it peace |
Phoenix, Arizona, Saturday, March 12, 1960
fe OA
6
S ceieialenetineieenccaeemmane!
2 Workers
Shot Near
Chandler
By JACK KARIE
FIFTEEN-year-old Ron-
ald St. John said last night
he killed two ranch workers
near Williams Air Force
Base ‘‘because I wanted to
ea and go to the gas cham-
rr.’
The baby-faced eighth-
grader appeared to re-
morseless as he told sher-
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ties how he handled rifle while. one ie ee ae Ce oe
killed near Williams Alr Force Base. The blue-eyed youth said he k “*be-
cause I wanted to go to the gas chamber.’’—(Republic Photo, Jack Karie)
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U.S. Scores On Russia
United States,
‘Bolnt>te the apece contest with
Sun-Orbiting Pioneer V Hits
Path Planned For Solar Study
WASHINGTON (AP) — The nounced it had wrenched free nf or wobbling. Ite radio equip-
scoring a big the earth's tightest gravitation- meni, powered by the sun's
al grip. that the instrument ’
PET EN SU See Se Pe ee
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anted Gas Chamber,’ Your
New Storm
Whooshes
Into South
By ASSOCIATED PRESS
A HIGH-speed snowstotm,
swept out of the Midwest
and into the South yester-
iday, hobbling rescuers
\striving to reach hundreds
of isolated families.
The storm eased up dur-
‘ing the day along the Ohio
Valley but poured it; on:
‘Georgia and the Carolinas} ’
before heading out to ses.
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March ll, 1960.
FENTON, Robert D., white, 2h, apshyxiated Arizona (Pima County) on|]
STATE v. FENTON Ariz. 9237
Cite as 341 P.2d 237
#3 Ariz. 111
STATE of Arizona, Appellee,
Vv:
Robert Dwight FENTON, Appellant.
No. 1133.
Supreme Court of Arizona.
June 17, 1959.
Rehearing Denied July 7, 1959.
Defendant pleaded guilty to charge of
murder in the first degree. The Superior
Court, Pima County, John F. Molloy, J.,
imposed death penalty, and defendant ap-
pealed. The Supreme Court, Johnson, J.,
held that where trial court at time of im-
posing sentence weighed and considered all
testimony of expert witnesses as to defend-
ant's sanity, written statements of defend-
ant, report of probation officer as well as
cetendant’s past offenses, health, habits,
mental and moral propensities, together
with the fact that defendant, in entering
his plea of guilty, admitted all elements
constituting murder in first degree, defend-
ant had committed an atrocious crime and
‘rere was a total lack of any mitigating
“rcumstances, imposition of death penalty
w2s not an abuse of discretion and state-
“ent made by trial judge at time of sen-
‘eneing that if he thought there was a
Use for defendant he wouldn’t sentence
‘to death did not warrant reduction
i sentence,
Affirmed,
'. Homicide 2354
. Where court had discretion to decide
h ther life imprisonment or death should
' 'mposed in first degree murder case,
. “tt properly took into consideration pos-
“lity of parole if sentence of life im-
““tsonment rather than death were imposed.
ARS. § 13-453,
1
2. Criminal Law €=980(1)
A trial court on a plea of guilty at a
'esentence hearing is not bound by strict
pice of evidence applied in trials and in
“ctermining penalty to be imposed may
properly consider probability that defend-
ant has been thought to be a dangerous
menace to society and that he might be re-
leased or paroled if given a sentence of
life imprisonment. A.R.S. § 13-453; 17
Rules of Criminal Procedure, rule 336.
3. Criminal Law €=986
Where a discretion is vested in trial
judge as to limits of sentence to be im-
posed by him, it is almost essential, in order
that he might properly carry out the obvi-
ous intent of the law, to grade the punish-
ment in accordance with the general char-
acter of both the offense and of the party
convicted, that he should have all informa-
tion possible as to his defendant’s past
conduct. 17 A.R.S. Rules of Criminal
Procedure, rule 336.
4. Criminal Law €=986
Rule of Criminal Procedure providing
for an inquiry into mitigating or aggravat-
ing circumstances of offense committed in
determining punishment should be given a
broad interpretation, and “circumstances”
mentioned therein do not limit trial court
to only a consideration of the mitigating or
aggravating circumstances of the offense
charged. 17 A.R.S. Rules of Criminal Pro-
cedure, rule 336.
See publication Words and Phrases,
for other judicial constructions and defi-’
nitions of “Circumstances”,
5. Criminal Law €>1183
Power given Supreme Court to revise
and reduce sentence as imposed by trial
court should be used with great caution
and exercised only when it clearly appears
sentence is too severe. A.R.S. § 13-1717.
6. Homicide €=347, 354
Upon the plea of guilty to murder in
the first degree, trial court shall at its dis-
cretion impose a sentence of death or a
sentence of life imprisonment, and only for
a manifest abuse of discretion should Su-
preme Court intervene on appeal to change
sentence in such a case from death to life
imprisonment. 17 A.R.S. Rules of Criminal
Procedure, rules 187, 192, 336; A.R.S. §
13-453.
na ht An eR Netra:
you+or
names
{
ishion-
ay. Do
entary
eting
hildren
FENTON,
roast by the losers.
Virile Americans thrive on competi-
tion. Competition has made us the eco-
nomic pace-setter of the world, and
competition is not un-Christtan.
A lot of misguided church people ab-
ior competition, wrongly thinking it
iroduces quarrels, fighting, and bar-
baric behavior.
THAT'S NOT TRUE, for it is com-
munism that promotes barbarism, yet
communism decries competition.
This very republic and its free enter-
Prise system are a glowing tribute to
competition.
Jesus also believed in competition, as
in his parable of the men with the
talents.
Fifth, launch helpful psychological
projects, such as the Compliment Club,
which embody the Golden Rule but as-
sist people to become happy and better
poised.
A preacher should praise those who
placed flowers on the altar, as well as
the ushers, singers, and especially the
cooks for the church suppers.
Send for my booklet, ‘‘Surefire Public
Speaking Strategy," enclosing a
stamped return envelope, plus 20 cents.
Write to Dr. Crane in care of The Ari-
zona Republic, P. O. Box 2236, Phoenix.
By RAY HENRY
$50 every three months you're required
to pay social security tax on her earn-
ings. The nearest Internal Revenue
*rvice can provide you with the neces-
iry forms and information.
From J. W. R. of Cleveland, Ohio:
‘“‘My husband died in 1946 and I re-
ceived social security benefits for my-
self and three children. The payments
stopped in 1956 when my _ youngest
reached 18. Now I have reached 62.
Can I claim widow's benefit? If so, how
much will it be? I never worked under
social security.”
Yes, you can claim widow's pay-
ments if you haven't remarried. You
should file a claim fm: them at your
social security district office. The
amount will depend on the amount of
your late husband's earnings under so-
cial security.
FROM B. R. of Monroe, La.: ‘‘I'll be
65 in August 1960 and will have to retire
at that time. My earnings for 1960, that
is, until I'm retired, will be about
$3,800. Will this amount of earnings dis-
qualify me from social security benefits
for the rest of 1960?"’
No. You may receive your social se-.
curi payments for any month in
which you don't earn over $100 in wages
nor render substantial services in your
own business.
From F. S. of High Point, N.C.: “I'm
# years old and pay the maximum into
social security. If I should lose my job
could I continue to pay into social se-
curity and draw bigger payments when
* reach 63?"
No. A person can't pay into social
ewcurity on a voluntary basis.
Rag ca A :
the
CP CHLOE DICS
(Juietly I
(,as “Piso Sber
By GENE. LUPTAK
jserved to die.
The hurlv. 25- vear
state gar cham-
her so as not to
prolang life. In 5
minutes he was
pronounced dead.
Fenton pleaded
guilty to the 1958
slaying of Mrs.
Opal Keller Cow-
ard, 53, a Tucson
druggist who
took him into her
home an an odd-
jobs worker when
he arrived. penniless, from Ohio.
Mrs. Coward's
hody was found in her home. Fen-
ton was captured after @ gun bat-
tle with officers near the Mexican!
horder. He had shot Mrs. Coward,
during a robbery attempt.
Only a couple of men ever have
been executed in Arizona after
pleading guilty. Throughout con-
finement, Fenton kept denying the
slaying was premeditated.
ABOUT 45 minutes before his
execution the killer greeted a Re-
public reporter in hie cramped
quarters on Death Row.
Fenton
“I'm ready to go now,” he raid
“So let's get it over with. If I was
granted a stay of execution now, |
don't helieve my heart would take
the shock.
“1 don't see that capital punish-
ment is a bad thing. I don't think
any state should do away with
capital punishment.”
TWO MINISTERS, the Rev. Cari
Mety. a Tucson Lutheran pastor,
and the Rev. Mac Stanley, prison
chaplain, spent the night with Fen-
ton.
“LT have faith in God.’ he said,
“even though I'm facing that which
we have never seen.”’
Fenton, father of a 4year-old
boy, said he was divorced while in
jail and that his wife had since re
married. Remembering his son,
slayer said, “He's young
enough not to know anything about
me.
“IF ANYONE should ask you,
yes, I'm very scared.”
A few minutes before $ a m., the
condemned murderer was atripped
except for shorts and socks and
led a few feet down the hall to be
executed) His chest, arms, and
legs were strapped to a chair in a
stee|-and-giass-encloeed chamber.
As 32 cyanide peliets dropped in-
to a container of suiphuric acid
under the death chair, Fenton
srmiled at 41 official witnesses in
the observation room
“HE INHALED the wrap of gas
i Twice his head ahex beck Twice tt
almoet touching hie
slumped
cheat
Fenton wilted bis tn the
eyes
jeye Bank Hie text, ill he cre
\mated
Oey ten
FLORENCE. — Robert Dwight!
Fenton quietly paid his debt to so-)
ciety yesterday, believing he de-
- ald killer!
Igulped the deadly fumes in the!
bullet - riddled!
glanced over his shoulder and half |
Robert D., 24, white, gassed Ariz,
By ART HEENAN
THE. YOUNG Democrats, ma-
jor migraine of the state Demo-
cratic organization, may censure
Supervisor Ruth O'Neil.
Certain of the YD«
do thie to Mre«
O'Netl, a fellow
| Democrat, he-
cause she voted
for appointing
| a Republican
to replace a
Republican,
want to
Specifically,
the objection is
based upon
Mrs. O'Neil
voting for H.
W. Burns to re-
place Jim Hart on the board of
supervisors, after the latter met
his death in an auto crash.
The censure resolution was
| brought up at a recent meetine
‘of the YDs. It was not acted
| upra at the time. It will be
brought up again at the March
22 meeting with a strong possi
bility of success.
The YD« Itke to picture them
at + + OREN
Three Minutes
with the
Great Books
HOBBES
Te the heat poasitie life the ane
without any desirea® ‘To Thomas Het
mee «PSRR-1479), a man withenit de
airea be a dead man
THE FELICITY of this life con-
sists not in the repose of a mind
satisfie: !or there is no such
“utmost aim” — nor “greatest
good" as is spoken of in the books
of the old moral philosophers.
Nor can a man anv more live
whose desires are at an end than
he whone senses and imaginations
are at a stand.
Felicity is a continual progress
of the desire from one object to
another.
The object of man's desire
not to enjoy once only, and for
one iastant of time, hut to assure
forever the way of hie future
desire. And therefore the volun
tary actions and inclinations of
all men tend not only to the pro
curing, but alen to the asauring
of a contented life
me
A general inctinatinn ef ont
mankind is a perpetual and
leas desire of power after power
that ceases anty in death
test
UNCLE CHARLIE
, through streets.
row may be installed at Indian ©
ie i,
(Pima) 3-11-1960.
Censure By Young Democrats
Of Ruth O’Neil Is Foreseen
selves as the dedicated follow-
ers of idealistic thinking in poli-
tics
In the O'Neil censure move
ment the advocate obviously
are following the discredited
spoile «ystem. Hart was elected
by the people of his district on
a Republican ticket. The Demo.
cratic candidate was defeated
. 2 @
YOU MAY get a left-turn ar-
raw system in) Phoenix about
the time autos are being traded
in for helicopters.
Chuck Haley, city traffic en-
Rineer, says the left-turn system
will not come to Phoenix until
freeways and expressways can
be installeu. Haley cannot esti-
mate the time for completion of
such a project. Because of the
prohibitive cost involved, no one
else wil’ try.
Haley savs the a traffic
flow in) Phoenix and -the pat-
tern of the streets preclude the
left turn arrow system. He ew
plains that left-turn arrows tn
effect in Phoenix are because
the main flow of traffic is with
the arrow.
Haley claims that the left-
turn system would benefit oa
minority of motorists at the ex
pense of the majority using
A left turn ar-
School and
the only
the city plans any left turn pat
tern.
Third Street That
intersection where
° e °
WASHINGTON
day were
pelling Texas
Arizona shrimp fleet
The tariff told
Senator Goldwater s office that
NO postponement possible
in the March If hearing to rec
ommended a ¥Y per cent ad
valorem tax on Mexican shrimp.
Nogales, which has a $I million
shrimp processing industry fram
Mexican shrimp. wants a post
efforts vester
in ore
the
unsuccessful
boarders on
commissien
MAS
ponement to present its) argu
ments against the tax
Hill Seward one of the ad
Mavhe Wife Jast
Wanted New Dress
Nt TROT” CARY A
broke a plate plassa window a’
stare here and tack a mannequin
alternern drese and
burglar
aftur
euat n an
shoes all calred at $700
Date hen nd oa half ca de
gee ene npe eee
ministrative assistants ta Gold- lise:
water, said that Representatives and
Mille (D-Ark) and Rogge (D- heen
la) refuse to change their pos aga:
tion that the tariff commission ‘grat
precede immediately with the ; +
hearing, Mills and Boggs are
reported to be acting for Texas -
shrimp interests on behalf of be
Speaker Sam Rayburn. to
Goldwater's office has sug- | righ
gested to Nogales that it be D
represented at thé hearing even | ny,
though unprepared. Goldwater's | ing
office will back up the Nogalés | ong
representative,” pre
tun
He
that
hetw
.Vera
mon
Legislation must he passed
hefore anv tax can go into ef- |
fect. It would have to clear the
house and senate.
Arizeoma and
threat. |
| Ae
he «
no
Santry
Tr
whil
imor
{the
{the
then
wee
| He
Iv ¢
force
ers
Se
By that time
California, also with a
ened shrimp industry. should he
able to muster enough strength
ta make an interesting hattle.
The big difficulty is that Rav-
burn controls the house. and the
Senate Majority. Leader is
I.vndon Johnann, aleo of Texas.
Death Takes
Dr. Andrews
CARMEL, Calif. (AP)—Dr. Roy
Chapman Andrews, world famous iy,
explorer and naturalist, died at earl:
Hoapital,@ ©
here last might after a heart at. °T*
‘ot ra
tack
| At
Andrews, who had been living tien
in retirement for several years 1° noor
nearby Carmel Valley. gained cess
world fame in the 19206 through @ yens
wries of expeditions to Central ners
Asa, from where he brought back Rich
foasihved dinosaur eggs | Port
He had been hrought to the how!
pital following a heart seivure
earlier in the day, |
Dr
Peninsula Community
He was 76.
-
His physician, Mast Woif-!
said he was viaiting tne for-:
son. k
mer director of the American
Museum of Natural History and; Mh
found he ‘seemed to be feeling
retty wel.”
Biited \Piay
Andrews had just finished ask- rene
ing Dr. Wolfson to call Mes negri
Andrews and let her know she cove,
could come see him when he ex
claimed Mr
in tl
‘There « the pain again Iocan Rich
feel ion my arm and my head Poila
Then sand Dr Wolfson he col NS
lapaed and died unde
ee
3/2 //Glao
REEUBLIC P
MAIL
Mere About
we: ene. The youth said he couldn't ex: |
“I didn’t care what Kappened|plain why he left the message in|m
to me. The boys at school dreve|the sand,
me to it, they called me stupid) «44 that I know now {s | wantiman,
and laughed at me," he said “I to die.” he said. “I just want to
told my mother the other day that! be ished for what I done." bodies
I wished | was dead." Ext
“| didn’t even 1 e| St. —— agg agp in the field.
men | shot—I shot each one sev-' “
eral times.”’ he added. “T think gag kill so men earlier
lone of them was laughing when :
I shot him, I'm not sure.” | ““I read of that man that killed St. John sai
® The Arizona Republic, Phoenix, Arizona
going to take his father’s rifle) Limon had
short distance away with
Saturday, March 12, 1960°
X
4 ‘
Young Killer Of 2 Just ‘Wa
(Continued From Page !) | Jones reported finding severalisix people ‘and I knew he was!
; \letuers scrawled in the sand near headed for the gas chamber so | ime b en
about troubles he was having with the Geath scene includ'ng the thought I'd do it too,” the Levi'the rifle, firing from |
classmates atWilliams Air Force word, KILL. Clad youth added. “I didn’t think,
d that when
YELLOW]
Sw¢ 2
regoff was smiling
ndant, Dr. Bernard
iouse in Los Angeles.
e of Finch and Miss
nurder in the death
ef was growing that
least one defendant,
al.—(AP Wirephoto)
Chamber’
at
ee. Oe een re
{
ae
Native America
From Page A-1
firmed Gerlaugh’s death sentence.
Liberman filed for a commutation
with the 9th U.S. Circuit Court the day
before Gerlaugh’s execution. The fed-
eral court’s deliberation temporarily
stopped the state’s scheduled 3 p.m.
injection of poison into Gerlaugh for
four hours on February 3.
| The federal judges decided seven
to two against commutation.
~ Liberman said, “The imposition of
heard that even Russia outlawed the
death penalty. I just wish the United
States could come to grips with the
concept that it’s wrong to kill.”
Foster said he began visiting
Gerlaugh in 1986. Gerlaugh has a
child with a Navajo woman and one
of his sisters is married to a Navajo,
he said. “There’s a connection.”
He said before he saw Gerlaugh’s
neck tighten, he saw Gerlaugh’s chest:
rise off the gurney that he was
strapped onto. He seemed to relax
when the first wave of poison was Te-
leased into his body, Foster said.
But when the second portion was
injected that’s when Gerlaugh’s chest
came up and his neck stiffened, he
said. Foster shook his head and looked
at the ground.
Minutes passed before he spoke. “I
never want to go through that again,”
he said. He added that he was told that
lethal injection was not suppose to be
painful.
Foster and Pete Jackson, a Pima that
represented Gila River Indian Gov.
Mary Thomas, were with Gerlaugh
the entire afternoon and a bit of the
evening of his last day in this world.
Gerlaugh’s mom is Pima and a mem-
ber of the Gila River Indian Commu-
nity. His dad is Anglo and a retired
military officer.
Gerlaugh’s last word was a simple
“40” when a prison official asked him
if he had anything to say before the
state enforced its death penalty against
him, Foster said.
