by Simon Petch
© all rights reserved
Early in the morning of Wednesday July 21 1976 Gary Gilmore was arrested in Provo, Utah, on suspicion of the murder of a motel owner in Provo on the previous Tuesday evening, and of a gas station attendant, in nearby Orem, on the Monday night. At the time of the killings Gilmore was on parole from a twelve-year sentence for armed robbery, and was being harboured by relatives. He was effectively turned in by his cousin Brenda Nicol, who told him, by way of explanation: “You commit a murder Monday, and commit a murder Tuesday. I wasn’t waiting for Wednesday to come around”. In October of the same year Gilmore was tried, convicted, and sentenced to death. Offered a choice as to the mode of execution, he opted to be shot. Both victims had been Mormon, and, in the opinion of his brother Mikal, Gary exercised his choice in knowing fulfillment of the Mormon doctrine of Blood Atonement. 1
The sentence was carried out six months after the murders: on Monday January 17 1977, a few minutes after 8am local time, Gary Gilmore was executed by firing squad in a disused cannery in Utah State prison. It was the first judicial homicide in the United States for ten years, and it had not, from a legal point of view, been easy to organise.
The date first set for the execution had been November 15 1976, and on November 1 Gilmore announced his intention not to appeal against his sentence. His refusal to appeal galvanised the American Civil Liberties Union and the National Association for the Advancement of Colored People to make strenuous attempts to stop this execution, on behalf of the many prisoners on death row throughout the United States for whom it could be a fatal precedent. Several judicial Stays delayed the execution for two months, and the appeals continued until the end. Within ten minutes of the time scheduled for the execution, the ACLU–in extremis after a night of legal turmoil in which a Stay ordered in Salt Lake City by a Federal Court judge had been set aside by the Tenth Circuit Court in Denver–unsuccessfully petitioned the Supreme Court in Washington for a final Stay of execution.
More than a dozen years before the Gilmore case, Truman Capote compared “the system of appeals that pervades America jurisprudence …to a legalistic wheel of fortune, a game of chance …that the participants play interminably, first in the state courts, then through the Federal Courts until the ultimate tribunal is reached–the United States Supreme Court. But even defeat there does not signify if petitioner’s counsel can discover or invent new grounds for appeal; usually they can, and so once more the wheel turns …But at intervals the wheel does pause to declare a winner–or, though with increasing rarity, a loser”. 2
Gilmore’s unwavering refusal to play the game put him in the paradoxical position of a defendant who apparently agreed with the prosecution. It consequently put a spoke in the wheels of justice by jamming the usual process of argument and counter-argument through which the adversarial discourse of the law sustains itself. This denial of habitual procedure led to near panic in the legal institution, but the law came to its own rescue: the courts of Utah and the Federal Tenth Circuit Court between them restored some semblance of an adversarial context through which the untidy legal plot could be knocked into the shape of a judicial narrative. The appeals process exhausted itself at about the same time as the triggers were due to be squeezed, and, as if in gracious acknowledgment to all concerned, the United States Supreme Court provided the closure that is the necessary constraint of all legal story-telling. Gilmore had fought the law and won, but he could only win by losing, and so the law itself could reasonably claim victory too.
Gilmore’s paradoxical position of having to lose the game in order to win it, and his disturbance of the processes by which legal stories are produced, suggested imaginative spaces in which alternative stories about him could be told. In The Executioner’s Song (which follows Gilmore from his release on parole in April 1976 to his execution nine months later), Norman Mailer gives shape to some alternative stories by exploiting the tension between legal and other ways of talking about Gary Mark Gilmore.
The Executioner’s Song, which Mailer calls a ‘true life story’, is on the cusp of legal and novelistic discourses. Its fictive methods play law and literature against each other. As it draws out the stories which lie just beneath the surface of legal narrative–stories which the law suppresses because it apparently has no interest in them–the novel amplifies that which the law would suppress or exclude. And in these processes the novel challenges the authority of legal story-telling.
On July 22 1976, the day after his arrest for murder, Gilmore made a private call (from the police station in Orem, to which he had been transferred) to Brenda Nicol. The call was important to Gilmore’s trial, and also to The Executioner’s Song, in which Mailer’s first account of this call is economical and direct:
Brenda said, ‘Gary, you’re going to go down hard this time. You’re going to ride this one clear to the bottom.’
He said, ‘Man, how do you know I’m not innocent?’
‘Gary, what’s the matter with your head?’
‘I don’t know,’ Gary said, ‘I must have been insane.’
Brenda asked, ‘What about your mother? What do you want me to tell her?’
He was quiet for a while. Then he said, ‘Tell her it’s true.’
Brenda said, ‘Okay. Anything else?’
‘Just tell her I love her.’
The evident clarity of this conversation was muddied in the courtroom, where Gilmore’s words came back to haunt both him and Brenda through her testimony at his trial. Her very presence at the Preliminary Hearing (the first stage of the trial) created misunderstanding, for Gilmore thought she was there to see him, although she had in fact been called as a witness by the prosecution. She “told of the phone call Gary made from the Orem Police Station”, Mailer wrote. “‘I asked him what he would like me to tell his mother,’ Brenda had said on the stand. ‘He said, I guess you can tell her it’s true.’ Mike Esplin [for the defence] tried to get Brenda to agree Gary meant it was true he had been charged with murder. Brenda repeated her testimony and took no sides. Gary found that hard to forgive”. Esplin intensifies the situation for Brenda by trying to pin her down to a particular interpretation of Gilmore’s words, but she refuses to agree, and the refusal creates tension between her and Gilmore.
