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4.2.12
WC: 191694

Now that two of the culprits were dead, public outrage was focused on those who were still alive.
The media presented the recurrent vision of the murdered toddler and expressed the view that “if
they hadn’t gotten Gary Tison and Greenawalt out, none of this would have happened.” The
press demanded the gas chamber. One editorial expressed chagrin that anyone had been captured
alive.

The two surviving brothers were tried and convicted of the murders, based on the account they
had given the authorities. 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, since the evidence of their guilt—under the long established felony murder and
conspiracy theories—could not reasonably be contested.

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 legal
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 had
decided the case of Enmund v. Florida, reversing the death penalty of a defendant who drove the
“getaway” car in an armed robbery of a home in which Enmund’s accomplices killed the elderly
couple they had robbed. The vote was 5 to 4. The majority reasoned that:

“We are quite unconvinced, however, that the threat that the death penalty will be
imposed for murder will measurably deter one who does not kill and has no intention or
purpose that life will be taken. Instead, it seems likely that "capital punishment can serve
as a deterrent only when murder is the result of premeditation and deliberation," for if a
person does not intend that life be taken or contemplate that lethal force will be employed
by others, the possibility that the death penalty will be imposed for vicarious felony murder
will not "enter into the cold calculus that precedes the decision to act."

It then 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. But competent observers have 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 should be considered as a justifiable
deterrent to the felony itself.”

The Enmund decision seemed to apply to the facts of the Tison case. The problem was that 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
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 court’s Chief Justice. Finally, Justice Byron White, who had
written the majority opinion in Enmund, seemed to be backtracking a bit in subsequent cases.

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