He explained that Gerlaugh, Jack-
son and he made their final farewells
before they were separated from the
38-year-old Gila River Indian man at
6:30 p.m. 7
Foster remembered that Gerlaugh
told them that he would not look at
them or talk to them during the ex-
ecution.
February 3 was Foster’s first wit-
nessing of an execution of an inmate.
It was so sterile, he said.
Foster said he and Jackson were
taken to a small room that had a tiered
floor. The family of the victim stood
on the lowest tier, which was in front
of alarge glass window that was Cov-
ered by a heavy curtain; the type that
hangs in really nice hotels, he said.
He and Jackson stood on the next
tier behind the family and other people
stood behind them, Foster said. He
only recognized the prison chaplain
and some prison Officials.
When the curtain opened, Gerlaugh
lay on a gurney that was in the shape
of across. His arms lay horizontal to
his body. ;
Intravenous tubes ran under white
cloth that covered both of his fore-
arms, Foster said. He smile faintly and
added that Gerlaugh wore brand new
blue jeans and a blue shirt.
But he said he wasn’t wearing socks
or shoes. Foster ‘said ‘another white:
the déath pentalty/is barbarie’Tfeeenety"e ot" was placed over'Gerlaugh's
lower body.
And then Foster said a prison offi-
cial read the state’s death penalty de-
gree against Gerlaugh and asked him
if he had any last words.
Foster said Jackson and he were the
only Native Americans to witness
Gerlaugh’s execution. No one taiked,
he noted.
Within seconds of the announce-
ment that Gerlaugh was dead, some
of the people that stood behind them
starting crying softly, Foster remem-
bered.
He added that the prison chaplain,
a Black man and the only other mi-
nority person in the room, came to
Jackson and him and thanked them for
being with Gerlaugh.
Foster said after the execution,
Jackson and he immediately drove to
Sacaton where a sweatlodge had been
prepared for them. And he said when
he returned home to the Navajo res-
ervation, he had a traditional prayer
conducted for himself.
Before Foster even decided to con-
duct a sweatlodge ceremony for
Gerlaugh as part of his last rites and
witness Gerlaugh’s execution, he con-
sulted with traditional medicine
people, who instructed him about
what ceremonies to have for himself
for protection. af
He carefully explained that as a
Navajo he knows it’s “taboo” to talk
about death and to witness an ¢xecu-
tion.
Foster, who has been the tribal cor-
rections office director for 19 years
and a Native American activist for 29
to 30 years, added, “This is something
I expected years ago. That it was go-
ing to come to this.”
He said, “It’s something we all have
to do - to be strong, not only for our
families, but for our communities and
Native people across the United
States.”
Foster reiterated with a slight nod
of his head, “We've made some his-
tory here.” Five other Native Ameri-
can inmaces at other state prison asked
for the sweatlodge as their final rites
but they were denied for security rea-
sons, he said.
He referred to the approval by the
Arizona Corrections Department for
Gerlaugh to have his final sweatlodge
ceremony on January 30, a Saturday.
Corrections Department press of-
ficer Mike Arra said the DOC officials
began discussing the sweatlodge cer-
emony as a final rite for Native Ameri-
can inmates after Foster requested one
for Gerlaugh.
Arra said, “We recognize that in-
mates havea constitutional right to
freedom of religion, to practice their
religious belief. But there’s also case
law that allows a prison system to
balance those religious freedom with
the prison’s security concerns.
“So we looked at the situation. and
we realized that we'velbeth alloWwitig®
inmates that are condemned, facing
the death penalty, to have priests or
ministers come to them. In the case
of a Catholic, the communion can be
brought to them,” he said.
“But in the case of a Native Ameri-
can, we can’t bring a sweatlodge to
ihe individual in the death house
awaiting his execution. So we would
have to bring the inmate to the
sweatlodge, which was located at one
of the other prison units nearby where
he (Gerlaugh) was in a special man-
agement unit,” Arra said.
“So we looked at that and we de-
cided that it could be done. And all of
the appropriate security was provided
with him being escorted to the
sweatlodge by correctional officers.
And he was handcuffed and shackled
up to point where he was allowed to
go into the sweatlodge.
“There were strip searches con-
ducted of him and the individuals who
were in the sweatlodge ceremony with
him prior to the ceremony. So we were
able to have it occur with all of our
security not being compromised. So
there was no problem with us allow-
ing that to happen,” Arra explained.
He confirmed reports by Gerlaugh’s
sister, Shirley Bruce, Foster and cor-
rectional guards, that Geriaugh was
not a problem inmate. And Arra said
that was another factor that deter-
mined whether Gerlaugh could have
a sweatlodge ceremony.
Foster called the strip search “hu-
miliating.” But he said he consented
to it for Gerlaugh. And then he said
the prison chaplains wanted him to use
a corn cob pipe instead of his Sun
Dance pipe.
He said they changed their minds
after “I told them ‘IfI give youa book
and tell you it’s the Bible. And then
give you a string and tell you that’s
your rosary, NOW pray. How would
you feel?’” ;
Arra explained that ministers,
priests and Rabbis that give last rites
to inmates in the death house are not
stripped searched because there is no
physical contact that is not witnessed
by a camera or guards.
And he noted when the ministers,
priests and Rabbis hand anything to
the inmate, it’s done through steel bars
that separate them from the inmate.
When Foster, Jackson and Gerlaugh
entered the sweatlodge, there were no
cameras or guards, Arra emphasized.
Foster said he asked the DOC in
November 1998 for two sweatlodges
for Gerlauigh as his final rites. They
only approved one for January 30,
while Gerlaugh was on “death watch.”
Death watch is when the inmate is
under the eye of a camera and three
correctional officers for 24 hours a
day, he explained.
Foster recalled that in the past 15
years, he conducted nine sweatlodges
_for Gerlaugh:
His final sweatlodge, which was his
tenth, took about two hours and was
probably his most significant because
it allowed him to purify his mind,
body and spirit, which made it pos-
sible for him to properly travel into
the next world, Foster said.
He remembered, “It was a beauti-
ful ceremony. It fell into place - the
firewood, the lava rocks, the sage, the
cedar. We used the pipe, we sang,
prayed.” Jackson was the fire chief/
rock man.
Foster recalled how Gerlaugh
prayed and talked about his remorse
over what happened and what he did
nineteen years ago. “He realized there
was nothing he could do to change
things but he could make prayers to
make things better for his family, his
loved ones. And he remembered the
victim too. That was very touching
and moving.”
He said Gerlaugh never could re-
member all the details of the murder
of Schwartz because he was So high
on drugs and alcohol. The majority of
Native American people in prison are
there because of crimes they commit-
ted while on drugs and/or alcohol,
Foster said.
“A major problem that Indian
people have to address is alcohol. It’s
the downfall that’s invaded our spiri-
tual values; it’s invaded our commu-
nities, our homes. It’s a major crisis,”
he said.
“The sweatlodge is perhaps the
most profound therapy for Indian
people while they're in prison because
it provides them with insight into who
they are, insight into their spiritual
identity as a Native American and
with the proper spiritual leaders
present, it provides teachings and
songs and prayers,” Foster said.
He noted that the sweatlodges made
a very dramatic change in Gerlaugh’s
personality and his attitude. When he
first met Gerlaugh, he remembered
that Gerlaugh had no real knowledge
about his traditional Pima beliefs.
Gerlaugh was raised in the military
and moved around the country, Fos-
ter said. He realized at Ft. Sill, Okla.,
that he and his brothers and sisters
were different; that they were Indians,
he added.
Foster said that’s when he started
questioning how he fit in this world
as an Indian. Gerlaugh, who was 38,
has three brothers, ages 45, 43 and 32,
and three sisters, ages 41, 36 and 34.
nn man executed by lethal inj ection
His mother passed away a few years
ago and his dad lives with his family
on the Gila River Indian reservation
in Sacaton.
Foster said, “Darick was the middle
kid. Well, he wasn’t a kid anymore.
But you know ina way he was. Prison
does that to them. They don’t seem to
age. And he still seemed very young
for some reason. He spent half of his
life in prison. Can-you imagine spend-
ing 19 years on death row. That's cruel
and anugual punishment?’ “e
But he was willing to relearn his
traditional and cultural way, which
helped him adjust, Foster said.
According to Foster, there are two
Navajos sitting on death row. The one
that is from Navajo, N.M., is incar-
cerated in California. The other one,
whose family is from Thoreau, N.M.,
is in North Carolina.
The Navajo Nation needs to take a
strong position against the death pen-
alty for its people, he said. “It’s just
another form of cultural genocide.
And you can quote me on that,” Fos-
ter said.
Man executed for ’81 |.
murder in Arizona!’ |’
FLORENCE, Ariz. — A man
convicted of kidnapping, raping
and killing a woman in 1981 by
shoving her off a cliff and then
bashing her head with rocks
was executed by injection
Wednesday.
Jess James Gillies, 38,
offered no last words.
No members of Gillies’ fami-
ly or the victim’s family attend-
ed the execution, though
Corrections officials said rela-
tives visited with Gillies before
the execution.
Gillies and friend Mike
Logan were convicted of
abducting, raping and murder-
ing Suzanne Rossetti, 26. She
had bought them a six-pack of
beer and given them a ride as a
reward for opening her car after
she locked the keys inside at a
Phoenix convenience store on
Jan. 29, 1981.
Authorities said she was.
thrown off a 40-foot cliff but did-
n't die immediately. i
Prosecutors said MSs.
Rossetti begged for mercy
before the men stoned her and
buried her under boulders and
rocks. A coroner said she proba-
bly was still alive when she was |
buried.
Logan, now 45, cooperated
- with prosecutors and was sen-
tenced to life in prison with a
chance for parole after 25 years.
- Anecariatod Press reports
NAME: GREENAWALT, RANDY DATE OF EXEC.: 1997/01/23 NUMBER: 363
S: YofE: 97 DR #: 33088 ‘ METHOD: INJECTION TIME: 0010
Soc. CLASS: L ECQ. CLASS: L ©. EXECUTION SET : 97/01/23-EXE NO.:
RACE: W SEX: M TO-DR: 17.8 T-C: 18,5 AGE AT EXEC.; 47 DOB: 49/02/24
STATE: AZ CO: YUMA ua CITY:
HOR: BOOK/MOVIE: KILLER IN THE FAMILY: TISON; LAST >
H: L: 3 C: 3 E: 2 SPECIAL LIST: ESCAPE FROM PRISON
DATE OF CRIME: 1978/07/31 AGE AT CRIME; 29 CATEGORY: MM~SK LEO:
DATE OF SENT.: 1979/03/26 WEAPON: SHOT
CRIME: MURDER NO. KILLED: 4 TOTAL KILLED: 8+
VICT. CODE: WM24; WF23; WM02; WF15
CMTS#1: JOHN LYONS (24), SGT-USMC . (from Yuma)
DONNELDA LYONS (23), wife, back seat of car shot twice. holding baby
CHRISTOPHER LYONS (22mo.), son, shot w/ shotgun
TERESA TYSON [15], niece, bled to death, crawled about 1/4 mile
~flagged down by the gang to “help w/ broken down car" -stole car
‘KNOWN PREVIOUS CONVICTIONS: MURDER; ESCAPE :
ACCOMPLICE: TISON (DEATH~>LIFE); TISON (DEATH~>LIFE) FIRST ENTER:
CMTS#2: --three TISON brothers entéred ASP w/ large no. of weapons, effected
escape of their father and his cellmate... ESCAPE 78/07/30
~-NOT PROSECUTED IN CO BECAUSE OF 4 DEATH SENTENCES IN AZ
78/08/08 JAMES JUDGE (23) ~from Amarillo TX ;
MARGENE JUDGE [26]
~honeymooning couple ‘killed in CO - TX f=78/11/.. in canyon at
Pagosa Springs CO -shot in head; wanted their van 4
ARREST TRIED TO RUN A ROAD BLOCK . SET UP ALL OVER AZ
78/08/11 DONALD TISON [20] (son) shot to death at the roadblock
RICK TISON [19] (gon) captured --DEATH --+> LIFE
+ RAYMOND TISON [18], captured ~-~--DEATH --> LIFE
GARY TISON [ ], father, LIFE in prison for murder of a prison guard
~- died of exposure (heat) in the desert -gcorpions
LAST WORDS: “Yes, I do. I have prayed for you many times and the Lord is using
you well. Don’t worry about me, I'll be fine. [to Dir of Corrections Terry
Stewart]
J
LAST MEAL: Two cheesburgers, frerich fries, coffee w/ milk
HUMOR~STRANGE :
SOURCE: AZ DOC : a ee yas! IQ LEVEL:
CMTS#3: --his sister [Darlene] attended the execution: he waved at her; mouthed
“I: love you." One
DR. CLARKE ==author of the “Last Rampage" believes that GREENAWALT killed at
least 8-10 people |
GREENAWALT, Randy, white, 47, injection, AZSP (Yuma), January 23, 1997,
“Arizona Inmate is Executed for 4 Slayings.
“Florence, Ariz., Jan. 23 (AP)-A man who killed at least four people, including a 22-
month-old boy, after breaking out of prison almost 20 years ago was executed by injection early
today. The prisoner, Randy Greenawalt, 47, had spent 18 years on death row. He had been
_ serving a life sentence for a 1974 murder when he and a fellow inmate, Gary Tison, escaped from
the state prison in Florence on July 30, 1978, with the help of Mr. Tison’s three sons. The next
night, the men kidnapped and killed a Yuma couple, their infant son and niece and stole their car.
The bodies of Sgt. John Lyons, 24, his wife Donnelda, 23, and their son, Christopher, were found
near the abandoned car. The body of the Lyonses’ niece, Theresa Tyson, 18, was found a
quarter-mile away. The police believed that the men then killed a couple from Texas, James and
Margene Judge, near Pagosa Springs, Colo., but the case was never prosecuted, The Tisons and
Mr. Greenawalt were stopped at a roadblock in Arizona on Aug, 11, 1978. Law-enforcement
officials killed one of Mr. Tison’s sons, and Mr. Tison fled into the desert, where he died of
exposure. Mr. Greenawalt and the surviving sons, Raymond and Ricky Tison, were captured,
tried and sentenced to death. The Tisons’ death sentences were overturned by the state Supreme
Court in 1992, and they were resentenced to life in prison.”-7imes, New York, NY, 1/24/1997
(14A)
ON Oy OO agg AO OME ota a enn skein Ee ee ee Ee “ oe ene eee eg yo —
of -//- -f2~ — @heArizona Daily Star of UGSON
GLANCE
3
&
ee # €
1978 photos
Brothers Raymond Tison, left, and say. The prosecutors say a court rul-
Ricky Tison aren’t likely to face ing suppressing statements by the
death sentences for their parts in a pair makes it impossible to meet the
1978 murder rampage, prosecutors death penalty standard. Page 4B.
PHOENIX
The Arizona Republic
Saturday, July 18, 1992
-
een en
2nd Tison son given reduced term
By Brent Whiting
The Arizona Republic
A soft-spoken son of one of
Arizona’s most notorious killers tried
to distance himself from his father
Friday as he was resentenced for his
part in the slaying of four members of
, a Yuma family in 1978.
Raymond Tison, 32, told Judge
Gregory Martin of Maricopa County
Superior Court that he has spent the
past 14 years behind bars trying to
prove that he's not like his father,
Gary Tison.
“I’m not Gary Tison,” he said. “I
don’t think I’m going to be Gary
Tison.”
Raymond Tison, who -has been
—-
described by prison officials as a
model inmate, also said that he
expects to die in prison for his crimes
but wants to better himself and
improve his reputation.
Raymond Tison offered the state-
ments moments before he won a final
reprieve from the gas chamber and
was sentenced to life in prison without
possibility of parole for 50 years on
four counts of first-degree murder.
Lawyers said Friday that Tison
probably will die in prison because he
also is serving a life sentence without
possibility of parole for kidnapping.
His brother, Ricky Tison, who also
has been on death row, was resent-
enced a week ago to an identical
prison term. The two Tisons, their
father, and another brother, Donald,
were part of one of the state’s most
infamous crime sprees.
in Florence on July. 30; 19783 when; his ©
three sons brought. guns”. ‘into’ the :
complex and forced guards: tG:reledse +
their father and’ "Randy,
another convicted killer:
rae
After the.escape;’ Marine Set: John
Lyons, 24," his wife, Donnelda,. 2A,
their son, Christopher; ‘22*-months,
and niece, Theresa. Tyson, ‘15,. were
-gunned down. by Gary’ Tison. and
Greenawalt near Quartzsite. a
Donald Tison;. then: 20, was ‘killed
‘Greehawalt, *.
“at a police roadblock near Casa
Grande on Aug. 11, 1978. The other
Tison brothers and Greenawalt were
arrested at that time. Gary Tison
Gary Tison, a convicted: murderet;-:eluded:-officers at the roadblock but
escaped from. the. ‘Arizona State Prison \* ‘
“died. of exposure in the desert. .
is: The’death sentences of Raymond
‘and’ Ricky Tison were set aside by the
- Arizona: Supreme. Court’in.1989 ‘after
‘lawyers argued that the brothers did
‘ not. participate in the slayings and
didn’t intend to kill the ‘Yuma-family.
Crane’: McClennen,* “an ‘assistant ;
attorney: general,.-‘ ‘said: ‘Friday that
Greenawalt who has ‘been. sentenced
to death for the four murders, could
be executed as early as next year if his
pending federal appeals fail.’-
Prisoner will .
choose form
of execution
By Chris Coppola
Tribune writer
Sometime in late January, con-
victed killer Randy Greenawal
will have some ot
decisions to
make.
Faced with
the death pen- | #7:
alty and having | 2%:
exhausted vir-
tually all | &
appeals, prepa- |:
rations will be
made to carry (2====
out his execu- Greenawalt
tion on Feb. 13. As defense law-
yers feverishly scramble to find a
last-ditch grounds to stop his
death, Greenawalt will be asked to
order a last meal and invite wit-
nesses to his death:
He also will be asked how he
wants to die.
State officials say it a
: Ppears
Greenawalt will be the first of Ari-
zona’s death row inmates affected
by Proposition 103, which will
raed = method of execution in
na from gas ch
lethal injection. g 7"
Since Greenawalt was convicted
before the proposition passed, he
will be given a choice between
being put into the gas chamber, as
Don Harding was in April, or
injected with the lethal poison.
Killers convicted after passage of
the proposition, which amends the
state constitution and was
approved Nov. 3, will be subject
only to injection.
The state Department of Cor:
rections has started preparing for
the change, said Mike om
department spokesman.
“We're proceeding with a rede
sign of the death house that would
make an additional! room there for
a gurney and the iethal injection
equipment adjacent to the viewing
room,” he said, noting that by law,
witnesses must be able to view the
actual execution. The death cham-
ber is at the state prison in
Florence.
' . Several agency officials plan to
consult with other states that have
used the method, he said. The
method is used exclusively or
optionally in 19 other states. °
Arra said the initial cost for
lethal injection is expected to be
cnly several thousand dollars,
limited primarily to a’ gurney,
Please see Execute / B6
SPR T Zor A
a
TAs:
Tribune —-/772 3
ffesa
MeSa / rr bun i /1es5a,
‘
ARI Zor A
From page -B1
chemicals and injection equipment
DOC sta‘! also will need to be trained
to carry cut the execution.
