Executioner's Song, The - Norman Mailer [312]
Such incompetence, however, was not going to be the foundation of the suit. There were two other very important elements. Gary, in these recent dramatic days, had been receiving his legal advice from Dennis Boaz who was writing about this damn thing. If Gilmore became the first man to be executed in ten years, Boaz had a great deal to gain. That would also be true of the lawyers now retained by the uncle, Vern Damico. For that matter, the uncle was in the same position Gary had not been and was still not being advised adequately.
Even if he was mentally sound, he was still a layman making a legal decision to kill himself without the benefit of unbiased legal advice.
Then there was a third point. When Gary appeared before the Utah Supreme Court, the proceedings had failed to satisfy what the United States Supreme Court had said, over and over again, was a necessary procedure for a defendant to follow if he wanted to waive any important rights.
Amsterdam said he was offering this advisedly. It was not a matter of his bias or his opinion, but advisedly these Utah Supreme Court Judges were not trial Judges. They were not accustomed to warning people and making proper trial records. They were an Appellate Court and, in this case, they did it all wrong. The proceeding failed by a country mile to measure up to U.S. Supreme Court standards.
Following this conversation, events moved quickly. Amsterdam needed a lawyer in Utah to file the Next Friend petition in the Supreme Court and chose Richard Giauque. Next thing Mikal knew, the Supreme Court had granted the Stay. It all seemed to happen overnight.
By Monday, December 6, Earl was feeling the benefit of a weekend without work, and went to the prison and took affidavits from the guards who let Schiller in, and flew then to Denver. Next day, the Tenth Circuit Court granted the Writ of Mandamus against Ritter, and the media was again barred from contact with Gary. Even though Bill Barrett had just sent off the Attorney General's brief to the Supreme Court, and office talk was all about that, Earl still felt the day was a high point for him. He had won a case against Holbrook.
It was now Bill Barrett's turn to be exhausted. The answer to the Supreme Court had had to be filed by 5:00, Tuesday, December 7.
There had only been four days and two hours to get the job done.
That Friday evening, four days ago, Barrett had called all available law clerks into his office, sat them down, and said, "Let's divide this thing up." He broke the issues down, assigned them out, and everybody proceeded to work his tail off. It was a little tricky in the beginning because they hadn't seen Giauque's papers yet, but they did read the brief Giauque had submitted to George Latimer at the Board of Pardons and it looked like mental incompetency would be the brunt of the attack. "Allowing a defendant to waive judicial review of a death sentence," Giauque had said in that brief, is tantamount to committing suicide. The Talmud, Aristotle, Augustine, and Aquinas all characterize suicide as a grievous private and public wrong. At common law, suicide was held as a felony, and was attended by forfeiture of property and burial on the highway. A criminal defendant such as Gilmore, who declines to pursue legal proceedings which could save his life is, in fact, choosing to commit suicide, and the overwhelming majority of psychiatric opinion regards the impulse to suicide as a form of mental illness."
Barrett never computed how many hours were expended that weekend. He was afraid to. All through Saturday and Sunday, law clerks came in while others went home, and Monday, three of them stayed up all night to prepare the final draft. Next morning they distributed the typing among