Tison brothers death‑penalty appeal highlights legal fictions in Arizona murder convictions

4.2.12 WC: 191694 Chapter 12: 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. It involved two families. The family of the killer 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 15 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 neither killed nor intended to kill. Most of these non- triggermen 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 co-conspirator*’ (Remember Harry Reems.) The second legal fiction was the law of felony-murder 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. The combined effect of these fictions was to deem Ricky and Raymond as guilty of intentional murder as Gary Tison and Randy Greenawalt who actually pulled the trigger and intended 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: Can conspirators who helped murderers escape from prison be sentenced to death for intentional murders committed by their co-conspirators, if the conspirators themselves neither killed nor intended to kill. I was first approached to help the Tison brothers by a journalist who was working on a book and film project about the case (eventually a film, called A Killer In the Family, was made starring Robert Mitchum as the father and James Spader—in his first cinemographic role—as one of the brothers.) I was asked to appeal their death sentence. Since they had no money, I agreed to prepare and argue the appeal without a fee. I know the appeal would be tough because the facts of the murders were horrible and the personnel on the Supreme Court was changing in a rightward direction. The strongest point in our favor were the facts of the case as they related directly to the brothers Tison. Their story was compelling. 57 Maybe also a honeymoon couple. 58 Pinkerton 165 HOUSE_OVERSIGHT_017252