“We con't know things yet like
exactly who will be sticking that nee
dle into the arm,” he said.
He noted that- DOC workers must
make costly test runs several times a
year on the gas chamber, which is
about 60 vears old “I's a very old
and complicated contraption,” he
said.
Proposition 103 passed overwhelm-
ingly by about 76 percent to 23 per-
cent, a greater margin than any other
proposition on the general election
ballot :
The outcome may have been
influenced by dramatic reports ear-
lier this vear of Harding's execution
in the ges chamber, the first in An:
zona in 29 years. Media witnesses
reported the sight of Harding writh-
ing in the chamber-for 10% minutes
before finally succumbing.
Assistant Attorney General Paul
MeMurdie, chief of the criminal
appeals division, said the siate Legis-
lature still must enact a statute to
correspond to the constitutional
change before the lethal injection
option becomes effective Because
Greenawalt's date is Feb. 13, law-
makers will be asked to take action
quickly, he said.
“It's going to be interesting to see
what happens. Right now, the statute
says they have to do it by lethal gas, -
and the constitution says Randy
Greenawalt has the right to lethal
injection,” he said
McMurdie said a draft of the bill
already has been forwarded to Rep.
Lela Steffiey, R-Mesa, 2 member of
the House Judiciary Committee and a
driving force behind the referendum.
which was referred to voters by the
Legislature.
“T would think that since it was
such a popular vote, we could move it
along very rapidly,” Steffey said, spe
culating on the chances. of quick -
approval by lawmakers. She said
there is “urgency” because of Greer-
awalt’s situation. but noted that politi-
cal haggling could stall the bill
Greenawalt will be asked to make
his decision 20 days before the execu-
tion date, McMurdie said.
Greenawalt’s case has gone to the
US. Supreme Court and his death
sentence upheld, and therefore is at
the same point Harding’s was before
his April 6 death. The 9th U.S. Circuit
Court of Appeals and the Supreme
Court both denied attempts by
defense lawyers to raise new issues in
Harding's case, a departure from pre-
vious years in which cases in the 9th
Circuit seemed to make endless
rounds. Greenawalt’s case could be
delayed if a court agrees there is 2
new issue not raised before, which
McMurdie said appears unlikely.
Greenawalt was convicted for the
1978 murders of John and Donnelcz
Lyons, their Q-vear-old son and teen-
age niece in Yuma County. Green
awalt had escaped from the Florence
prison with fellow inmate Gary Tison
with the help of Tison’s sons, Picky,
Raymond and Donnie.
The group went on 2 violent spree
across several states for several Gays
attempting to elude authorities before
being captured at a roadblock shoe
tout in Pinal County.
Ricky and Reymond Tison aiso are’
on death row for the killings. Donnie
was kilied in the shootout Gary Tisor
escaped but died in the desert of expc-
sure.
Two other inmates. Donald Beaty
and Alberto Ignacio Ortiz, have exe
cution dates set for late this year, but
they are likely to be staved because
both have early avenues of appeal
remaining. McMurdie said
==
KH incorrect: botK Tises
Cothers Were resentenced
sto fe ths PAST SummeER,
#e
he Arizona Jaily Star L Db t
Tucson, Saturday, April 11, 1992
Prosecutor says high court ruling.
shields Tisons from death penalty
PHOENIX (AP) — A prosecutor says a State Su-
preme Court ruling has the effect of guaranteeing life
imprisonment, instead of death sentences, for. Raymond |
and Ricky Tison for their parts in a 1978 murder ram-
page.
The brothers were convicted and sentenced to
death in 1979, but the state high court in 1989 ordered a
new set of sentencing hearings for the Tisons. —
To get another death sentence, the sentencing judge
had to determine that the brothers either intended to kill
or displayed “reckless indifference” toward human life
in shooting a family of four near Quartzsite, the justices
_said in the 1989 decision.
In December 1990, Judge Gregory Martin of Mari-
copa County Superior Court ruled that the Tison broth-
ers’ statements to authorities that placed them at the
murder scene could not be used by the prosecution.
Attorney General Grant Woods argued Thursday
before the state Supreme Court that the statements
were needed to meet the death penalty standard.
But the high court declined Thursday to take juris-
diction in the matter, affirming Martin’s ruling.
“There’s no hope of the death penalty,” said Assist-
ant Attorney General Paul McMurdie, who added that
it’s too soon to decide whether state officials would ap-
peal the décision to the U. S. Supreme Court.
Raymond Tison, then 18, and Ricky Tison, then 19,
and their brother Donald, then 20, smuggled guns into
the Arizona State Prison:at Florence on July 30, 1978.
They-forced guards to release their 42-year-old fa-
ther, Gary Tison, and fellow inmate Randy Green-
awalt, then 29. Both were serving life sentences for mur-
der. | |
The day after the escape, a tire on the gang’s get-
away car went flat on an isolated stretch of Arizona 95
___ about 25. miles south of Quartzsite.
A married couple — John and Donnelda Lyons: —
rode by with their infant son, Christopher, and 15-year-
old neice, Theresa Tyson. They offered to help but were
killed by 16 shotgun blasts from gang members, court
records showed.
The fugitives fled to New Mexico and Colorado be-
fore returning to Arizona and running into a police
roadblock near Casa Grande on Aug. 11, 1978.
During a shoot-out with police, Donald Tison was
killed and Greenawalt was arrested along with Ray-
mond and Ricky Tison. Gary Tison escaped into the
desert but was found dead of exposure several days
later.
DAILY OPINION SERVICE
United States Supreme Court 399
cert. pending, No. 85-6272; Ruffin v. State, 420 So.2d 591, 594 (Fla.
1982) (defendant present, assisted codefendant in kidnaping, raped
victim, made no effort to interfere with codefendant’s killing victim
and continued on the joint venture); People v. Davis, 95 Ill.2d 1,
52, 447 N.E.2d 353, 378 (defendant present at the scene and had
participated in other crimes with Holman, the trigger-man, during
which Holman had killed under similar circumstances), cert.
denied, 464 U.S. 1001 (1983); Selvage v. State, 680 S.W.2d 17, 22
(Tex.Cr.App. 1984) (participant in jewelry store robbery during the
course of which a security guard was killed; no evidence that defen-
dant himself shot the guard but he did fire a weapon at those who
gave chase); see also Allen v. State, 253 Ga. 390, 395, n. 3, 321
S.E.2d 710, 715, n. 3 (1984) (“The result in [Enmund v. Florida]
does not turn on the mere fact that Enmund was convicted of felony
murder. It is important to note how attenuated was Enmund’s
responsibility for the deaths of the victims in that case”), cert.
denied, 470 U.S. 1059 (1985).
Against this backdrop, we now consider the proportionality of
the death penalty in these mid range felony-murder cases for which
the majority of American jurisdictions clearly authorize capital
punishment and for which American courts have not been nearly
so reluctant to impose death as they are in the case of felo-
ny-murder simpliciter.'!
A critical facet of the individualized determination of culpability
required in capital cases is the mental state with which the defen-
dant commits the crime. Deeply ingrained in our legal tradition is
the idea that the more purposeful is the criminal conduct, the more
serious is the offense, and, therefore, the more severely it ought to
be punished. The ancient concept of malice aforethought was an
early attempt to focus on mental state in order to distinguish those
who deserved death from those who through “Benefit of... Clergy”
would be spared. 23 Hen. 8, c. 1, §§ 3, 4 (1531); 1 Edw. 6, c. 12,
§ 10 (1547). Over time, malice aforethought came to be inferred
from the mere act of killing in a variety of circumstances; in reac-
tion, Pennsylvania became the first American jurisdiction to distin-
guish between degrees of murder, reserving capital punishment to
“wilful, deliberate and premeditated” killings and felony murders.
3 Pa. Laws 1794, c. 1766, pp. 186-187 (1810). More recently, in
Lockett v. Ohio, 438 U.S. 586 (1978), the plurality opinion made
clear that the defendant’s mental state was critical to weighing a
defendant’s culpability undér a system of guided discretion, vacat-
ing a death sentence imposed under an Ohio statute that did not
permit the sentencing authority to take into account “[t]he absence
of direct proof that the defendant intended to cause the death of
the victim.” /d., at 608 (opinion of Burger, C.J.); see also Eddings
v. Oklahoma, 455 U.S. 104 (1982) (adopting position of Lockett
plurality). In Enmund v. Florida, the Court recognized again the
importance of mental state, explicitly permitting the death penalty
in at least those cases where the felony murderer intended to kill
and forbidding it in the case of a minor actor not shown to have
had any culpable mental state.
A narrow focus on the question of whether or not a given defen-
dant “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 lia-
ble 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 per-
son who tortures another not caring whether the victim lives or
11The fact that the Arizona Supreme Court purported to find “intent to kill”
before affirming death sentences after Enmund provides no support for the propo-
sition that it ordinarily has considered major participation in a violent felony
resulting in death combined with a reckless indifference towards human life insuf-
ficient to support a capital sentence. Cf. post, at —. The Arizona Supreme Court
has made formal findings of “intent to kill” to comply with the perceived “dictate
of Enmund,” State v. (Raymond Curtis) Tison, 142 Ariz. 454, 456, 690 P.2d 755,
758 (1984). In fact, the standard applied by the Arizona Supreme Court was not
a classic intent one, but rather whether “a defendant contemplated, anticipated,
or intended that lethal force would or might be used.” State v. Emery, 141 Ariz.
549, 554, 688 P.2d 175, 180 (1984). As we have shown, supra, at —, this standard
amounted to little more than a requirement that killing be foreseeable.
dies, or the robber who shoots someone in the course of the rob-
bery, 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.” Indeed it is for this very reason that the common
law and modern criminal codes alike have classified behavior such
as occurred in this case along with intentional murders. See, e.g.,
G. Fletcher, Rethinking Criminal Law § 6.5, pp. 447-448 (1978)
(“[I]n the common law, intentional killing is not the only basis for
establishing the most egregious form of criminal homicide... . For
example, the Model Penal Code treats reckless killing, ‘manifesting
extreme indifference to the value of human life,’ as equivalent to
purposeful and knowing killing.”) Enmund held that when “intent
to kill” results in its logical though not inevitable consequence—the
taking of human life—the Eighth Amendment permits the State to
exact the death penalty after a careful weighing of the aggravating
and mitigating circumstances. Similarly, 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.
The petitioners own personal involvement in the crimes was not
minor, but rather, as specifically found by the trial court,
“substantial.” Far from merely sitting in a car away from the actual
scene of the murders acting as the getaway driver to a robbery, each
petitioner was actively involved in every element of the kidnaping-
robbery and was physically present during the entire sequence of
criminal activity culminating in the murder of the Lyons family
and the subsequent flight. The Tisons’ high level of participation
in these crimes further implicates them in the resulting deaths.
Accordingly, they fall well within the overlapping second interme-
diate position which focuses on the defendant’s degree of participa-
tion in the felony.
Only a small minority of those jurisdictions imposing capital
punishment for felony murder have rejected the possibility of a
capital sentence absent an intent to kill and we do not find this
minority position constitutionally required. We will not attempt to
precisely delineate the particular types of conduct and states of
mind warranting imposition of the death penalty here. Rather, we
simply hold that major participation in the felony committed, com-
bined with reckless indifference to human life, is sufficient to satisfy
the Enmund culpability requirement.!* The Arizona courts have
clearly found that the former exists; we now vacate the judgments
below and remand for determination of the latter in further pro-
ceedings not inconsistent with this opinion. Cabana v. Bullock, 474
U.S. — (1986).
It is so ordered.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL
joins, and with whom JUSTICE BLACKMUN and JUSTICE STE-
VENS join as to Parts I-IV-A, dissenting.
The murders that Gary Tison and Randy Greenawalt committed
revolt and grieve all who learn of them. When the deaths of the
Lyons family and Theresa Tyson were first reported, many in Ari-
zona erupted “in a towering yell” for retribution and justice.’ Yet
Gary Tison, the central figure in this tragedy, the man who had his
family arrange his and Greenawalt’s escape from prison, and the
man who chose, with Greenawalt, to murder this family while his
sons stood by, died of exposure in the desert before society could
arrest him and bring him to trial. The question this case presents
is what punishment Arizona may constitutionally exact from two
of Gary Tison’s sons for their role in these events. Because our pre-
cedents and our Constitution compel a different answer than the
one the Court reaches today, I dissent.
124 ithough we state these two requirements separately, they often overlap. For
example, we do not doubt that there are some felonies as to which one could prop-
erly conclude that any major participant necessarily exhibits reckless indifference
to the value of human life. Moreover, even in cases where the fact that the defen-
dant was a major participant in a felony did not suffice to establish reckless indif-
ference, that fact would still often provide significant support for such a finding.
14 pp. 297 (quoting Paul Dean in the Arizona Republic, Aug. 16, 1978).
DAILY OPINION SERVICE
United States Supreme Court 397
II
In Enmund v. Florida, supra, this Court reversed the death sen-
tence of a defendant convicted under Florida’s felony-murder rule.
Enmund was the driver of the “getaway” car in an armed robbery
of a dwelling. The occupants of the house, an elderly couple,
resisted and Enmund’s accomplices killed them. The Florida
Supreme Court found the inference that Enmund was the person
in the car by the side of the road waiting to help his accomplices
escape sufficient to support his sentence of death:
“(T]he only evidence of the degree of [Enmund’s] participa-
tion is the jury’s likely: inference that he was the person in the
car by the side of the road near the scene of the crimes. The
jury could have concluded that he was there, a few hundred
feet away, waiting to help the robbers escape with the Kerseys’
money. The evidence, therefore, was sufficient to find that the
appellant was a principal of the second degree, constructively
present aiding and abetting the commission of the crime of
robbery. This conclusion supports the verdicts of murder in
the first degree on the basis of the felony murder portion of
section 782.04(1)(a).’ 399 So.2d, at 1370.” Enmund v. Florida,
458 U.S., at 786.
This Court, citing the weight of legislative and community opin-
ion, found a broad societal consensus, with which it agreed, that
the death penalty was disproportional to the crime of rob-
bery-felony murder “in these circumstances.” /d., at 788. The Court
noted that although 32 American jurisdictions permitted the impo-
sition of the death penalty for felony murders under a variety of
circumstances, Florida was one of only eight jurisdictions that
authorized the death penalty “solely for participation in a robbery
in which another robber takes life.” /d., at 789. Enmund was, there-
fore, sentenced under a distinct minority regime, a regime that per-
mitted the imposition of the death penalty for felony-murder
simpliciter. At the other end of the spectrum, eight States required
a finding of intent to kill before death could be imposed in a felo-
ny-murder case and one State required actual participation in the
killing. The remaining States authorizing capital punishment for
felony murders fell into two somewhat overlapping middle catego-
ries: three authorized the death penalty when the defendant acted
with recklessness or extreme indifference to human life, and nine
others, including Arizona, required a finding of some aggravating
factor beyond the fact that the killing/ had occurred during the
course of a felony before a capital sentence might be imposed. Ari-
zona fell into a subcategory of six States which made “minimal par-
ticipation in a capital felony committed by another person a
[statutory] mitigating circumstance.” /d., at 792. Two more Jjuris-
dictions required a finding that the defendant’s participation in the
felony was not “relatively minor” before authorizing a capital sen-
tence. /d., at 791.3
After surveying the States’ felony-murder statutes, the Enmund
Court next examined the behavior of juries in cases like Enmund’s
in its attempt to assess American attitudes towards capital punish-
ment in felony-murder cases. Of 739 death row inmates, only 41
did not participate in the fatal assault. All but 16 of these were
physically present at the scene of the murder and of these only 3,
including Enmund, were sentenced to death in the absence of a
finding that they had collaborated in a scheme designed to kill. The
Court found the fact that only 3 of 739 death row inmates had been
sentenced to death absent an intent to kill, physical presence or
direct participation in the fatal assault persuasive evidence that
American juries considered the death sentence disproportional to
felony-murder simpliciter. ’
Against this background, the Court undertook its own propor-
tionality analysis. Armed robbery is a serious offense, but one for
which the penalty of death is plainly excessive; the imposition of
the death penalty for robbery, therefore, violates the Eighth and
Fourteenth Amendments’ proscription “ ‘against all punishments
which by their excessive length or severity are greatly dispropor-
tioned to the offenses, charged.’ ” Weems v. United States, 217 U.S.
3Vermont fell into none of these categories. Vermont limited the death penalty
to defendants who commit a second unrelated murder or murder a correctional
officer. See Enmund v. Florida, 458 U.S., at 791, n. 11.
349, 371 (1910) (quoting O'Neil v. Vermont, 144 U.S. 323, 339-340
(1892)): Cf. Coker v. Georgia, 433 U.S. 584 (1977) (holding the
death penalty disproportional to the crime of rape). Furthermore,
the Court found that Enmund’s degree of participation in the mur-
ders was so tangential that it could not be said to justify a sentence
of death. It found that neither the deterrent nor the retributive pur-
poses of the death penalty were advanced by imposing the death
penalty upon Enmund. The Enmund Court was unconvinced “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 pur-
pose that life will be taken.” 458 U.S., at 798-799. In reaching this
conclusion, the Court relied upon the fact that killing only rarely
occurred during the course of robberies and such killings as did
occur even more rarely resulted in death sentences if the evidence
did not support an inference that the defendant intended to kill.
The Court acknowledged, however, that “[i]t would be very differ-
ent 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.” Jd., at 799.
That difference was also related to the second purpose of capital
punishment, retribution. The heart of the retribution rationale is
that a criminal sentence must be directly related to the personal cul-
pability of the criminal offender. While that States generally have
wide discretion in deciding how much retribution to exact in a
given case, the death penalty, “unique in its severity and
irrevocability,” Gregg v. Georgia, 428 U.S. 153, 187 (1976),
requires the State to inquire into the relevant facets of “the charac-
ter and record of the individual offender.” Woodson v. North Caro-
lina, 428 U.S. 280, 304 (1976). Thus, in Enmund’s case, “the focus
[had to] be on Ais culpability, not on that of those who committed
the robbery and shot the victims, for we insist on ‘individualized
consideration as a constitutional requirement in imposing the
death sentence.’ ” Enmund v. Florida, 458 U.S., at 798 (quoting
Lockett v. Ohio, 438 U.S. 586, 605 (1978)) (emphasis in original).
Since Enmund’s own participation in the felony murder was so
attenuated and since there was no proof that Enmund had any cul-
pable mental state, Enmund v. Florida, supra, at 790-791, the death
penalty was excessive retribution for his crimes.
Enmund explicitly dealt with two distinct subsets of all felony
murders in assessing whether Enmund’s sentence was disporpor-
tional under the Eighth Amendment. At one pole was Enmund
himself: the minor actor in an armed robbery, not on the scene, who
neither intended to kill nor was found to have had any culpable
mental state. Only a small minority of States even authorized the
death penalty in such circumstances and even within those jurisdic-
tions the death penalty was almost never exacted for such a crime.
