The MacNeil/Lehrer Report; Utah Death Penalty

ROBERT MacNEIL: Good evening. Tonight we`re going to look at the bizarre case of Gary Gilmore, the convicted murderer in Utah who wants to be executed by firing squad. Gilmore went back to his prison cell today in Salt Lake City after recovering from the overdose of sleeping pills he took on Tuesday in what looked like a suicide pact with his fiancee, Nicole Barrett. She regained consciousness today but is not fully recovered. Fellow convicts cheered as Gilmore was returned to the prison. He`ll be kept under stricter guard to prevent further possible suicide attempts until the Utah authorities can decide his fate. Now, Gilmore may not be the first to be executed since the Supreme Court ruled last summer that the death penalty is not unconstitutional, but he has become the most famous of the 443 people awaiting execution in this country. Tonight we examine some of the questions raised by the Gilmore spectacle and what effect it may have on the other condemned men and women. Jim?

JIM LEHRER: Robin, Gary Mark Gilmore is 35 years old, 18 of those years having been spent in various prisons in the Northwest. On consecutive nights last summer, July 20 and 21, he robbed and then murdered two Brigham Young University students in Provo, Utah. Both were Mormons, both were married with small children, both held part-time jobs, both died exactly the same way. Gilmore was charged with the two murders but tried for only one, the death of 25-year-old Bennie Bushnell., who worked as a motel clerk. According to his own confession, Gilmore robbed Bushnell of $120 and ordered him to kneel. Gilmore then put a pistol to the back of Bushnell`s head and fired two shots. At his trial last month Gilmore asked -- demanded, really -- that the jury find him guilty and sentence him to death. On October 7, the jury did just that. Execution date was set for last Monday, November 15. The method, a five-man firing squad, as allowed by Utah law. There have been no shortage of volunteers for that firing squad, by the way. Gilmore wanted no lengthy appeals. In a letter to his fiancee, Nicole Barrett, he wrote, "I desire death for two reasons; to atone, whatever that means; to become less evil, more worthy and to escape the unpleasantness of a lifetime in prison." But the Utah governor postponed the execution until a Board of Pardons review of the case that is now to take place on December 6. On Tuesday, the day after his original execution date, Gilmore took that overdose of sleeping pills and so did his fiancee. Robin?

MacNEIL: First, let`s clarify where the Gilmore case goes from here. With us in Salt Lake City tonight is reporter Margaret Smoot of Public Television Station KUED. Margaret?

MARGARET SMOOT: Thank you. In our studios in Salt Lake City we have with us David S. Young, who is the director of the Statewide Association of Prosecutors. He has held that position for three years.

He has also served in the Utah Attorney General`s office for four years; prior to that time he served as the director of the Law Enforcement Division. Mr. Young has had no direct involvement in this case; however, he feels competent to discuss some of the legal aspects surrounding it. Mr. Young, we would first like to ask you to give us some kind of review as to where this case is now and where it may be going in the next two weeks.

DAVID YOUNG: Thank you, Margaret. Briefly, the case right now is before the Board of Pardons. The Governor has written a letter requesting of the Board that they review the circumstances of the case and determine what should be done. Their options are that they may do nothing other than send the case back for a new execution date, they may grant a commutation of the sentence, they may parole, or any of the other administrative authorities that they have. And that is the status, currently, of the case; the Board is considering it and will, on December 6.

SMOOT: Will it make any difference as to the physical condition of Mr. Gilmore as to whether the Board will, in fact, meet?

YOUNG: Yes. Mr. Gilmore has the right to be present at the Board hearing, and so the Board will continue the. hearing until Mr. Gilmore is able to be present. Technically, I suppose, they could hear it without him being present.

SMOOT: There have been so many bizarre twists to this case; is it conceivable, Mr. Young, that the Board will not do anything?

YOUNG: I think not. I think the Board has a responsibility to follow the direction of the Governor, and must act.

SMOOT: What role does the Governor now have in-this drama?

YOUNG: Under Utah law, the Governor can only do two things, Margaret; he can only grant a respite or a reprieve, and has no authority to commute the sentence -- that`s the administrative responsibility of the Board. The Governor has now done all he can, as I understand it, and the Board must consider it at the next convened hearing.

SMOOT: Are there any ramifications to other prisoners currently on death row?.

YOUNG: I would say no. The Utah law has not really been interpreted since it was enacted by the legislature following the Furman vs. Georgia decision, the national decision doing away with the death penalty. There are five cases currently pending before the state Supreme Court, but in Mr. Gilmore`s case he has knowingly, voluntarily and intelligently waived the right to appeal; and so I think the decision to waive that right would not have an impact on other cases.

