The Unforgiven
by L. Kay Gillespie

Chapter 7
Death Row, Commutations, and Pardons

[p.173]I became the fifth man on death row one afternoon in 1984. My four cell mates on C section of maximum security were Pierre Dale Selby, William Andrews, Elroy Tilman, and Heber Norton. Arthur Gary Bishop had been sentenced to die but was being kept in a separate cell. I occupied the cell that would have been his.

A few months earlier, with the permission of prison officials, I had begun interviewing the men on death row to try to understand what the death row experience was like. How could a person live in seclusion for extended periods of time, knowing that every day brought death closer.

During my interviews the men constantly reiterated two things: the importance of routine and small things to temper the monotony of such an existence and the frustration of being totally dependant on the prison staff. Repairing a leaky toilet, trying to make a telephone call, or having a message relayed often took days, sometimes weeks. This lead to impatience, bitterness, and the suspicion that they were being purposely toyed with. They told me to spend one [p.174]weekend with them, and I could multiply these feelings hundreds or thousands of times.

Now I was there. My cell (the inmates call it their “house”) was ten feet long, six feet wide, and ten feet high with a metal bed and a small metal desk bolted to the floor and a toilet with a rusty, stained, and chipped seat. Everything was painted battleship blue-gray. The floor was cement, and the bars were made of solid iron. When I entered the cell, I was given a small radio so I could contact the control center, and they could contact me, in case of an emergency. If there was trouble, I was to crawl under the desk at the back of the cell and stay there. The door was locked and I was left alone.

All five cells were located in a row, each facing the same direction. A small passageway separated the cells from a cinderblock wall, the only view. Meals could be served and guards could pass by during their regular counts. To complete counts, guards were required to see some flesh of each inmate to verify that he was in the cell. There were eleven counts every twenty-four hours on death row.

Heber Norton was in the cell next to mine. He was in his mid-seventies. This made him the oldest man in the prison. He had just returned from the hospital for what was thought to have been a stroke. He was on death row for killing two female bank tellers during a robbery in Price, Utah.

Next to Norton was Pierre Dale Selby. He and William Andrews, who was two cells away from Selby at the far end of the row, were sentenced to die for killing three people at the Ogden Hi-Fi Shop. Between Selby and Andrews was Elroy Tilman’s cell. Tilman was on death row for killing his girlfriend’s ex-boyfriend with an axe and attempting to burn the body by setting the mattress and house on fire.

I had interviewed each of these inmates several times during the weeks prior to my own incarceration. They seemed willing to help me understand what death row was like. Andrews and Tilman were the most responsive. Selby [p.175]was willing to talk but was sometimes moody, quiet, and restrained.

Norton belonged to an earlier era, when “con bosses” were respected, everyone did their own time, and nobody talked to the “screws.” He did not like the way things were currently run at maximum security and he did not like blacks.

Tilman was knowledgeable about current events—national, state, and local. We talked about politics, religion, and other issues that were on his mind. He had thought things through carefully and had formed his own opinions, though they did not mirror mine.

Andrews was tierman and received a small wage for serving meals to each cell, cleaning up, and keeping things in order. Throughout my interviews I found him to be the most personable and helpful. We carried on a correspondence over several years, and he took the time to respond to questions about death row from my students. I was constantly amazed at how he was able to maintain a good attitude after his many years on death row.

As I read through the notes I took that afternoon, the feelings and smells are still very tangible:

3:38 p.m. They have just locked me on death row. I can hear the other men talking—they are teasing me. They think I ought to at least stay all night.

3:53 p.m. I’ve been here 15 minutes. It’s too hot and my cell is dark. I can’t see to read—if I had anything to read. Somewhere one of the inmates is humming, but I can’t recognize the tune.

3:56 p.m. What do they do for hours—days—months—years? Nothing to see. All I can see is the white cinderblock wall across from me. There are 283 cinderblocks in my view. The [p.176]only colors I can see are white and turquoise blue. Nothing else to see through my 16 bars—I counted them, too. Andrews just brought me a note from Selby and a Fortune newspaper from Tilman. Selby’s note said, “I think I got burned out last Saturday or Sunday. Just don’t feel like doing nothing. Just looking at the wall. That’s the first time it ever happened to me. I think I just burned out.”