The Court held that capital punishment was disproportional in
these cases. Enmund also clearly dealt with the other polar case: the
felony murderer who actually killed, attempted to kill, or intended
to kill. The Court clearly held that the equally small minority of
jurisdictions that limited the death penalty to these circumstances
could continue to exact it in accordance with local law when the
circumstances warranted. The Tison brothers’ cases fall into nei-
ther of these neat categories.
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. Traditionally, “one intends certain conse-
quences when he desires that his acts cause those consequences or
knows that those consequences are substantially certain to result
from his acts.” W. LaFave & A. Scott, Criminal Law § 28, p. 196
(1972); see Lockett v. Ohio, 438 U.S. 586, 625-626 (1978) (opinion
of WHITE, J.) (equating intent with purposeful conduct); see also
Perkins, A Rationale of Mens Rea, 52 Harv. L. Rev. 905, 911
(1939). 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.
The Arizona Supreme Court did not attempt to argue that the
facts of this case supported an inference of “intent” in the tradi-
tional sense. Instead, the Arizona Supreme Court attempted to
reformulate “intent to kill” as a species of foreseesability. The Ari-
zona Supreme Court wrote:
398 United States Supreme Court
CALIFORNIA
“Intend [sic] to kill includes the situation in which the defen-
dant intended, contemplated, or anticipated that lethal force
would or might be used or that life would or might be taken
in accomplishing the underlying felony.” State v. (Raymond
Curtis) Tison, 142 Ariz., at 456, 690 P.2d, at 757.
This definition of intent is broader than that described by the
Enmund Court. Participants in violent felonies like armed rob-
beries can frequently “anticipat[e] that lethal force ... might be
used . . . in accomplishing the underlying felony.” Enmund himself
may well have so anticipated. Indeed, the possibility of bloodshed
is inherent in the commission of any violent felony and this possi-
bility is generally foreseeable and foreseen; it is one principal rea-
son that felons arm themselves. The Arizona Supreme Court’s
attempted reformulation of intent to kill amounts to little more
than a restatement of the felony-murder rule itself. Petitioners do
not fall within the “intent to kill” category of felony murderers for
which Enmund explicitly finds the death penalty permissible under
the Eighth Amendment.
On the other hand, it is equally clear that petitioners also fall out-
side the category of felony murderers for whom Enmund explicitly
held the death penalty disproportional: their degree of participa-
tion in the crimes was major rather than minor, and the record
would support a finding of the culpable mental state of reckless
indifference to human life. We take the facts as the Arizona
Supreme Court has given them to us. Cabana v. Bullock, 474 U.S.
— (1986).
Raymond Tison brought an arsenal of lethal weapons into the
Arizona State Prison which he then handed over to two convicted
murderers, one of whom he knew had killed a prison guard in the
course of a previous escape attempt. By his own admission he was
prepared to kill in furtherance of the prison break. He performed
the crucial role of flagging down a passing car occupied by an inno-
cent family whose fate was then entrusted to the known killers he
had previously armed. He robbed these people at their direction
and then guarded the victims at gunpoint while they considered
what next to do. He stood by and watched the killing, making no
effort to assist the victims before, during, or after the shooting.
Instead, he chose to assist the killers in their continuing criminal
endeavors, ending in a gun battle with the police in the final show-
down.
Ricky Tison’s behavior differs in slight details only. Like Ray-
mond, he intentionally brought the guns into the prison to arm the
murderers. He could have foreseen that lethal force might be used,
particularly since he knew that his father’s previous escape attempt
had resulted in murder. He, too, participated fully in the kidnaping
and robbery and watched the killing after which he chose to aid
those whom he had placed in the position to kill rather than their
victims.
These facts not only indicate that the Tison brothers participa-
tion in the crime was anything but minor, they also would clearly
support a finding that they both subjectively appreciated that their
acts were likely to result in the taking of innocent life. The issue
raised by this case is whether the Eighth Amendment prohibits the
death penalty in the intermediate case of the defendant whose par-
ticipation is major and whose mental state is one of reckless indif-
ference to the value of human life. Enmund does not specifically
address this point. We now take up the task of determining whether
the Eighth Amendment proportionality requirement bars the death
penalty under these circumstances.
Like the Enmund Court, we find the state legislatures’ judgment
as to proportionality i in these circumstances relevant to this consti-
tutional inquiry.’ The largest number of States still fall into the two
4The state statutes discussed in Enmund v. Florida are largely unchanged. Mis-
sissippi and Nevada have modified their statutes to require a finding that the
defendant killed, attempted to kill, intended to kill, or that lethal force be
employed, presumably in light of Enmund. Miss. Code Ann. § 99-19-101(7)
(Supp. 1986); Nev. Rev. Stat. §§ 200.030(1)(b), 200.030(4), 200.033(4)(a)-(b)
(1985). New Jersey has joined the ranks of the States imposing capital punishment
in intentional murders but not felony murders. N.J. Stat. Ann. §§°2C:11-3a(a), (c)
(West Supp. 1986). Oregon now authorizes capital punishment for felony mur-
ders when the defendant intends to kill. Ore. Rev. Stat. §§ 163.095(d),
163.115(1)(b) (1985). Vermont has further narrowed the circumstances in which
it authorizes capital punishment: now only the murderers of correctional officers
may be subject to death. Vt. Stat. Ann., Tit. 13, §§ 2303(b), (c) (Supp. 1986).
intermediate categories discussed in Enmund. Four States autho-
rize the death penalty in felony-murder cases upon a showing of
culpable mental state such as recklessness or extreme indifference
to human life.> Two jurisdictions require that the defendant’s par-
ticipation be substantial® and the statutes of at least six more,
including Arizona, take minor participation in the felony expressly
into account in mitigation of the murder.” These requirements sig-
nificantly overlap both in this case and in general, for the greater
the defendant’s participation in the felony murder, the more likely
that he acted with reckless indifference to human life. At a mini-
mum, however, it can be said that all these jurisdictions, as well
as six States which Enmund classified along with Florida as permit-
ting capital punishment for felony-murder simpliciter,® and the
three States which simply require some additional aggravation
before imposing the death penalty upon a felony murderer,’ specif-
ically authorize the death penalty in a felony-murder case where,
though the defendant’s mental state fell short of intent to kill, the
defendant was a major actor in a felony in which he knew death
was highly likely to occur. On the other hand, even after Enmund,
only 11 States authorizing capital punishment forbid imposition
of the death penalty even though the defendant’s participation in
the felony murder is major and the likelihood of killin ng is so sub-
stantial as to raise an inference of extreme recklessness.” This sub-
stantial and recent legislative authorization of the death penalty for
the crime of felony murder regardless of the absence of a finding
of an intent to kill powerfully suggests that our society does not
reject the death penalty as grossly excessive under these circum-
stances, Gregg v. Georgia, 428 U.S. 153, 179-181 (1976) (opinion
of Stewart, POWELL, and STEVENS, JJ.); see also Coker v.
Georgia, 433 U.S. 584, 594 (1977).
Moreover, a number of state courts have interpreted Enmund to
permit the imposition of the death penalty in such aggravated fel-
ony murders. We do not approve or disapprove the judgment as
to proportionality reached on the particular facts of these cases, but
we note the apparent consensus that substantial participation in a
violent felony under circumstances likely to result in the loss of
innocent human life may justify the death penalty even absent an
“intent to kill.”. See, e.g., Clines v. State, 280 Ark. 77, 84, 656
S.W.2d 684, 687 (1983) (armed, forced entry, nighttime robbery
of private dwelling known to be occupied plus evidence that killing
contemplated), cert. denied, 465 U.S. 1051 (1984); Deputy v. State,
500 A.2d 581, 599-600 (Del. 1985) (defendant present at scene;
robbed victims; conflicting evidence as to participation in killing),
Sark. Stat. Ann. § 41-1501(1)(a) (1977 and Supp. 1985); Del. Code Ann., Tit.
11, § 636(a)(2), (b) (1979); Ky. Rev. Stat. § 507.020(1)(b) (1984); Ill. Rev. Stat.,
ch. 38, 111 9-1(a)(3), 9-1(b)(6) (1986).
6Conn. Gen. Stat. § 53a-46a(g)(4) (1985); 49 U.S.C. § 1473(c)(6)(D) (1976 ed.).
7 Ariz. Rev. Stat. Ann. § 13-703(G)(3) (1978 and Supp. 1986); Colo. Rev. Stat.
§ 16-11-103(5)(d) (1978 and Supp. 1985); Ind. Code § 35-50-2-9(c)(4) (Supp.
1986); Mont. Code Ann. § 46-18-304(6) (1985); Neb. Rev. Stat. § 29-2523(2)(e)
(1985); N.C. Gen. Stat. § 15A-2000(f)(4) (1983).
8Cal. Penal Code Ann. §§ 189, 190.2(a)(17) (West Supp. 1987); Fla. Stat. _
§§ 782.04(1)(a), 775.082(1), 921.141(5)(d) (1985); Ga. Code §§ 16-5-1(a),
17-10-30(b)(2) (1984 and 1982); S.C. Code §§ 16-3-10, 16-3-20(C)(a)(1) (1985 and
Supp. 1986); Tenn. Code Ann. §§ 39-2-202(a), 39-2-204(i)(7) (1982); Wyo. Stat.
§§ 6-2-101, 6-2-102(h)(iv) (1983).
The dissent objects to our classification of California among the States whose
statutes authorize capital punishment for felony murder simpliciter on the ground
that the California Supreme Court in Carlos v. Superior Court, 35 Cal.3d 131,
672 P.2d 862 (1983) construed its capital murder statute to require a finding of
intent to kill. Post, at —. But the California Supreme Court only did so in light
of perceived federal constitutional limitations stemming from our then recent
decision in Enmund. See Carlos v. Superior Court, supra, at 147-152, 672 P.2d,
at 873-877.
%daho Code § 19-2515(g) (Supp. 1986); Okla. Stat., Tit. 21, § 701.12 (1981);
S.D. Codified Laws § 23A-27A-1 (Supp. 1986).
10a 1a. Code §§ 13-A-2-23, 13-A-5-40(a)(2), (b), 13A-5-51, 13A-6-2(a)(2) (1982
and Supp. 1986); La. Rev. Stat. Ann. § 14:30(A)(1) (West 1986); Miss. Code Ann.
§ 99-19-101(7) (Supp. 1986); Nev. Rev. Stat. §§ 200.030(1)(b), 200.030(4),
200.033(4)(a)-(b) (1986); N.M. Stat. Ann. §§ 30-2-1(A)(2), 31-20A-5 (1984); N.J.
Stat. Ann. §§ 2C:11-3a(a), (c) (West Supp. 1986) (felony murder not capital); Ohio
Rev. Code Ann. §§ 2903.01(B){D), 2929,02(A), 2929.04(A)(7) (1982); Ore. Rev.
Stat. §§ 163.095(d), 163.115(1)(b) (1985); Tex. Penal Code Ann. §§ 19.02(a),
19.03(a)(2) (1974 and Supp. 1986); Utah Code Ann. § 76-5-202(1) (Supp. 1986);
Va. Code § 18.2-31 (Supp. 1986).
400 United States Supreme Court
°
CALIFORNIA
I
Under the felony-murder doctrine, a person who commits a fel-
ony is liable for any murder that occurs during the commission of
that felony, regardless of whether he or she commits, attempts to
commit, or intended to commit that murder. The doctrine thus
imposes liability on felons for killings committed by co-felons dur-
ing a felony. This curious doctrine is a living fossil from a legal era
in which all felonies were punishable by death; in those circum-
stances, the state of mind of the felon with respect to the murder
was understandably superfluous, because he or she could be exe-
cuted simply for intentionally committing the felony.” Today, in
most American jurisdictions and in virtually all European and
Commonwealth countries, a felon-cannot be executed for a murder
that he or she did not commit or specifically intend or attempt to
commit. In some American jurisdictions, however, the authority
to impose death in such circumstances still persists. Arizona is such
a jurisdiction.
The proceedings below illustrate how, under the felony-murder
doctrine, a defendant may be held liable and sentenced to death
for a murder that he or she neither committed nor intended to com-
mit. The prosecutor argued to the jury that it did not matter that
Gary Tison and Randy Greenawalt had caused the killings, because
under the felony-murder rule the Tisons could nonetheless be
found legally responsible for those killings. App. 173-174, 185, 191.
The trial judge’s instructions were consistent with the prosecutor’s
argument. /d., at 179, 218-219. In sentencing the petitioners, the
trial court did not find that they had killed, attempted to kill, or
intended to kill anyone. /d., 280-289. Nevertheless, the court
upheld the jury’s verdict that Ricky and Raymond Tison were lia-
ble under the felony-murder doctrine for the murders that their
father and Randy Greenawalt had committed. Furthermore, the
court found as an aggravating factor against petitioners the
“heinous, cruel and depraved manner” in which Gary Tison and
Randy Greenawalt carried out the murders. /d., at 282-283. As a
result, the court imposed the death sentence.?
The Arizona Supreme Court affirmed. It held that the Tisons
“did not specifically intend that the Lyons and Theresa Tyson die,
that they did not plot in advance that these homicides would take
place, [and] that they did not actually pull the triggers on the guns
which inflicted the fatal wounds. .. .” 129 Ariz. 526, 633 P.2d 335,
354 (1981). The Court found these facts to be “of little
significance,” however, because “the non-participation in the
shooting was not controlling since both [brothers] took part in the
robbery, the kidnapping, and were present assisting in the deten-
tion of the Lyonses and Theresa Tyson while the homicides were
committed.” 129 Ariz. 546, 556, 633 P.2d 355, 365 (1981). Thus,
while the Arizona courts acknowledged that petitioners had neither
participated in the shootings nor intended that they occur, those
courts nonetheless imposed the death sentence under the theory of
felony murder.
After the decision of the Arizona Supreme Court, this Court
addressed, in Enmund v. Florida, 458 U.S. 782 (1982), the question
“whether death is a valid penalty under the Eighth and Fourteenth
Amendments for one who neither took life, attempted to take life,
2As explained in the Commentaries on the Model Penal Code. “At common
law all felonies were punishable by death. In a felony-murder situation, it made
little difference whether the actor was convicted of murder or of the underlying
felony because the sanction was the same. The primary use of the felony-murder
rule at common law therefore was to deal with a homicide that occurred in fur-
therance of an attempted felony that failed. Since attempts were punished as mis-
demeanors, .. . the use of the felony-murder rule allowed the courts to punish the
actor in the same manner as if his attempt had succeeded. Thus, a conviction for
attempted robbery was a misdemeanor, but a homicide committed in the attempt
was murder and punishable by death.” ALI, Model Penal Code § 210.2. p. 31. n.
74 (1980).
345 the Court notes, ante, at — n. 2, it has expressed no view on the constitu-
tionality of Arizona’s decision to attribute to petitioners as an aggravating factor
the manner in which other individuals carried out the killings. On its face. how-
ever, that decision would seem to violate the core Eighth Amendment require-
ment that capital punishment be based on an “individualized consideration” of
the defendant’s culpability. Lockett v. Ohio, 438 U.S. 586. 605 (1978). It therefore
remains open to the state courts to consider whether Arizona’s aggravating factors
were interpreted and applied so broadly as to violate the Constitution. Godfrey
v. Georgia, 446 U.S. 420 (1980).
nor intended to take life.” /d., at 787. The question arose because
the Florida Supreme Court affirmed the death sentence for Earl
Enmund, an accomplice in an armed robbery in which his two co-
felons had killed the two individuals that the felons had intended
to rob. Enmund did not shoot anyone, and there was nothing in
the record concerning Enmund’s mental state with regard to the
killings, but the Florida Supreme Court had held him strictly liable
for the killings under the felony-murder doctrine. Enmund v. State,
399 So.2d 1362, 1369 (1981).
In reversing the Florida Supreme Court, this Court took note of
the “overwhelming evidence” of “[s]ociety’s rejection of the death
penalty for accomplice liability in felony murders.” 458 U.S., at
794. The Court observed that, in imposing the death penalty upon
Enmund, the Florida Supreme Court had failed to focus on
“Enmund’s own conduct ... [and] on his culpability.” Jd., at 798
(emphasis in original). The Court then explained, and rejected, the .
felony-murder doctrine as a theory of capital culpability.
“Enmund did not kill or intend to kill and thus his culpability
is plainly different from that of the robbers who killed; yet the
State treated them alike and attributed to Enmund the culpa-
bility of those who killed the Kerseys. This was impermissible
under the Eighth Amendment.” /bid. (emphasis added).
Enmund obviously cast considerable doubt on the constitution-
ality of the death sentences imposed on petitioners in this case. Fol-
lowing the Enmund decision, petitioners applied to the Arizona
Supreme Court for postconviction review. They argued that
Enmund prevented the State from imposing the death sentence
because they, like Enmund, were accomplices to a felony in which
killings occurred that they neither committed nor intended to com-
mit. Despite its earlier holding that the petitioners had not killed
or intended to kill anyone, the Arizona Supreme Court again
upheld the Tisons’ sentences. First, the court defined intent
broadly, adopting a definition that equates “intent to kill” with the
foreseeability-of-harm:
“[I]ntend [sic] to kill includes the situation in which the defen-
dant intended, contemplated, or anticipated that lethal force
would or might be used or that life would or might be taken
in accomplishing the underlying felony.” State v. (Raymond
Curtis) Tison, 142 Ariz. 454, 456. 690 P.2d 755, 757 (1984).
The court then reviewed, in a passage this Court quotes at length,
ante, at — (slip op. 6-8), the petitioners’ conduct during the escape
and subsequent flight. The court did not attempt to link any of peti-
tioners’ statements or actions to the decision to kill the family, nor
did it make any findings concerning petitioners’ mental states at
the time of the shootings. Instead, the court found that each peti-
tioner “could [have] anticipate[d] the use of lethal force during this
attempt to flee confinement.” 142 Ariz., at 448, 690 P.2d, at 749,
142 Ariz. at 456, 690 P.2d, at 757. The Arizona Supreme Court
then held, by a vote of 3-2, that this finding was sufficient to estab-
lish that petitioners “intended” (within the meaning of Enmund)
to kill the Lyons family, and affirmed the death sentences.
The Arizona Supreme Court thus attempted to comply with
Enmund by making a finding as to petitioners’ mental state. The
foreseeability standard that the court applied was erroneous, how-
ever, because “the possibility of bloodshed is inherent in the com-
mission of any violent felony and this possibility is generally fore-
seeable and foreseen.” Ante, at 13. Under the lower court’s stan-
dard, any participant in a violent felony during which a killing
occurred, including Enmund, would be liable for the death penalty.
This Court therefore properly rejects today the lower court’s mis-
guided attempt to preserve its earlier judgment by equating intent
with foreseeable harm. /bid. In my view, this rejection completes
the analytic work necessary to decide this case, and on this basis
petitioners’ sentences should have been vacated and the judgment
reversed.