SMOOT: Fine -- thank you; we`ll be back with you later in the program. Thank you.

MacNEIL: If the Pardons Board in Utah orders a new execution date to be set, the American Civil Liberties Union has said it will intervene. Aryeh Neier is the executive director of the ACLU. Mr. Neier, why are you getting involved?

ARYEH NEIER: We`ve getting involved because we don`t think there ought to be a death penalty. We don`t think Gary Mark Gilmore should be executed by the state, we don`t think anyone else should be executed by the state. We don`t think Gary Mark Gilmore, whatever his wishes may be, ought to be the person who determines that the states get back into officially killing people.

MacNEIL: But if the U.S. Supreme Court and the State of Utah both have the death penalty as constitutional, what ground for challenge do you have?

NEIER: First, the Utah law has not yet been held to be constitutional; it remains to be challenged. It hasn`t been challenged through the level of the Utah Supreme Court, and it hasn`t been ruled upon by the United States Supreme Court. So there is a remaining constitutional challenge to be made. Aside from that, legislatures and courts which have dealt with the question of capital punishment over the past nine years, during which we have had no execution, have dealt with this as a rather abstract issue. Now all of a sudden, we have real people -- Gary Mark Gilmore, for one -- who many actually be executed. I have a feeling that a lot of the public bodies are going to have to deal very differently with the question of capital punishment, now that they can no longer consider it as an abstract question and have to deal with it in terms of real people.

MacNEIL: As was just pointed out by Mr. Young, Gilmore has knowingly and intelligently refused, or waived, his right of appeal, and moreover he has specifically asked your organization not to get involved. Now, what rights does he have in this?

NEIER: That`s right. Well, first of all, he also has the right, I suppose, to change his mind at any moment while he can still appeal if he is being led to that chair where the firing squad is going to execute him. He would have the right to appeal at any moment, and as I understand...

MacNEIL: You mean, when you`ve waived your rights you haven`t waived it irrevocably.

NEIER: You haven`t waived it irrevocably. Aside from that, and his request to us to stay out of it, I still don`t think that Gary Mark Gilmore is the person who has the right to say that the State of Utah should put people to death. I don`t think that we ought to take our moral code for the nation and for the State of Utah, or for any state, from Gary Mark Gilmore, The ACLU believes that states ought not to be engaged in the business of killing people.

MacNEIL: Are you saying that because you suspect that Gilmore, however rational he may appear to be, the balance of his mind may be disturbed in this case?

NEIER: I don`t say that at all; I wouldn`t presume to psychoanalyze somebody without having met them; or, frankly, if I did meet them I wouldn`t presume to psychoanalyze them. Whether rational or not, his rational view may be that he should be executed; our rational view -- and I think it`s more rational than his view -- is that the State of Utah shouldn`t be the instrument of putting someone to death. If he wants to commit suicide, that`s one thing, but having the State of Utah execute him is something else entirely.

MacNEIL: Thank you. Jim?

LEHRER: For another- view now, we go to Frank Carrington, Mr. Carrington is executive director of the Chicago-based Americans for Effective Law Enforcement, an organization designed as a counter weight to the ACLU. Mr. Carrington was formerly legal advisor to. the Denver, Colorado police department and was a U.S. Treasury agent before that. Mr. Carrington, what do you think about Mr. Neier and the ACLU`s proposed actions?

FRANK CARRINGTON: I think the key thing that Mr. Neier said is finally the states are coming down to deal with real people. Okay, fine. But we`ve been dealing with real victims, who are real people, too -- the victims of Gary Gilmore and everybody else -- since the death penalty quit being used in 1967; and I think those are the real people that we ought to talk about. I frankly think that they`re using Gary Gilmore as a pawn. He has asked them to stay out of it; Mr. Neier says, "Well, we know better, and we know better than the United States Supreme Court and the State of Utah, the legislature," and I think this man should be executed.

LEHRER: Now, why should he be executed?

CARRINGTON: All right. Aside from the fact that I think criminals -- murderers like Gilmore -- should be executed, we have a desperate man; he`s proved that. He doesn`t want to spend the rest of his life in jail. He tried to commit suicide and failed. Okay, suppose he isn`t executed; suppose he stays in the penitentiary. What he going to do? If they don`t keep him locked in a cell 24 hours a day, he s going to slug a guard, someday he`s going to escape -- I can`t say he`s going to, but I think the probabilities are there -that`s he`s going to try to escape; he will kill anybody in his way. He`s proved it that he`ll kill himself. But if he doesn`t succeed in that then I think he`ll kill somebody trying to escape.

