Tison v. Arizona – Oral Argument – November 03, 1986

Media for Tison v. Arizona

Audio Transcription for Opinion Announcement – April 21, 1987 in Tison v. Arizona

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William H. Rehnquist:

We will hear arguments next in Tison versus Arizona.

Mr. Dershowitz, you may proceed whenever you’re ready.

Alan M. Dershowitz:

Thank you, Mr. Chief Justice, and may it please the Court:

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.

It also acknowledges the categorical rule, as this Court categorized it in Cabana, precluding any state from executing, quote, a person who has not in fact killed, attempted to kill, or intended that a killing take place–

Byron R. White:

Did you say the state concedes what?

Alan M. Dershowitz:

–The state concedes that there was no specific intent to kill, and that there was no killing.

What do you mean by that?

Alan M. Dershowitz:

Well, I’m using the state’s language.

The state says, in its brief, the original conclusion–

Byron R. White:

Well, whatever the state says, what about the Supreme… what did the Supreme Court of Arizona find?

Alan M. Dershowitz:

–It also found, in its first appeal, that there was no specific intent–

Byron R. White:

Well, what about the second?

They recited the facts and said that the evidence demonstrates beyond a reasonable doubt that petitioner intended to kill.

Alan M. Dershowitz:

–Intended.

But they made a distinction between specific or individualized intent–

Byron R. White:

Where?

Where is that?

Alan M. Dershowitz:

–Well, I real from the state’s response on cert where it says, the original conclusion–

Byron R. White:

I’m talking about the Supreme Court of Arizona.

Alan M. Dershowitz:

–But the state has construed and interpreted the Supreme Court’s opinion in this matter.

Byron R. White:

I know.

But we have to look… we’re reviewing that judgment.

Alan M. Dershowitz:

The Supreme Court of Arizona made no statement at all in the second appeal about whether there was specific intent or not.

They just said, intent.

And I think one can reasonably read the second opinion and the first opinion.

The first opinion said there was no specific intent.

The second opinion said there was intent.

Byron R. White:

There’s a difference between intent and specific intent?

Alan M. Dershowitz:

It was the very difference that was raised in this Court in Enmund, and the argument that was made in Lockett: actual intent versus presumed intent, or actual intent versus legal intent.

Alan M. Dershowitz:

And what the Court was saying–

Byron R. White:

Well, I thought the… I thought, as I read their second opinion, they went through these facts, and they found intent, based on those facts, beyond a reasonable doubt.

Alan M. Dershowitz:

–They found beyond reasonable doubt–

Byron R. White:

What are we supposed to do about that?

Alan M. Dershowitz:

–Well, you’re supposed to ask the question, how did they construe the word “intent”.

The issue before this Court is the legal interpretation of intent.

Put another way, can the Arizona Supreme Court now can define forseeability as intent, after this Court stated in the Enmund case, in specific response, by the way, to an argument made by the Arizona Supreme Court, the very argument it makes here was made by the Arizona Attorney General–

Florida.

Alan M. Dershowitz:

–as amicus, as amicus… they filed an amicus brief in the Enmund case… and they argued, quote, it is just as proper to say that one who felony murdered through a risk creation was at fault for the death as it is to say that one who premeditatedly murdered was at fault for this death.

And they should be treated similarly.

The same argument was made by the Florida Attorney General, and was explicitly rejected by this Court in Enmund, as it was, Your Honor, rejected by you in the Lockett case, when in Lockett… remember that in Lockett the Florida court had found… had found that the defendant had acted purposefully.

And then Your Honor, in your opinion in that case, said, purposefully, however, cannot mean presumptively purposefully.

It has to be actually purposefully.

And that’s what was not found in this case.

So what we have here is an attempt essentially to relitigate the identical issue decided by the Enmund case, because that case was presented precisely to this Court.

Can foreseeability be interpreted to mean constructive intent?

This Court?

Antonin Scalia:

What degree of foreseeability under our test do you think is permissible?

What about–

Alan M. Dershowitz:

Yes, yes.

There is a degree of foreseeability, and that’s the degree of foreseeability this Court set out in the Enmund case, and I quote its language:

It would be very different if the likelihood of a killing in the course of a robbery was so substantial that one should share the blame for the killing if he somehow participated in the felony.

And then the Court went on to define it:

Competent observers had concluded that there is no basis in experience for the notion that death so frequently occurs in the course of a felony, for which killing is not an essential ingredient, that the death penalty would be warranted.

Antonin Scalia:

–What about supplying the inmates of a prison who were planning a breakout with substantial quantities of arms in order to break out?

What are the probabilities there?

Alan M. Dershowitz:

Well, in this case, what happened is, the Attorney General of the state argued to the jury that it was part of the plan, of the breakout, not to fire any weapons.

Had any weapons been fired, the breakout would have failed.

That was the plan that was used.

And it succeeded.

Alan M. Dershowitz:

There was not a shot fired.

There had been a promise made by the boys’ father to them that no shots would be fired.

The plan was carefully calculated–

Antonin Scalia:

And you think that’s enough to eliminate the probability, the mere fact that he got a promise from the–

Alan M. Dershowitz:

–No, no.

No, no.

Oh, no, of course not.

Antonin Scalia:

–incarcerated felon that he wouldn’t fire these guns that were delivered to him?

Alan M. Dershowitz:

No, it was the method of the plan.

That is, a plan was devised to avoid the possibility of shooting.

That plan worked.

Not a shot was fired.

Not a shot was fired until two or three days later, when the father took the young boys by complete surprise, tricked them into being sent away for water.

And the boys at that point certainly were entitled to rely on a promise, as the court below found… and this is a very crucial finding.

Both the trial court and the Court of Appeals found, the killing in this case was not necessary to the carrying out of the felony, almost as if to answer the Enmund point, saying, if it was so essential to the felony, that would be different.

But they found, as part of the aggravating factors, ironically, that it was not necessary.

William H. Rehnquist:

When you say the Court of Appeals, Mr. Dershowitz–

Alan M. Dershowitz:

The Supreme Court.

William H. Rehnquist:

–you mean the Supreme Court–

Alan M. Dershowitz:

The Supreme Court of Arizona found, as did the trial court, that the killings here were not necessary.

If they were not necessary, they were also not predictable.

I mean the killings of the Lyons family.

Obviously, there were two situations here, the breakout at the prison, carefully planned after a promise.

Not a shot was fired.

Had a shot been fired, the prosecutor said the plan would have failed.

That’s why no shots were fired.

Three days later, the father takes the young boys when he’s holding a family hostage and says, in response to the pleas of the victims, please go back and get us water and keep us alive, the father says to the boys, go get them water so they can be kept alive, as the boys interpreted it.

The father then disables the car so it can’t be used.

The message was clearly sent to those two boys, that father is not going to kill.

The boys are then not in a position of control when the father kills.

Byron R. White:

–Mr. Dershowitz, suppose we read the Supreme Court opinion as saying specific intent or any other kind of intent that satisfies Enmund we found to be present in this case?