The Court has chosen instead to announce a new substantive
standard for capital liability: a defendant’s “major participation in
the felony committed, combined with reckless indifference to
human life, is sufficient to satisfy the Enmund culpability
requirement.” Ante, at — (slip op. 21). The Court then remands the
case for a determination by the state court whether the petitioners
are culpable under this new standard. Nevertheless, the Court
aS ey
FOLK,,Carl J., white, asphyx. Ariz. (Najajo) lee saieebae 3 ay
a: . .
——— eee ON GS MELEE.
eee
HE TWO MEN who at that moment were utter
‘ : .strangers to each other drove westward through New
. Mexico along U.S, Highway 66. Raymond Bruce Allen,
a 26-year-old mechanic of Wattsburg, Pennsylvania, was at
the wheel of a pickup truck to which a trailer was attached.
Allen, a free citizen with no criminal record, had every legal ©
right to be Where he was.
The second man, driving a 1939 Ford sedan, was Carl J.
Folk, a carnival impresario. Folk, a huge, burly man, had
deep-set, glittering eyes, tremendous physical strength in
spite of his 60 years, and a very curious criminal record.
On July: 19th, 1949, Myrna Haines, a comely 17-year-old
houseworker, had inserted an advertisement in an Albu-
querque newspaper, announcing that she was available for
“a part-time job, %
.,/- Folk, who at the time was the sole proprietor of Folk’s
* Celebration Shows, with headquarters in Albuquerque, an-
swered ‘Myrna Haines’ ad and arranged a meeting with the
3 girl in the main post office.
He explained that he wished to drive her to his home so
that she could meet his wife. Quite unsuspecting, the young
girl accompanied him to his parked car. They headed north
%
sm@r
ER fufie eo "t
© \ Ze , 0s HH Go
aie ae . by D. L. CHAMPION
along Route 44 to San Ysidro, passed through the town.
Eighteen miles beyond San Ysidro, Folk ran the car off
the road into the deserted scrub country. For the first time,
Myrna Haines became suspicious, ;
“No one lives out here,” she said.
Do you really have one?” ‘
Folk halted the car alongside a scrubby pifion tree. “I
really have a wife,” he said. “But she’s visiting'some friends
in Texas. She won’t bother us at all.”
The next two hours were the most horrible. in Myrna
Haines’ life. She was beaten. She was pinched. She was
scratched. She was cut with a keen-bladed knife, and she
was raped three times, - Behe
Finally, Carl Folk tore her dress into Strips and tied her
to the scrubby pifion tree. He climbed .into his car and
headed back to Albuquerque.
Myrna -Haines was weeping and very nearly hysterical.
Nevertheless, she retained enough presence of mind to mem-
orize the license number of Folk’s car as it disappeared
down the road. ig ‘ ;
After an hour’s struggle the distraught girl managed to
free herself. She staggered' down. the road until she met a
“Where’s your wife?
Raymond ‘Allen (L), wife, baby were driving to new home, job in summer climate, when trailer became murder trap
SsatGae at eT carseat retinas
3 ear : :
| , RS : ! (
Bot
~~
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in At The Finish
Vowing he was “ready to go to God!”—
and “If I could live right now I would not
want to,” Gerald Gallego, 26-year-old cop
killer, initiated the new lethal gas chamber
at the Parchman, Miss., State Penitentiary.
Gallego killed policeman Ernest Beauguez
while the officer begged for his life, (Before
He Kills Someone, September FRONT PAGE,
1954). He was sentenced to death and then
escaped from a supposedly escape‘proof
jail at Jackson, Miss., along with Minor
Sorber, leaving the jailer, J. C. Landrum,
mortally bludgeoned (Loose The Dogs,
December INsDE, 1954). As Gallego began
his short walk to the death house, four
Negroes, also under sentence of death,
chanted a spiritual. Gallego, who had shown
a recent interest in religion and who had
just made a last-minute confession, asked
the singers to repeat it. Inside the steel-
encased chamber, Gallego clutched a picture
of Christ in one hand, told the attending
minister, “Christ is with me in this hand
*%)
and my mother and you are in the other
and going with me all the way.” As the door
slammed shut, Gallego whispered the
Twenty-third Psalm to himself, and died
six minutes later. Said Minor Sorber, Gal-
lego’s partner in the murder of the jailer,
and also under the sentence of death:
“Gallego has changed from the lowest form
of life to the highest.”
Baby-faced Richard Jensen, 30, who
turned killer before he was old enough to
shave, died in the lethal gas chamber at
San Quentin, Cal., prison for the kidnap-
_ing and attempted murder of Marine Ser-
geant Marion Piper. (Boy Into Beast,
January INSIDE, 1955.) At the age of 13,
Jensen had a long record of petty theft
and had been in and out of reform school.
At 14, he stabbed and bludgeoned to death
a playmate who teased him about being an
ex-con. At the time he told police, “He had
what was coming to him .. . I don’t care
what happens to me. Let 'em hang me...
Let ’em burn me, I’m not afraid to die.”
Judged insane, Jensen was committed to a
mental hospital for the criminally insane
where, except for a few brief periods of
escape, he remained for the next 12 years.
Pronounced cured in 1951, Jensen took a
job as a garage mechanic. In 1953, he
bought a car, rigged a shotgun in the back
seat so that he could shoot anyone sit-
ting next to him. The first victim was Ser-
geant Piper, who was hitchhiking when
Jensen gave him a ride. Jensen shot him,
beat him over the head with a hammer, shot
him again, then partially buried him alive.
But Piper still lived, crawled over a mile
to get help, was on hand as the principal
‘ witness at Jensen’s trial when he was con-
victed and sentenced to die.
‘With a warning that bloody riots may
develop if prison reforms are not carried
out, Jerome J. Waters, Jr., has resigned
from his post as the warden of the Okla-
homa State Penitentiary. The resignation
came a few weeks after the murder of an
inmate who burned to death in his cell
after being ignited with lighter fluid and
naptha (Keep Him Caged, April 1NsIDE,
1955); and the escape of another inmate,
Julius Bohannon (Big Bo’s Out, May FRONT
PAGE, 1955). Waters, a retired army gen-
eral, is credited with bringing many reforms
to the Oklahoma prison system, including
mental and physical tests for prison guards.
In his letter of resignation, Waters recom-
mended many more—such. as a_ prison
farm system and the enactment of an in-
determinate sentence law. These measures
are designed for better prisoner rehabili-
tation. —
‘Carnival operator Carl J. Folk, 62, died
in the Arizona State Prison gas chamber
for the brutal torture-murder of 22-year-
old Betty Faye Allen (Everybody Knows
Crazy Carl, March rnstpE, 1954). Enroute
to California with her husband and ten-
month-old son, Mrs. Allen was murdered
in their house trailer when they parked for
the night on Route 66 near Holbrook,
Ariz. After a six-hour orgy of torture and
Connecticut’s phantom burglar, Gilbert
Mead, 48, who turned killer and murdered
his wife and her lover in a Fort Lauderdale,
Fla., hideaway, has been found guilty on
both counts of murder and sentenced to die
in the electric chair (Don’t Cheat on The
Phantom, March INSIDE, 1955.) The son of
a wealthy Connecticut family, Mead was
given the death sentence for the murder of
his wife to whom he had been married five
months. But for the slaying of Dominick
Albonizio, 49, the jury brought back a rec-
ommendation of mercy. Mead had testi-
fied that Albonizio was “‘one of those lovers
who kept coming back to see my wife while
I was at work.”
rape, Folk strangled Mrs. Allen while her
usband lay bound and gagged within ear-
shot of his wife’s screams.
SRN eter eo
REN «Send area
50
This, then, was Carl J. Folk who drove along Highway
66 in the pale, winter sunshine early Tuesday morning, De-
cember Ist, 1953. “8
Raymond Bruce Allen had been born in Wattsburg, Penn-
sylvania. He was a machine tool repairman for the General
optimistic; the Proud possessor of a two-room trailer, a
lovely 22-year-old wife, a ten-month-old son and $140 in
traveler’s checks. : :
At 10 o’clock this bright Tuesday morning, Allen braked
his pickup truck at Cline’s Corner, a settlement built around
cidence in Allen’s life.
Folk got out of the coupe, kicked the tire, said, “Fill her
up,” to the attendant and glanced about. His eye fell first
on Raymond Allen and nothing registered. Then ‘he saw
‘Betty Allen and something did.
“Hi,” Folk said and smiled. He was a big man with a per-
sonality by no means unprepossessing, His smile was
‘Raymond Allen freed self too late for wife, but saved
is baby from trailer torturer was about fo set afire
Nag
“T guess we passed each other a couple of times down the
road,” Folk said, “J noticed the trailer. It’s a darned nice
job.”
“Probably see you some more, if you’re heading west,”
Folk shouted. “Good luck,” :
Allen waved back and slowly drove his pickup out onto
the highway,
During the rest of the day, Allen Saw a great deal of Carl
Folk. First the Pickup would Pass the Ford; a little later
the Ford would Pass the pickup. On each occasion Folk
nodded affably, :
This constant Passing and repassing did not seem at all
odd to Allen. His trailer was heavy and unwieldly to maneu-
ver. On the flat it was Allen’s custom to speed up and gain
momentum for the hills. On those occasions he would Pass
the Ford Coupe. However, once on a hill Allen was com-
At 9:30 that evening the Allens ate in Dowdy‘s restau-
rant. At 10 o’clock they went to bed. At 11 o’clock they
were awakened. ; ,
A flashlight Swept the interior of. the trailer. Allen
Opened his eyes and blinked. His wife clutched Allen’s
Allen, half unconscious, was bound with a length of
clothesline. Then the same treatment was given the trem-
bling Betty Allen. The baby whimpered softly.
“What is it you want?”
“This is just a stickup,” Folk said blandly, eying Betty
Allen. “Just a common, ordinary stickup. Where’s your
money?”
“That’s none of your business,” Allen snapped, His head
was clearer now, ORE
“No?” Folk said unpleasantly, He- Produced a long-
bladed switch-knife from his hip pocket. He opened it and
the steel glinted wickedly in the electric light. “You'll tell
me where the money is, or your wife won’t be so pretty in
the morning.” £2
Allen argued no longer. He told Folk where they kept
the $140 in traveler’s checks, There were also a few single
bills in his, trousers pockets, .
Folk helped himself to the money. Then he Paused and
regarded his victims. He seemed in no hurry, “Where are
you folks going?” he asked. :
“To California,” Allen said. “TO San Jose. I work for
General Electric. I’m being transferred from their Erie
plant to their San Jose branch. And we need our money.”
F TORTURE
He works frantically to unbind himself, —
“to rescue his wife from a madman
jeep carrying a crew of highway workers, They picked her
up, drove her to the nearest state police barracks.
The late Captain Nash Garcia of New Mexico’s State Police
easily traced Folk’s car through the license number, put him
under arrest, charging him with rape. Now the. law would
take its course. And a very zigzag course it proved to be.
Carl Folk, through his lawyer, entered a plea of insanity,
On November Ist, 1949, a sanity hearing was held before
District Judge R. F. Deacon Arledge. The judge ‘found. that
Folk was in fact insane, ordered him committed to New
Mexico’s State Insane Asylum at Las Vegas.
The following March Folk was released from the asylum
on convalescent leave in the custody of his attorneys. —
Shortly after that Folk was brought to trial beforé Judge
Arledge and a jury. He was charged with rape and con-
tributing to the delinquency of a minor female. ‘Again Carl
Folk pleaded insanity. Re) ee
But the jury disagreed with him. They announced that he
was sane then and had been sane at the time of the crime’s
commission. They found him guilty of each count.
Judge Arledge sentenced Folk to ten to fifteen years in“
prison on the rape charge and five years on the charge of
Bottle ‘beside stove (/.) warmed for baby of Betty Allen (r.), mercifully released by death from sadist’s cruel
contributing to. the delinquency of a minor, the sentences to,
run. concurrently. Folk immediately appealed to New
Mexico’s Supreme Court. ; ce " CY
The Supreme Court reversed the conviction and ordered Sih,
‘a new trial. Folk, the court said, had been declared legally —
insane. He could not be found guilty until someone declared.
him legally sane again. . ata cee
Judge Arledge ordered.a second sanity hearing before a
board of psychiatrists and this time Folk was adjudged sane
and competent. It was now November, 1952, three years
since the commission of the crime and much too late for the’ « ¢ :
district attorney’s office. Some of his ‘witnesses had left the”
state and Myrna Haines, completely unnerved: by ‘her shock- |
ing experience, had suffered a breakdown. She was now
confined in the asylum at Las Vegas. “ :
The rape charge was dismissed. Folk pleaded guilty to
contributing to delinquency and received a five-year: sus- *
pended sentence. Carl Folk left the courtroom; to all intents
and purposes a free man. ee i : is
He could not: precisely say that he, had got away with
murder, but he’d’ done the next best thing. He’d certainly
got away with rape. He could congratulate himself on-that.
, 4
Seees
peg Sanne cht
=>
ee
4.3
rr
See es
a
Sunday (—/F.
More photos from the 1978 escape Ar ARIZ OMA DA J Ly ico
RANDY GREENAWALT'S ODYSSEY “AR
* July 30, 1978: Convicted killers Randy Greenawalt and Gary Tison break out of a
medium-security unit at the Arizona State Prison in Florence, with the help of Tison's three sons.
* Aug. 1, 1978: The fugitives get two flat tires near Quartzsite. They force a family of four into
their disabled getaway car and shoot them with shotguns, killing Marine Sgt. John F. Lyons, 24, of
Omaha, Neb.; his wife, Donnelda, 23; their 22-month-old son, Christopher; and their 15-year-old
niece Theresa Tyson. |
* Aug. 2, 1978: The fugitives arrive in Flagstaff and force Kathleen Ehrmentraut, a friend of
Randy Greenawalt, to buy them a truck.
* Aug. 6, 1978: Scores of officers descend upon a Clovis, N.M., airstrip, where Gary Tison's
brother had agreed to meet the fugitives and fly them in his plane to Mexico. Authorities suspect
the gang saw law enforcement or the media and scrapped the plan.
* Aug. 7 or 8, 1978: The fugitives apparently kill honeymooners James Judge, 23, and Margene |
Judge, 26, of Amarillo, Texas, and steal their van.
* Aug. 11, 1978: The fugitives blow through a roadblock south of Casa Grande at about 3 a.m.,
firing at officers. At a second roadblock about seven miles away, Pinal County sheriff's deputies
fatally shoot Donald Tison, 20, and arrest Randy Greenawalt, Ricky Tison and Ray Tison. Gary
Tison escapes into the desert.
Investigators find the body of Theresa Tyson about a half-mile from where the Lyonses were
Pp!
Gang
,Continued from Page One
‘couple traveling near Pagosa
‘Springs, Colo.
: They reportedly shot newly-
‘weds James Judge, 23, and_ his
wife, Margene, 26, on Aug. 7 or 8,
1978, in the back of the head and |
stole their van.
The deadly journey ended
about two weeks and 35 miles
‘from the prison complex where it
-all started. :
On Aug. 11, 1978, the fugi-
‘lives smashed through a roadblock
on Arizona 15 south of Casa
Grande, firing at deputies.
The deputies returned fire and
chased the gang, who were driving
the Judges’ van, to a second road-
block about seven miles away.
Deputies at the second road-
block killed Donald Tison, 20, who
was driving the van. The van
swerved into a_ tree and
Greenawalt and Ricky Tison, then
18, and Raymond Tison, then 19,
surrendered.
Gary Tison, 42, fled into the
desert and died of exposure. A
local worker discovered his badly
decomposed body on Aug. 22,
1978.
When Greenawalt escaped, he
was. serving. a life sentence for
fatally shooting a truck driver in
Flagstaff and killing at least one
other truck driver in Arkansas.
Yuma County juries convicted
Greenawalt and the Tison brothers
of first-degree murder in 1979 for
the Quartzsite slayings under a
felony murder theory. Under the
felony murder law, a person can be
charged with murder if someone
dies during the commission of cer-
tain felonies.
; The men never were charged
with the Colorado killings since
they had been convicted in the
Arizona deaths.
‘On March 26, 1979, Yuma
County Superior Court Judge
Douglas Keddie sentenced
Greenawalt to death.
we Wee ee
eheig Tison brothers also
received the death penalty, but the
U.S. Supreme Court overturned
their sentences. The high court
ruled that prosecutors failed to
prove that the Tisons showed reck-
less indifference toward human
life. They are serving life sen-
tences at the Florence prison.
_ Tucson attorney’ Michael
Piccarreta, who represented Ricky
' Tison in successfully appealing his
death sentence. said he couldn't
help but think of Ricky and _ his
brother last night.
Piccarreta said the brothers
did not know Greenawalt before
the escape. and never spoke with
him after being captured.
He said they simply wanted to
reunite their family and never
knew anyone would get killed.
“Unfortunately. they were born
the child of a psychopath. Once he
got out, all he cared about was
himself.”
While the Tisons’ death sen-
tences were Overturned,
Greenawalt's ultimately = was
upheld.
On Feb. 17. 1988, a federal
Judge set aside his conviction
because police questioned
Greenawalt after he asked for a
lawyer.
But a federal appellate court
reinstated his death sentence in
1991, citing new restrictions on
appeals.
Defense attorneys argued
recently that Greenawalt had inef-
fective counsel at his murder trial
and sentencing.
Jurors were not told about
Greenawalt's “violent and traumat-
ic upbringing,” according to |
records filed by defense attorneys.
‘Greenawalt endured living in
an abusive home as a child, and
had a history of alcoholic black-
outs and head injuries, court
records state.
But state and federal courts,
including the 9th USS. Circuit
Court of Appeals in San Francisco,
rejected those arguments.
The Arizona Daily Star
"Tucson, Thursday, January 23, 1997
Parole board denies clemency for killer
.Greenawalt C+ /-/9-97
By Alexa Haussler
The Arizona Daily Star (- Tucson Az)
FLORENCE - A state parole board refused to recommend clemency yesterday for condemned
killer Randy Greenawalt, whose lawyer walked out 15 minutes into the hearing.
Greenawalt is scheduled to die by lethal injection just after midnight Wednesday in Florence.
Convicted killers Greenawalt and Gary Tison escaped in 1978 from the state prison in Florence,
with the help of Tison's sons, and went on a 12-day crime spree.
Greenawalt, 47, declined to attend the half-day hearing yesterday before the state Board of
Executive Clemency.
His attorney, John Bailey, began to present volumes of exhibits, including newspaper clippings,
suggesting the board is influenced by the governor and the state's clemency process is unfair.
But board members ordered him to limit his arguments to Greenawalt's case.
“Tf the board doesn't want to hear that . . . it is obviously futile for us to continue," Bailey said,
quickly leaving the hearing room.
Bailey asked the state Supreme Court Thursday to stall Greenawalt's execution because he
doubted the prisoner could get a fair clemency hearing in Arizona.
Het ‘It's a shameful process, it really is," Bailey told reporters outside the hearing room.
