Taking the Stand

by Alan Dershowitz

  In preparing for the oral argument, I read the trial and sentencing transcripts not only of the Tison case, but also of the Enmund case, which I knew would be the basis of questions from the justices.9

  I began my argument with a simple statement that I thought would be beyond dispute: “The State of Arizona seeks to execute two young men who it acknowledges lacked the specific intent to kill, and did not, in fact, kill.”

  I was immediately interrupted by Justice White, the author of the Enmund majority opinion, on which I was relying: “Did you say the state concedes what?”

  I repeated my point: “The state concedes that there was no specific intent to kill, and that there was no killing.”

  Justice White pressed me: “What do you mean by that?”

  I explained that no one had ever suggested that the brothers specifically intended to kill the Lyons family. Indeed, it was clear from the record that they specifically intended not to kill and that Gary and Randy had to trick the brothers into going for water before opening fire. I also pointed to a finding by the Arizona Supreme Court that the murder of the Lyons family was not part of the original plan and was utterly “unnecessary” to the escape. I told the court, “There is no evidence to support a finding for specific intent.”

  The justice immediately shot back, “Well, if that’s true, of course, that’s the end of the case.”

  I was pleased by his assessment and immediately agreed with it: “That’s the end of the case. Your Honor, we think that’s the end of the case.”

  But it was far from the end of the case, at least in the minds of some of the justices. The recently appointed Antonin Scalia came after me with a hypothetical case, an exercise I was thoroughly familiar with, since it is the weapon of choice for law professors, which Scalia had been before ascending the bench.

  Scalia asked me what my position would be if one bank robber had a gun and the other one didn’t, and the one with the gun “throw[s] the gun to the triggerman, as the policeman’s approaching him.”

  I had prepared for every likely question I might be asked by the justices, but the idea of a gun being thrown by one robber to another had never occurred to me. In the classroom, a poor answer to a professor’s bizarre “hypo” might reduce a grade, but in the courtroom it could be a matter of life and death. I quickly recalled the facts of the Enmund case and reminded the justices that Enmund too had provided a gun to his coconspirators, who then killed the couple, and that there was no difference between “throwing” a gun, as in Scalia’s hypothetical, and “providing” a gun, as in the real facts of Enmund.

  Scalia repeated his hypothetical: “Please, please. I don’t understand your response to the … hypothetical I put to you. Never mind the triggerman. The person who tosses the gun to the triggerman. There is no way in which he has an intent to kill within the constitutional rule; is that right? … He doesn’t care whether the policeman lives or dies.”

  Scalia persisted: “But the triggerman asks for a gun. ‘Toss me a gun.’ He tosses him the gun.… That wouldn’t be enough?”

  I was reminded of Chief Justice Burger’s bear-baiting hypothetical in the I Am Curious (Yellow) case, but this time the stakes were much higher. I answered the justice’s question: “No. That wouldn’t be enough. And that is not this case in any event. This case is handing guns over, under an agreement that no shooting would take place. In Enmund the guns were also provided. What Your Honor, Justice Scalia, is asking for, in a sense, is a return to the felony-murder rule where guns are provided.”

  Justice Scalia didn’t seem satisfied with my answer, so I threw a hypothetical back to him—law professor to law professor: “And to throw a hypothetical back, which I’m not entitled to do, but I’ll throw it back to myself.… What if there were a statute saying anyone who provides guns to an armed robber in the course of an armed robbery whereby death results is guilty of first-degree capital murder? That would be clearly within Enmund. That’s what Enmund decided. Because the facts of Enmund were exactly that.”

  The dialogue continued, with Justice Scalia asking me whether Enmund himself had “provided the gun” to the actual triggerman.

  I was prepared for this question because I had read the transcript of the Enmund case in anticipation of being asked about it. The only advantage a lawyer has over the judges in arguing on appeal is superior knowledge of the facts of the case. That’s why I always immerse myself in these facts before arguing. I was ready to respond to Justice Scalia’s challenge: “The state certainly argued that [Mr. Enmund] had provided the gun in [the Enmund case]. The gun had belonged to his common law wife. He then disposed of the gun. Certainly, a reasonable judge and jury could conclude that he had provided the gun.”

  I then compared the facts in Enmund to those in Tison: “[Enmund] was the one who planned the robbery. In this case, these young boys were brought in … at the last minute. One of the codefendants, Greenawalt, directed what went on in the penitentiary. Their father directed what went on thereafter. There was never a time when they could have left their father’s side, when the father left any of them alone, the three of them, so that they could leave. These are young kids under the control of their father.”

