Chapter 36

MICKEY FROM WHEELING, AND EUDORA FROM PARK HILL

1

As soon as the Attorney General’s people were in the courtroom, the panel of three Judges came out from their chambers. With Lewis were Judges William E. Doyle and Gene S. Breitenstein. Earl glanced at his watch. It was ten to seven.

Bob Hansen stood up, introduced his assistants, and began to present the basic background. One of the Judges interrupted. Would he get immediately to the merits? Bob nodded, and asked Earl to present the first portion of the case.

Earl started to make his opening comment. At that point, Judge Lewis looked down from the high bench and remarked that no one was present for the ACLU. It was bewildering. Their counsel table was empty. No one knew where they were. That left Earl up on the podium by himself.

He was furious. Everybody had to recognize the urgency. The ACLU must be deliberately attempting to delay the hearing. Earl stood there, three minutes, five minutes, six, then seven minutes ticking away. The longer he waited, the angrier he became. Finally, Judy entered the courtroom with the other ACLU attorneys, and he glared at her. In fact, he got into a staring contest with her. She stared back in equal fury.

2

Coming into the building, the first thought in Judy’s head had been, Where do I meet my people? Everything was up in the air. The separate parts of the case had been assigned on the telephone. Now, soon as she got into the lobby, a charming young lady whose name she never caught whisked Judy down the hall to four ACLU lawyers who were waiting for her in the attorneys’ lounge. They had just barely sat down when Schwendiman came rushing in with the Clerk and said, “They’ve started. You’re wanted in Court.” Oh, my God, thought Judy, what a way to start out, Contempt of Court already.

Then she tried to walk in without being too obtrusive about it, but the atmosphere was pompous. The Judges were wearing robes and sitting way up on a bench higher than any she’d ever seen before. Must have been six feet above the floor. Looking up to address them, you felt as if you were on your knees.

Then Dorius began to glare at her. At seven o’clock in the morning! Judy could always put on a perpetual glare at that hour. She just said to herself, “I hate and despise him,” and glared back as good as she got.

Earl proceeded through his opening statement. “Members of the Court,” he said, “we have a severe time problem. Mr. Gilmore is scheduled to be executed at seven-forty-nine A.M.” It was now 7 A.M.

Judge Lewis informed him he would have fifteen minutes to offer argument, but Earl didn’t take ten. The pressure, he felt, was intensifying his argument. He said plaintiffs had commenced their action at 9 P.M. the evening before, and that was a little late to be concerned about a dramatic abuse of the rights of taxpayers. He felt full of the truth of this remark. “The ACLU,” he continued, “is using the device of a taxpayers’ action for the purpose of delaying a lawful exercise of State power.” He felt attuned to his indignation. No standing, no standing whatsoever!

Judge Ritter, he argued, had grossly abused judicial discretion. Nobody had been able to demonstrate that any specific Federal monies were being spent on this execution. Moreover, Judge Ritter had assumed that the Utah statute was unconstitutional. Yet the constitutionality of this statute had, in effect, been before the United States Supreme Court already. The Court would hardly have ruled that Gary Gilmore could waive his right to appeal if they thought the statute defective.

Bill Barrett was supposed to speak next and show why the ACLU had no standing. The Court, however, said they wanted to hear from the ACLU first. So, Steve Pevar, one of the ACLU lawyers, tried to plead that this case was not properly before the Court. He had been back and forth on the phone with Jinks Dabney from three in the morning until dawn, and they had come to the opinion that the State of Utah couldn’t ask for a Writ of Mandamus because Ritter had not acted beyond his authority. If the Governor of the State of Utah had been ordered to move the Capitol Building three blocks south because some little law was being broken, that would fit Mandamus. But this, at least on the face of it, was a bona fide lawsuit. A motion had been made and granted. Why, the Attorney General’s office wouldn’t have even dared to bring in a Writ of Mandamus if it wasn’t Willis Ritter. So the more Dabney and Pevar discussed it, the more they felt in good shape.

When Pevar tried to bring out these arguments, however, Judge Breitenstein grew incensed. Ooh, Judith couldn’t believe the man’s face. “I know what the law is here,” he told Pevar. “What do you think we’ve been reading since five-thirty this morning?” Classic. A young lawyer being keelhauled by an old Judge. “We don’t need you to instruct us on the law, blah, blah, we’ve heard enough from you, blah, blah. Please get on with the merits of the case.” That was how Judith heard it. One testy Judge. Pevar kept trying to get back to the point that you couldn’t slap Writs of Mandamus on Judges for too little, but the Court did not accept it. Another few minutes, and the ACLU was warned that they were prolonging the case. One of their attorneys stood up then, and said Ms. Wolbach would proceed.

Judith gave her case. It was just a rush and a repeat of what Jinks had presented, and she glared at Earl Dorius as she presented her points. He irritated her profoundly this night, but not because of anything he had done. It was because he thought he was right.

