Although his attorneys had every intention of running an appeal, they told Mailer, Gilmore made up his mind to accept his due. He fired Esplin and Snyder and hired Dennis Boaz, a lawyer from California who had written to him on a whim in support of his desire to go through with the execution. Boaz also revealed his interactions with Gilmore to Mailer, who talked with various other people who'd spoken to Boaz. Gilmore traded an exclusive interview for the man's services, but as Mailer saw it, Boaz got hungry for the writer's life and started talking too much to the media. Gary decided to fire him.
Yet the very idea that a man was going to be executed stirred the residents of Utah into attention. This hadn't happened in sixteen years. To top it off, in 1972 the U. S. Supreme Court had ruled in the case of Furman v. Georgia that the death penalty as currently applied was cruel and unusual. Therefore, it was unconstitutional. All states were ordered to commute death sentences to life imprisonment. There was no more death row.
Then four years later, after the states had revised their laws, the Supreme Court made a series of rulings that allowed capital punishment to be reinstated for certain types of murders. Thus, as of July 2, 1976, just three weeks before Gilmore committed his murders, such an act became a capital offense in Utah, and not without considerable controversy. While the hiatus had only lasted four years, it had been ten full years since the U. S. had executed anyone.
Then when Gilmore said that he did not wish to appeal, the Attorney General, Earl Dorius, wondered if the court might be caught in a net of its own making. Gilmore was supposed to be executed within sixty days of sentencing. There were no provisions for what might happen if they didn't get the deed done within the scheduled time frame. They hadn't executed a man in so long he couldn't be certain that they'd be ready in time. Dorius wondered if it was possible that, on a technicality, Gilmore might just go free. In fact, as he indicated to Mailer, he wasn't altogether certain how to put together a firing squad.
Just a few days before his scheduled execution, Gilmore argued his case before the Justices of the Utah Supreme Court, insisting that he did not wish to spend his life in prison, particularly not on death row. He thought the sentence was fair and proper and he wanted to accept it like a man. "It's been sanctioned by the courts," he said, "and I accept that."
To his mind, it was his karma to die. He'd had dreams of it all his life and had come to believe that he owed a debt from a past life. The manner in which he was to die would be a learning experience for others. That was all right with him.
By a vote of 4 to 1, the Justices granted his wish.
He requested that his last meal be a six-pack of beer.
But there were groups who could not abide such a decision, either on Gilmore's part or on the part of the law. The protests began at once, and his former lawyers felt duty-bound to continue to file an appeal.
When Gilmore's mother heard about it, she told her youngest son. Mikal's comment, according to Mailer, was not to worry. "They haven't executed anyone in this country for ten years," he said, "and they're not going to start with Gary."
November 15th came and went. Associations against the death penalty, including the American Civil Liberties Union and the National Association for the Advancement of Colored People, intended to stop this execution. They did not want such a precedent on the record of the court giving in to a defendant and dispensing with the appeals process. On behalf of the prison population, as well as future prisoners, they felt they could not allow this procedure to continue in the direction in which it was going. A Stay of execution was granted, despite Gilmore's protests. He was ready to die. He wanted this over with.
Then he and Nicole formed a plan, which was documented in their letters to each other. She also admitted to it later in filmed interviews. Gilmore instructed her to go around to various doctors to collect as many barbiturates as she could get. She managed 50 pills. Smuggling half in a balloon inside her vagina, she handed them over to Gary. Then at midnight, she swallowed her dose. Gary was supposed to do likewise, but he waited till closer to morning, which gave the appearance that he wanted her to die while he was found and saved.
In fact they both survived, but now Nicole was effectively cut off from her lover. There were to be no more communications between them. Nicole was signed in to a psychiatric facility for observation.
In the meantime, the rights to Gilmore's story were up for sale. He authorized Uncle Vern to negotiate, and he ended up selling to Lawrence Schiller and ABC for $50,000, which Gilmore distributed randomly among relatives and former associates from prison.
He fully expected to die in December. Authorizing another lawyer, Ron Stanger, to speak on his behalf, he went before the Utah Board of Pardons to plead his case once more and ask all the religious and civil rights groups to butt out. "It's my life and my death," he insisted on film. He hadn't realized that no one had taken the sentence seriously. He didn't know it was all a joke. He expected that if they were going to hand it down, they were going to carry it out. As he spoke, his courage and anger were both evident. He wanted this over with.
His execution was set for December 6, two days after his thirty-sixth birthday.
Then on December 3, Gilmore's mother stepped in. She was represented by the same lawyer whose rhetoric had convinced the Supreme Court to stop capital punishment several years earlier until the laws were changed. She requested a Stay on her son's behalf. He'd been on a hunger strike ever since he'd been separated from Nicole, she claimed through the lawyer, so he didn't know what he was doing. She should be able to step in.
Gilmore composed an open letter to her, published by the press, to ask that she allow him to get on with it. Ten days later, the Stay was overturned and Gilmore ended his 25-day hunger strike. Upon learning that he would still have to wait another month for his execution, he tried once again to kill himself, but was found in time.
Then Mikal decided that he needed to try to stop the process. He went to Utah to talk with his brother, describing the meeting in detail in his book, and was ultimately convinced that Gary knew what he was doing and wanted to do it. On film, Mikal said that Gary had quoted Nietzsche to him, that "a time comes when a man should rise to meet the occasion." That's what he was trying to do. During their last meeting, Gary kissed Mikal on the mouth and said, "See you in the darkness." Mikal left without taking any further action.
Finally it was scheduled for January 17, 1977. Overnight, the courts had continued to wrestle with the legal questions before them. A federal court judge in Salt Lake City ordered a Stay, but the Tenth Circuit Court in Denver set it aside. The ACLU continued to protest this right up to the moment that Gilmore began his walk as a dead man. Even as late as 7:30 a.m., Gilmore's fate hung in the balance.
It was the U. S. Supreme Court that finally decided the issue. The execution was allowed to go on as scheduled.