Heber Norton was asleep when they locked me up. He now wakes up and asks Andrews who he is talking to. Andrews tells him it is Dr. Gillespie and asks him if he remembers me. Norton thinks Andrews is putting him on and swears at him. “All I want out of you is to bring me my food and stay the fuck away from me. ou’re no good and I’m going to show it.” He next turns his anger towards the guards who apparently searched his cell after he was taken to the hospital. “I can’t even find what I’m supposed to have. I don’t know what they think they’re accomplishing. I come back weak and upset and they fuck with my things … I haven’t had two hours sleep in all the time I’ve been gone. They’ve had me strapped down, going everywhere in shackles—even wearing shackles to bed.”

The sounds around me are muted—yet they echo. I hear pages being turned somewhere near. Quiet laughter and conversation. I hear voices of the guards coming closer. “Coming closed.” Heber Norton, next door, swears, “Coming closed, that’s all we hear. [p.177]Coming closed; Coming open.”

4:17 p.m. They are bringing dinner. I can hear the doors clanging. One of the officers comes by to look at me. He smiles and asks if I am going to eat. I say, “Sure, got enough?” He smiles again and walks away.

4:19 p.m. The meal is served on a plastic tray: wheat roll, sliced carrots (15-18), two halves of pears, square of white cake with frosting, fried potatoes and a piece of fish. Milk and Sprite to drink. Andrews brings me my drink and passes it in through the bars. (The guards told me this would happen and that I should stand back when he brings my drink—I guess so he won’t grab me?)

Meal time seems to be a time for conversation among the men on death row. They share the obligatory complaints about the meals. I ask Heber Norton how he is feeling since his return from the hospital. He replies, “Better enough to get out of the hospital, but I still feel kind of washed up.” The others continue to complain about the food. They enter my conversation with Norton and ask him what he had to eat in the hospital. I am surprised by the wistfulness in his voice as he tells them, “You’re not going to believe it. They give you a menu. You get to choose. I’ve been in a lot of hospitals. They put me in the same room as another guy. I’m eating what he’s eating and everything and he’s paying $450 a day. It’s just like room service. I was never treated better in my life than in that hospital—even though they knew I was an inmate.” [p.178]I return to my meal. Cake is too dry, potatoes are too peppery, pears are too hard.

4:45 p.m. Andrews is gathering up the trays. Conversation is subsiding. Rays from the setting sun are coming through somewhere. I can see the reflection on my 283 cinderblocks—kind of orange and dim, yet it seems brighter now than it did when I came in. If an inmate had no watch or calendar, this would be one way of marking time—the seasons, the weather, the passing of a day—all reflected on a cinderblock wall. I imagine such small things must come to have great significance over the years. Norton is asking the others if they have been out in the “yard” during the past few days. They tell him no, and he describes how he could look out over the city from his hospital bed. “It really looked pretty at nighttime—the lights red and yellow. I just laid there in my bed looking out the window.”

4:50 p.m. Norton is complaining he can’t find something. Andrews tells him the guards probably took it when they searched his cell. Andrews and Norton seem to be on better terms now. I’m told feuds don’t last very long on death row. They have to get along. They only have each other.

5:02 p.m. I’ve been on death row for an hour and 14 minutes. It’s not as hard on me as I expected it would be, but it’s only been 74 minutes. Seventy-four hours would be over three days, and seventy-four months would be over six years. Selby and Andrews have served more than one month for every [p.179]minute I have been here.

5:06 p.m. I’m getting bored and restless. Selby says he just got burned out after more than eight years and I burn out after 78 minutes? I see a place on the top of the bars where some previous occupant has marked time by putting a toothpaste dot for each day—35 days.

5:11 p.m. I hear the guards coming for me. I don’t think I would like to spend any more time than this on death row. I wonder how the others must feel as they see me walk past them on my way out and they are going nowhere?

5:58 p.m. I just left maximum security. Now I can take a deep breath.

