a stick to stir it all, sandpaper, and instructions. Gilmore threw the instructions aside and went to work. In fifteen minutes the teeth were

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THE EXECUTIONER’S SONG

back together and fit like new. It made Gibbs worry. With his plate fixed, Gilmore might be able to her the words he was saying while asleep. Gibbs just hoped those words wouldn’t embarrass him.

Later that night, Gilmore sat up and began to work at little ad justments on his own plates. Gary was really looking for a privacy trip with those teeth. In the silence of the night, Gibbs pretended to be sleeping and watched Gary, intent and alone at his work, old as his age and more, his lips fallen in on his gums.

The four trustees were petty criminals just serving a little county jail time. So they were all deathly afraid of Gilmore when they came back at mealtime. They would stand as far as they could from the slot in the door when they slid their trays through. A man could hardly reach out and grab you through that little space, but the trustees had a lot of caution. They had heard the jailers talk of how Gilmore made his victims get down on the floor, then, splat! Anytime a fellow in one of the other tanks started a tough-guy role, the jailers would now tell him to quit or he could go live with Gilmore. That man, they would point out, did not have a hell of a lot to lose by killing another man.

The Trial of Gary M.

Gilmore

They took Gibbs out of the cell one day to let Gary be alone with a psychiatrist, and the jailer took Gibbs to the kitchen for coffee. The trustees couldn’t be nice enough. Fixed Gibbs a sandwich, the works. Finally one of them asked why he was out of his cell. “Oh,” Gibbs said, giving a wink to the jailer, “we’re being pulled one at a time for a shakedown. Gary will be here just as soon as I go back.” Gibbs had never seen four guys wash trays so fast. They planned to be done for sure before The Great Gilmore arrived.

Just then the jailer had to walk to the front office to answer the phone. Soon as he did, Gibbs took every package of punch he could see on the table, stuffed them in his pants, said to the trustees, “If one of you punks say a word about this, you’ll hate it.”

Soon as the jailer took him back, Gibbs started unloading his stolen goods. Gary said the nut doctor was going to recommend that he was sane and competent to stand trial. “What do you expect?” said Gilmore. “He’s paid by the same people who pay my lawyers. The State of Utah. I can’t win for losing.” Then he said, “What are we waiting for? Let’s mix up that punch before the Man comes looking,” So they got busy and made up a gallon.

SANITY

Esplin and Snyder had been offered a crack at distinguishing them selves in a big case, in fact, the most prominent case either of them had yet taken on. They certainly thought they were working hard. The legal community that met informally each morning and after noon in the Provo Courthouse coffee shop in the basement hall across from the foot of the marble stMrs was a group to pay attention to the upcoming trial. It was some time since Provo had had a case of Murder in the First Degree, and a young lawyer could do service or injury to his reputation among colleagues.

So they were eager to put their skills to work, and not without awe at the responsibility. A man’s life would depend on their presen tation. It was frustrating, therefore, to discover they had an un cooperative client.

He wanted to live — at least they assumed he wanted to live — he talked about getting off with Murder in the Second Degree, even being found Not Guilty. Yet he would not offer new material to im prove a weak defense.

The prosecution had circumstantial evidence that was tightly knit. If perfect evidence could run from A to Z without a letter miss ing, then here, perhaps no more than a letter or two was smudged, and only one was absent. The fingerprint on the automatic was not clear enough to be established as Gary’s, Everything else brought the

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case together—most particularly the shell casing found beside Benny Bushnell’s body. That could have come only from the Brown ing found in the bushes. A trail of blood led from those bushes to the service station where Martin Ontiveros and Norman Fulmer had seen Gary’s bloody hand.

There was direct evidence as well. At the Preliminary Hearing on August 3, Peter Arroyo testified to seeing Gary with a gun in one hand and a cash box in the other. Arroyo made a perfect appearance. He was a family man who spoke in a clear and definite voice. If you were filming a movie and wanted a witness for the prosecution who could hurt the defense, you would cast Peter Arroyo. In fact, after the Preliminary Hearing, Snyder and Esplin ran into Noall Wootton in the coffee shop, and they joked about the witness’s talents the way rival coaches might talk of a star who played for one of them.

The confession Gary gave to Gerald Nielsen had also hurt a great deal. Snyder and Esplin were not concerned Wootton would try to bring such a confession into the trial. If he did, they thought they could show Gerald Nielsen had violated the defendant’s rights. In fact, Esplin delivered a pretty potent plea at the Preliminary Hearing. “Your Honor,” he said, “the police can’t lay out a case before a sus pect and say this is the evidence we’ve got, and wait for him to make a statement, and then say we didn’t actually ask him anything. Why, the inflection of one’s voice can lead one to believe he’s being asked a question.”