The increasing complication of the relationship between Gilmore and Brenda is rendered through the thickening of the narrative style, and is beautifully suggested by the final sentence. By expressing Brenda’s unease about Gilmore’s response to her testimony, “Gary found that hard to forgive” tells us much as about Brenda’s feelings as it does about Gilmore’s; it subtly shifts the legal discourse of the courtroom exchange into an exploration of the relationship between the cousins. The feelings of both are indirectly rendered through Brenda’s apprehension about Gilmore’s response, and Mailer’s economical sentence moves freely between them. As a narrative device through which he can explore alternative dimensions of meaning latent in but suppressed by legal discourse, such free indirect discourse is Mailer’s most powerful counter-legal strategy. It enables him to take the reader away from the determinate jurisdiction of the court, and to bring other systems of value into play. 3
The gradual reworkings of the telephone conversation as testimony take increasing account of Brenda’s feelings, and the legal interpretation of Gilmore’s words becomes secondary to the more emotionally-charged issues of loyalty and responsibility. Mailer progressively nudges Brenda’s testimony into the meanings it has beyond the law, and as the conversation is transferred from the police station to the court its imprecision bristles with the complexity of Gilmore’s relationship with Brenda.
Brenda Nicol’s conscience, and her sense of social responsibility, are significantly non-legal points of reference throughout The Executioner’s Song, and she was also one of the main sources of Mailer’s information about Gilmore’s life between his release from prison in April 1976 and his arrest three months later. Mailer must have learned about the phone call and the testimony from her. As far as possible in The Executioner’s Song Mailer presents Gilmore (whom he never met) in his own words as they were recorded or remembered, and reproduces them directly, as in this conversation. This method permits Mailer’s Gilmore to speak from a number of positions to a number of audiences, whose responses or reactions are then used as a commentary or gloss on what Gilmore says. Such responses are usually given in the free indirect style described above, a narrative technique which indicates Mailer’s access to the minds of his sources and which is used to establish relationship between them and Gilmore. As Gilmore’s words are registered through the particular and individual perspectives of those who heard him, this technique creates an audience-effect. It enables Mailer to transcend the legal discourse on which so much of the novel is based, and the meanings that were closed off in court are opened and explored, in the novel, on levels beyond the law. This is what happens both to Gilmore’s words to Brenda, and to Brenda’s testimony, and these exchanges between them, direct and indirect, richly illustrate the sensitivity of the novel’s discourse to the extra-legal levels on which the language of the law operates…
Unlike Capote’s In Cold Blood, Mailer could claim no personal relationship with his subject, and he makes no attempt to mount a case for him. But Mailer swerves most radically from his precursor in that he claims no access to the mind of his subject beyond what he is recorded as having written or said: The Executioner’s Song uses no free indirect discourse for Gilmore himself, whose meanings are interpreted or rendered through what I have called the audience-effects of his words. This method establishes Gary Gilmore less as a continuous personality than as an enigma, whose multiple meanings are simultaneously increased and delimited by the urgency and intensity of others’ responses to him.
Like Capote, Mailer criticizes the ways and means by which a trial narrative was produced. But the methods of Mailer’s ‘true life story’ are more radical than those of Capote’s ‘non-fiction novel’. For by opening the ambiguous meanings of testimony and evidence into fictional possibilities the novel challenges the hermeneutics of the law, and through the epistemological insecurity afforded by its free indirect discourse it suggests levels of meaning unacknowledged by legal institutions. Brook Thomas has recently argued that literature, like equity, exists in supplemental relation to the law, and has claimed that literature should provoke us into new ways of understanding by pointing to what he calls the untold story of the law. Such provocation, claims Thomas, may “stimulate an audience to generate new ways of constructing evidence, evidence that does not easily fit into accepted public opinion, evidence that is not deemed admissible in existing courts of law. If accepted, such evidence can alter a society’s sense of justice.” 4 In The Executioner’s Song the untold stories that gather around Gilmore challenge both the interpretive practices of the law and the justice dispensed by the institutions of the state, and liberate him, not from his guilt, but from the ‘legal processing’ to which he was subject.
Gilmore, who had been executed, autopsied, cremated, and dispersed several months before Mailer signed his contract, is continuously re-formed, in The Executioner’s Song, as a series of shifting reference-points in the complex socio-cultural network of the United States of America in its Bicentennial year of 1976, in which the Vietnam war is a bad dream from which the country has barely wakened, and in which Mormonism is a long-surviving embodiment of the Old Testament Puritan fundamentalism on which the country was founded. In this, his Great American Novel of the seventies, Mailer’s avowedly fictive methods interrogate the unacknowledged fictions of the law, and crack the codes of his country’s conscience. By releasing the stories the law did not know, or could not or would not tell, the rhetorical strategies of The Executioner’s Song endorse Shelley’s famously radical claim that poets–for which we can today read ‘writers’–are the unacknowledged legislators of the world.
Simon Petch teaches Literature at Sydney University and is a past president of the Literature and Law Association of Australia.
This piece has been extracted with permission from HEAT 3.
Notes and References
3. The term ‘free indirect discourse’ is used here as it is defined by Cohan and Shires, that is as a narrative mode which ‘conflates monologue and psycho-narration, with the narrator seeming to mimic the voice of the character who functions as focalizer and focalized. For this reason the narration is “free,” not limited to what the character thinks exactly, and “indirect,” using language which the character himself could conceivably use but narrating rather than quoting it.’ Steven Cohan and Linda M. Shires, Telling Stories: A Theoretical Analysis of Narrative Fiction (London: Routledge, 1988), 102.