Then we must go and say, what?

What would then be our standard to review?

Alan M. Dershowitz:

There is no way, Your Honors, with all due respect, of reading the Arizona Supreme Court decision as finding specific intent.

They categorically do not find specific intent, and they could not on the record in this case.

Byron R. White:

Just accept my assumption for the moment, that that’s the way we read it.

Now, what would be our standard, then, of reviewing that finding?

You’re arguing the facts.

Alan M. Dershowitz:

Oh, no, no, no.

We’re arguing that this Court has made a legal, constitutional conclusion as to what kind of intent must be found.

Yes, yes.

Alan M. Dershowitz:

Your Honor in Lockett characterized it as purposefulness.

The Supreme Court in this case… in Enmund, found it as intent in fact.

What this Court has done is, it’s taken a different concept, foreseeability, a concept that was rejected in Enmund, and it said, magically, we now redefine foreseeability to mean intent.

If that were allowed to stand, any state could now circumvent this Court’s decision in Enmund and say, well, recklessness means intent.

Well, carelessness means intent.

When this Court said intent–

Byron R. White:

Well, again, just suppose we don’t understand the Supreme Court of Arizona to have applied a legal standard–

Alan M. Dershowitz:

–It did.

Byron R. White:

–Well, I know but–

Alan M. Dershowitz:

It did, and the Attorney General acknowledges it did.

Byron R. White:

–You say it, but I’m not all that much convinced.

So if I’m not convinced, what am I supposed to do with this case?

Alan M. Dershowitz:

Well, I think first you should ask the Attorney General of Arizona, and he will tell you that’s he convinced, because it’s clear.

Byron R. White:

Well, no, but give me some advice.

What should I do if I think that the Supreme Court of Arizona purported to apply the right standard of intent?

Then do I go through these facts and say, well, they just made a mistake?

Alan M. Dershowitz:

No, no.

Because if you can’t–

Byron R. White:

Or there’s no evidence to support their finding?

Alan M. Dershowitz:

–Well, there is no evidence to support that finding.

That is clear.

There is no evidence to support a finding of specific intent.

Byron R. White:

Well, if that’s true, of course, that’s the end of the case.

Alan M. Dershowitz:

That’s the end of the case.

Your Honor, we think that’s the end of the case.

But we think not only can there be no finding… and that’s, by the way, what distinguishes this case from Cabana v. Bullock.

In Cabana v. Bullock, counsel conceded their could be a finding on the record of intent under Enmund.

In this case, we categorically dispute that.

The State of Arizona agrees with us.

And the Arizona Supreme Court used the following language in defining intent:

Intent to kill includes the situation in which the defendant intended–

Byron R. White:

Where are you reading… what are you reading from?

Alan M. Dershowitz:

–From the Arizona Supreme Court’s decision, second appeal.

Byron R. White:

Where… on what page is that?

Alan M. Dershowitz:

On page–

Byron R. White:

This is the second, not the first, appeal?

Alan M. Dershowitz:

–On page 345.

Intent to kill includes the situation in which the defendant intended, contemplated, or anticipated that lethal force would or might be used.

That is simply not the definition of specific intent.

It is not the American Law Institute’s definition.

It is not the definition in any state.

It is the exact difference between specific intent, which is a subjective, personalized standard, and an objective intent, which is an objective, depersonalized standard of, in this case, recklessness.

And I don’t think the Arizona Attorney General will in candor try to argue here what he has never argued in the brief and what he has never argued below, and that is, that there was a specific finding of specific individualized intent.

I think it is clear that what the state did here is, it redefined intent to fit the facts of this case into the Enmund holding on intent.

Now–

Antonin Scalia:

Mr. Dershowitz, I’m still not clear on what you mean by specific intent.

I thought you had agreed that probability is enough; that if you intend to do something which, although you don’t intend that somebody die, it is very probable–

Alan M. Dershowitz:

–No, that was not–

Antonin Scalia:

–that somebody’s death would come from that–

Alan M. Dershowitz:

–No, Justice–

Antonin Scalia:

–that is not enough for your–

Alan M. Dershowitz:

–That is not enough, Justice Scalia.

What is enough–

Antonin Scalia:

–Well, what if I’m committing a felony, and I’m carrying a gun, and a police officer comes toward me to stop the felony and I shoot at him?

Alan M. Dershowitz:

–Yes.

Antonin Scalia:

I frankly don’t care whether he lives or dies.

I just want to prevent him from stopping the felony.

Alan M. Dershowitz:

That would be–

Antonin Scalia:

Now, I do not have–

Alan M. Dershowitz:

–That would be enough for a trigger man.

A trigger man who shoots with reckless disregard for human life… let me explain why–

Antonin Scalia:

–It’s just probability, then, right?

Alan M. Dershowitz:

–No, it’s not just probability.

The trigger man has control.

And the law has always been clear.

When you shoot into a moving bus; when you’re a terrorist and you shoot into a crowd; when you’re shooting from a fleeing… from a policeman when you’re fleeing, that is specific intent.

Because what you’re doing is, you’re shooting without regard to the consequences.

In this case, not only did the defendants not intend to kill.

The intended not to kill.

They–

Antonin Scalia:

So if I through the gun to the trigger man, as the policeman’s approaching him, he says, I need a gun, and I throw the gun to him.

And again, I don’t care whether he kills the policeman or not.

Alan M. Dershowitz:

–In that case–

Antonin Scalia:

I don’t have intent to kill?

Alan M. Dershowitz:

–In that case, courts might argue that it’s part of the res gestae, that you were there, you threw the gun.

This is a very different case.

Antonin Scalia:

Probability is always involved, isn’t it?

Well, res gestae is a rule of evidence.

Alan M. Dershowitz:

That’s right.

Alan M. Dershowitz:

And it might conclude… the res gestae is a rule of evidence, and it would be for this Court to determine whether or not… and after all, this Court has said, constructive presence is not enough; constructive killing is not enough.

It is often an argument that this Court has been involved in as to whether something is actual or constructed.

And in the felony murder death penalty issue, this Court has demanded actual rather than constructive.

William H. Rehnquist:

But you’ve just agreed, I though, with Justice Scalia that actual intent in the pristine sense of that word, I shoot at you intending to kill you–

Alan M. Dershowitz:

Right.

William H. Rehnquist:

–is not required here?

Alan M. Dershowitz:

For a trigger man, it is not required in the one case where he shoots knowing that there is an extremely high likelihood that death will result, not caring which person he kills.

That was the origin of the felony murder rule, not caring which person he kills.

William H. Rehnquist:

Well, but how can you be sure that that is the only exception to the requirement of pristine intent?

Certainly Enmund does not say, this example and this example only is the exception?

Alan M. Dershowitz:

Yes, it does.

It has one example.

It says, it would be very different if the likelihood of killing was so substantial.

And then it talks about a felony for which killing is an essential ingredient.

Terrorism is an example of that.