LEHRER: But what about Mr. Neier`s point that Gilmore himself should not have the right to decide this, and essentially you`re saying that he should have the right, not

CARRINGTON: No, he doesn`t have the right to decide anything. The people of the State of Utah, through their legislative process, have decided that certain categories of murderers should be executed; Gilmore falls into that category. He eases the path by saying, "Yeah, I want to be," but he`s not deciding anything. If he didn`t want to be executed, he probably still would be executed -- hopefully.

LEHRER: You don`t think, then, there should be any difference at all between a man who wants to be executed and a man who does not want to be executed?

CARRINGTON: The difference is one of having a person who says, "I want to be executed" -- that greases the skids, you know; then the thing should go on through, like the Utah Supreme Court said. If he doesn`t want to be executed, then let him take all of his appeals, all that are available to him. If he succeeds, fine; if he doesn`t succeed, then the state`s process should take effect, whether he wants to or whether he doesn`t want to.I think this is an aberrant case; I wish this wasn`t the first case to come up, but it is, and so that`s what we`re dealing with tonight.

LEHRER: Mr. Neier, to bring you back into this, do you wish this wasn`t the first case in terms of capital punishment, in terms of challenging it, as you plan to do, if it becomes necessary?

NEIER: I would say that whatever was the first case would have seemed like a bizarre case. Once you have real human beings involved, they don`t fit into the nice little niches that we have imagined; they do strange things, they are strange, ornery characters. Whether this case or some other case was involved, I think there would have been high drama surrounding it. I think the entire country is confronting what it means for official killing to take place, and it`s something we haven`t had to confront for a long time.

LEHRER: Let me ask both of you, beginning with you, Mr. Carrington, what effect do you think this particular case -- let`s assume that eventually Mr. Gilmore is executed, and everything that`s leading up to it is bizarre, it`s different, if you take Mr. Neier`s point that no matter what it was, it would still be bizarre, the first one -- what effect is this going to have on all the other four hundred and some who are waiting on death row, the other capital punishment cases that are awaiting resolution at this point?

CARRINGTON:I would say none.

LEHRER: None?

CARRINGTON: No; if he goes, then it`s like I say, an aberrant case, because he wants to go. Sooner or later Texas, Florida and Georgia have constitutional capital punishment statutes -- they will, sooner or later, I assume, if the governors want to go along with it, execute somebody. And Gary Gilmore has just created a sensational public relations thing, because he wants to go; and I think that his case should be considered less important than the people who don`t want to go they`re the people who want to fight and our legal system lets them fight. Okay, let them do it. If they lose the fight, then let them go.

LEHRER: What do you think of that, Mr. Neier?

NEIER: I think the case will have enormous impact. Here`s a small-time character who has caught the attention, not only of the entire country but the entire world because he is likely to be executed. I would think that there will be other people, unfortunately, who will see themselves as able to capture the attention of the world by doing something dramatic. In Mr. Gilmore`s case, the dramatic thing that he could do to capture the attention of the world was to kill people. I think it`s a shame that we allow people to do things of that sort in order to get worldwide attention. Beyond that, I think that there will be a degree of revulsion from people who suddenly see that the state has descended to the level of brutality that has been exemplified by the murders committed by Gary Mark Gilmore. I like to think of the state as doing things in more civilized fashion than Mr. Gilmore. The execution that Mr. Carrington described, or the execution of those people, is an awful thing; and I don`t like to see Mr. Gilmore engage in that execution, I don`t like to see the State of Utah engage in it.

LEHRER: Mr. Carrington?

CARRINGTON: Well, I think we`re back to the basic thing that I started out with: are we going to talk about brutality and barbarousness, and all that with our emphasis upon convicted murderers? Mr. Neier called Gilmore a small-time criminal; somebody who kneels somebody down and shoots them in the back of the head is not a small-time criminal. I think we should concentrate on the victims, I think that capital punishment is a deterrent -- we don`t know whether it`s a deterrent or not because we haven`t had it in ten years, and I`m willing to give it a try to see whether it is.

LEHRER: Thank you. Robin?

MacNEIL: There is another element to this story. There are reports from Utah that Gilmore may have committed the murders he confessed to because he wanted the state to help him commit suicide through the death penalty. To explore that, let`s go back to Margaret Smoot at KUED in Salt Lake City.

