Executioner's Song, The - Norman Mailer [431]
Judge Lewis informed him he would have fifteen minutes to offer argument, but Earl didn't take ten. The pressure, he felt, was intensifying his argument. He said plaintiffs had commenced their action at 9 p.m. the evening before, and that was a little late to be concerned about a dramatic abuse of the rights of taxpayers. He felt full of the truth of this remark. "The ACLU," he continued, "is using the device of a taxpayers' action for the purpose of delaying a lawful exercise of State power." He felt attuned to his indignation. No standing, no standing whatsoever!
Judge Ritter, he argued, had grossly abused judicial discretion.
Nobody had been able to demonstrate that any specific Federal monies were being spent on this execution. Moreover, Judge Ritter had assumed that the Utah statute was unconstitutional. Yet the constitutionality of this statute had, in effect, been before the United States Supreme Court already. The Court would hardly have ruled that Gary Gilmore could waive his right to appeal if they thought the statute defective.
Bill Barrett was supposed to speak next and show why the ACLU had no standing. The Court, however, said they wanted to hear from the ACLU first. So, Steve Pevar, one of the ACLU lawyers, tried to plead that this case was not properly before the Court. He had been back and forth on the phone with Jinks Dabney from three in the morning until dawn, and they had come to the opinion that the State of Utah couldn't ask for a Writ of Mandamus because Ritter had not acted beyond his authority. If the Governor of the State of Utah had been ordered to move the Capitol Building three blocks south because some little law was being broken, that would fit Mandamus.
But this, at least on the face of it, was a bona fide lawsuit. A motion had been made and granted. Why, the Attorney General's office wouldn't have even dared to bring in a Writ of Mandamus if it wasn't Willis Ritter. So the more Dabney and Pevar discussed it, the more they felt in good shape.
When Pevar tried to bring out these arguments, however, Judge Breitenstein grew incensed. Ooh, Judith couldn't believe the man's face. "I know what the law is here," he told Pevar. "What do you think we've been reading since five-thirty this morning?" Classic. A young lawyer being keelhauled by an old Judge. "We don't need you to instruct us on the law, blah, blah, we've heard enough from you, blah, blah. Please get on with the merits of the case." That was how Judith heard it. One testy Judge. Pevar kept trying to get back to the point that you couldn't slap Writs of Mandamus on Judges for too little, but the Court did not accept it. Another few minutes, and the ACLU was warned that they were prolonging the case. One of their attorneys stood up then, and said Ms. Wolbach would proceed.
Judith gave her case. It was just a rush and a repeat of what Jinks had presented, and she glared at Earl Dorius as she presented her points. He irritated her profoundly this night, but not because of anything he had done. It was because he thought he was right.
When Judith sat down, another member of the ACLU team spoke against the death penalty in general. The Justices cut him short. Now the case started rushing faster and faster. Bill Barrett tried again to discuss the issue of standing, but the Court said they were familiar with that. Would the Attorney General's office move ahead? Bill Evans began to defend the constitutionality of Utah's statute. The Judges stopped him. That issue was not, they said, relevant to the case before them. It was getting more and more abrupt.
When one of the ACLU lawyers tried to discuss capital punishment, the Panel cut him off, and declared a recess. The Judges would now write their opinion.
Just before he left the Bench, Judge Lewis spoke. "Among other people who have rights," he said, "Mr. Gilmore has his own. If an error is being made in having the execution go forward, he has brought it