Executioner's Song, The - Norman Mailer [194]
Since it was close to lunch, Judge Bullock recessed the trial until 1:30 in the afternoon, when the Mitigation Hearing to determine whether Gary would receive life imprisonment or the death sentence would begin.
Chapter 29
THE SENTENCE
Until now, the courtroom had been half-empty, but during the lunch recess word must have passed through the coffee shop, for the Mitigation Hearing was crowded. A legal process would decide a man's life-that had to be an awesome afternoon.
As Judge Bullock explained, the aim of the Mitigation Hearing was to discover whether the defendant, having been found guilty of First-Degree Murder, would now receive the death sentence or life imprisonment. For that reason, hearsay evidence, at the discretion of the Court, would be admissible.
Since hearsay could prove injurious to Gary, Craig Snyder (who was doing the Mitigation Hearing even as Mike Esplin had handled the trial) was trying his best to lay grounds for appeal. Snyder objected often, and Judge Bullock overruled him almost as often. Let one ruling by the Judge be declared in error by a higher Court, and Gary could not be executed. So Craig Snyder was counting as much on the strength of future appeal as on his chances of avoiding the death sentence now.
He took, therefore, a continuing objection to the testimony of Duane Fraser who had just made a long-distance call during the lunch recess to the Assistant Superintendent of Oregon State Penitentiary. Duane Fraser testified that he had been told in this phone call how Gilmore "assaulted someone with a hammer," and "on another occasion, assaulted a dentist" and therefore "was removed from Oregon State Prison and taken to Marion Prison in Illinois." Snyder had a continuing objection to all of that as inexpert and imprecise.
Albert Swenson, a professor of chemistry at BYU, testified that a sample of Gary Gilmore's blood, obtained after arrest, showed less than seven-hundredths of a gram of alcohol per hundred grams of blood. That was not a high level. He would be well aware of what he was doing. Since the sample, however, had been taken five hours after the crime, Professor Swenson told Wootton the content at the time of shooting might have been thirteen-hundredths. That, he testified, was a level at which the defendant would still know what he was doing, but would care less.
On cross-examination, Snyder succeeded in getting Professor Swenson to admit the level could easily have been as high as seventeen-hundredths, which was more than twice the level at which the State found a man guilty of driving under the influence of alcohol.
Taken in combination with Fiorinal, such a man's intoxication would be greater.
On balance, Swenson's testimony might prove a plus for Gary.
The next witness was Dean Blanchard, District Agent for Adult Probation and Parole. He was appearing in place of Mont Court who was away on vacation. Mr. Blanchard said, "I don't know where he's at." Blanchard then said that he had had "very little direct contact with Mr. Gilmore." At this point Snyder said he had a continuing objection to his testimony.
Detective Rex Skinner took the stand. Then there was a long argument between Snyder and the Court. Skinner's testimony, said Snyder, "would be entirely prejudicial to the defendant."
MR. WOOTTON Mr. Skinner . . . did you assist in the investigation of . . . the shooting death of one Max Jensen?
MR. SKINNER Yes, sir. I did . . .
MR. WOOTTON Where did that take place?
MR. SKINNER At the Sinclair service station on 800 North in Orem.
MR. WOOTTON When you got there did you observe the body of Max Jensen?
MR. SKINNER Yes, sir. I did.
MR. WOOTTON Would you describe where it was, sir, and how it was lying as you observed it?
MR. SNYDER Your Honor, I'm going to object.
THE COURT Objection sustained.
MR. WOOTTON Did you observe any injuries about the body?
MR. SNYDER Objection, Your Honor.
THE COURT Objection sustained.
MR. WOOTTON Do you know whether it