The Executioner's Song (59 page)

She was also worrying what Nicole might do if Gary got angry enough to sic her on. To please Gary, there was nothing at which Nicole would stop, Brenda had come to believe.

Wootton rested the case for the State. John Woods now testified for Gary.

MR. SNYDER If you had an individual who was a psychopathic per sonality, would that person have the same capacity to appreciate the wrongfulness of conduct … as a quote-unquote “normal person” would have? …

DR. WOODS He would have the capacity but would most likely not choose to. MR. SNYDER And if you added at that point alcohol and medication such as Fiorinal, would that increase or decrease this person’s capac ity to appreciate and to understand the wrongfulness of his conduct? DR. WOODS Hypothetically, it would impair his judgment and would loosen the controls on a person that already has very poor control of himself….

MR. SNYDER Dr. Woods, did the defendant relate to you any child hood experiences which were particularly considered in the course of your evaluation?

DR. WOODS Yes. He related some childhood experiences, and I

MR. SNYDER

actns?

MR. GILMORE MR. SNYDER

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would say that I would think that some people might think that they were peculiar,

MR. SN’I)ER 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 and 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 evi dence 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 consid ered 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 7/2o/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

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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 clem ency 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, there fore, 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. GILMOrtE 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. SNYDV.R 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.

Do you feel like you had control of yourself or your

No, I don’t.

Do you feel like— Well; let me ask you this: Do you know why you killed Benny Bushnell?

MR. GILMORE No.

the

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THE EXECUTIONER’S SONG

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, some body 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 2oth. 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, I976.

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 2oth.

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 re morseful, 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. Hos tility came back with every speech.

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“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 MR. GILMORE MR. WOOTTON MR. GILMORE MR. WOOTTON

MR. GILMORE

Wootton.

MR. WOOTTON MR. GILMORE MR. WOOTTON MR. GILMORE MR. WOOTTON MR. GILMORE MR. WOOTTON MR. GILMORE MR. WOOTTON MR. GILMORE MR. WOOTTON

MR. GILMORE

there.

MR. WOOTTON

MR. GILMORE

MR. WOOTTON

MR. GILMORE

MR. WOOTTON

MR. GILMORE

MR. WOOTTON

you

MR.

Did you lay him down on the floor?

Not with my own hands, no.

Did you tell him to get down on the floor?

Yes, I guess I did.

Face down?

No, I don’t know if I went into all that much detail,

Did he lay down face down?

He laid down on the floor.

Did you put the gun up against his head?

I suppose I did.

Did you pull the trigger?

Yeah.

Then what did you do?

I left.

Did you take the cash box with you?

I don’t recall taking the cash box with me.

But you saw it in the courtroom, didn’t you?

Yes, I saw what you said was the cash box sitting

You don’t ever remember seeing that before?

No.

Did you take his money?

I don’t recall that either.

Do you remember taking any money?

I don’t recall that either, I said.

Do you remember having some money on you when were arrested later that night? GILMORE I always had money on me.

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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

won’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

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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-examinationl 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, cdn 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

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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.