In 2013, I made a similar argument against imposing the death penalty on the surviving accused Boston Marathon bomber.27
In the end, the Supreme Court of Israel reversed Demjanjuk’s conviction based on new evidence that cast some doubt on whether he was Ivan the Terrible of Treblinka.28 He was subsequently convicted by a German court of being Ivan the Very Bad of Sobibor.29 He died at age ninety-one while free on bail during the appeal of his conviction.30
At about the same time of the Demanjuk trial, I was given an opportunity to participate directly in the court battle against capital punishment, in a dramatic and controversial case called Tison v. Arizona.
14
THE DEATH PENALTY FOR THOSE WHO DON’T KILL
Ricky and Raymond Tison
The story of the Tison case was the stuff of films and television dramas.1 It involved two families. The family of the killers consisted of the father, mother, and three sons. The family of the victims consisted of a father, mother, baby, and niece. They would meet—with horrendous consequences—on a dark, isolated road in Arizona.
Beyond the tragic facts of the case was the important legal issue they presented, since neither Ricky nor his brother Raymond Tison actually killed anyone. Nor did they intend anyone to die when they helped their father, Gary, and his cellmate Randy Greenawalt escape from prison. But at least four innocent people—including a baby and a fifteen-year-old girl—were brutally murdered by the prisoners whom the Tison brothers helped escape. And for playing that role Ricky and Raymond Tison, who were teenagers, were sentenced to die in the Arizona gas chamber.
As part of the overall challenge to the death penalty, abolitionists were focusing on the significant number of death row inmates who had not themselves killed anyone. Most of these nontriggermen had been convicted of murder on the basis of two legal fictions. The first was the law of conspiracy, under which each member of a conspiracy is deemed to have committed every crime actually committed by any coconspirator in furtherance of the conspiracy.2 (Remember Harry Reems.) The second legal fiction was the felony-murder rule, under which anyone who intentionally commits a serious felony, such as breaking someone out of prison, is deemed to have “intended” any death that results from the felony, even if he actually intended that no one should die.3 The combined effect of these fictions was to deem Ricky and Raymond as guilty of intentional murder as Gary Tison and Randy Greenawalt—the men who actually pulled the trigger with intent to kill the victims.
The Tison case thus starkly presented an issue that had not clearly been resolved by the Supreme Court since the Furman case:4 Can conspirators who helped murderers escape from prison be sentenced to death for intentional murders committed by their coconspirators, if the conspirators themselves neither killed nor intended to kill?
I was approached to help the Tison brothers in 1979 by a journalist who was working on a book project about the case (eventually a movie, called A Killer in the Family, was made starring Robert Mitchum as the father and James Spader—in his first major film role—as one of the brothers).5 I was asked to appeal the brothers’ death sentence. Since they had no money, I agreed to prepare and argue the appeal without a fee.
I knew the appeal would be tough because the facts of the murders were horrible and the personnel on the Supreme Court was changing in a right-ward direction. The strongest point in our favor was the factual situation as it related directly to the brothers Tison. Their story was compelling.
The Tison brothers—there were three originally—grew up without a father who was there for them. They referred to Gary as their “prison father,” since he had spent most of his adult life behind bars, having been convicted of armed robbery and other predatory crimes. On the way back to prison from a court appearance, Gary had killed the guard, taken his gun, and run away. He was recaptured and sentenced to life imprisonment. He began to plan his next escape—this time across the border to Mexico, which was only a two-hour drive from the prison.
Gary had to first get himself removed from the “escape risk” list and maximum security. When some young prisoners acted up, Gary helped to control them. He served on various prison committees, earning the right to have visits with his family in an outdoor recreation area. During these visits, Gary persuaded his children that it was their duty to help him escape. They were reluctant at first, but Gary persuaded them that no one would be hurt.
“We told Dad,” Raymond later said, “we’ll do this on one condition—that no one gets hurt.”