I remember walking outside the prison after this experience. The air was cool and a slight breeze was blowing. Storm clouds were forming over the Oquirrh Mountains, whose peaks were still snow-capped. Rush hour traffic was headed south along the freeway, and as I cleared the last security fence, I heard a rooster pheasant crowing in the field next to the prison. I was glad to be going home.

Death row today is not like it was when I left it that day in 1984. A new maximum security unit was built in 1987, and those inmates under death sentences are mixed in among the other maximum security inmates—although all are kept separate. Andrews and Tilman are still there. Selby was executed in 1987; Bishop in 1988. Norton’s death sentence was overturned, and he was given a life sentence and moved into the main population where he died on 1 March 1989 at the age of 81.

It is difficult to tell which of the remaining inmates under death sentences will actually be executed. Some sentences may be overturned, the appeals process can affect [p.180]execution dates, some men may die of natural causes, and there is always the possibility of clemency. Clemency is a procedure built into the justice system that is intended to temper the politics and regional hysteria sometimes affecting high-profile crimes. Clemency takes two forms—pardons and commutations. Pardons completely abrogate legal punishment, and commutation substitutes a lesser sentence for a greater one.

In earlier times, clemencies were granted by the state or church as a gesture of grace during holidays and these became known as “holiday” or “yuletime” clemencies. For example, Jewish people anciently had the custom of granting pardons during Passover. There were also “divine intervention” clemencies. When earthquakes, storms, floods, or other natural disasters interrupted executions in process, such events were taken as signs of deity’s displeasure with the proceedings and the condemned was released. There were also western American “broken rope” clemencies; the condemned was released if the rope broke during a hanging. In Germany, during the Middle Ages, the condemned could obtain release if his wife or girlfriend ran around the prison three times in the nude. In some countries whenever the coffers were depleted, pardons were sold as a means of raising revenue.

In the United States during the twentieth century pardons were also available for purchase or through political favor. In Oklahoma Governor John C. Walton pardoned 693 prisoners in eleven months, some even before the judge had pronounced sentence. Governor George W. Donaghey of Arkansas pardoned 361 convicts in one day. Governor James Ferguson of Texas granted 1,774 pardons between 1915 and 1917. Governor Miriam Ferguson, also of Texas, granted 3,500 pardons between 1925 and 1926. Some governors granted pardons or commutations because of their own opposition to the death penalty, others acted out of defiance before leaving office. Governor Lee Cruce of Oklahoma [p.181]opposed capital punishment and commuted twenty-two death sentences from 1911 to 1915. Prior to leaving office in 1986, Governor Toney Anaya of New Mexico commuted the death sentences of the five men on death row. In a prepared statement he wrote: “As I have stated repeatedly, my personal beliefs do not allow me to permit the execution of an individual in the name of the State.” To be sure that those on death row would not be executed by his successor, Anaya chose to commute their sentences.

In Utah no formal record has been kept of pardons and commutations. Originally this power was vested in a board consisting of the governor as chair, the state supreme court justices as members, and the attorney general of the state as secretary. In 1951 the composition of this board was changed, and the board of corrections appointed a five-member, part-time board, which sat in panels of three members. In 1983 the board of pardons was changed to a three-member, full-time board and in 1990 to a five-member, full-time board. The board of pardons has the final say about whether a condemned inmate is executed or granted a commutation.

One of the earliest stories involving the commutation of a death sentence in Utah occurred in 1857. A young soldier named Warren Drake was discovered having sexual intercourse with his horse. He was tried by court martial and sentenced along with the horse to die by firing squad. Lorenzo Brown, who was present, recorded in his journal: “He [Drake] was called out and the congregation were called upon to approve or disapprove the sentence of the court and all there in favor of the sentence were requested to uncover their heads and raise their right hand to High Heaven in token of their assent. Every head was made bare and every hand raised.1 Brown later wrote that Drake’s sentence was commuted; he was excommunicated from the Mormon church and asked to leave the territory. In the case of the mare, however, there was no commutation. The sentence [p.182]was carried out and the mare was shot.