Here–

William H. Rehnquist:

Yes, but these are your examples, simply drawn from far more general language than Enmund.

Alan M. Dershowitz:

–No, no.

This is the… this is the example that’s in Enmund.

I am responding to Justice Scalia’s question by saying that intent for the trigger man may very well be different than intent for the non-trigger man.

The non-trigger man does not control the situation.

Think of the facts in this case.

The boys, young boys, are promised by their father that there’ll be no shooting.

There is no shooting.

The boys honestly believe and intend that no one will die.

It’s not only that they don’t intend anyone to die, or they’re not concerned for human life.

They intend specifically that no one will die.

They do everything reasonably within their power to assure that no one dies.

The father knows that, and has to trick them… except in the beginning–

0 xxx.

Alan M. Dershowitz:

–Your Honor, they should be punished.

And they are being punished, very severely, for the separate crime of bringing guns in, of breaking their father out of prison.

The only issue in this case is whether they had the intent required for a non-trigger man for execution.

These young boys will spend the rest of their lives in prison for the very serious crimes they’ve committed.

They have provided guns–

Antonin Scalia:

But that depends to some extent on probability.

I didn’t understand–

Alan M. Dershowitz:

–Your Honor, Lockett provided guns.

Antonin Scalia:

–Please, please.

I don’t understand your response to the second hypothetical I put to you.

Never mind the trigger man.

The person who tosses the gun to the trigger man.

There is no way in which he has an intent to kill within the Constitutional role; is that right?

Alan M. Dershowitz:

Well, of course if he has an intent to kill.

But there’s no way that act alone–

Antonin Scalia:

No, he doesn’t… he doesn’t care whether the policeman lives or dies.

But the trigger man asks for a gun.

“Toss me a gun”.

He tosses him the gun.

Could he be–

Alan M. Dershowitz:

–First of all, the defendant who doesn’t care whether defendant lives or dies is in a very different situation from these defendants who cared deeply that someone lived, not died.

Antonin Scalia:

–I understand.

But please answer my hypothetical.

I’m trying to see what your theory of intent is?

Alan M. Dershowitz:

The theory of intent is that for a trigger man, recklessness in the sense of absolute disregard for human life is enough.

For a non-trigger man it is not.

You have to have a specific intent.

And–

Antonin Scalia:

And the answer to my hypothetical is?

Alan M. Dershowitz:

–No, it would not be enough for a trigger man… for a non-trigger man to have thrown a gun to somebody without intending to–

Antonin Scalia:

He says:

“There’s a policeman coming. “

“Throw me a gun quick. “

That wouldn’t be enough?

Alan M. Dershowitz:

–That wouldn’t be enough.

No, no.

And that is not this case in any event.

This case is handing guns over under an agreement that no shooting would take place.

No shooting… this is Lockett.

In Lockett, he gave him the guns, too.

In Lockett the guns were provided.

In Enmund the guns were provided.

What Your Honor, Justice Scalia, is asking for, in a sense, is a return to the felony murder rule where guns are provided.

And to throw a hypothetical back, which I’m not entitled to do, but I’ll throw it back to myself, what if the defendant… 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.

There is no difference between this case and Enmund, except that this case is far more compelling.

In this case, there was an intent not to kill.

This was–

Antonin Scalia:

0 xxx.

In Enmund, had he provided the gun?

Alan M. Dershowitz:

–The state certainly argued that he had provided the gun in Enmund.

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.

It was an armed robbery.

He was the one who planned the robbery.

In this case, these young boys were brought into the robbery at the last minute.

One of the codefendants, Greenawalt, directed what went on in the penitentiary.

Alan M. Dershowitz:

Their father directed what went on thereafter.

They had no… there was never a time when you 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.

William H. Rehnquist:

Well, they were 18 and 19 at the time?

Alan M. Dershowitz:

They were 18 and 19.

No prior criminal records.

Their father had made them a promise.

Their father had been planning a breakout for awhile.

They were brought into it at the very last minute.

No shots were fired.

Three days later… or 2-1/2 days later… their father had to send them away, again, to trick them and fool them into believing no shooting would occur.

And when they were away from the scene, or close, or coming back, the father… and there’s no dispute about this–

William H. Rehnquist:

You’re resolving all the factual doubts in favor of your clients, it seems to me.

And we have to take the facts, presumably, as found by the Arizona court.

Alan M. Dershowitz:

–Your Honor, we are willing to have the facts taken in the light least favorable to the defendants, as the Arizona Supreme Court found them.

Because there is no dispute about the fact that they didn’t kill.

There is not dispute that the father sent them away.

There is no dispute that they were carrying small arms, and the father was carrying–

William H. Rehnquist:

Well, you say there are no dispute about these facts… you say that there are no dispute about these facts.

You’re presumably relying on testimony of one of the parties.

But the courts don’t have to rely… don’t have to take the testimony of any interested witness.

Alan M. Dershowitz:

–What happens–

William H. Rehnquist:

Even though it’s not disputed.

Alan M. Dershowitz:

–Well, here’s the situation: Were it not for the statements of these young boys, there’d be no evidence they committed the crime.

The only evidence of their involvement comes from the statement.

William H. Rehnquist:

Well, the state isn’t… the trier of fact is entitled to believe what it wants and disbelieve what it wants.

Alan M. Dershowitz:

Not under Arizona law, Your Honor.

No, under Arizona law, a document, a statement, an admission, cannot be taken apart and believed for one purpose and not believed for another, when there is no dispute about the facts.

There is no way, Your Honor–

William H. Rehnquist:

Well, Arizona… if that… Arizona law has changed a great deal since I practice there, then.

Alan M. Dershowitz:

–It may have.

But Your Honor, there’s no way under Arizona law… and I’d be interested to see what the Attorney General says about this… in which where an undisputed fact is made as part of a statement in a confession, and that is admitted into evidence, where undisputed, the trial court can disbelieve that and believe its opposite.

If one even ignores it, there is no evidence on the issue.

But there is absolutely not a shred of evidence in the record of this case which could lead a fact finder to the opposite conclusion, which could lead a fact finder to determine that there was specific intent.

That’s why Arizona concedes there’s no specific intent.

Thurgood Marshall:

Mr. Dershowitz, are your facts the same as are in the opinion of the court?

Alan M. Dershowitz:

We of course accept the facts that are in the opinion of the court.

Thurgood Marshall:

Well, you’ve been arguing those, so certainly those facts are accurate.

Alan M. Dershowitz:

Those facts are accurate.

There’s no dispute between what the majority found and what the dissent found or what the Arizona Attorney General finds.

There is a set of facts.

There is surmise or speculation one can engage in.

But Arizona law does require that these facts be found beyond a reasonable doubt.

Mr. Dershowitz, excuse me for interrupting you in the middle of a sentence, but you read from page 345 of the opinion of the Arizona Supreme Court.

Take a look at 346, and I’ll direct your attention to some language that may be relevant to the question of intent.

Alan M. Dershowitz:

Right.

Three forty six, the carryover paragraph.