When Judith sat down, another member of the ACLU team spoke against the death penalty in general. The Justices cut him short. Now the case started rushing faster and faster. Bill Barrett tried again to discuss the issue of standing, but the Court said they were familiar with that. Would the Attorney General’s office move ahead? Bill Evans began to defend the constitutionality of Utah’s statute. The Judges stopped him. That issue was not, they said, relevant to the case before them. It was getting more and more abrupt. When one of the ACLU lawyers tried to discuss capital punishment, the Panel cut him off, and declared a recess. The Judges would now write their opinion.

Just before he left the Bench, Judge Lewis spoke. “Among other people who have rights,” he said, “Mr. Gilmore has his own. If an error is being made in having the execution go forward, he has brought it upon himself.” Then they went out.

Now, Earl Dorius turned to Dave Schwendiman and told him to get Gordon Richards on any phone he could find. He would first have to identify himself with the code words “Eudora from Park Hill,” and then tell Gordon to wait on the line. Schwendiman went out immediately to the Clerk’s office, trying all the while to walk rather than run. No one but a secretary was there, so he sat down at an unoccupied desk and placed a collect call to Richards at Utah State Prison. After he gave the password, he said it looked like they were going to prevail. Keeping the line open, they chatted and Richards told him how cold the night had been, and that the van which would carry Gilmore and the automobile that would transport the witnesses were both ready, respectively, outside Maximum and Minimum Security. Their motors were on.

Waiting in the courtroom for a verdict, Earl was certain his side had won. He even felt calm for the first time in the last several days, and turned to Bob Hansen and started thanking him for pushing them all to do the job, and getting to Denver. As he spoke, he had so much more emotion than expected that he had a momentary panic he might look tearful. He was certainly thankful to have an Attorney General who was willing to get this involved in a case and wasn’t hesitant to push his staff to their utmost limits.

The Judges were back in three minutes. They did not read their verdict. The Clerk of the Court, Howard Phillips, did it for them in a dry offhand voice. As he spoke, Judy thought that of all the things they did not do, they didn’t have a Court Reporter. There would be no transcript. Awful Zap! The Judges had moved out. Zap! They had moved back. She sat there, listening to the Clerk.

“It is ordered. One, the Writ of Mandamus is granted. The Temporary Restraining Order entered at about 1:05 this morning by the Honorable Willis W. Ritter, Judge of the District Court of the State of Utah, is vacated, set aside, and held for nought. The Honorable Willis W. Ritter is ordered to take no further action in any manner, of any kind, involving Gary Gilmore unless such matter is presented by the duly accredited attorney for Gilmore, or by Gilmore himself. Done at 7:35 A.M., January 17th, 1977.”

Earl raced out of the courtroom, banged into a couple of newsmen, screamed at them to get out of his way.

Dave Schwendiman heard a rush in the hallway, and Earl came tearing in, seized the phone, and said to Gordon Richards that the Writ had been granted. The prison should commence all activity necessary to carry out the execution.

On the other end of the line, Richards sounded extremely tense. He kept asking whether this was final and whether the other side was going to appeal to the Supreme Court. Earl kept repeating in greater detail precisely what had happened, and told Richards to order the execution to commence. Gordon said it would take at least half an hour. Was it essential that it be carried out by sunrise? Cause they couldn’t make it by then. Dorius said the conclusion reached was that the only thing essential was the day, not the time of day. Richards still seemed unsure. Said he would speak to Deamer. Dorius agreed. Check it with Deamer.

Richards, however, still sounded tense. Could the ACLU, he asked, obtain a Stay in the next half hour from the U.S. Supreme Court?

They could. Unlikely, but possible. Such a message, said Dorius, if it came, would arrive from the Supreme Court itself. “Mickey from Wheeling, West Virginia” would be calling. Richards repeated that he would call Deamer.

Then the ACLU attorneys came running in. They wanted to call the Supreme Court. Howard Phillips, who had arrived with them, said, however, that it was not permitted to use his phone. Immediately, the ACLU guys laid a finger on Earl. He had been using it, they said, why couldn’t they? Phillips replied that he had not known, and asked Earl to get off. He did, promptly. By that time, Phillips was so unhappy he told the ACLU people he had a pocket full of quarters. They were welcome to use them for a coin phone.

After they were gone, Dorius went out to the hall and looked out one of the windows in the corridor of the fourth floor. He could see reporters down in the plaza below interviewing Bob Hansen. The sun was coming up in Denver, and Dorius felt a real warm sense of gratification that the argument just presented was the best they could have made under the circumstances. By his reflection in the window, he noticed he had a growth of whiskers, and his eyes were bloodshot. He needed a bath, but he felt good.

Judge Lewis was thinking it had been very unpleasant. Probably the most traumatic and emotional few moments he had ever had on the Bench. Then he said to himself, “Well, the Supreme Court never got into it. They had every opportunity, but they didn’t.” There was a reasonable certitude that he and his two brothers of the Bench were right.