As far as I have been able to document, Utah has granted fourteen commutations of sentences for those sentenced to death. Pardons have been far fewer. I have been able to document only four pardons, although some pardons were eventually granted after a sentence had been commuted.2

H. H. Pearson (pardoned in 1886) killed his friend during a drunken brawl while working on a cattle ranch in Utah County. Pearson was tried and found guilty of voluntary manslaughter. Shortly after the trial he was pardoned.

Jack McCormick (pardoned in 1892) was also known as Jack Emerson. McCormick was codefendant of Fred Hopt, who was executed in 1887. McCormick was pardoned by Governor Eli H. Murray after serving five years. It was the governor’s last official act in office.

Ed Johnstone, acting special agent for the Castle Valley Coal Company and deputy sheriff for Emery County, was found guilty of voluntary manslaughter in the shooting death of Brigham Taylor. The jury was out twenty-four hours and returned its verdict with a recommendation for mercy. Johnstone spent about six months in prison. He was pardoned by Governor William Spry on 25 September 1913 and later became his bodyguard.

Nathan “Nick” Haworth (commuted on 21 November 1903) was sentenced to death three times. He was convicted of the murder of Thomas Sandall in Davis County. Attorneys for Haworth claimed the jurors had been prejudiced because they saw Haworth attempt an escape during his trial and a dozen or more deputies rearrest him in the courtroom in Farmington. Apparently the witnesses waiting in the courtroom to testify on Haworth’s behalf were also arrested and thus a “stigma” was placed on their testimony. The board of pardons commuted his death sentence to life in prison after reviewing this trial and finding the trial had been unfair and the jury prejudiced.

The sentence of John Douglas (commuted on 22 Novem-[p.183]ber 1903) was commuted from life in prison to twenty-five years in recognition of his help during a prison break. He apparently obtained access to the levers that controlled the cell doors and closed them to prevent a large number of inmates from escaping.

James Lynch (commuted on 2 January 1904) and his codefendant Robert King were sentenced to death for killing Colonel Godfrey Prowse on 11 September 1900 during the holdup of the Sheep Ranch Gambling House in Salt Lake City. In the subsequent trial both were found guilty and sentenced to die. King maintained his innocence and was later released on the basis of another man’s confession. Lynch was given three separate execution dates but was finally commuted to life in prison. He was granted the commutation because he saved the life of a prison guard during an escape. Testifying before the board he refused to give his real name in order to protect his parents’ reputations. The board took its action believing that “a life for a life” was grounds enough to spare his life.

Charles “Dutch Charley” Botha (commuted on 5 June 1904) was convicted of murdering his fifteen-year-old wife and her lover, a respected neighbor, and was sentenced to death. During the hearing before the board, it was argued Botha had no other motive in his crime than to “protect his home and his wife’s chastity.” Since he killed his wife first, it was argued that the shots were fired randomly—otherwise the man would have been killed first. According to experts at the hearing, “It has never occurred in human history that a man under such circumstances would kill his wife first and then kill the destroyer of his home” (Salt Lake Tribune, 5 June 1904). It was also argued the trial was unfair and that the verdict could only have been “voluntary manslaughter.” The board agreed and commuted his sentence to life in prison. In reporting the commutation, the Salt Lake Tribune stated on 5 June 1904,

[p.184]No leaden bullets will plough their way into the heart of Charles Botha next Friday morning. The five men in whose power it lay to extinguish the mysterious spark of life and turn the pulsing body into senseless clay said “live”! The death watch was removed and the dark shadow of death was dispelled. “Dutch” Charlie has entered upon that ceaseless round of rising, working, eating and sleeping within the four walls of the penitentiary which must continue until his life ends or the pardoning board exercises further clemency in this case.

Fred George (pardoned on 19 June 1904) was an accomplice to Patrick Coughlin, who was executed in 1896. George was given a life sentence because of his youth. He was paroled on 20 December 1902 and later given a full pardon “because of the exemplary life he had led.”