Start with the sentence beginning with: Thus–

Alan M. Dershowitz:

Yes.

–petitioner could anticipate the use of lethal force during this attempt to flee the confinement; in fact, he later said that during the escape he would have been willing personally to kill in a

“very close life or death situation. “

and that he recognized that after the escape there was a possibility of killing.

And down at the bottom of the page, at the beginning of the last paragraph: From these facts… and a number of others are stated on that page… we conclude that petitioner intended to kill.

Petitioner participated up to the moment of the firing of the final shots… the fatal shots… were substantially the same as that of Gary Tison and Greenawalt.

Alan M. Dershowitz:

Your Honors, we invite, and urge, in fact, the Court to read in full the statement from this

“very close life or death situation. “

statement comes.

Because it’s very clear what the boys saying is, afterward we realized that there was a possibility that life could be taken.

We certainly didn’t want it to be taken.

We didn’t really think about it.

Alan M. Dershowitz:

That was the actual statement.

Did the young men carry guns throughout the whole escape?

Alan M. Dershowitz:

The young man carried small guns throughout the escape; never fired the guns.

Didn’t they participate in stopping the automobile?

Alan M. Dershowitz:

Without… yes.

Without a gun, one of the young boys was, as he put it, elected–

They had the guns with them?

Alan M. Dershowitz:

–by the father… without the gun… the young boy was elected to go and wave the car down.

Yes.

Alan M. Dershowitz:

He knew, because the father told him, that the car would be taken.

The car was taken.

The transfer was made.

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.

There are findings by the Arizona Supreme Court that it was not necessary, that it was spontaneous, it was not part of the original plan.

This is just like Enmund.

In Enmund there was spontaneity.

It was not part of the original plan.

After Enmund left the person to go into the house, something unexpected happened.

In this case it was the father who did something unexpected.

In the other case it was the gunman.

A family was tragically killed in both cases.

This Arizona case is an attempt to relitigate Enmund.

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.

Nobody again disputes… and I want to reserve the rest of my time for rebuttal… the fact that these young men wanted nobody to die.

They were tricked into standing away while the father slaughtered the family in the middle of the night.

That is the finding of the Arizona Supreme Court.

The issue in this case is whether or not that kind of nonspecific intent, foreseeability, can be redefined to mean the kinds of intent that this Court said is constitutionally required to execute under Enmund.

William H. Rehnquist:

Thank you, Mr. Dershowitz.

We’ll hear now from you, Mr. Schafer.

William J. Schafer, III:

Mr. Chief Justice, and may it please the Court:

I believe this case raises three issues that stem from Enmund.

The first, I believe, is whether Arizona courts adequately addressed the Enmund issue at all.

The second, I believe, is whether Enmund prohibits a death sentence for someone who did not do the actual act of killing.

And the third is, what should this Court do with a state court finding of fact that Enmund has been complied with, as there was such a finding here.

I will address those three issues, in that order.

First, did Arizona adequately address the Enmund issue to begin with?

And I believe that it did.

A defendant’s participation, relative to the participation of the others, has, since 1974, always been a concern in death penalty cases in Arizona.

One of the statutory factors that may mitigate a sentence is a defendant’s minor participation in the crime, again compared to other participants in the crime.

Whether or not the defendant raises that point in the trial court, which is the sentencer in the State of Arizona, the sentencer must determine what the extent of the defendant’s participation was; and if it was minor, according to the statute, that may… but it does not necessarily… mean that the sentence may be mitigated.

Now prior to about 1978, the consideration that was given to that particular factor, the minor participation, was rather perfunctory.

That changed, however, with the Lockett opinion, and the questions it posed as to whether a death sentence could be imposed on one who had no intent to kill, which was the language in Lockett.

This case, I believe, is an example of that change.

Here the trial court had before it the two statements of each of the petitioners, that each of them gave prior to their trials.

The reports the trial court also had of the probation department, one of which contained a very detailed summary of a conversation with Raymond Tison; and the trial court also had the evaluation report of each petitioner that was done by a court appointed doctor named Doctor–

Which one was Raymond Tison?

William J. Schafer, III:

–Well, Your Honor, all I can tell you is, he was the younger of the two, I believe.

He was the one who drove eventually the Lincoln off into the bushes at apparently the request of his father.

He was the one who also said that he believed that the boys were at the Mazda when the actual shootings took place.

Ricky, however, tells a different story.

Also, each petitioner… and the state, as a matter of fact… submitted written memos to the trial court, prior to the sentencing, arguing the aggravation and the mitigation, specifically addressing themselves to Lockett, and the question it raised of intent and limited participation.

The state, in those memos, argued that a death penalty could be imposed for murder felony; and the petitioners argued, among other things… they had a rather lengthy memo… that they had no intent to kill, and that under Lockett, their participation was so minor, their participation was so limited, that a death sentence would be disproportionate to their involvement in the crime.

After a joint sentencing… and the sentencing was joint as to both petitioners here and also as to all the crimes committed; and that, by the way, involved actual live evidence other than the statements I’ve mentioned, concerning not only this case, but the other crimes that were committed… after that hearing, the trial court said that he disagreed with the petitioners’ arguments.

He said that their involvement was not minor; that they were active and equal participants right up to the moment of the shooting; and that they had to share equal blame with everyone else.

Then that point, the extent of their participation, was specifically argued in briefs and argued orally to the Arizona Supreme Court by both petitioners on a direct appeal.

And the Arizona Supreme Court, after its own independent review of the record which it does in every death penalty case in Arizona, the Arizona Supreme Court came to the same conclusion as the trial court.

The participation of each of the petitioners, they said, was not minor.

It was substantial, said the court, and the blame that they each had was equal to that of the actual killers.

Then the Arizona Supreme Court, citing both Lockett and the Eighth Amendment, said, and I quote: We assent to the retributive principle of justice, which demands that persons be punished in proportion to their personal involvement in the crime, focussing the inquiry on the harm which may fairly be attributed to the participants’ conduct.

William J. Schafer, III:

Now that ended the direct appeal on those murder convictions.

A few years later, this Court announced its decision in Enmund v. Florida.

And following that, both of these petitioners filed state petitions for post-conviction relief.

Again, along with other things, they both contended that Enmund precluded a death sentence in their case.

The state responded, and the trial court denied the petitions without oral argument.

Each petitioner then requested the Arizona Supreme Court to review that dismissal, and the Supreme Court ordered additional briefing, and specifically ordered briefing on the application of Enmund, and ordered briefing on the language in Enmund concerning lethal force.

Oral argument was had in the Arizona Supreme Court on those issues.

And the Supreme Court then delivered an opinion addressing Enmund and its application to the facts.

And the Supreme Court sustained each of the death sentences, holding that the facts were significantly different from Enmund… that’s almost a quote from the Arizona Supreme Court.

And that the Arizona Supreme Court was satisfied beyond a reasonable doubt that the Tisons intended to kill, and that, they said, the dictates of Enmund were satisfied.

