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By Root 9908 0

And they said, 'All right, we'll dismiss your appeal.' Now that's the hearing they had up there. The fact that Mr. Gilmore doesn't want to take an appeal does not dismiss the Utah Supreme Court from taking it. There must be mandatory, meaningful appellate review, and a twenty-minute hearing before the Utah Supreme Court cannot in any way be so construed. Regardless of what Gilmore wanted, the Utah Supreme Court had to take that case. When they didn't, we couldn't know whether the sentencing of Mr. Gilmore to death was in contravention to the Eighth and Fourteenth amendments of the United States Constitution, as interpreted by the United States Supreme Court. The only way to know if it's capricious or arbitrary is to compare Gilmore's case with every other case on appeal involving the death penalty. The Gilmore case has not been compared with anything. I'm at a loss to understand why the Utah Supreme Court didn't even have a transcript of the trial or the sentencing."

Evans stood up. "Your Honor, we submit that it is patently illogical for the U.S. Supreme Court to rule that Mr. Gilmore has intelligently and voluntarily waived his right to appeal if, in fact, the Court is of the opinion that he must have an appeal. That is patently illogical. One completely eliminates the other in our opinion."

Dabney replied: "I think the State of Utah does not really have an appreciation for the question we have raised. We're not concerned with Gary Gilmore's waiver of appeal. The question is whether the State can execute an individual in violation of the Eighth and Fourteenth amendments. Can they do it capriciously or arbitrarily? The only way you examine that question is by comparing all death-penalty cases at the appellate level," but at this point Judge Ritter interrupted. "I think," he said, with the first touch of acerbity in his voice, "I think I understand it." Dabney nodded. He had been given his warning. "With that, Your Honor, I will conclude my arguments and simply indicate that we believe we've established what we think is a good lawsuit. We would simply indicate that this is the last chance we have. We respectfully request the Court to sign an appropriate Temporary Restraining Order staying the execution of Mr. Gilmore. Thank you."

The State had nothing further and Judge Ritter declared a recess at 11 :39 P.M.

7

At first Judith thought they had won. It had been such a good case, and both sides had had a full hearing. No attempt to rush anyone, and no innuendos from the Bench. Judge Ritter had hardly said a word, then he had gone out. The only trouble was that now he stayed out. When he didn't come back in twenty minutes, Judy Wolbach began to worry.

When he didn't return in an hour, she couldn't understand what was going on. If Ritter was taking this long, he must be ruling against them. After Dabney's fine work, it would be very difficult for Ritter, ethically and morally, she thought, to go along with Gilmore's execution. If the Judge was taking this long, he must be ashamed to come out. Judy began to feel all over again how very weak their case had to be.

On the other side of the courtroom, Earl Dorius had come to the opposite conclusion. Precisely because the Judge was taking so long. Usually, Ritter didn't write out his opinions. He released them from the Bench. Sometimes, it was a split second after the attorneys had finished. The fact that he was writing an opinion suggested he was trying to put out a paper sufficiently well reasoned to hold up on appeal. Mike Deamer agreed with Earl. He went out to phone Bob Hansen with the prediction they would lose. If so, Hansen told Deamer, they should all go over to the State Capitol Building after the verdict was read.

It got to be a very long recess. The lawyers mingled with the news reporters. Everyone seemed uneasy. It was sinking in on Earl how extremely fatigued he felt from the last few days. One suit after another, faster than birds flying overhead.

About this time, fifty miles away, Noall Wootton went to bed. But he could not sleep. In the quiet night of Provo,