Robert Zaffy (commuted on 19 February 1913) was originally sentenced to die for his part in the robbery of two men, one of whom was killed. He and two partners were arrested and tried. One partner was given a life sentence for his cooperation and testimony against the other two. Zaffy and Frank Romeo were sentenced to die. Zaffy’s sentence was commuted to life in prison the day before his scheduled execution. Romeo was executed as scheduled.

John Cerar (commuted on 25 August 1922) was sentenced to die for the axe murder of his friend Leo Masser shortly after Cerar’s arrival from Austria. The killing followed a quarrel brought on by gambling. The Sun, published in Price, Utah. reported on 25 August 1922: “The Board of Pardons … took into consideration the man’s good record and the absence of any apparent motive for the murder of the friend and ‘pal’ of seventeen years. It was in the evidence that Cerar had been angered by losses at cards, and was probably under the influence of liquor at the time.”

Noel E. White (commuted on 20 May 1934) was co-defen-[p.185]dant in the homicide that resulted in the execution of his partner, Ralph W. Seyboldt. White was sentenced to twenty years. He served five years, eight months, five days, and his sentence was commuted by the board to time served.

Gilbert Brighton (commuted on 4 June 1954) was convicted of first degree murder. The board commuted his sentence to time served. He had served eleven years, eleven months, and nineteen days.

George Hays (commuted on 4 October 1959) was originally sentenced to death on 6 March 1939 for murdering Sherman W. Cadwell of Rush Valley, Utah. His co-defendants, William LaVern Russell, age eighteen, was given a life sentence, and Victor Montano was sentenced to ten years to life. Hays, a deaf miner, had his sentence commuted to life because of psychiatric testimony before the board that he was insane. When notified by the warden of his commutation, Hays reportedly said, “Goody! Goody!” On 13 May 1959 Hays, age eighty-five, was again heard by the board and granted a termination of sentence. He had served twenty years.

John Markham (commuted on 22 September 1941) was originally sentenced to die for killing J. G. Smith, a seventy-three-year-old magazine stand operator, during a $20 robbery. Smith was apparently hit over the head with an iron pipe. Markham was a twenty-six-year-old “bootblack” at the time of his crime. He was granted a commutation of sentence after two of Smith’s children expressed no opposition as long as it meant Markham would never be free from prison. On 28 January 1960 the board of pardons granted Markham a release from prison after he had served twenty years.

Vae Monroe Fenley (commuted on 6 March 1942), at age seventeen, was sentenced to die for the robbery and murder of Royal L. Hunt, a rancher who had befriended him. The board commuted his death sentence, finding him mentally deficient. On 22 February 1959 Fenley was paroled. He was thirty-four years old at the time and had served seventeen [p.186]years in prison.

Gustav Gallo (commuted in 1944) was convicted on 22 June 1928 of killing a cobbler over a $6 rent-due argument. He was ruled insane by the state supreme court on 7 February 1929 and committed to the state hospital. After five years, he was judged sane and returned to prison. The board later commuted his death sentence to life in prison, and on 6 May 1953 after serving twenty-five years, he was granted a termination of sentence and deported to his native country of Nicaragua.

Hyrum Bebee (commuted on 18 November 1948) was convicted of murdering Marshal Lon T. Larsen of Mount Pleasant, Utah, on 15 October 1945. He was sentenced to die by firing squad. His sentence was commuted to life in prison by the board of pardons. He died on 2 June 1955 at the age of eighty-five in the prison hospital of “illness incident to age.” He was thought to be seventy-three years old at the time.

Fred Matteri (commuted on 11 June 1951) was sentenced to die for killing Salt Lake chiropodist Levi P. Delk. The jury had recommended life, the judge ordered the death sentence, but the board sided with the jury.3

Paul Buddy St. Clair (commuted on 7 January 1957) was sentenced to die for murdering Mrs. Besta Wittke of Tooele County. He was commuted after the board of pardons believed psychiatric testimony that he had a concussion at the time of the murder which led to “lack of control of emotions.”

Jesse Garcia (commuted on 13 September 1962) and his codefendant, Mack Rivenburg, were sentenced to die for killing another inmate at the Utah State Prison. Garcia’s sentence was commuted after Rivenburg committed suicide the day before his scheduled execution. Garcia was later paroled but has since committed additional crimes and is presently serving extended time in prison.