“The more firepower you have, the less likely you’ll have to use it,” Gary assured the boys. “We’ll make it out without firing a shot or being fired at. And once outside, it will be clear sailing. I know how it works. I’ve been there before.” He had been there before, but it hadn’t worked.
To the three boys, their father wasn’t a killer. A guard had been accidentally shot in a scuffle. They believed their father was incapable of cold-blooded murder. Gary told them that his criminal conduct had been a result of secret training he had received in the “Service,” claiming it was “top secret.” They believed this fantasy like they believed everything else their father told them. “Nobody is going to get shot,” their father promised.
In July 1978, the three Tison brothers arrived at the Florence State Prison with their picnic basket. Beneath the fried chicken were pistols and shotguns.
While Raymond went to meet his father in the picnic area, his brothers Ricky and Donny went into the waiting room with their basket. A friend of Gary’s, Randy Greenawalt—also a convicted murderer—was in an adjoining control room. When the other visitors had left, the boys pulled out their shotguns and held the guards at bay. Raymond and Gary quickly joined them, arming themselves.
The power was turned off. And the five simply walked out the front door without a shot being fired. Gary Tison had been right—at least about the initial breakout.
Within minutes, the alarm was sounded and the manhunt was on. The escapees, who had arranged for a getaway car to be parked at a nearby hospital lot, kept to back roads. Their getaway car, an old white Lincoln, had been supplied by the boys’ uncle Joe, a marijuana dealer. A tire went flat the next day, and was replaced with a spare. Later that night, another went flat. They didn’t have another spare.
At about the same time, a young marine named John Lyons was driving his family on a vacation. John saw a young man standing at the side of the road next to a white Lincoln, waving his arms for assistance. At first John passed by the man seeking help, but then he changed his mind and backed his Mazda up to the Lincoln. Suddenly four more men appeared with guns drawn. They ordered the Lyons family out of the Mazda and directed them into the backseat of the Lincoln. Two of the men got into the Lincoln with them, and the others got into the Mazda.
The two cars bumped along the rocky dirt road until they reached an isolated stretch of desert. The men cleaned out the Mazda, put their guns in it, and loaded the family’s suitcases into the Lincoln.
Then Gary and Randy drove the Lincoln farther into the desert. They shot holes into the engine to disable it. Gary turned to Ricky and said, “You boys go back to the Mazda and get the water jug.” The brothers expressed relief that the Lyons family would be left with enough water to survive until help arrived.
As Donny, Ricky, and Ray walked toward the Mazda to get the water, Gary and Randy discussed what to do with the Lyons family. After some back-and-forth, they made their fateful decision: They would not risk the chance that the family might make it back to the main road and notify the authorities. The Lyonses pleaded for their lives, promising to remain silent. As the Tison brothers were on their way back to the Lincoln with the water jug, they heard the shotguns fire. They could see flashes of light through the darkness. Then it was quiet.
As the boys came closer they could see the devastation their father and Randy had wrought.
The two escapees had murdered an entire family—father, mother, baby, and niece—in cold blood. The brothers sat immobil
ized by horror as Randy Greenawalt drove them away in the Mazda.
The Arizona police soon found the Lyons family. John and his wife and baby were dead. The niece was missing, raising the fear that the Tisons had kidnapped her. Several days later she was found: She had been shot in the hip and had managed to drag herself toward the main road before bleeding to death. The family dog lay dead from dehydration a few feet away.
The disclosure of this mass murder shocked the public, who had initially followed the news of the manhunt with a mixture of fear and admiration for the daring prison escape. Now revulsion replaced admiration. The crimes were characterized by the media as “a mad-dog murder spree” and “a death orgy.” The killers were described as “crazed” and “desperate.” Some people refused to drive at night until the Tisons and Greenawalt were caught. Among the mothers who feared for their families was Sandra Day O’Connor, who was then serving as a Maricopa County trial judge.
The largest manhunt in Arizona history got under way, involving patrol cars, helicopters, search dogs, roadblocks, and a sophisticated communications system.