Deputy Yuma County Attorney Mark Hessinger said Bailey was just setting up the board.
‘That appeared contrived," he said.
After Bailey left, Hessinger showed the board a series of graphic, enlarged photographs of the
victims' bloody bodies.
Jim Ehrhart, who helped investigate the case for the Yuma County Sheriff's Department, detailed
the Tison gang's bloody trail after the escape.
Tison's three sons, Ricky, Raymond and Donald, helped Greenawalt and their father escape by
smuggling guns into the prison during a visit.
After the fugitives' car got two flat tires, they flagged down a Yuma family near Quartzsite in
Yuma County. Prosecutors said Tison and Greenawalt then killed Marine Sgt. John Lyons, 24, his
wife Donnelda, 23, and the couple's 22-month-old son Christopher and 15-year-old niece, Theresa
Tyson, of Las Vegas. All were killed by shotgun blasts.
‘There is no doubt that Randy Greenawalt was guilty of these crimes," Ehrhart said.
Paul Chadwick, Donnelda Lyons' brother, spoke to the board yesterday by telephone from
Omaha, Neb.
Closure needs to be had," he said. Aller 1Y years, Me aNd My Ladlliily eC UUsULE, Ue state U1
Arizona needs closure and Mr. Greenawalt himself needs closure."
After the fugitives killed the Lyons family, they headed to southwestern Colorado and apparently
killed a honeymooning Texas couple in Colorado for their van. Greenawalt and the Tisons were
never charged in that case.
They then drove the van through New Mexico and into Arizona, where Pinal County sheriff's
deputies captured Greenawalt and Raymond and Ricky Tison in a pre-dawn shootout at a
roadblock near Casa Grande.
Donald Tison, 20, was killed in the shootout and Gary Tison escaped into the desert. Tison, whose
body was found 10 days later in a nearby wash, apparently died of exposure.
A Yuma County Superior Court judge sentenced Greenawalt to death March 26, 1979. He also
sentenced Ricky and Raymond Tison to death, but the state Supreme Court reversed their
convictions in 1992 and they were resentenced to life terms.
A Department of Corrections investigator testified yesterday that Greenawalt was disciplined for
one incident in prison since the slayings, when guards found a 5-inch piece of metal in his cell.
Federal and state courts have upheld Greenawalt's execution through 18 years of appeals.
The 9th U.S. Circuit Court of Appeals in San Francisco held a teleconference hearing Thursday
on the case and announced yesterday that it had ruled against Greenawalt in his final federal
appeal.
In a 3-0 decision, the court said Greenawalt's appeal was properly dismissed by a federal judge
last September because his claims - that he was represented ineffectively at sentencing, and that
there was new evidence about his mental condition - were still pending in state court.
The six-member state board voted unanimously, without discussion, to deny recommending to
Republican Gov. Fife Symington that Greenawalt's execution be delayed or commuted to a life
term.
‘Public safety demands that I vote for a death sentence for Randy Greenawalt," said board
Chairman Duane Belcher after the hearing.
Belcher said he has not seen an attorney walk out of a hearing since he joined the board in 1992.
“It was an unexpected turn of events," he said.
He defended the board's decision to deny clemency recommendations for the past six prisoners
executed since the state resumed capital punishment in 1992 after a 29-year hiatus.
‘We have not been contacted by the governor," he said. ‘‘We have not been instructed or
coerced into making any decisions."
AZ DAILy STAR /-18-97
Back Next Today's News Home ( 7 US on)
Greenawalt and the Tison brothers were all tried, convicted and sentenced to death together.
The Tison brothers have since had their death sentences overturned because their actual involvement in
the murders was not intentional. (See Tison v. Arizona 481-US 137)
Greenawalt will be the first of Arizona’s death row inmates affected by Proposition 103, which will
change the method of execution in Arizona from the gas chamber to lethal injection. Since Greenawalt
was sentenced before the proposition passed this past November, he will be given the choice of
method.
TAKE ACTION, CONTACT:
Gov. Fife Symington
1700 W. Washington (602) 542-4331
Phoenix AZ 85007. FAX (602) 542-7601
IN MEMORIAL OF THOSE EXECUTED
Ricky Lee Grubbs, Missouri, was executed October 21, 1992.
John Sterling Gardner Jr., North Carolina, was executed October 23, 1992.
Jeffery Griffin, Texas, was executed November 19, 1992.
Cornelius Singleton, Alabama, was executed November 20, 1992.
Kavin Lincecum, Texas, was executed December 10, 1992.
Timothy Bunch, Virginia, was executed December 10, 1992.
Stays Received: Charles Stamper, Virginia, received a stay.
Lloyd Wayne Hampton, Illinois, picked up his appeals.
Robert Lewis Shaw, Missouri, received a stay.
Hernando Williams, Illinois received a stay.
PETITION ACTION ENCLOSED
There are 2 petitions enclosed in this Alert. One petition is for Robert Sawyer of Louisiana, he
has been denied by the Supreme Court and could have an execution date set at any time.
The second petition is for Cornelius Singleton, who was executed. The petition is expressing ~
frustration at the Governor for not seeking answers to questions in the Singleton case before he
was executed. Please duplicate and circulate these petitions and return them to the addresses
on the bottom of the petiti
fe seer) t88)executions in the United States
binstatement of the death penalty in 1976.
Texas 54 (28-7 S8m Nevada’ 5 \ (266%) Indiana 2 (1.06%)
Florida 29 (15.43% Carola (2.66%) Illinois 1 ( .53%)
Louisiana 20 (10.64%) | Mississippi (2.13%) Wyoming | ( .53%)
Virginia 17 ( 9.04%) S. Carolina (2.13%) Delaware | ( .53%)
Georgia 15 ( 7.98%) Arkansas~ (2.13%) Arizona | ( .53%)
Alabama 10 ( 5.32%) (2.13%) California | ( .53%)
Missouri 7 ( 3.72%) Oklahoma (1.60%)
National Execution Alert Network
c/o NCADP
1325 G St. NW LL-B
Washington DC 20005
Watt Espy
Capital Punishment
Research Project
eg Drawer 277
4345
Haadland AL.
The NATIONAL EXECUTION ALERT NETWORK is a project
of the National Coalition to Abolish the Death Penalty
For more information, contact: Pamela Rutter, NCADP
1325 G St. NW LL-B, Washington DC 20005 (202)347-241 1]
Peacenet Access Code--ABOLITION//Non-Business Hours Alert Answering Machine 202-347-2415
Partial Funding for the Alert Network is provided by the A.J. Muste Memorial Institute, the
Boehm Foundation and the Unitarian Universalist Foundation.
ALERT 92-9 December 16, 1992
**EXECUTION ALERT**EXECUTION ALERT**EXECUTION ALERT**EXECUTION ALERT**
WASHINGTON _***CONSENSUAL*** — = JANUARY 5, 1993 HANGING
WESTLEY ALLAN DODD, (White), age 32 has been on death row since July 1990. He was convicted and
sentenced to death for the sexual assault and murder of three white boys. Dodd confessed to the
murders. He waived his right to a jury trial, and pled guilty before a judge. Since his conviction and
sentencing, Dodd has demanded that his execution be carried out. He has fired attorneys who want to
oppose his execution, and is now represented by a lawyer who has agreed to help expedite the
carrying out of his sentence. Dodd has waived all reviews‘and appeals of his sentence.
Westley Dodd’s case has not been heard in an adversarial court proceeding. At his mandatory
Supreme Court review hearing, both the "defense" and the State argued his competence to be .
executed. Though there are indications of brain damage and psychiatric disorders in Westley Dodd, at
his own request, no mitigation evidence was presented at his trial, or before the Supreme Court. Two
justices of the Washington Supreme court dissented and urged that a full hearing on the mitigation
evidence be held, but a majority of the Court found that Dodd’s waiver of his review process was
constitutional and that the execution could proceed.
Washington state is 1 of 4 U.S. jurisdictions which allow hanging as the method of execution.
though the State’s death penalty statute, revised in 1981, allows execution by lethal injection,
condemned prisoners must choose lethal injection. Westley Dodd has requested to be hanged.
The last man executed in Washington was Joseph Chester Self, hanged June 20, 1963.
A petition for clemency will be filed with Gov. Gardner on behalf of Westley Dodd.
Points to raise in your letter to the Governor:
eno full and fair evaluation of Dodd’s competency or psychological background has ever been done;
ewe should exercise moral leadership rather than bend to Dodd’s will;
ethe state failed when it didn‘t take Dodd's earlier sexual offenses seriously.
TAKE ACTION, CONTACT: Governor Booth Gardner
State of Washington
Legislative Building _ (206) 753-6780
Mail Stop AS-0002 FAX (206) 753-4110
Olympia WA 98504-0002
VIRGINIA **CONSENSUAL** FEBRUARY 3, 1993 ELECTROCUTION
MICKEY DAVIDSON, (White), age 35 has been on death row since April 1991. He was convicted and
sentenced to death for the murders of his wife and two stepdaughters. He pleaded guilty at his trial.
The Virginia Coalition on Jails and Prisons is asking for letters to Davidson asking him to pick up his
appeals and fight his death sentence. (Express your own convictions on the death penalty and personal
reflections on why it is so important for death row prisoners to fight their death sentences.)
TAKE ACTION, CONTACT: Mickey Davidson #187116
Box 500
Boydton VA 23918
ARIZONA FEBRUARY 13, 1998 LETHAL INJECTION OR GAS CHAMBER
RANDY GREENAWALT, (White), age 43 has been on death row since 1979. He was convicted and
sentenced to death for the kidnapping/murder of 2 white females and 2 white males.
Raymond, Ricky and Donald Tison smuggled guns into the Arizona State Prison on July 30, 1978.
They forced guards to release their 42-year-old father, Gary Tison, and fellow inmate Randy Greenawalt,
then age 29. Both were serving life sentences for murder.
The day after the escape, a tire on the getaway car went flat on an isolated stretch of Arizona
95. A married couple, drove by with their infant son and 15-year old niece and offered to help. Instead
the car was comandeered and all 4 family members were shot and killed.
The fugitives fled to New Mexico and Colorado before returning to Arizona and running into a
police roadblock on August 11, 1978. During a shoot-out with police, Donald Tison was killed and
" Greenawalt was arrested along with Raymond and Ricky Tison. Gary Tison escaped into the desert but
was found dead of exposure in the desert several days later.
ee
Tison Gang member
incriminated self in
statements to police
‘Republic Staff 7 Wire Services
_ The U.S. Supreme Court let
stand Tuesday a lower-court ruling
that ordered further hearings to
determine whether police unlaw-
fully elicited incriminating state-
ments from a man convicted in four’
killings after a 1978 Arizona prison
escape. ;
' The case involves Randy Greena-
-walt, who was sentenced to death in
1979 for four murders committed
by what was known as the “Tison
Gang.” Also sentenced to die in
those killings were Ricky and
‘Raymond Tison.
~ 'Puesday’s ruling means that U.S.
District Judge Charles Hardy in
Phoenix will hold a hearing to
decide whether statements by:
Greenawalt were voluntary and
were properly admitted into evi-:
dence at trial, said Bruce Ferg, an
assistant state attorney general.
e
Ar [Zoe
bhic — Pheer x
| fO-1S- Gs
High court affirms hearing on questioning of killer
If Hardy finds that the state-
‘ments were involuntary and were
improperly admitted, he then must
determine whether Greenawalt is:
entitled to a new trial.
Greenawalt and the Tisons were
convicted of killing Marine Sgt.
| John F. Lyons; his wife, Donnelda;
his 22-month-old son, Christopher;
-and his niece, Theresa Tyson of Las”
- Vegas, Nev. - :
The four victims were shot to.
death after Raymond, Ricky and
their brother, Donald, helped their ..
father, Gary Tison, and Greenawalt
escape from the Arizona State
Prison at Florence on July 30, 1978.
_Greenawalt and the Tisons took the _
victims’ car after the escape.
Donald Tison was killed in a
- shoot-out near Casa Grande on™
Aug. 11, 1978. His father died of
rae we -
exposure in the desert while trying
to elude pursuers.
Ricky and Raymond Tison were
convicted and sentenced to death,
_ but the Supreme Court has agreed.
to study their case. A decision is
expected by July.
Greenawalt was questioned by. -
different police officers at various. -
‘times during the day of his arrest.
~ At one point he told police, “We
‘didn’t kidnap the girl (Theresa
Tyson), nor was she sexually mo- |
lested.”
Asked by police whether the girl”
had been shot, Greenawalt said that
she had.
The 9th U.S. Circuit Court of,
Appeals in March ordered a federal”
judge to determine whether police
“questioning of Greenawalt violated’ _
his rights under a 1981 Supreme
_ Court ruling.
y
Fic: aaa
AEs
_ In that ruling, the high court said:
' that once a suspect has said he
wants to deal with police only
through a lawyer, police may not
question the suspect further unless _
the accused initiates the conversa-
tion. —
The 9th Circuit Court of Appeals
: said the facts surrounding Greena-.
~-walt’s questioning must ‘be: exam-
ined in detail to determine whether
police initiated the questioning that
led to his incriminating statements.
Ferg would have preferred a .
Supreme Court review of the ad-"
missibility of Greenawalt’s state-
ment but said he can understand,
that the court “wasn’t interested in’
getting involved at this stage.”
Ferg said that he expects any:
ruling by Hardy to be appealed.
Cia
‘ my 2
Paarl
CRS
St)
Aion,
1997 - (- 23 ~- GE Setffry Scott, The Arizona Daily Star
homionstidtors Christie Rogers of Tucson, left, and Margaret Grannis of Tempe sing songs outside Florence prison
6694 Ninth Circuit Court of Appeals
‘
CALIFORNIA
Edwards are neither illogical nor grudging, as Halliday explains:
Edwards emphasizes the necessity of counsel being made
“available” or of the defendant having “access” to coun-.
sel, rather than holding that once the accused requests
counsel he may thereafter be questioned only in the pres-
ence of counsel. Here Gallagher had access to two attor-
neys. Court-appointed counsel was made available to
him, and in addition he retained and spoke with private
counsel. Thus the FBI did not impermissibly initiate a
second interrogation after defendant requested counsel.
Id. (citations omitted). Halliday, Griffin, and the state court deci-
sion in Minnick, while contrary to the Supreme Court’s subsequent
decision in Minnick, are reasonable applications of Edwards. Their
existence demonstrates that Minnick was not dictated by Edwards,
but rather, is an extension of it, about which reasonable courts
might differ. Therefore, we hold that Minnick announced a new
rule. Because the district court’s holding is coextensive with it, we
hold that it, too, imposed a new rule.
B.
A new rule is generally precluded from retroactive application
on collateral review. Butler, 110 S. Ct. at 1214; Teague, 489 U.S. at
310. Likewise, a new rule generally cannot be announced in a case
on collateral review. Penry, 492 U.S. at 313; Teague, 489 U.S. at
316. This would complete our analysis of this issue, but there are
two exceptions to these general principles.
The first exception allows a new rule to apply retroactively in
collateral proceedings when it places “certain kinds of primary, pri-
vate individual conduct beyond the power of the criminal law-mak-
ing authority to proscribe.” Butler, 110 S. Ct. at 1218 (internal
quotations omitted); Teague, 489 U.S. at 307 (internal quotations
omitted). This exception is inapplicable here, because Minnick’s
procedural requirements do not alter the state’s authority to prose-
cute Greenawalt for murder, kidnapping, armed robbery, and theft.
See Butler, 110 S. Ct. at 1218 (“The proscribed conduct in the in-
stant case is capital murder, the prosecution of which is, to put it
mildly, not prohibited by the rule in Roberson.”).
The second exception is for new rules that are “watershed rules
of criminal procedure” “without which the likelihood of an accu-
rate conviction is seriously diminished.” Teague, 489 U.S. at 311,
313. On this issue, Butler’s treatment of Roberson is again illumi-
nating.
Because a violation of Roberson’s added restrictions on
police investigatory procedures would not seriously di-
minish the likelihood of obtaining an accurate determina-
tion — indeed, it may increase the likelihood — we
conclude that Roberson did not establish any principle
that would come within the second exception. ,
Butler, 110 S. Ct. at 1218. The second exception is likewise inap-
plicable here because the Supreme Court’s holding in Minnick, and
the district court’s similar holding extend a prophylactic rule which
results in the exclusion of probative trial evidence. As neither ex-
ception applies, we hold that the new rule announced by Minnick
and the district court cannot be applied in this case on collateral re-
view.
ts
Once in custody, Greenawalt both requested counsel and repeat-
edly confessed his crimes. The State did not deny him counsel, and
after conferring with counsel, Greenawalt again confessed. Faced
with this situation, the state trial court excluded the confessions
Greenawalt gave after he requested counsel and before it was made
available to him, but admitted the confession given after
Greenawalt spoke with counsel. The state trial court’s rulings were
reasonable in light of the precedent controlling on direct review, so
they must be upheld on collateral review. The district court erred by
imposing this new rule on collateral review. We therefore reverse
the district court’s holding on the Edwards issue.
This holding does not require, as Greenawalt contends, a re-
mand for additional findings of fact. Greenawalt was provided the
opportunity to overcome the presumptive correctness of the state
court’s findings of historical fact in the original district court pro-
ceedings, and he failed to do so. See 28 U.S.C. § 2254(d). Nothing
he has said before this court convinces us that the district court
erred in this regard.
Our holding also requires that we reject Greenawalt’s closely re-
lated sixth amendment contention. The sixth amendment entitles
the accused to counsel once “adversary judicial criminal proceed-
ings” have been initiated, “whether by way of formal charge, pre-
liminary hearing, indictment, information, or arraignment.” Kirby
v. Illinois, 406 U.S. 682, 689 (1972). The parties disagree about
whether Greenawalt was charged before he was interrogated, but
we need not decide this question; Greenawalt’s sixth amendment
claim adds nothing to his fifth amendment claim.
We recognize that the two rights are not precisely coextensive,
and that in some contexts, the sixth amendment affords protection
not provided by the fifth. E.g., United States v. Wade, 388 U.S. 218,
223 (1967) (recognizing sixth but not fifth amendment right to
counsel at post-indictment line-up). But in the context of a custodi-
al interrogation after the initiation of adversary judicial proceed-
ings, we may treat the fifth and sixth amendment rights as both
defined by the rule of Edwards. See Michigan v. Jackson, 475 U.S.
625, 636 (1986) (applying Edwards to analyze sixth amendment
right to counsel in post-arraignment' interrogation). We have al-
ready decided that an extension of Edwards to this case would im-
permissibly impose a new rule on collateral review. This is true
whether we focus on the fifth or sixth amendment as the ultimate
source of the Edwards claim.
Ill
In originally denying Greenawalt’s petition, the district court re-
jected all of Greenawalt’s other contentions of error. Greenawalt is
entitled to a de novo determination of these contentions by us. Mill-
er v. Vasquez, 868 F.2d 1116, 1118 (9th Cir. 1989).
