Executioner's Song, The - Norman Mailer [167]
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 presentation. It was frustrating, therefore, to discover they had an uncooperative 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 improve a weak defense.
The prosecution had circumstantial evidence that was tightly knit. If perfect evidence could run from A to Z without a letter missing, 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 case together-most particularly the shell casing found beside Benny Bushnell's body. That could have come only from the Browning 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 suspect 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 promise 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 Provo 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.