Now, from that decision of the Arizona Supreme Court, both Tisons petitioned this Court.

Through all of this, the trial court, twice in the Arizona Supreme Court, two oral arguments in the Supreme Court, the emphasis was on the individual participation of each petitioner, and the individual culpability of each of the petitioners.

In each instance, the penalty was tailored to fit the individual blameworthiness.

Now, I do not believe that Enmund requires anything more than that.

I believe the record will show you that the Arizona Supreme Court did adequately address the Enmund issue.

You’re arguing your first point?

William J. Schafer, III:

Yes.

Go ahead.

William J. Schafer, III:

The second and third issues present, I believe, whether Enmund–

Before you leave the first point–

William J. Schafer, III:

–Yes, Your Honor.

–I take it you do subscribe to the statement on page 345 as the correct test under Enmund: intend to kill includes the situation in which the defendant intended, contemplated, or anticipated that lethal force would or might be use, or that life would or might be taken; that’s sufficient in your view?

William J. Schafer, III:

It is sufficient, and I believe, to a word, those are the words this Court used at various places in the Enmund opinion.

And I’ve attempt to lay those forth in the brief.

The word, I believe, that the petitioners pick up on is the word “might”.

However, the word 458 U.S. page 788, where this Court uses the word “might”.

Now, I did not argue this case in the Arizona Supreme Court.

Would you agree that that definition is broad enough to include any felony murder?

William J. Schafer, III:

No, I do not, Your Honor.

And I believe that the Arizona Supreme Court, from my knowledge of this case, because it was my people who wrote the brief and argue it–

In this case, why did the boys go to get the water?

William J. Schafer, III:

–We dispute, Your Honor, that the boys did go to get the water.

And in my brief, I attempted to lay that forth.

The statement of Raymond Tison says that his father said, after Mr. Lyons asked for water, and don’t kill us, he said, give us water, we’ll be able to stay here until tomorrow afternoon, or words essentially to that effect.

Raymond Tison then says: We went to the Mazda to get the water.

That’s apparently where the water was, and they all knew it.

That is not what Ricky says, however.

Ricky says–

Well, if you were going to shoot a man, would you go get him a drink of water?

William J. Schafer, III:

–You might very well, Your Honor.

And I can’t–

Why?

William J. Schafer, III:

–I can’t–

Why?

William J. Schafer, III:

–I can’t cite you any place in the record that would indicate to you why he said that.

However, it may well have been… we can speculate… that he was trying–

Well, can you speculate on a man’s life?

Can you?

Please, don’t ask me.

William J. Schafer, III:

–I would not speculate on a man’s life.

Thank you.

William J. Schafer, III:

The only thing I intend to speculate on is the answer to your question, which was why would he do that?

Why would he say such a thing–

He did that to keep him from dying of thirst.

That’s what he said.

William J. Schafer, III:

–Your Honor, I don’t believe he said that.

He said he got… he went to keep him from dying.

William J. Schafer, III:

No, I dispute that, Your Honor.

And I don’t believe there is anything in the record that Gary Tison–

But he went to get him water in order to kill him.

William J. Schafer, III:

–Raymond went to get the water, Your Honor.

That’s not what Ricky said in Ricky’s statement.

I’m talking about Raymond.

William J. Schafer, III:

Well, again, the record does not show why Raymond did that.

What it does show is that Raymond went to get the water because he thought that’s what his father was asking him to do.

I believe more correctly, Raymond would not say that my father was asking me to do that.

I think what Raymond says is, that was directed to the boys.

However… and there were three at the time.

One of the brothers is dead, Donny.

There are two left.

However, Ricky does not say that at all.

Ricky Tison in his statements, and he’s consistent throughout those statements, says that they were there when the shots were fired.

As a matter of fact, Ricky says that they watched the shots being fired.

He says, they stood back and they watched.

That’s not what Raymond says.

Raymond’s recollection, according to the statements, is that he was 50 to 75 yards away.

He didn’t see the shots; he heard them?

William J. Schafer, III:

I think he goes further than that.

He says, he heard them and saw the flashes.

Well, he heard it and saw a flash, which meant he wasn’t there.

William J. Schafer, III:

Well, he was a few yards away, yes.

That’s what Raymond says.

That’s not what Ricky says, however.

Mr. Schafter, if I understand your view of the case, the result would still be the same even if they’d been five miles away at the time of the actual killing, because all the preceding events would have clearly satisfied the test?

William J. Schafer, III:

Well, Your Honor, they couldn’t get five miles away–

No, they couldn’t.

But I mean, they really didn’t have to be in the immediate vicinity at the time the killing took place, did they?

William J. Schafer, III:

–No, I believe, for the language of the Arizona Supreme Court… and it fits the facts, I think, perfectly as I’ve laid them out in the brief.

And I do have to admit that there’s a dispute between what Raymond says and what Ricky says as to where they were.

But one of our points that we have argued, and I believe we have argued it consistently, is that these two individuals participated, not only in the underlying felonies, but they actually participated in the murder up to the time the trigger was fired.

But 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 and the older brother, killed the family?

William J. Schafer, III:

I think that would be different, and I would probably be making a different argument to you.

But I also believe–

But would the death penalty be permissible on those facts, given the history of this crime?

I’m trying to find out whether you think their presence at the scene is of constitutional importance or not?

William J. Schafer, III:

–I think their presence at the scene is important, but you have to couple that–

Well, I should have phrased it different.

Was it essential?

Or is it merely a matter of foreseeability?

William J. Schafer, III:

–Oh, no.

I believe, in this case, it’s essential.

If you’re asking me in another case can I envision a case that would satisfy the dictate of Enmund where an individual was not present at the scene, yes, I certainly can.

Why wouldn’t it satisfy it in this particular case if the two younger boys, right after stopping the car and driving it wherever they… down to the end of the road or wherever they were… they just walked away, and were maybe a mile away at the time the father shot the people?

William J. Schafer, III:

Well, my answer to you would be, I think in order to show that these two petitioners contemplated and knew what was going on, that we would probably have to go further than the scenario you’ve given me.

And I think in this case, there is much more than that.

These two petitioners escorted the Lyons family… I have to back up.

There were actually two different drives off the road.

After the car was stopped… during which, by the way, everyone had guns except the man, Raymond, who was standing on the road.

And he says somewhere in the statement, I couldn’t have carried a gun then because it would have been suspicious.

But everybody else… they were astride the road… had guns.

They came out after the car was stopped with the guns drawn.

The first little side trip that was made was then made, I think the record indicates, of the trial testimony, about seven-tenths of a mile off of that highway.

From there, once the cars were stopped and the exchange of goods between the Lincoln and the Mazda was going on, another little drive of the Lincoln was taken, 50 or 75 yards away from that spot.

Now, Raymond did that driving.

Again, he says, at the request of my father, I drove the Lincoln over to that spot 50, 75 yards away.

After that, this family, who was standing back and forth in various places, were escorted to the Lincoln by everyone with guns drawn.