To have power over life and death is an awesome respon-[p.187]sibility. On 1 July 1983 I became one of three members appointed by Utah governor Scott Matheson to the first full-time board of pardons.

Some men and women can sit day after day reading the tragedies of victim and offender and not be affected, but I could not. I had been carrying in my head for months the documentation of human tragedy: sex offenders whose lives were ruined at early ages by parents, uncles, or neighbors molesting them over an extended period; products of illegitimacy, divorce, abandonment, foster homes, death of parents, desertion, and physical abuse; addicts of alcohol, drugs, gas, glue, and other substances; families with parents, children, and relatives in prison, often doing time together; victims of incest, suicide, and tragic accidents of parents, uncles, brothers, sisters, and children.

One of my first assignments on the board was to review existing procedures for commutation hearings and to recommend new policies for the anticipated commutation hearing of Hi-Fi killers Selby and Andrews. It was several years before the hearings occurred, and when it did I was no longer on the board. But we felt at the time we would soon be called on to act in that capacity.

At this time we entered into serious discussion about our role in determining whether another human being should live or die. The two other members of that first full-time board—Gary Webster and Vickie Palacious—did eventually participate in the commutation hearing for Pierre Dale Selby. I was present too but only to document and study the process. My seat on the other side of the television cameras was much more comfortable.

Under present policy, a condemned inmate must request a commutation hearing before the board of pardons within ten days after receiving his execution date and “having completed all court proceedings.” Once such a request has been received, the board sets a date for the hearing. I have been present at two commutation hear-[p.188]ings—one for Selby and one for Andrews. Neither Gary Gilmore nor Arthur Bishop requested commutation, although Gilmore was given a hearing by the board after his execution had been temporarily stayed.

During such a hearing the condemned and his attorneys explain why a commutation should be granted and the state argues why the execution should proceed. The condemned usually makes a statement on his own behalf and then family or others testify as requested. The state reviews the nature of the crime and presents testimony by victims and others involved in the crime. The hearing is then closed, and the board sets a date to announce its decision. At the appointed time the board returns to the board room in the prison where the condemned inmate, attorneys, and the press have gathered, and reads its decision.

Both hearings I attended were extremely emotional. During Selby’s hearing he broke down while describing his childhood. I talked with him later, and he expressed embarrassment at this show of emotion. He felt people would interpret it as a cheap attempt to save himself. During this same hearing Orin Walker, one of the victims, became emotional as he described the impact of his son’s death (also one the victims) on his wife. Another victim, Courtney Naisbitt, whose mother was killed in the Hi-Fi Shop, was visibly upset during the hearing and had to leave the room.

On 21 August 1987 the board handed down its ruling that Selby had not given a compelling reason for setting aside the original sentence. At the commutation hearing for Andrews, the board’s final vote was 2-1 against commutation, but less than three days prior to his scheduled execution the Tenth Circuit Court issued a 160-day stay of execution, which was extended. At this time Andrews’s case is still before the courts with no execution date set.

[p.189]Notes:

1. Lorenzo Brown, Diary, 1 Dec. 1857, in Diary of Lorenzo Brown, ed. Ben Brown (n.p.: Heritage Press, n.d.).

2. C. L. “Gunplay” Maxwell (commuted on 22 November 1903, later pardoned) was originally sentenced to eighteen years for bank robbery and murder. He served seven years and then had his sentence commuted for helping prison officials during an escape attempt. He was eventually pardoned by the governor and later became the governor’s bodyguard. Fred Engelke, Robert Price, Charles Layfield, and Arnold Young all had their sentences commuted on 23 May 1904 and were eventually pardoned for aiding an escape attempt. Joseph G. Trujillo (commuted 25 August 1951) was commuted after serving approximately ten years in prison. He was paroled to New Mexico on 12 September 1963.

3. This was the last meeting of the board of pardons consisting of the governor as chair, lieutenant governor as secretary to the board, and the supreme court justices as members. After this, the board of corrections appointed a new board consisting of part-time members.