SMOOT: Thank you. Dr. Allan Roe has been the Utah State Prison clinical psychologist for the past ten years. On November 2, he interviewed Gary Mark Gilmore at the request of the court. At that time he stated that Mr. Gilmore was a suicide risk. However, I need to state that he is restricted in discussing technical and personal aspects of Gary Mark Gilmore`s mental state, and we`re going to try and discuss around that if we can. Dr. Roe, thank you very much. The issue was just raised concerning the death penalty as a deterrent. I know you have some feelings concerning whether it is or it isn`t; could you elaborate on those?

Dr. ALLAN ROE: I think in some cases it is a deterrent. For example, in the case of a kidnap victim, where they have the choice of killing the victim or not. In this case, it`s a rational choice; and if they get a life sentence for kidnapping and also a life sentence for murder, then there`s no reason for them not to kill the person to get rid of the evidence. On the other hand, some people might want the publicity, be exhibitionistic, and want to be executed or they might want the state to do their suicide for them.I think all of these cases are in the minority; in most cases murder is an impulsive act and there`s not a deterrent one way or the other.

SMOOT: Are there better arguments for capital punishment being a deterrent, or is it, in essence, cruel and unusual punishment?

ROE: I think there are arguments in both directions, and I think probably equal arguments for and against execution.

SMOOT: Is there any feeling concerning prison staff personnel, one way or the other?

ROE: There`s a lot of feelings both ways, and they`re sort of divided into two camps -- half for and half against, equally militantly.

SMOOT: Should Gary Mark Gilmore receive life imprisonment, what are the chances that he will be out again?

ROE: Statistically, in Utah, the man serving a life sentence does an average of 12 years in prison; and so the probability of him getting out are very great. Probably in his case, more than 12 years, but probably would eventually be released.

SMOOT: What kind of an impact will whatever the decision is have on the other seven death row inmates?

ROE: Right now, there`s a general tension in our maximum security unit, and those that are awaiting the death penalty are stepping up their appeals, getting more involved in saving their own lives.

SMOOT: How difficult will it be for the prison to secure Gilmore`s personal safety, in terms of having him not attempt suicide another time?

ROE: It`s quite difficult, but I it`s possible, even though we`ll have to restrict him in a lot of ways that we would not like to.

SMOOT: Thank you very much, Dr. Roe.

ROE: Thank you.

MacNEIL: Dr. Roe, could I ask you -- this is Robert MacNeil in New York -- do you subscribe in general to this idea that some people may use the death penalty as a means of attempting suicide themselves?

ROE: I haven`t -- not of any personally.

MacNEIL: You haven`t. What do you think, Mr. Neier? It`s been raised in this case.

NEIER: It`s been raised, and in the days when capital punishment took place routinely there seem to have been quite a number of cases in which people committed murder in order to commit suicide. I think that`s one of the unfortunate aspects of the death penalty. To me, the death penalty would be abhorrent even if that weren`t a part of the problem.

MacNEIL: Mr. Carrington, in Washington, have you ever heard of that as a possibility? Somebody might try to commit suicide by committing a crime that he thought was going to get him the death penalty?

CARRINGTON: No, Mr. MacNeil, I haven`t. I was thinking about this today, discussing it with your staff, and I cannot think of a single case where a person who was sentenced to death didn`t fight it down to the last appeal. I don`t believe this theory of using it to commit suicide.

NEIER: Could I interrupt on that point? The last person who was executed in the United States was a man named Jose Mongue in Colorado. He similarly refused to appeal; he insisted on being executed. Here in New York State we had a very famous capital punishment victim -- the next to the last person executed in New York State was a man named Frederick Charles Wood. He had a rather macabre sense of humor; he made the headlines for several weeks running with his insistence on riding the lightning, as he put it. And when he was finally led to the electric chair his last words were, "Gentlemen, you`re about to see the effects of electricity upon Wood." He refused to appeal, he denounced the do-gooders, as he put it, who tried to intervene to save him. In that case, the do-gooders weren`t successful.

MacNEIL: Mr. Young, in Salt Lake City, do you have an opinion on this?