  I concluded my opening argument by acknowledging the responsibility of the brothers for the prison escape, but insisting that they could not be executed for the unanticipated murders: “Nobody is denying their responsibility for these serious crimes of kidnapping, breakout of prison. But then after the crime was completed, after the car was taken, the father then, without any necessity … as the courts found—no necessity at all—could have easily have left them there … the father and the other defendant, on their own, after sending the boys away, made a shocking and surprising decision to kill this family in cold blood. This is just like Enmund. In Enmund there was spontaneity. It was not part of the original plan. After the co-defendants left Enmund and went into the house, something unexpected happened. In this case it was the father who did something unexpected. In the [Enmund] case it was the gunman. A family was tragically killed in both cases. This Arizona case is an attempt to relitigate Enmund.”

  I then made a final pragmatic appeal to the court’s own overcrowded docket, about which several of the justices had frequently complained: “And we will hear relitigation after relitigation in every state if this court allows every state to redefine intent the way it chooses to redefine it.”

  I sat down, satisfied that I had made the best possible argument for my clients. Now it was the State of Arizona’s time to argue. The attorney general was hardly interrupted as he delivered his argument. After a while, he too was asked a hypothetical, but one much closer to the facts of this case: “Supposing right after they stopped the car with the family in it, the two boys, instead of following along as they did, had just gone on a hike, walked away half a mile, and then the father … killed the family?”

  The attorney general seemed unprepared for this question and made an important concession, acknowledging that this “would be different” and that the brothers’ “presence at the scene” was “essential.” He insisted, however, that they were “present,” even if not right next to the car in which the shootings occurred. He also conceded that “I can’t stand here today and tell you that [the brothers] knew … at that time that the trigger would be pulled.”

  I had just a few minutes for my rebuttal. In light of the attorney general’s concessions, I decided to point the court to the record evidence that the brothers were not at the scene of the crime and did not foresee that their father and Randy would kill the Lyons family: “First, there is a specific finding [by the lower court] on page 336 that it was not essential to the defendants’ continued evasion of arrest that these persons be murdered. Second … there is not a single statement in this record [that] does not consistently say that the boys, all three of them, were sent away to get water.”

  I then pointed out that the evidence in this case led overwhelmingly to the conclusion that they wer
e not present and that they had deliberately been sent away to get water—been tricked into believing the family would be kept alive—precisely because their father knew that they did not want anyone to die. Picking up on the attorney general’s surprising concession, I pointed out that “the state concedes that it is essential to this case that they be present at the scene of the crime. Why is presence essential? [Because it is] relevant to the intent of the defendants [, and the defendants’ intent was to ensure that the Lyons remain alive].”

  I was satisfied that I had done the best I could with the facts and the law. If the court were to reaffirm the principles of Enmund, and apply them fairly to the facts of our case, we would win. The justices seemed to acknowledge that if there was no evidence that Ricky and Raymond had the “specific intent” to kill the Lyons family, “that’s the end of the case.” I was confident that when the justices reviewed the entire record, which clearly they had not done prior to the argument, they would find that there was no such evidence.

  And I was right—at least about that!

  Several months after the argument, I received a midmorning phone call from the ABC News legal reporter.

  “They just decided the Tison case,” he told me.

  “Did we win or lose?” I asked nervously.

  “I can’t tell. It’s quite confusing. It’s five to four. Let me fax you the opinion. And you tell me.”

  I read each page as it came out of the fax machine.

  The majority opinion began its analysis with the following acknowledgment:

  Petitioners argue strenuously that they did not “intend to kill” as that concept has been generally understood in the common law. We accept this as true. … As petitioners point out, there is no evidence that either Ricky or Raymond Tison took any act which he desired to, or was substantially certain would, cause death.10

  When I read these words, I thought that we had surely won a complete victory. That was precisely what I had argued. The court had accepted my argument in full. It should have followed from this acceptance that, in the words of one of the justices, “that’s the end of the case.” But it was only the beginning.

  I suspected we might be in trouble when I saw that Justice Sandra Day O’Connor, who had dissented in Enmund, was now writing the majority opinion in the Tison case. After acknowledging that I was right about the Tison brothers not having intended to kill, as intent had been traditionally understood by the law, Justice O’Connor proceeded to move the goal line, by expressing dissatisfaction with the traditional rule that had been established in Enmund:

  A narrow focus on the question of whether or not a given defendant “intended to kill,” however, is a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murderers. Many who intend to, and do, kill are not criminally liable at all—those who act in self-defense or with other justification or excuse. Other intentional homicides, though criminal, are often felt undeserving of the death penalty—those that are the result of provocation. On the other hand, some nonintentional murderers may be among the most dangerous and inhumane of all—the person who tortures another not caring whether the victim lives or dies, or the robber who shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim’s property. This reckless indifference to the value of human life may be every bit as shocking to the moral sense as an “intent to kill.”11

  She then went on to create an entirely new category of crime that warranted execution even in the absence of a specific intent to kill:

  We hold that the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result.12

  This new category—a killing by a triggerman that reflected “a reckless disregard” for life by the nontriggerman—had not been the basis for the Arizona court’s decision. Nor had it been argued by the Arizona attorney general. Neither had we been given an opportunity to argue against it, because the justices seemed to agree that if there was no intent to kill—which they had now ruled there was not—that would be “the end of the case.” The majority had simply concocted a new rule out of whole cloth and applied it in ex post facto fashion to our case. They seemed determined to overrule Enmund, without appearing to be doing so. It was judicial activism to the extreme.