Greenawalt contends the confession admitted at trial was tainted
by his prior inadmissible statements. His contention rests on Brown
v. Illinois, 422 U.S. 590, 604-05 (1975), in which the Supreme
Court excluded a confession so tainted by a previous coerced con-
fession so as to be coerced itself. Brown has been limited, however,
~ to cases of actual coercion. Oregon v. Elstad, 470 U.S. 298 (1985)
(Elstad). Because Miranda’s prophylactic rule “sweeps more
broadly than the Fifth Amendment itself,” a voluntary confession
merely inadmissible on the ground of Miranda does not taint a sub-
sequent voluntary confession. Jd. at 306, 309. “If errors are made
by law enforcement officers in administering the prophylactic
Miranda procedures, they should not breed the same irremediable
consequences as police infringement of the Fifth Amendment it-
self.” Id. at 309.
While Elstad involved a failure to give the Miranda warnings,
we conclude that its holding applies to other Miranda violations.
Therefore, we hold that a voluntary confession inadmissible on the
‘ground of Edwards does not taint a subsequent voluntary confes-
sion. By so doing, we follow those circuits that have already con-
sidered the question. See United States v. Cherry, 794 F.2d 201,
207-08 & n.6 (Sth Cir. 1986) (holding admissibility of derivative
evidence discovered through use of statements taken in violation of
Miranda), cert. denied, 479 U.S. 1056 (1987); Lamp v. Farrier, 763
F.2d 994, 998 n.8 (8th Cir.), cert. denied, 474 U.S. 1009 (1985).
Thus, we must determine whether the earlier as well as the ad-
mitted confessions were voluntary. United States v. Wauneka, 842
F.2d 1083, 1087 (9th Cir. 1988). While we determine voluntariness
de novo, we do, of course, “give great weight to the considered con-
clusions of a coequal state judiciary.” Miller v. Fenton, 474 U.S.”
104, 112 (1985). The Arizona trial court, the Arizona Supreme
Court, as well as the district court, all concluded that Greenawalt’s
confessions were voluntary.
As to his first set of confessions, Greenawalt contends the cir-
cumstances surrounding his arrest demonstrate deliberate police
coercion. He observes that his arrest followed a 12-day search and
a high speed chase in which one of his companions was fatally shot.
The police “swarmed” and fired “aerial flares.” Greenawalt’s
clothes were taken from him, and his glasses were lost. He was
DAILY OPINION SERVICE
Ninth Circuit Court of Appeals 6695
handcuffed. This conduct is described in Greenawalt’s brief as just
“short of physical torture.”
As the state observes, however, Greenawalt was never threat-
ened or subjected to any kind of rough handling or harassment. The
12-day search and high speed chase are surely irrelevant; the police
were not coercing Greenawalt, they were attempting to capture
him. Cf. California v. Hodari D., 111 8. Ct. 1547 (1991) (suspect
not seized within the meaning of the fourth amendment when
chased). Greenawalt’s glasses were lost in the crash of his getaway
vehicle, and not through any police action. His clothes were taken
for a legitimate reason, their potential evidentiary value, and he was
given a blanket to cover himself, before he made statements of any
kind. His handcuffs were loosened upon request. Despite his at-
tempts to characterize this environment as coercive, Greenawalt
was hardly a stranger to it: he had already been twice convicted for
murder, and he knew personally most of the officers who arrested
him.
While newspaper accounts about the murder of Theresa Tyson
may have influenced Greenawalt’s admissions, the Supreme Court
has made it clear that this type of influence is not coercion within
the meaning of the fifth amendment. E.g., Colorado v. Connelly,
479 U.S. 157, 170-71 (1986) (rejecting a proffered “free will” anal-
ysis of coercion); Elstad, 470 U.S. at 304-05 (observing that the
fifth amendment is not concerned with “moral and psychological
pressures to confess emanating from sources other than official co-
ercion”); United States v. Washington, 431 U.S. 181, 187 (1977)
(“Indeed, far from being prohibited by the Constitution, admissions
of guilt by wrongdoers, if not coerced, are inherently desirable....
Absent some officially coerced self-accusation, the Fifth Amend-
ment privilege is not violated by even the most damning admis-
sions.”). We hold that Greenawalt’s initial confessions, though
obtained in violation of Edwards, were nevertheless voluntary.
We reach the same conclusion about the admitted confession.
No indicia of coercion were present at the time Greenawalt made
his final confession, as Greenawalt appears to concede by his fail-
ure to argue the issue. Therefore, we hold that Greenawalt’s final
confession was both voluntary and untainted by his prior confes-
sions, and could be admitted at trial consistent with Elstad.
IV
Greenawalt next contends that his death sentence is unconstitu-
tional. Most of Greenawalt’s contentions are foreclosed by Walton
v. Arizona, 110 S. Ct. 3047 (1990) (upholding Arizona’s death pen-
alty statute), and Greenawalt conceded all but one of these conten-
tions at oral argument. Greenawalt now contends only that the trial
court failed to make the special findings of mens rea required by
Enmund v. Florida, 458 U.S. 782, 801 (1982) (Enmund), as well as
those cases following it, Cabana v. Bullock, 474 U.S. 376, 390
(1986) (Cabana), and Tison v. Arizona, 481 U.S. 137, 158 (1987)
(Tison). The issue is whether Teague prevents our consideration of
the merits of this contention. As already observed, Teague held that
new rules generally would not be retroactively applied to cases on
collateral review. Teague, 489 U.S. at 310. Enmund was announced
in 1982, the year after Greenawalt’s conviction and sentence be-
came final, so Greenawalt seeks the retroactive application of En-
mund.
In Enmund, the Supreme Court held that in cases of accomplice
felony murder, the eighth amendment requires a special showing of
mens rea before the death penalty can be imposed. 458 U.S. at 801.
Until that time, consistent with the common law, the death penalty
could be imposed for felony murder without any showing of mens
rea beyond that required for the underlying felony offense. Id. at
816-17 (O’Connor, J., dissenting). Enmund thus departed rather
significantly from prior law, and in so doing, announced a new rule.
As anew rule, Enmund is precluded from retroactive application on
collateral review, unless it fits within one of Teague’s two narrow
exceptions.
The second exception clearly does not apply. The rule of En-
mund, whatever its significance, is not a “watershed rule of crimi-
nal procedure” comparable to Gideon v. Wainwright, 372 U.S. 335
(1963), the case most often cited in connection with this second ex-
ception. Saffle, 110 S. Ct. at 1264. :
The first exception “cover[s] not only rules forbidding criminal
punishment of certain primary conduct but also rules prohibiting a
certain category of punishment for a class of persons because of
their status or offense.” Penry, 492 U.S. at 330. We have already
observed that the murders of which Greenawalt was convicted
could have been proscribed by the state, see Butler, 110 S. Ct. at
1218. However, when considering the retroactivity of Enmund, we
must determine whether Greenawalt falls within a class of persons,
such as in Penry, that might arguably be beyond the power of the
state to punish by death. Saffle, 110 S. Ct. at 1263.
Enmund holds that “the principles of proportionality embodied
in the Eighth Amendment bar imposition of the death penalty upon
a class of persons who may nonetheless be guilty of the crime of
capital murder as defined by state law.” Cabana, 474 U.S. at 385;
see also Enmund, 474 U.S. at 801 (Enmund holds that “the Eighth
Amendment prohibits a State from executing a convicted felony
murderer.”) (O’Connor, J., dissenting). As implemented by Tison
and Cabana, Enmund prohibits the sentence of death, absent a state
court finding that the defendant was a “major participant in the fel-
ony committed” and exhibited a “reckless indifference to human
life.” Tison, 481 U.S. at 158. Therefore, it can be argued that En-
mund announced a substantive rule, although it was implemented
through new procedural requirements. See Jones v. Thigpen, 741
F.2d 805, 811 (5th Cir. 1984) (finding Enmund retroactive under
Linkletter, and stating that the argument that Enmund is merely
procedural is patently frivolous), vacated on other grounds, 475
U.S. 1003 (1986).
On the other hand, it is clear that this case presents a situation
which Teague intended to cover. The Arizona courts could not have
reasonably anticipated Enmund before it was announced, and ac-
cordingly, they required the state to prove only the mens rea for the
underlying felony offenses. Indeed, Greenawalt was tried for felo-
ny murder, instead of murder in the first degree, after the Tison
sons, who had identified Greenawalt as one of the actual trigger-
men, refused to testify. This approach fully complied with both the
common law and the eighth amendment as theretofore interpreted.
To require more now would not serve the primary purpose of habe-
as corpus review which, as already observed, is to encourage com-
pliance with existing constitutional commands. Butler, 110 S. Ct.
at 1217; Teague, 489 U.S. at 306.
However, we need not decide the retroactivity of Enmund, be-
cause Enmund would not change the outcome of this case. Enmund
only requires a finding that the defendant was a major participant
in the felony committed, and also exhibited a reckless indifference
to human life. Tison, 481 U.S. at 158. To determine whether these
findings have been made, we examine “the entire course of the
state-court proceedings.” Cabana, 474 U.S. at 387.
When sentencing Greenawalt, the state trial judge said: “In the
commission of the murders of John Lyons and Donnelda Lyons,
[Greenawalt] knowingly created a grave risk of death to other per-
sons in addition to those victims.... The defendant committed the
offenses in an especially heinous, cruel and depraved manner.”
These statements satisfy Enmund’s threshold requirement that
Greenawalt exhibit “reckless indifference” to human life. In addi-
tion, the Arizona Supreme Court held that Greenawalt was an ac-
tive participant in the felonies committed. Greenawalt I, 624 P.2d
at 853. Thus, even if Enmund applies, both necessary findings were
made by the state courts, and we need not remand on this issue.
Vv
Greenawalt’s remaining contentions are clearly without merit.
Greenawalt contends that the trial court erred by failing to instruct
the jury on second degree murder or any lesser included offense.
He correctly observes that due process requires such an instruction
when the evidence warrants it. Beck v. Alabama, 447 U.S. 625, 636-
37 (1980). He fails to point out the Supreme Court’s subsequent
clarification that “[w]here no lesser included offense exists, a lesser
included offense instruction detracts from, rather than enhances,
the rationality of the process. Beck does not require that result.”
Spaziano v. Florida, 468 U.S. 447, 455 (1984). '
Ninth Circuit Court of Appeals
6696
CALIFORNIA
Greenawalt was tried solely for felony murder, a crime for
which Arizona law recognizes no lesser included offense.
Greenawalt I, 128 Ariz. at 168, 624 P2d at 846. Thus, this case is
factually dissimilar from Vickers v. Ricketts, 798 F.2d 369, 370-71
(9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987), in which we re-
versed a first degree murder conviction for the failure to give a sec-
ond degree instruction provided by law. Here, the trial court
committed no error.
Finally, Greenawalt contends that the district court erred by fail-
ing to order, on its own motion, all exhibits relevant to pretrial pub-
licity before ruling on Greenawalt’s petition. We have already
rejected this contention. In Austad v. Risley, 761 F.2d 1348, 1354
(9th Cir.) (en banc), cert. denied, 474 U.S. 856 (1985), we held that
a petitioner must produce these exhibits himself, unless he proves
his inability to do so. Greenawalt has demonstrated no such inabil-
ity, so his contention is foreclosed by the rule of Austad.
Nor does the record demonstrate prejudice. A state court deter-
mination that the jury was impartial is a finding of historical fact
treated as presumptively correct on collateral review. Patton vy.
Yount, 467 U.S. 1025, 1036-40 (1984); 28 U.S.C. § 2254(d). The
state trial court proceeded to trial after determining that Greenawalt
was not prejudiced by the pretrial publicity, and this determination
was upheld on direct review. Greenawalt I, 128 Ariz. at 165, 624
P.2d at 843.
Greenawalt appears to concede as much; his primary contention
in this regard is that he should be entitled to introduce the publicity
exhibits in support of a new habeas corpus petition. The issue of
whether a future petition would be abusive is not raised by this pe-
tition. It is true that Austad considered the issue nevertheless, but
the Supreme Court has recently announced a new test for abuse of
the writ, McCleskey v. Zant, 111 S. Ct. 1454 (1991), so we cannot
rely simply on Austad.
We therefore reverse the district court’s granting this petition.
As we have held, nonretroactivity controls the Edwards issue. The
Elstad contention fails because Greenawalt’s confessions were vol-
untary. Most of the sentencing contentions are foreclosed by Wal-
ton, as Greenawalt conceded at oral argument, and he cannot secure
reversal by his remaining sentencing contention. A lesser included
offense instruction is not required for felony murder in Arizona.
The district court did not need to consider publicity exhibits that
Greenawalt failed to produce, and the record does not demonstrate
that Greenawalt was prejudiced by pretrial publicity in any event.
Thus, the State fully complied with the federal constitutional stan-
dards in force when Greenawalt exhausted direct review, so his
conviction and death sentence must be upheld on collateral review.
AFFIRMED IN PART; REVERSED IN PART.
Cite as 91 C.D.O.S. 6696
LANA PALLAS, Plaintiff-Appellant,
V.
PACIFIC BELL; PACIFIC TELESIS, et al.,
Defendants-A ppellants.
No. 90-15559
D.C. No. CV-89-2373-DLJ
Appela from the United States District Court for the Northern Dis-
trict of California, D. Lowell Jensen, District Judge, Presiding.
Argued and Submitted May 15, 1991
Before: SCHROEDER and FARRIS, Circuit Judges, and DUMB-
AULD,’ District Judge.
Counsel: Maria Blanco, Equal Rights Advocates, San Francisco,
California, and Robert Hirsch, Van Bourg, Weinberg, Roger &
Rosenfeld, San Francisco, California, for the plaintiff-appellant. C.
Douglas Floyd, Pillsbury, Madison & Sutro, San Francisco, Cali-
* Honorable Edward Dumbauld, Senior United States District Judge for the
Western District of Pennsylvania, sitting by designation. :
fornia, for the defendants-appellees.
Filed August 12, 1991
SCHROEDER, Circuit Judge:
Lana Pallas filed this suit against her employer, Pacific Bell, and
its predecessor companies (collectively “Pacific Bell”), claiming
that the company has discriminated against her on the basis of gen-
der and pregnancy, Pacific Bell denied her retirement benefits in
1987 based on a method of calculating employee service time that
does not credit pregnancy leaves taken prior to 1979 but credits
temporary disability leaves taken during the same period. Pallas
brought this action under the Pregnancy Discrimination Act provi-
sions of Title VII, 42 U.S.C. section 2000e et seq.; Erisa, 29 U.S.C.
section 1001 et seq.; and the California Fair Employment and
Housing Act, Cal. Gov’t Code section 12900 et seq.
The district court interpreted Pallas’s complaint to allege only
that discrimination occurred prior to 1979, when the law did not re-
quire employers to treat pregnant women like temporarily disabled
men. See General Electric Co. v. Gilbert, 429 U.S. 125 (1976).
Thus, the district court dismissed the complaint for failure to state
a federal claim. Because we hold that the complaint states a claim
for discrimination occurring in 1987 when Pacific Bell denied Pal-
las retirement benefits, we reverse. See Bazemore v. F riday, 478
U.S. 385 (1986).
FACTS
In 1987, Pacific Bell instituted a new retirement benefit for
management employees called the “Early Retirement Opportuni-
ty.” To qualify for the benefit, an eligible employee must have ac-
crued twenty years of service. The company measures an
employee’s length of service by a “net credited service” system.
Under this system, an employee receives credit for time during
which the employee is absent due to a temporary disability, but
does not receive credit for time spent on personal leave. Prior to en-
actment of the Pregnancy Discrimination Act, Pacific Bell required
employees disabled by pregnancy to take personal leaves. After
1979, Pacific Bell changed its policy to allow employees with preg-
nancy-related disabilities to take disability leaves. Under the cur-
rent “net credited service” system, employees disabled by
pregnancy prior to 1979 do not receive service credit for their pteg-
nancy-related leaves.
Pallas, who had been employed by Pacific Bell and its predeces-
Sor companies since 1967, applied for the Early Retirement Oppor-
tunity. By letter dated October 11, 1988, the company informed her
that she was not eligible for the benefit because, as a result of a
pregnancy-related leave she took in 1972, she was three to four
days short of the necessary amount of service credit. This suit fol-
lowed.
DISCUSSION
The Pregnancy Discrimination Act amended Title VII to redress
discrimination based on a woman’s pregnancy. See 42 U.S.C. sec-
tion 2000e(k); Newport News Shipbuilding & Dry Dock Co. v.
EEOC, 462 U.S. 669, 684 (1983) (“The Pregnancy Discrimination
Act has now made clear that, for all Title VII purposes, discrimina-
tion based on a woman’s pregnancy is, on its face, discrimination
because of her sex”). The Act requires employers to treat pregnancy
disabilities in the same manner as other temporary medical disabil-
ities for “all employment-related purposes, including receipt of
benefits under fringe benefit programs.” 42 U.S.C. section
2000e(k).'
The district court dismissed Palla’s Title VII claim on the basis
of a series of Supreme Court decisions interpreting a special provi-
sion of Title VII concerning seniority systems, 42 U.S.C. section
20000e-2(h). See, e.2., Lorance v. AT & T Technologies, Inc., 490
U.S. 900 (1989); United Air Lines, Inc. v. Evans, 431 U.S. 553
(1977). In this line of decisions, the Supreme Court held that dis-
parate impacts resulting from a bona fide seniority system that is
facially neutral must be challenged within the statute of limitations
from the time the system is adopted; with a facially neutral system,
the discriminatory act occurs at the same time of adoption and sub-
sequent applications do not constitute continuing violations. See
\
DAILY OPINION SERVICE
Ninth Circuit Court of Appeals 6693
Upon taking Greenawalt into custody, the police gave him a pat-
down search, handcuffed him, and placed him in the back of a pick-
up truck. They later strip-searched him and retained his clothing as
evidence. The police initially left Greenawalt naked in the back of
the truck, but after a short while he was given a blanket and put in
a police sedan.
The police then explained the Miranda rights to Greenawalt and
requested that he make a statement. Greenawalt refused and asked
for counsel. The interrogation immediately ceased, but Greenawalt
was later approached by other law enforcement and corrections of-
ficers. Greenawalt confessed to some of these officers but not oth-
ers. Officers explained his Miranda rights, and he repeatedly
invoked his right to counsel.
At some point Greenawalt was taken to jail, and after his arrival
he spoke briefly with his counsel. Greenawalt was then returned to
his cell and some time later, after another Miranda warning,
Greenawalt again confessed.
The state trial judge excluded the earlier confessions but admit-
ted the final one.
II
Greenawalt contended that his confessions were obtained in vi-
olation of his fifth amendment right to counsel, and that the admis-
sion of his final confession at trial required his petition be granted.
The district court agreed, holding that Edwards requires the exclu-
sion of any confession given in response to police interrogation
outside the presence of counsel once counsel has been requested.
The district court held that by admitting Greenawalt’s final confes-
sion, the state trial court failed to comply with Edwards, since this
confession was obtained outside the presence of counsel and after
Greenawalt’s request.
