Two public defenders, Craig Snyder and Mike Esplin, took on Gilmore's case, but it looked pretty hopeless. There was an eyewitness who placed him near the Bushnell murder with the cash box and gun in his hand, and to top it all, he'd shot himself with the same gun. Then there was his cache of stolen guns, not to mention his apparent confession to a cop and later to his cousin. He'd told Brenda to tell his mother "it was true." As vague as that was, the jury could construe it as an admission of guilt. Their best hope was to find some legal technicality and take it to an appeals court.
While Noall Wootton was asking for the death penalty on the grounds that Gilmore was a danger to society should he ever escape and a threat to other inmates if sent to prison, no one had been executed in Utah for sixteen years. Wootton wasn't a death penalty advocate, but he did believe there was no possibility for Gilmore's rehabilitation. And even if he managed to get this sentence, he believed there was small likelihood of its being carried out.
Gilmore's trial lasted only two days, starting on October 5, 1976. The transcripts lay out the main events: An FBI ballistics expert matched two spent cartridges and the bullet from Bushnell to the gun left in the bush, a patrolman had traced Gilmore's trail of blood to that same bush, and the witness named Gilmore as the person he saw at the motel. The defense had no defense. When the two lawyers quickly rested without calling witnesses, Gilmore protested. The following day he asked the judge if he could take the stand to present his own defense. He figured that, based on what they had heard from the prosecution, it would take the jury less than half an hour to convict him and he wanted the chance to tell his story. He thought he had a good case for insanity. After all, he'd felt completely dissociated during the commission of the crime, like it was inevitable and he couldn't have done anything differently. He didn't have control.
His lawyers stood up and indicated that they had consulted four separate psychiatrists, all of whom had said that Gilmore had known what he was doing and that it was wrong. While he did have an antisocial personality disorder, which may have been aggravated by drinking and Fiorinal, he still did not meet the legal criteria for insanity.
Faced with that, Gilmore withdrew his request. He seemed suddenly to resign himself to the hopelessness of his situation. He'd already experienced some remorse for what he'd done but thought he'd probably end up doing it again. Never had he felt so much pain as that week without Nicole, according to what he said in his letters to her, and he knew he'd have kept up the spree, mindlessly hurting others.
In closing, Wootton took pains to point out that Ben Bushnell had been shot by a gun held directly against his head. It had been no random shot but quite deliberate.
Esplin countered with the fact that Gilmore himself had been wounded by the gun going off accidentally. It could have been the case that it had discharged accidentally in the incident that had resulted in Bushnell's death, even if held against him. Maybe Bushnell had moved suddenly. Since there are no eyewitnesses, who was to say differently? He urged the jury to find Gilmore guilty of a lesser crime of second-degree murder committed during a robbery, or even to acquit him altogether.
On October 7, 1976, after an hour and twenty minutes, the jury returned a verdict of Guilty of Murder in the First Degree.
Then after lunch, the sentencing phase—called the Mitigation Hearing— began. Again, the defense lawyers were at a disadvantage, since it was Gary's own family who had turned him in. Clearly they were afraid of him. Brenda felt that Gilmore had betrayed her trust and that he ought to pay for what he'd done. Getting good witnesses looked pretty hopeless. Yet no one could have predicted at that moment that Gilmore's own worst enemy in this regard would be himself.
At the end of the hearing, Gilmore was asked if he had anything to say, with the expectation that he would show some remorse, but all he said was, "I am finally glad to see that the jury is looking at me."
The sentence was death, arrived at unanimously, and to be carried out on November 15, just over a month hence. Gilmore was asked to choose between being hanged or shot by a firing squad. He chose the latter, believing that a hanging could easily be botched. While his attorneys prepared the expected course of action, Gilmore took the unexpected one.