Executioner's Song, The - Norman Mailer [193]
"Think about the case deeply," he said in conclusion, "and judge it fairly. But when I say judge it fairly, I don't mean just judge it fairly from the point of view of Gary Gilmore, although that's important; you judge it fairly from the point of view of Benny Bushnell's widow and his child and the child yet to be born." The State was done.
Mike Esplin began by complimenting the Jury. Then he went looking for weak places in the evidence Noall Wootton had put together.
MR. ESPLIN Consider the lateness of the hour Seems reasonable to infer that the motel manager wasn't even in the office to start off. It's possible . . . he was back here in his living room and whoever was in the office, maybe he was in the act of taking money from the box and the manager came upon him and was shot. That is not robbery, it's a theft. So I submit on that question there is a reasonable doubt. The State has not proved that. Now they have witnesses they could have called and established that . . .
He was making a reference to Debbie Bushnell.
. . but they have not done so. Again, they indicated $125 missing, and they also indicated they arrested the defendant for this offense later on the same night. They haven't produced one bit, one cent of that money. They haven't indicated that they searched him. This defendant is charged with taking money. Where is it? Another matter: this gun, whoever placed it in the bush, when they placed it in that bush it went off accidentally, it discharged. Doesn't that place a possible inference in your mind that there's a gun going off accidentally?
They have to show an intentional killing. These things have not been answered. There is no one that actually saw the incident. The only thing that Mr. Arroyo could testify to is that he saw a person who he identified as the defendant in the office with a gun similar to this one. He said that he couldn't testify that that was the same gun . . . All he could say was he remembers his face and remembers seeing a gun in his hand.
Couldn't make much of the testimony of Martin Ontiveros. He said that Gary Gilmore arrived at the service station to have his truck fixed. It seems kind of ridiculous. I submit if Mr. Gilmore's intention was to go down and rob the City Center Motel he would not have left his truck there at the service station where he could easily be placed at the scene or near the scene of the crime.
Esplin was feeling emotion. This closing argument became, to his surprise, the most emotional thing he had ever done. His voice cracked in several places. Afterward, people said to him in the recess, "How did you put on an act like that?" "It wasn't fake," Esplin added.
He had noticed, and he felt some hope, that several jurors were in tears.
As you go to the jury room take the questions that you have, consider them, and if you do have doubts about it, any reasonable doubts, then I suggest that your obligation is either (1) find the defendant guilty of the lesser included offense of second degree criminal homicide, Murder in the Second Degree, or (2) to acquit the defendant. Thank you.
MR.WOOTTON We'll waive rebuttal.
(Whereupon, the Jury retired to deliberate at 10:13 o'clock A.M., October 7, 1976.)
After the Jury had left, Esplin stood up again.
MR. ESPLIN Your Honor, there is one point: we would object to the comment made by the prosecutor in his closing arguments where he referred to doing justice for Benny Bushnell and his widow and so forth as being prejudicial to this Jury, and would at this point move for a mistrial based on that reasoning.
THE COURT The motion for mistrial is denied. Anything further? All right. Then we'll be in recess until such time as the bailiff notifies us that the Jury has reached a verdict.
The Jury had recessed