YOUNG: Yes, I do. I think that what is being suggested by Mr. Neier is a nice argument after the fact as you try and look at it from that standpoint. From all of the cases that I`ve been familiar with, through the Attorney General`s office and in prosecution in this state, it seems to me that the usual procedure of a defendant is not to try and commit suicide himself; he`s calculating what he considers to be the perfect crime. He`s not intending to get caught. Or he`s doing something else to try and destroy evidence by killing the eyewitness that may be able to later identify him. I think that becomes a nice argument that`s employed by those who attempt to satisfy by some rational means what they`ve concluded to be an improper thing, and that is the death penalty, or capital punishment. I think that the argument, in fact, just does not occur. Of all the men what we have in the Utah State Prison on first-degree murder -- not on first- degree, but on homicides -- we would have nearly a hundred persons, eight of whom would be on death row, and I would venture a guess that of all of those there would be none that would have a suicidal desire in committing the crime.

NEIER: All I can respond to that is that in the period in which those people were sentenced, in the period with which you`re familiar, the death penalty was not used in the State of Utah; the death penalty was a fiction, it was an abstraction...

YOUNG: That`s not accurate.

NEIER:...the death penalty was last used in the State of Utah about 16 years ago, and that`s the last point when it had any reality to people in that state.

YOUNG: That`s not really accurate in the State of Utah. It`s true, the last person executed was in 1960, but Furman vs. Georgia was not handed down until 1972; at any time prior to that time, in mates could have easily concluded that they could be executed if Furman had been ruled the other way. And so I think that the nicety of those 12 years in the interim just really don`t hold logical effect.

MacNEIL: Thank you. Jim?

LEHRER: Yes, let`s talk again about what effect this bizarre casts in Utah may be having, but not necessarily with the legal system, but with the public system -- with the public psyche. First, in Utah, let me ask you, Mr. Roe, have the attitudes of the people in Utah changed in any way that you`ve been able to pick up in their views toward capital punishment, just as a result of the Gilmore case and the attention that`s been brought to Utah and all of its weird aspects?

ROE: I think there`s been a lot more interest in the case, and because of this people have been dividing up into both sides more definitely than they had before. People had considered that more as an abstraction, even though it had come down to within a week of executing before.

LEHRER: What have you picked up, Mr. Young -- have you talked to anybody who is saying, "I was in favor of capital punishment in the abstract, but this thing has just gotten out of hand" and changed their minds, or the other way, or what?

YOUNG: I would have to say that it`s my impression that there is probably more concern on national media than there is in local concern. I think people are concerned about the circumstances that gave rise to the crime, they`re concerned about the conduct, they`re concerned about the fact that two victims were essentially executed; and

I think that there is not an attitude that is prevailing that this case is going to have a lasting major impact.

SMOOT: But may I ask the question, Mr. Young, isn`t Utah traditionally more conservative, and wouldn`t it therefore really tend to favor the death penalty?

YOUNG: Oh, I think yes, that`s true. I think that`s evident by all of the legislatures across the nation, too, though, that have re-enacted the death penalty following Furman vs. Georgia. It seems to be an attitude all across the nation, people are concerned about serious homicides of this nature.

LEHRER: Mr. Carrington, what has your organization picked up, nationally, in terms of public reaction to this?

CARRINGTON: Really very little; I have to agree with Mr. Young The people I`ve talked to just pretty much say, look, this is what he wants to do, he`s been convicted, why not go on and get the thing over with?

LEHRER: You don`t think that this is having a brutalizing effect, just to play the devil`s advocate with you for a moment, on people -- the idea that this man is going to be sat down in a chair and five volunteers are going to shoot him with a rifle?

CARRINGTON: No. How can it have a brutalizing effect on a country where we have 20,000 homicides a year? There are two men who escaped death row in Utah, Myron Lantz and Walter Kelbach, who butchered six people in, I think, December of 1969. The people of Utah I think may remember Lantz and Kelbach. When people commit a crime as horrendous as this, then they should be executed for it, and I think most people feel that way. Otherwise, why do 36 states have the death penalty after it was declared arbitrary and capricious?. It`s a public opinion.

LEHRER: Mr. Neier, what effect do you think it`s having on the public psyche?

NEIER: Well, I do think that when the state does something like killing someone that it does have a brutalizing effect. I think the state has an important role in our society, in teaching people and setting an example for people -- I don`t think the example should be set for the state by the actions of a Gary Mark Gilmore, and I don`t think the state ought to set the example for other people and kill people.

MacNEIL: Thank you, Mr. Neier. Thank you, gentlemen in Utah, and Margaret Smoot. Thank you, Jim, Mr. Carrington. Jim Lehrer and I will be back tomorrow night; I`m Robert MacNeil. Good night.