As a matter of fact, I think at one spot in the statement, Ricky says, we always had those guns.

And I would also dispute, I believe, a point Mr. Dershowitz made that the boys only had handguns at the time.

I believe the record will show you that during the prison break, Ricky had a shotgun, which he pointed at the guard behind the glass wall.

Pointed it at him, and as another one came in the room, he pointed it at him.

William J. Schafer, III:

And I believe the statements by Ricky and Raymond would show you, throughout they were armed, whether it was with small guns or with shotguns at various times, we can’t tell.

Now, in this case, in answer to your question, there was something else that was done by each of those.

And to me, it’s very crucial.

They, with arms at side, escorted these people into the Lincoln.

And that is where the discussion took place: Leave us with some water.

We can stay here until tomorrow afternoon.

They escorted these people, and our Supreme Court points that out, to the killing ground.

That’s where they were killed.

They escorted them into the Lincoln.

After that was when Ricky stood back and watched.

He then watched the killing.

Now, I believe that is different than the scenario given me where they walk off.

It does add quite a bit.

And our Supreme Court, I submit to you–

Does it add, because you think it increases the likelihood that they actually intended that the father would do the killing?

William J. Schafer, III:

–Oh, it certainly does.

Because part of what went on… I just gave you the overall–

But then you seem to be suggesting that some degree of actual intent to have a killing occur is part of the inquiry.

William J. Schafer, III:

–I believe under Enmund it is.

Killed, attempted to kill… they did not kill or attempt to kill.

I have to admit that for the purpose of this question.

The question then would be if their participation–

What would your view be if we could know the facts, and of course we can never be sure in a case like this, if you could accept the fact that they were genuinely surprised by the fact that the father actually killed these people?

Would you still come to the same conclusion?

William J. Schafer, III:

–Well, I have a difficult time accepting that fact.

But assuming–

No, I understand that.

But I’m trying to figure out what the… what would your view be if you could accept that fact hypothetically?

William J. Schafer, III:

–No, I believe I could still make a reasonable argument under Enmund that these two petitioners contemplated that lethal force would be used.

Would or might be used.

William J. Schafer, III:

Yes, we have to remember that this entire incident took place over 11 or 12 days, it’s debatable, from July 30 until August 11, possibly 12 days.

The individuals–

Let me just ask one other question.

Do you think the record tells us whether the Arizona Supreme Court thought these boys were genuinely surprised, or thought they actually expected the father to do what they did?

William J. Schafer, III:

–I… the way I read this opinion, it reads no other way than that the Arizona Supreme Court was convinced these individuals were not surprised and they knew what was about to happen.

And I believe that you will see most of that at page 346 of the Joint Appendix.

The Arizona Supreme Court goes through, in the top five-sixths of that page, one fact after another which, to me, leads to the–

Most of those facts are consistent with either reading.

That’s what puzzles me.

William J. Schafer, III:

–With either reading?

Either that they were surprised or they were not surprised.

William J. Schafer, III:

Well, I don’t read them as consistent with, that they were surprised, Your Honor.

If you look at the first paragraph, thus petitioner could anticipate… and he’s only talking about one boy here… the use of lethal force during his attempt to flee confinement.

He then points out that either or both of them actually, although he’s only talking about one, were ready to use the guns.

But that’s talking about what happened in the prison.

That has nothing to do whether they were surprised that their father killed this family.

William J. Schafer, III:

Yes, I just led that… was leading into the next paragraph.

And the way I read that, no.

They would say to you… although they don’t say it specifically in the opinion, they were not surprised.

But I would follow up by saying, I still believe you could make… I could… a reasonable argument that under Enmund, these two individuals anticipated or contemplated that lethal force would be used.

Mr. Schafer, limited to the time when they went to get the water, what is there in the record that shows that they had any inclination that there was about to be a murder, specifically?

William J. Schafer, III:

Your Honor, I, first of all, would disagree that they went to get the water.

But if I were to concede that, that they both went to get the water and during that absence the killings took place, what I would say to you is, as I’ve said in the brief, Ricky Tison says in his statements that I heard… I’m paraphrasing again, of course… Gary Tison, the father, say that I’m thinking about killing this family.

That’s what Ricky says in his statement.

Raymond Tison says that he could see that his father was going through turmoil, although that may not be his word.

And Raymond thought that perhaps it was because the baby was there, this 22-month old baby.

Both of those petitioners, Ricky because he heard his father say that, that I’m thinking of killing this family, and Raymond because he saw him thinking about something as awful as that, he knew that something was going on with his father.

Now I believe–

Is that it?

William J. Schafer, III:

–Well–

Factually, is that it?

William J. Schafer, III:

–If we limit it to the scene, I was about to say, if you’re talking just about the scene.

Yes, yes.

William J. Schafer, III:

And I believe that that happened before Raymond says that Gary Tison said, go get the water.

Well, I was asking about after he said go get the water.

William J. Schafer, III:

All right, after he–

After he said, go get the water, what specifically happened or was said that makes these men guilty of murder, that they knew the father was going to do it.

William J. Schafer, III:

–If we limit it to them–

That’s what I’m asking you to do.

If we limit it to them being back at the Mazda, which Ricky disputes, there is nothing, I think, from that point on, except the firing of the guns.

The record will show you that when Raymond says they were back at the Mazda–

–So their participation in the firing of the gun was zero?

William J. Schafer, III:

–Oh, we have conceded that.

I do.

Their participation in the firing of the gun was zero.

They did not, and the record will not show you, that they pulled those triggers with at all.

Well, what are they charged with?

William J. Schafer, III:

They’re charged with murder.

However, the record–

But they didn’t pull the trigger?

William J. Schafer, III:

–This is true.

And they didn’t know the trigger was going to be pulled?

William J. Schafer, III:

I dispute that they did not anticipate–

I said, know.

Did they know it was going to happen?

William J. Schafer, III:

–I can’t stand here today and tell you that they knew… knew… that at that time that trigger would be pulled.

Except I refer again to Ricky’s statement–

Don’t you have to know to take a man’s life?

You don’t have to answer.

William J. Schafer, III:

–Oh, I didn’t think you had finished that question, Your Honor.

William J. Schafer, III:

The second and the third issues, in this case, to me, are whether Enmund prohibits a death sentence for a non-trigger man, and what does this Court do with the state court finding that Enmund has been satisfied.

Now, if this were a habeas corpus action, I would answer the last question by saying that you should accord the state court finding a presumption of correctness.

That is what the habeas corpus statute says, and that is what this Court said, I believe, in Cabana v. Bullock.

This is not a habeas corpus action.

But for the purposes that we are now discussing, I really don’t believe it makes any difference.

Over and above the habeas corpus statute, this Court has said that it pays great deference to state court findings, factual findings.

The habeas corpus statute, I think, merely incorporates that principle.

For the reason stated in Cabana, a state court finding should be accorded great weight, whether it makes its way to this Court by way of habeas corpus or some other method.

