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By Root 9625 0

if Nicole Barrett were to indicate to him that he ought to do so." Since the only way this knowledge had come was through discussion with a few other ACLU attorneys, plus a quick unprofitable talk with Stanger, Dabney added quickly, "We are not positive that we really have a basis upon which we can ask for this relief, but if Mr. Gilmore is of that particular state of mind, we ought to allow him to have some kind of access to Miss Barrett in the presence of her attorney or court-appointed psychiatrist, to determine whether he would change his position. It seems to me that's a very small request considering that we're confronted with the execution of a man."

Dabney threw it in because it sounded good. It could have the effect of moving the Judge's stomach over a little nearer to ruling in the ACLU's favor. Often, to win a case like this, you not only had to give a Judge good legal reasons to satisfy his mind, but also something that appealed to his gut. Dabney would soon give his argument why Utah's death statute was not valid, and Ritter might decide the ACLU was right, yet still say, "Gary Gilmore wants to die, so what the hell?" If, however, you could suggest that Gilmore could change his mind about dying, and all it would take was one meeting with Nicole!-well, Dabney thought that might appeal to Ritter.

Now, the lawyer went into the legal merits. The Utah statute, he said, had no mandatory review. That removed a vital precaution. You had to appeal a death sentence, regardless of a defendant's wishes. How else could you protect other defendants in later cases? The original Judge might have made some serious legal error that could be repeated.

Dabney next brought in the Constitution. Everyone knew that Judge Ritter had been keeping a tattered copy in his desk since law school days fifty years ago. So Jinks remarked that the Eighth and Fourteenth amendments were going to be violated by this case. They had a requirement that the death penalty not be "capricious or arbitrary."

Earl Dorius was certainly going to quote the majority opinion of the Supreme Court in the Bessie Gilmore case. Dabney, therefore, did it himself: "Gary Gilmore, knowingly and intelligently, with full knowledge of his right to seek an appeal in the Utah Supreme Court, has waived that right," Dabney read aloud. These words, he said, meant that Gilmore had a right to appeal and chose not to use it. But one had to keep in mind that the question of mandatory review had not been brought before the Court. Indeed, Justice White had even said that Gilmore was not able "to waive the right to state appellate review." Burger had then added: "The question is simply not before us." So the Supreme Court, Dabney argued, had not decided the issue in the Bessie Gilmore case. To the contrary. On the basis of their decisions in Gregg v. Georgia, Proffitt v. Florida, and Jurek v. Texas, the Supreme Court had upheld statutes that called precisely for mandatory appellate review, and, in addition, Collins v. Arkansas and Neal v. Arkansas had been sent back by the Supreme Court for just such lack of mandatory review.

"Your Honor," Dabney said, "this Court is the last chance for justice to prevail." He had concluded his opening statement.

5

Dorius began his reply, They were here in Court because "Federal monies are being expended unlawfully . . . for the purpose of executing Gary Mark Gilmore." However, Earl stated, "We know of no Federal money that has been appropriated specifically for the execution."

The argument had come to the place where it could be decided at a stroke. Judge Ritter spoke for the first time. "What," he asked, "do you say to that, Mr. Dabney?"

"If it please the Court, our information is that the Division of Corrections' budget for the fiscal year 1976-1977 contains a Federal grant in the amount of $50,000."

Dorius replied that this was a general appropriation. "The plaintiffs," he said, "are unable to show that any of these particular monies have been designed for the carrying-out of this execution."

Dabney was ready to say, "Half a million dollars