The Tisons were exhausted and low on cash. They hadn’t planned for the detour caused by the flat tires and the murder of the Lyons family. Gary decided that they had to make a run for the Mexican border, risky as that was in light of the extensive manhunt.
At 2:58 in the morning of August 11, 1978, the Tison vehicle approached a police roadblock and crashed through it. The police gave chase, traveling at close to a hundred miles an hour, and called in helicopters. For a moment, Gary, who was manning the gun out the rear window, thought they had made it. Then Donny, the oldest brother, who was driving, saw a second roadblock. He crashed through it, but not before several shots from the waiting police cars struck him in the head, causing the car to crash. Gary yelled, “Every man for himself,” and ran. Ricky, Ray, and Randy threw themselves to the ground.
The police found Donny, slumped in the driver’s seat, unconscious from his head wounds. They handcuffed him, called an ambulance, and left him there after removing the guns from the van. At 3:40 A.M., the ambulance arrived at the scene of the roadblock. But the medics were made to wait there for more than five hours, while the life drained out of Donny’s body.
The police shoved a shotgun against the back of Ricky’s head and a pistol barrel into his mouth. They cut his clothes off his body. He was pulled by his hair into a police car surrounded by three officers and interrogated—naked and shivering—for five hours. When he expressed reluctance to talk, he was asked, “Do you want to see your dying brother?”
The police told Ricky and Raymond that Donny, bleeding and unconscious, would receive no medical attention until his brothers confessed. Finally, the two brothers confessed to their roles in the events surrounding the breakout. When the medics were finally allowed to go to Donny, he had bled to death.
For over a week no trace was found of Gary Tison. Police combed the desert. A SWAT team was lowered into abandoned mines and caves. Dogs were used. Rumors circulated about the fugitive’s whereabouts. He was reported in dozens of locations, ranging from the Grand Canyon to southern Mexico.
Several days later, a local Native American smelled something in the underbrush. It was the decomposing body of Gary Tison. He had been hiding out in the desert, just a mile north of the roadblock. He died of dehydration on an Indian reservation, lying among the brush with a sock full of cactus berries squeezed dry near his head. Underneath him was John Lyons’s pistol.
With two of the culprits now dead, public outrage focused on those who were still alive. The media zeroed in on the murdered toddler, expressing the view that “if [the brothers] hadn’t gotten Gary Tison and Greenawalt out, none of this would have happened.” Politicians demanded the gas chamber.
The two surviving brothers were tried and convicted of the murders. Under the laws of felony murder and conspiracy, they were as guilty of murdering the Lyons family as were the men who pulled the triggers. The judge employed the same legal fictions in sentencing them both to die in Arizona’s gas chamber. My job was to try to save their lives. Other lawyers would be arguing that their confessions were involuntary.
After several unsuccessful appeals in the Arizona state courts, we decided to seek review in the Supreme Court. This decision was itself controversial within the anti–capital punishment community. The legal landscape had changed since the Supreme Court decided Furman and several other cases imposing restrictions on the use of the death penalty. In 1982, the justices decided the case of Enmund v. Florida,6 reversing the death penalty of a defendant who had driven the “getaway” car in the armed robbery of a home in which Enmund’s accomplices killed the elderly couple they had robbed. Enmund himself had not pulled the trigger, though he probably provided the gun to the man who did. That was not enough to justify the death penalty, the court ruled. The 5–4 majority went on to say that
it would be very different if the likelihood of a killing in the course of a robbery were so substantial that one should share the blame for the killing if he somehow participated in the felony.7
The facts of the Tison case presented this question directly: Was the likelihood of the killings substantial enough that the brothers should share the blame and the death penalty? We believed the answer was no. But there had been an important change of personnel in the high court between the time Enmund was decided and the filing of our petition for review. Justice Antonin Scalia had joined the court, and he soon became its most outspoken critic of the campaign to abolish the death penalty. William Rehnquist, also a strong supporter of capital punishment and an Arizona resident who was aware of the Tison rampage, was now the chief justice. Justice Sandra Day O’Connor, who had lived in that state during the murder spree, had dissented in Enmund and might now be in a position to turn her dissent into a majority decision, because Justice Byron White, who had written the majority opinion in Enmund, had seemed to be backtracking a bit in subsequent cases.