  But the Supreme Court could not simply apply this new rule to the old facts of the Tison case. The Arizona courts had never found that the condemned brothers had shown “a reckless disregard for human life,”13 since that was not the governing criterion prior to the Supreme Court announcing its brand-new rule. As I read the last words of the majority opinion, I saw that they had “vacated” the death penalty against my clients and remanded the case back to the Arizona courts “for determination” whether the Tison brothers met this new criterion. Had they simply “affirmed” the judgment—the death sentence—the case would have been over, and the Tison brothers would have been gassed to death, but by “vacating” the death sentence, the justices gave us a new beginning.

  We were still alive. More important, so were Ricky and Raymond. Their fates would now be in the hands of the Arizona courts, which could not order them executed unless they could make a finding that these boys had shown “reckless indifference” or “disregard” for human life. The concessions made by the attorney general in response to the justices’ questions would help us demonstrate that the Tison brothers did not fit this new criterion. It was a bad day for the campaign against capital punishment, but a hopeful one for my clients Ricky and Raymond, who were no longer under sentence of death—at least for the moment.

  The State of Arizona continued to seek the death penalty and asked the trial court to find that the Tison brothers possessed “a reckless indifference to human life.” Without even conducting an evidentiary hearing, the trial court reimposed death sentences, concluding that the trial record itself demonstrated reckless indifference. The judge refused to allow us to introduce any evidence that might contradict his “finding.” A new execution date was set.

  We appealed to the Arizona Supreme Court, which had affirmed the original death sentence. This time the court unanimously reversed the trial judge, vacated the death sentences, and remanded the case back to the trial judge, ordering him to give us an opportunity to introduce “additional evidence” relating to whether the boys were recklessly indifferent to human life. We relished the opportunity, confident that a full exploration of the facts would lead to the inescapable conclusion that Ricky and Raymond were anything but indifferent to the fate of the Lyons family. They desperately wanted them to live.

  Eventually, after a long and torturous road through the Arizona courts, the death penalties against Ricky and Raymond Tison were reversed. They would not be executed, despite the Supreme Court’s green light. Once again, as with the issue of obscenity, the high court did not get the last word. We refused to give up, and in the end we prevailed. Ricky and Raymond will be eligible for parole and may eventually go free after serving long prison terms. Greenawalt, the actual triggerman, who was represented by other lawyers, was executed.

  Following the reversal of their death penalties, one of the brothers wrote me a letter from prison saying that his minister had told him that Jews can’t go to heaven. My client pleaded with me to convert to Christianity so that we could spend eternity in the same place. I wrote him a nice letter back saying that Jews believe that they can go to heaven. He wrote back telling me that he had decided to become a Jew, because he wanted to be sure he would be in the same heaven alongside the man who had saved his life. I replied, assuring him that Jews and Christians go to the same heaven, so that he didn’t have to convert.14

  15

 
USING SCIENCE, LAW, LOGIC, AND EXPERIENCE TO DISPROVE MURDER

  Von Bülow, Simpson, Sybers, Murphy, and MacDonald

  INTRODUCTION

  In 1881, Oliver Wendell Holmes, Jr., taught us that the life of the law has not been logic—it has been experience.1 Recent experience has dramatically changed the way murders are prosecuted and defended.

  The crime of murder is as old as human nature. Virtually every important work of fiction and nonfiction includes accounts of murder, or murder trials, and of unsolved homicides. The Bible recounts the murder of Abel by Cain.2 That crime was solved by God questioning Cain: “Where is your brother Abel?” Cain’s evasive answer—“Am I my brother’s keeper?”—convinced God, and the reader, of Cain’s guilt.3 Shakespeare’s “perfect” murder is committed by Hamlet’s uncle pouring poison into the ear of the king.4 That crime too is solved by provoking the killer into demonstrating his guilty conscience. Both the Bible and Shakespeare also recount cases in which innocent people are framed by planted evidence: Potaphor’s wife frames Joseph;5 and Iago frames Desdemona.6 Dostoevsky creates an interrogator so subtle that Raskolnikov needs to confess.7 Sherlock Holmes solves murders through observation, deduction, and primitive science. Then came the lie detector, ballistics testing, fingerprint matching, voice analysis, and other techniques that purported to be based on science.8 Throughout history, we have relied on eyewitnesses, informers, and accessories. Now we have DNA.