The Judge came close to agreeing. He said, “If I was sitting as a trial judge, I’d exclude it… but for the purposes of a Preliminary Hearing, I’m going to admit it.”

Wootton would probably not even bring the confession into court now. It could taint the case sufficiently to have a conviction overthrown on appeal.

Even so, the confession had done its damage. Much of the prom ise was out of the defense. A lawyer without a reputation for probity might be able to ignore the fact that half the legal community of Pmvo now knew, after the Preliminary Hearing, that Gilmore had confessed, and the other half, via the coffee shop, would soon find out. That was bound to inhibit any really imaginative defense. It would not be comfortable before the fact of such a confession to work up the possibility that Bushnell’s death was an accident in the course of a robbery.

The most telling evidence against Gary was the powder marks that proved he had put the gun to Bushnell’s head. Otherwise, you could argue the murder took place because Benny Bushnell had the bad luck to walk into the office just as Gary was robbing the cash box. That would be Second-Degree Murder, a homicide committed in the heat of a robbery. It was hardly as bad as ordering a man to lie down on the floor, then pulling the trigger. That was premeditated. Ice-cold.

Nonetheless, you could still work up a defense from those facts. Automatics had the most sensitive triggers of any handguns. Since Gilmore, a few minutes later, would shoot himself by accident with just such a sensitive trigger, you might still argue that he had been surprised by Bushnell .and had taken out his gun. Trying to decide what to do next, he told Bushnell to lie down. When Bushnell started to say something, he threatened him by putting the gun to his head. Then the gun, to his horror, went off. By accident. It might have been a defense. It could have created some reasonable doubt. It would, at least, tone down the most powerful detail, emotionally speaking, in the prosecution’s case. Yet, that argument could now be employed only as one of several possibilities during a general summa tion to the Jury. You could not build your case .on it, not when many a lawyer in Provo, given the existence of the confession, would see such tactics as sleazy.

A trial for murder in Utah was conducted in two parts. If the defen dant was found Guilty in the First Degree, a Mitigation Hearing had to be held right after. One could then introduce witnesses who were there to testify to the character of the accused, good or bad. After such testimony, the Jury would go out a second time, and decide be tween life imprisonment and death.

If Gary was found guilty, his life would depend on this Mitigation

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Hearing. Yet here he became uncooperative. He would not agree to clling Nicole as a witness. They tried to discuss it. There, in the

little visitor’s room at County Jail, he did not listen to Snyder and lsplin’s argument that they had to be able to make the Jury see him as a human being. Who better than his girl friend could show he was a man with a good side? But Gilmore would not allow bringing her irito the case. “My life with Nicole,” he seemed to be saying, “is scred and sealed.”

He was not forthcoming. He did not suggest witnesses. When he gave up a few details of how he lived in Provo, the details were dry. He did not offer the names of friends. He would say, “There was this kid I work with, and we had a beer.” He sat on his side of the visiting room, remote, soft voiced, not unfriendly, hopelessly distant.

On the other hand, he did show some curiosity about his lawyerS’ backgrounds. It was as ff he preferred to ask the questions. In the hope of priming him, Snyder and Esplin were ready, therefore, to talk about themselves. Craig Snyder’s father, for instance, had run a aorsing home in Salt Lake, and Craig had gone to the University of lAtah. While there, he made head cheerleader, he told Gary with a self-effacing grin. His wife had been president of a sorority. He was still an avid football and basketball fan. Played golf, paddle ball and tennis, gin rummy and bridge. After law school, he moved to Texas and worked in the corporate tax department of Exxon, but came back

to Utah because he liked being a trial attorney more.

“Any kids?” asked Gilmore.

“Travis is six, and Brady is two.” Craig’s expression was round

and serious, friendly and cautious.

“Yeah,” said Gilmore.

Esplin had wanted to be a sports hero, but suffered hay fever as

a child. He grew up on a ranch, and went to England on a mission. When he came back at twenty-one, he got married. Long before, by the time he was thirteen, he had read all the Perry Mason books he could find. Erie Stanley Gardner made Mike Esplin a lawyer, but private practice seemed to consist of bankruptcies and divorce cases. So, for the last year, he had worked full time in Provo as a Public Defender.

Gilmore nodded. Gilmore took it in. He did not give a great deal back. Did not think there was anything they could use from his prison years. Only the prison record and that wasn’t written for him but for the institution. His mother might make a good witness, he allowed, but she was arthritic, and could not travel.