Before we decided to file our petition for a writ of certiorari—an application requesting the justices to exercise their discretion to review the case—I had received several phone calls from anti–capital punishment lawyers with whom I had previously worked, imploring me not to seek Supreme Court review in the Tison case. “Count the noses,” one of them warned. “You may not have five anymore.” He urged me to leave well enough alone: “We have Enmund. Most courts will follow Enmund and reverse felony-murder death sentences. But if the Supremes take your case and reverse or limit Enmund, people will die because of you. You have to go by the numbers.”8
I understood his reference to “the numbers” as meaning two different things: First, the numbers on the Supreme Court, which now might be 5–4 against us. And second, the large number of condemned inmates who faced execution on a theory similar to that which had led the judge in Arizona to sentence the Tison brothers to die even though they had not killed the Lyons family or intended their death.
I respected the insights and judgments of the callers, but I had two actual clients on death row. I was their lawyer, not the lawyer for the many other death row inmates whose fates could be adversely affected by a negative ruling in our case. I cared deeply about every inmate facing the death penalty, as I did about the issue itself. But I could not allow these strong feelings to influence my decision regarding my clients. I was the only person between them and the canisters of death that stood ready to end their young lives. At that moment in time, I was not a “capital punishment” lawyer or a “cause” lawyer. I was Ricky and Raymond’s lawyer. They desperately wanted to live, as they told me, tearfully, when we met on death row. Following our meeting, I had nightmares in which I visualized the two boys being pulled out of my arms and strapped into the chairs as the lethal gas ended their lives. I also had nightmares about the Lyons family desperately but futily begging for their lives, as Gary and Randy aimed shotguns at them. But I could not, even in my dreams, save the lives of the Lyons family. I could, in reality, try to save
the lives of Ricky and Raymond Tison.
I had to put case before cause, client before campaign, the Tison brothers before the others on death row. It was an excruciating emotional conflict, but not a difficult legal or ethical decision.
I decided to file a petition for certiorari to the Supreme Court. Our hope was that the justices would not want to hear full argument on an issue they had so recently considered: namely, the constitutionality of the death penalty for defendants who had not been the triggermen in a crime that had resulted in the death of the victim. We hoped the justices would simply “remand the case for reconsideration in light of Enmund.” In other words, that they would send the case back to the Arizona courts so that those judges could apply the Enmund precedent to the facts of the Tison case. That would have been the best of all possible worlds. The court would have reaffirmed Enmund as the binding precedent and sent a strong message to the state courts to be sure to follow that precedent, thus saving the lives of the dozens of similarly situated defendants on death row. And it would have saved the lives of Ricky and Raymond. But it was not to be. To our disappointment and worry, the justices granted review and set the case down for briefing and argument.
Generally, lawyers are ecstatic when the high court grants review of one of their cases. It means that they will have the privilege of arguing before the Supreme Court—a rare honor that few lawyers experience. It also means they will have an opportunity to influence the development of constitutional law—a knife that cuts both ways, since the influence may be positive or negative.
In this case, I was far from ecstatic, since the granting of review so soon after the divided decision in Enmund signaled a desire on the part of at least some of the justices to reconsider and perhaps reverse or limit Enmund. Justice Scalia had already made it clear that he had little respect for past precedents, especially recent ones. His oath, he insisted, was to uphold the Constitution, not the erroneous precedents of the Supreme Court. The next to last thing I wanted to be was the vehicle by which the justices would shift the existing trend in favor of contracting the death penalty to a trend in favor of expanding it. The last thing I wanted to be was the lawyer who not only expanded the reach of the death penalty but also caused the execution of my own clients. The stakes were enormous, both for the Tison brothers and for the many other death row inmates who had not been triggermen—as well as for the campaign against capital punishment.
Taking the Stand Page 28