Therefore, the state court finding in this case, which was a finding of intent to kill according to the definition as stated on page 345, I believe it is, should be accorded great weight, and should not be overturned unless this Court can say that the finding is not fairly supported by the record, which is really also out of the habeas corpus statute.

And I do not believe that this Court can say that on this record.

Throughout these proceedings, there has been little or no dispute that Raymond and Ricky Tison planned the escape; that they gathered the guns; they gathered the cars; and they gathered the ammunition to do it.

To effect that escape, they used those guns as they needed them.

And they, with the others, kidnapped the Lyons family at gunpoint.

They went through the belongings of the Lyons family, and they took what they needed to continue the escape, including the car.

And then, with the others, by using the guns they had gathered, they herded the Lyons into the Lincoln to be killed.

Now, all of these facts are in the various statements of both of the petitioners.

The only thing that has been disputed is what these two knew about the killings before they actually occurred.

They say they were caught by surprise.

We believe that the state court is rather clear in its finding that they believe they were not caught by surprise; that they knew what was about to happen; they knew that Gary Tison was considering killing the family.

Raymond Tison said he knew his father was mulling that over in his mind.

And Ricky said he heard his father say that he was thinking about killing the family.

And after that, Ricky said, they stood back.

They went back to the ground they had been occupying before, the ground from which they ushered the family into the Lincoln, and from there, Ricky says, they watched as the family was killed with a great many shotgun blasts.

Ricky and Raymond Tison were as much a part of what happened as anyone else.

They, with the others, decided to kidnap and rob.

And they with the others kidnapped the Lyons family at gunpoint.

They went through the belongings.

They robbed at gunpoint.

And then, once they had taken what they needed, they stood by as the accomplices did the actual killing.

Up until the shots were fired, the participation of one was the participation of all.

William J. Schafer, III:

In the plot to get away, each participated equally.

And each did his part to prepare for those killings.

In the sense that the Model Penal Code uses the word “cause”, the conduct of these two was a cause of the result because they contemplated the harm, and they contemplated that lethal force would be used.

They simply did not know that the Lyons would be the ones who were the result of that harm.

These–

Is that any different than saying they foresaw that lethal force would be used?

William J. Schafer, III:

–I don’t want to use the word, “foresaw”, but–

I know you don’t.

But is there any difference?

William J. Schafer, III:

–I think it probably is a difference only in degree, Your Honor.

And in answer to I believe it was some of your questions of Mr. Dershowitz, if I was standing here, I would have said, I don’t know if I would speculate on a definition of foresee in this instance.

I would go back to the language that you used in Enmund, and that our Supreme Court was parroting in their opinion.

What are you… what language are you specifically referring to in Enmund?

William J. Schafer, III:

Specifically the quote that Mr. Dershowitz gave you from Enmund… here it is: It would be very different in 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.

Period.

That’s the language which appears on 779, I believe, of 458.

And I think that this Court–

Well, one reading of that language is that even if he didn’t intend that… even if he didn’t intend that life be taken, he nevertheless might be guilty if the likelihood were… and the circumstances were such that he just should be… that that would make him culpable too.

William J. Schafer, III:

–Yes.

So substantial.

Those were the words I was really trying to underline with my words.

But I believe you qualify that language when you said the likelihood of a killing is so substantial–

Do you think that is equivalent to a finding of intent?

William J. Schafer, III:

–Yes, Your Honor, I believe it very well can be.

And here I believe the Arizona Supreme Court was saying… although they did not use any language from the Model Penal Code as I have; but to me, that’s what they were saying.

And they do have a reference on a page that’s been quoted from already, page 346 in the Joint Appendix, that these people may not have seen that these particular people were going to be killed, but they knew, contemplated, that there would be harm resulting from what they had done and what they participated in.

Whether they intended these particular people to die or not?

William J. Schafer, III:

These particular ones.

And I believe that gets back to the initial question that Mr. Dershowitz was asked about specific intent.

If you go back to the first Arizona Supreme Court opinion, where they use the word, specifically, I believe as I read that opinion, that is what Justice Struckmeyer said, a different justice than wrote the second opinion.

William J. Schafer, III:

He was saying that although the record may not show that they had a specific intent to kill these specific persons, that does not make any difference.

Although he doesn’t go as far as to talk about intent.

May I ask a question about that, though?

Referring again to that critical page from the Enmund opinion, the next sentence refers to cases in which death so frequently occurs in the course of a felony for which killing is not an essential ingredient.

William J. Schafer, III:

Yes.

Do you think the killing was an essential ingredient in this case of either the escape or the kidnapping?

William J. Schafer, III:

I don’t believe it was an essential ingredient of either of those.

I believe it is much more arguable that it was practical, an essential agreement to effect a safe escape.

And there is one statement that… I believe it is Raymond now… says that with his father, it was a matter of no survivals.

And he says, he summarizes most everything that went on out there by saying, and this is almost a direct quote: We all knew the odds that we were playing with out there.

And I believe that summarizes a good deal of what happened.

They knew the odds.

What were the odds?

William J. Schafer, III:

The odds were that they would conceivably end up with a death sentence because someone could easily have killed, as is what happened.

Thank you, Mr. Schafer.

William H. Rehnquist:

Thank you, Mr. Schafer.

Mr. Dershowitz, you have 8 minutes remaining.

Alan M. Dershowitz:

Thank you.

First, there is a specific finding on page 336 that it was not essential to the defendants’ continued evasion of arrest that these persons be murdered.

Second, I must correct the record, because this Court has been badly misinformed about the status of Ricky Tison’s statements.

We heard from the Attorney General that Ricky Tison consistently said he was not sent away to get water.

I categorically dispute that.

There is not a single statement in this record by Ricky in which he does not consistently say that the boys, all three of them, were sent away to get water.

There is only a dispute as to whether they remained there at the time the shooting began, whether they were on the way back or at the scene of the crime.

In fact, Ricky’s first statement when he was arrested at gunpoint at the shootout is… and here’s the testimony at the trial… at this point Gary told the boys to go back and get the water–

Everybody agrees with that.

At about the time they got back to the Mazda… the Mazda… they heard the shotguns go off.

Due to the darkness, all they could see were flashes from the shotguns.

There is a disagreement, we acknowledge that.

The state concedes that it is essential to this case that they be present at the scene of the crime.

Alan M. Dershowitz:

Why is presence essential?

Generally, presence is essential because it is evidentially relevant to the intent of the defendants.

Buy here we have presence if… at best, presence coming back… after any doubts had been resolved in their minds about whether the father would kill, when the father says, no, go get the water.

And in fact, if you look at the record of this case, you will see on page 21 that the young boy’s statement, saying that I thought the father was struggling with this case, is followed by, that’s what I think now about it.

In other words, at the time of the confession, it occurred to him that the father was struggling.

There is a lot of chronological confusion in this case.

When the young boys’ statements are read as such, they always come out saying, in effect, at the time we didn’t know what was going on.

Then they’re in jail, or they’re arrested, and they’re asked about their state of mind, and they reconstruct their state of mind as of that point in time.

The state categorizes the Enmund finding as a finding of fact.

It is anything but a finding of fact.

It is a construction of law.

It deserves no weight by this Court.

It is an attempt to reinterpret Enmund’s intent.

Statements of fact have been found, and they were found in our favor.

For example… I hope I can do this briefly… during the second… the first appeal, one of the issues raised by the defendants was whether or not they were entitled to a second degree murder instruction.

Under Arizona law, if there was any evidence to support second degree murder, they would be entitled to it.

The Arizona Supreme Court said they were not entitled to a second degree instruction, because there was no evidence of second degree murder; only evidence of felony murder.

Second degree murder would include foreseeability, recklessness, all of the things we’re talking about.

Yet the Arizona Supreme Court rejected an instruction on second degree murder, saying, therefore, that this was an all or nothing case.

This was felony murder, that is, accidental murder carried out in the course of a felony, or it was not murder at all.

And if that’s not the case, then they’re entitled to a new trial.

Because in Arizona law, if there was any evidence of recklessness, of second degree murder, in this case, they would be entitled to a new trial.

The jury should not have had an all-or-nothing, if you don’t find felony murder, you free them outright.

That should not have been the issue, and that was not the case under Arizona law.

The Attorney General said that the penalty here was tailored to these particular individuals.

Nothing could be further from the truth.

The trial court’s findings about these two young boys who never fired a shot were exactly the same, word for word, as its findings about Greenawalt who actually gunned down all the killers, and intended to do so.

Mr. Dershowitz, let me go back to your jury instruction point.

Who requested the second degree murder instruction?

Alan M. Dershowitz:

The defendants.

Alan M. Dershowitz:

And they had a point.

If there was any evidence under law of second degree murder, they were entitled to that instruction.

And the court said there was no evidence of second degree murder.

The court has also found, in the first opinion, in effect, that there was no such evidence.

So I think they were… I think what we have here–

Excuse me, I don’t understand that.

To be second degree murder, it would have had to be in addition to felony murder?

Alan M. Dershowitz:

–There were three levels of intent under Arizona law.

Premeditated: irrelevant in this case.

Felony murder, accidental: Maybe it happened, maybe it didn’t.

Third level is higher than accidental, but lower than premeditated.

That’s second degree murder.

If there was any evidence of an intent between premeditated and accidental, they were entitled to that second degree murder instruction.

And the court said, in rejecting that argument, this is either-or.

There was no evidence on the record of this case of… short of premeditation, of recklessness, foreseeability, or any other element of mens rea that would entitle the state not to have a second degree conviction, or the defendant to have a second degree murder instruction.

Second degree was higher than felony, or lower?

Alan M. Dershowitz:

The intent level of second degree is higher than the intent level for felony murder.

The penalty is higher for felony murder than it is for second degree.

That’s traditional.

Second degree murder requires not premeditation, but some level of mens rea more than accidental.

In this case, the judge said… the Court of Appeals said, it was all or nothing.

Either there was evidence of felony murder, or there was no evidence of murder.

But in that context… in that context… I don’t see why the trial judge wouldn’t handle it that way.

Alan M. Dershowitz:

Give a second degree murder instruction?

It was clearly a felony murder situation as the law was at that time.

Wasn’t it clearly–

Alan M. Dershowitz:

But what if the jury disbelieved, Your Honor, that the felony was still going on?

For example, one of the arguments made at trial was, the felonies had stopped when the transfer was made.

The car had been stolen.

They had gotten all they want.

Alan M. Dershowitz:

And the murders occurred promiscuously by these defendants afterward.

If the jury had believed that, without a second degree murder instruction, they either had to acquit these people of murder altogether, or convict improperly of felony murder.

–I doubt that the jury could believe that.

Alan M. Dershowitz:

The jury could believe–

I doubt whether the jury could believe that.

Alan M. Dershowitz:

–The jury–

And I doubt whether the trial court believed the jury could believe that.

And that’s why he said, this is a felony murder case.

Alan M. Dershowitz:

–Your Honor, the trial court has no right to conclude–

In other words, not because there was an absence–

Alan M. Dershowitz:

–whether or not a jury would believe; this is not a civil case, Your Honor.

The trial court can’t direct a verdict on any aspect of the government’s burden of proof.

The defendants did not testify.

The burden was on the government to prove that there was a felony that continued.

The defendants contested that through their lawyer.

For a second degree murder instruction, the defendants were entitled to an assumption by the trial court that the jury might have disbelieved the felony was ongoing, and were therefore entitled to a second degree murder instruction unless there was no evidence of a mens rea sufficient for second degree murder.

And that’s what this court held, that there was no such evidence.

And there is no such evidence.

–It’s not a matter of there being no evidence… no mens rea necessary for second degree.

It’s a matter of there being no felony necessary for felony.

When you’re asking for a lesser instruction, you’re asking the judge to tell the jury, it’s possible that the felony conviction won’t stand.

Alan M. Dershowitz:

That’s right.

In which case you come to the lesser ones.

Alan M. Dershowitz:

And that’s exactly what they were entitled to.

What I’m saying is, that the reason he made his ruling is not because there… not necessarily because there was no evidence of intent to kill, but because there was overwhelming evidence of felony.

Alan M. Dershowitz:

Your Honor, no judge is allowed to assume that the jury will believe overwhelming evidence.

And it wasn’t overwhelming that the felony continued.

The issue in this case was not, was there a felony, but was this murder, carried on by the trigger men, carried on as part of a felony which had already terminated?

A jury could easily disbelieve that, and then it stuck either with nothing or a second degree murder conviction.

In many cases like this, you get a second degree murder conviction.

Alan M. Dershowitz:

If the defendants were entitled to a second degree murder conviction, they were entitled to a new trial.

If they were not, then there is a finding in this record, as there already is a finding in this record, on the second appeal, that the level of intent required for the Enmund finding has not been met in this case.

So we think, Your Honors, that the legal issue has already been resolved by this court in Enmund.

The factual has already been resolved by the Supreme Court in Arizona.

Mr. Dershowitz, may I ask one other question?

What it boils down to, in your view, is that they’re holding is that the level of intent required for an Enmund finding is less than the level of intent required for second degree murder.

Alan M. Dershowitz:

The level of intent required for second degree murder in this case is clearly, everybody would acknowledge, less than what is required for Enmund.

Second degree murder… no state punishes second degree murder by death.

The penalty… the level of intent required for second degree murder includes clearly things that are not specific intent.

That is our argument.

The question in this case is whether or not they had a level of intent which comes within the Supreme Court’s definition, in Enmund, of specific intent.

But we’re arguing alternatively, there is not even a finding, nor could there be a finding on this record, because the finding is to the opposite effect, that even a level of foreseeability that is argued for by the state could not be met in this case.

William H. Rehnquist:

Your time has expired, Mr. Dershowitz.

Alan M. Dershowitz:

Thank you.

William H. Rehnquist:

The case is submitted.