The district court’s interpretation of Edwards has since been rat-
ified by the Supreme Court in Minnick v. Mississippi, 111 S. Ct.
486 (1990) (Minnick). The facts in Minnick are strikingly similar to
those of the present case. Minnick murdered two people following
his escape from jail. He was eventually apprehended and then in-
terrogated by federal law enforcement officials. Though the inter-
rogation ceased when Minnick requested counsel, after Minnick
conferred with counsel the interrogation resumed outside the pres-
ence of counsel. Minnick confessed. His confession was admitted
at trial, and he was convicted. The Supreme Court reversed, hold-
ing that any confession given in response to police interrogation
outside the presence of counsel, once counsel had been requested,
may not be introduced at trial unless the defendant himself had
reinitiated the communication. Jd. at 491-92.
The district court’s holding comports with Minnick. If this were
on direct review, we would affirm. But it is not, and the Supreme
Court has limited the power of federal courts to impose new consti-
tutional commands in collateral proceedings.
A.
In Teague v. Lane, a plurality of the Supreme Court stated that
new rules generally would not be retroactively applied to cases on
collateral review. Teague v. Lane, 489 U.S. 288, 310 (1989)
(Teague) (O’Connor, J., plurality opinion) (rejecting the retroactiv-
ity analysis of Linkletter v. Walker, 381 U.S. 618 (1965)). This po-
sition has since been affirmed by a majority of the Court, and
expressly extended to capital, as well as noncapital cases. Saffle v.
Parks, 110 S. Ct. 1257, 1259-60 (1990) (Saffle); Butler v. McKel-
lar, 110 S. Ct. 1212, 1214 (1990) (Butler); Penry v. Lynaugh, 492
U.S. 302, 314 (1989) (Penry). Teague also observed that new rules
generally would not be announced in cases on collateral review.
Teague, 489 U.S. at 316. This analysis, too, has been subsequently
affirmed by a majority of the Court. Penry, 492 U.S. at 313.
Recognizing that Minnick raises a retroactivity question, we or-
dered supplemental briefing. In its supplemental brief, the State
contends that Minnick announced a new rule precluded from retro-
active application to this collateral review. In response, Greenawalt
contends that he does not seek the benefit of Minnick, but rather, as
the district court held, merely the benefit of Edwards.
Greenawalt raises an interesting contention, but we do not ac-
cept it. The district court’s Edwards analysis directly parallels the
Supreme Court’s ruling in Minnick. Therefore, if Minnick an-
nounced a new rule, the district court did so as well. See Harriman
v. Lynn, 901 F.2d 64, 67-68 (5th Cir. 1990) (rejecting similar argu-
ment when considering retroactivity of Arizona v. Roberson by
stating that, “there would be little point in declaring that Roberson
announced a new rule, if, on the same fact as those in Roberson, a
court held that Edwards earlier compelled [relief].”).
Anew rule may not be announced on collateral review any more
than it can be applied on it. Penry, 492 U.S. at 313; Teague, 489
U.S. at 316. This principle applies equally to all levels of the federal
judiciary; a new rule announced by a district court can have no
greater retroactive effect than one announced directly by the Su-
preme Court. Whether we focus on Minnick or the district court’s
holding, the question remains the same: is this a new rule precluded
from retroactive application on collateral review?
“In Teague, [the Supreme Court] defined a new rule as a rule
that ‘breaks new ground,’ ‘imposes a new obligation on the States
or the Federal Government,’ or was not ‘dictated by precedent ex-
isting at the time the defendant’s conviction became final.’” Saffle,
110 S. Ct. at 1260, quoting Teague, 489 U.S. at 301 (emphasis in
Teague). The breadth of this definition was demonstrated by Butler,
where the Court found that the rule announced by Arizona v. Rob-
erson, 486 U.S. 675 (1988) (Roberson), was new for purposes of
the retroactivity analysis.
In Roberson, the Court held that an Edwards request regarding
any charge invokes the right to counsel with regard to all. Id. at
675-76. Emphasizing that Edwards had created a “bright-line rule,”
the Court in Roberson stated that prohibiting all police-initiated in-
terrogation once the accused requests counsel “follows...from Ed-
wards and Miranda.” Id. at 681, 684. Based on this language, the
petitioner in Butler argued that Roberson did not create a new rule,
and was merely an application of Edwards to a new set of facts.
Butler, 110 S. Ct. at 1217.
The Court rejected this argument. In doing so, it placed no reli-
ance on Roberson’s self-description as declining “to craft an excep-
tion to [Edwards].” Roberson, 486 U.S. at 677. Instead, the Court
directed its attention to the prior existence of reasonably contrary
interpretations of Edwards.
Courts frequently view their decisions as being “con-
trolled” or “governed” by prior opinions even when
aware of reasonable contrary conclusions reached by oth-
er courts.... [But i]t would not have been an illogical or
even a grudging application of Edwards to decide that it
did not extend to the facts of Roberson. We hold, there-
fore, that Roberson announced a “new rule.”
Butler, 110 S. Ct. at 1217-18. The Supreme Court’s conclusion did
not depend on a survey of all antecedent case law. Rather, the ex-
istence of just two prior decisions reasonably contrary to Roberson
justified its characterization as a new tule. /d. at 1217 (relying on
decisions by the Fourth and Seventh Circuits). This approach is
consistent with the primary purpose of habeas corpus review,
which is to encourage compliance with existing constitutional com-
mands. Id.; Teague, 489 U.S. at 306.
Minnick is much like Roberson in all relevant respects. It is
predicated on Edwards. It characterizes its holding as “an appropri-
ate and necessary application of the Edwards rule,” one which
merely declines to create an exception. Minnick, 111 S. Ct. at 491.
It does not ratify uniformly consistent prior case law; lower courts
previously arrived at a different conclusion. For example, the deci-
sion of the Mississippi Supreme Court from which certiorari was
granted in Minnick held that Edwards afforded no further protec-
tion once counsel had been made available. Minnick v. State, 551
So. 2d 77, 83 (Miss. 1988), rev'd, 111 S. Ct. 486 (1990). Likewise,
Griffin v. Lynaugh, 823 F.2d 856, 863-64 (Sth Cir. 1987), cert. de-
nied, 484 U.S. 1079 (1988), held that interrogation may proceed af-
ter the satisfaction of an Edwards request. Similarly, United States
v. Halliday, 658 F.2d 1103, 1105 (6th Cir.), cert. denied, 454 U.S.
1127 (1981), held the police may reinitiate interrogation after the
accused has been afforded an opportunity to consult with counsel.
Although subsequently undone by Minnick, these interpretations of
PRANCO, Domingo, Mexican, 1, hanged Arizona (Santa Cruz) 7-7-1911.
"!tGOOD BYE BOYS! FRANCO'S LAST WORDS: SANTA CRUZ MURDERER SUSPENDED
BY THE NECK UNTIL DEAD: Convicted of the murder of Fran(?) Amada in
the streets of Har(?), Santa Cruz county, Domingo Franco was hangéd
yesterday in the territorial prison at Florence, The execution was
in charge of Superintendent Thomas H, Rynning, and went through
without a hitch, In 1) minutes after the trap was sprung Franco was
pronounced dead, “he crime for which Franco forfeited his life was
committed March 19 last. Franco and Amada had had a quarrel the HEX
RRAXWR evening before, and the morning of the 19th, as the two men
were walking along the street together, Franco suddenly drew a KBHKXX
revolver and shot his companion to death. His arrest followed
immediately. He was indicted, tried, found guilty of murder in EKS
the first degree and sentenced to be hanged. Pressure was brought
to bear on Go vernor Sloan to commute the sentence fo life
imprisonment, the governor, however, said he saw nothing in the
case to warrant his interference, and the law was allowed to take
its course, 'Good-bye, boys; no more Florence for me,' were Franco's
last words. He walked to the scaffold with a firm tread and never
once showed any signs of nervousness over his fate." REPUBLIC,
Phoenix, Arizona, July 8, 1911.
cutive
y 28.—President
€ several
in the
ely Wool re-
ly to be agreed
nference on the
compromise on
Massachusetts,
is of Massachn-
of Missouri are
ed the president
sion bill, arguing
ion of insurgents
,altempt to “put
e” politically, and
y told the presi.
to his discredit.
t himself main-
intimations are
he will not hesi-
power.
ders of the house
today over plans
sudden move itl
house Wool bill
Follette compro
eans of a demo:
republican coali-
namimous in the
l-be agreed upon
IY YEARS
ne Committed
Years Ago
Tex., July 28. —
go a man by the
his son were mur-
usly in San Saba
r months detec
case without any
ever, it was de-
er was committed
Mitchell Pickett.
found at that
enized
e”
he
Sren.
lthan
€ he demo-}
ra com-
h A, ad va-
rei for him was
‘or two ago when
mberlain of San.
on. a train at Mc-
Pickett as
‘the train
was en
to Little
» relatives,
id by his daughter
Pickett de-
“, but the deputy
he has the’ right
Pa a eee a
ten Vears to accomplish; and
as a matter of fact it doubtful if
Spokane and her sister cities would
have attained their viétory at all if
it had not been for the assistance of
‘the local organization and the prece-
dent established by it in winning the
freat inter-mountain case a vear ago.
SAN ANTONIO, Tex., At 0,
panies whieh have he
Is
Oo
DISORDERLY PIA
—
——
.
electric planos in Tyas. placing Ahem
in various publie oes and ping
4 tieh harvest, haw run—cu: st a
snag in this citvyin the of
Sheriff Tobin. number \c hese in-
struments ae een plaked/in houses
rigfed dis th and the com.
Ypeen gixeh WH per cent. of
“Slits. an Tobin palleB the
it that/ me Soperptayy icangpa-
, placit anos ecome
the places
as ordered
ornee,
rae
Fae br inde )
art
re)
’S PRINCE
and
all
—
Wales to Visit United States on Trip
Around the World
WASHINGTON, July 28.--The Brit-
ish admiralty is about to arrange the
itinerary of a voyage around the world
for the young Prince of VYalps/to be-
gin in the fall.
This information,
making tthe rounds
Washington for some
cial interest to t
cause the voyage
It is understooc
n
to be accepted by\the king
the young printe to the U i s
within a few Weeks afar the Start.
ipi
d
oO
has been
diplomatic
e, is.of espe-
ed Stat
whi
of
<
fas
etween
pleasant as now.
It\ was always the wish of King Kd-
ward, a British official said, that his
ste)
grandson’ 8
tne separate possessions of the king
he was Prince of Wales.
tt
Banker Walsh
| eal
as estab-
o as the
more tedious
England
hould set foot on each of
vom, just as he had George do when
plused Parole
wyoo!
\4\\
FLORENCE, Ariz., July 28. — The
murder of Louis D. Yaeger, which oc-
curred near Humboldt, in Yavapai
county, last May, was avenged | at
10:45 o'clock this morning when the
trap sprung beneath the gallows and
Alejandro Gallegos was projected into
eternity.
Eleven minutes after the noose
tightened about the condemned man’s
neck he was pronounced dead, and the
law of the land us expressed in the
solemn words of sentence that the
convicted man should be “hanged by
the neck until dead” was vindicated.
Contrary to we expectations of
some, Gallegos met his death bravely,
and walked with a firm step to the
gallows, attended by his spiritual ad-
visor, from whose words he seemed
to derive much comfort.
There were no untoward incidents,
and the execution avas quiekly and ex-
peditiously carried out, There were
nine witnesses, severa. of Whom were
from Phoenix. :
Unusual efforts were made to se
cure for Gallegos a commutation of
sentence, or at least a reprieve, the
tuther and other members of the fam-
ily of the murdered man taking an
active part in the attempt .o secure
executive clemency. The governor,
however, declined to interfere, and the
law was permitted to take its course.
Louis D. aeger had just reached
the camp from .noensx when Gallegos,
who was drunk, started a disturbance,
and flourished a revolver. Yaeger
secured the gun, and, removing the
cartridges, gave the weapon back to
the Mexican.
nrooding over his fancied wrongs,
Gallegos managed to secure another
charge. for the pisto,, and, approach-
ing to within a few feet of the Phoe-
nix man, poured a volley into his body,
killing him almost instantly.
Those who have been appealing for
the life of the murderer have done so
on the ground that he was drunk and
had no conception of what he dic.
This statement has been repeatedly
made by the prisoner, who had ex-
pressed great contrition over the
death of his benefactor, who at the
time of the killing had a present for
him in thé shape of @ handkerchief
which he had purchased before leaving
Phoenix.
The defense of G
was drunk had little
jury, and he was spe
of first-degree murder.
As a result of the verdict
hanged in the territoria: priso
allegos that he
effect upon the
he was
edily convicted
n.at this}
Egypt, but the Egyptian
have already expressed mis
MURDERE
YOUTH
17
Young Cigarette —
Kills Old Man
Six Dollars
A FULL CONF
NEW YORK, July 28..-
a seventeen-year-old boy,
stature, slick of attire, sha
nod with the smooth, salld
ion of the youthful cigare
was arrested early today
dered of Williamy Henry .
aged Wall street broke
found brutally killed in
ments yesterday.
Geidel ‘has made a ful
to the police. Robbery
five, according to the
ment, but the murder net
six dollars cash and a
which he pawned for $18.
Geidel was a bell boy
until. last Friday, when
charged. .
Geidel this afternoon
of murder in the first d
grand jury. :,
Love of clothes and fi
suid, caused him to-
bery which ended in
Jackson had been a
‘and the bell boy |
“had meney fa.
place at 10:45 o'clock today.
;
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ee
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i A Seem ee on, BER wa comp mibaeed distemncansed anal
Folk actually was—or so he claimed.
Law-enforcement officials and medico-
social workers, agreeing that he might
have something there, permitted him to
enter a plea of insanity. His mental un-
balance was confirmed at a_ hearing
before District Judge R. F. Deacon
Arledge on November Ist, 1949, and he
was committed to the state insane asy-
lum at Las Vegas, the same institution
in which his victim would be soon con-
fined.
Four months later, in the initial move
of a legal tour-de-force which even-
tually was to arouse public wrath and
demand sweeping reforms in New
Mexico’s treatment of sex offenders,
Folk was released from the asylum in
custody of his attorneys. He was brought
to trial on charges of rape and of con-
tributing to the delinquency of a minor
female. He was found guilty and sen-
tenced to 10-to-15 years on the first
charge and 5 years on the latter, the
sentences to run concurrently. He ap-
pealed to the state’s highest court.
Folk’s conviction was reversed, and
a new trial ordered on the grounds that
he had been declared legally insane and
could not be tried until he first had
been declared legally sane again; this
was not accomplished until November,
1952, over three years after the crime.
Eleonora Myers was no longer men-
tally competent to testify. Other wit-
nesses had left the state and were un-
available. The rape charge against Folk
was dismissed. He pleaded guilty to
contributing to the delinquency of a
minor and received five years in prison
—sentence suspended. Carl Folk left the
court virtually a free man—free to com-
mit further rape and to impose his
hideous, bestial tortures on others.
This was the man who drove up to a
service station on U. S. Route 66 east
of Albuquerque on the morning of
December Ist, 1953. Alighting from his
car, he cast an appraising and lechorous
eye over shapely, 22-year-old Betty
Allen.
Betty had a round, doll-like face, and
was pleasingly plump in the proper
places. The fact that she was traveling
with her 10-month-old baby and hus-
band, cooled Carl Folk’s ardent resolve
not at all. He ambled over, openly
admiring their shiny aluminum, two-
room trailer and pickup truck, in which
they were moving from Erie, Pennsyl-
vania, to San Jose, California, where
Raymond Allen had a job waiting. Folk
struck up a friendly conversation.
Numerous times during their trip
west that day, the white-haired giant
passed the Allens’ trailer, lumbering
slowly uphill. He slowed down, allow-
ing them to pass him on the flat. Each
time, he smiled and waved amiably.
The Allens’ stopped for the night at
Dowdy’s service station, restaurant and
trailer camp, some miles east of Hol-
brook, Arizona. They connected their
electrical outlet to Dowd’s lighting sys-
tem, had dinner in his restaurant, and
went to bed at 10 p.m. They had forgot-
ten all about Carl Folk, whom they had
not seen since late afternoon.
At approximately 11 p.m., Raymond
Allen awoke with a start, to find a flash-
light shining in his face.
“Who's that?” he demanded. For an-
swer, he received a tremendous clout
on the jaw, knocking him cold.
When Allen came to, he was bound
hand and foot, as was Betty. He recog-
nized their attacker as Carl Folk.
Folk leered at Betty, and reassured
them, “Don’t worry, folks. This is just
an ordinary stickup. Tell me where the
money is.”
When Allen refused, Folk whipped
out a switchboard knife, waved it men-
acingly, and said that if he didn’t tell
him damned quick, it would afford him
the greatest of pleasure to mutilate
Betty’s anatomy in parts which he spe-
cified in. detail. Allen told him where
the money was.
Still, Folk seemed in no hurry to
leave. Almost sociably, he asked,
“Where are you going, folks?” Allen,
though he thought this a totally unnec-
essary amenity in view of the present
situation, answered civilly.
“That’s fine,” Folk replied. “I hap-
pen to be going that way myself.” He
looked admiringly around the trailer,
and added, “I could use an outfit just
like this. I'll take you along,” Where-
upon, he walked outside, disconnected
the electricity, started the engine of the
pickup truck, and drove off, taking the
tied-up Allens with him.
They lay there in the dark, wonder-
ing what kind of a crazy nut this was,
what his intentions were. Allen, work-
ing frantically, managed to free his
hands and was striving to loosen the
clothesline binding his ankles when the
trailer suddenly lurched crazily to one
side, and bumped to a halt at a 30-
degree angle. They could hear Folk
swearing in a booming voice. Then his
heavy footstep and the trailer tilted
even farther as he entered, beaming his
flashlight.
Out came the switchblade again,
pressed prickling against Allen’s throat
while Folk tied him up again, so tight
that his limbs grew numb. Folk doffed
his coat, and in the semi-dark Allen
could see the twisted distortion of his
features as he gazed with manic lust
upon Betty. One giant-paw swept out
and ripped the flimsy nightgown from
her body..Then, his huge, hairy hands
circled her larynx and began to crush.
Allen screamed for help at the top
of his lungs. The baby began to bawl.
And Folk suddenly ceased his strang-
ling. With a crazy kind of delicacy, a
SN a
is pil
weg tte
a ARAL a al
eee an
formal deference to the sensitive vanity
of husbandhood, he picked up Ray-
mond Allen in his arms, easily as a
baby, and deposited him on the floor in
the other compartment of the trailer,
beyond sight of his wife’s torture. Then
he returned to the rape of Betty Allen.
Raymond Allen writhed in humilia-
tion on the floor, agonized by his wife’s
screams of terror, her piteous beseech-
ings for mercy which fell on deaf ears.
After awhile she was quiet, although
there continued to be sounds from Folk.
At last, Allen managed to free him-
self partially by breaking the bonds
taping his legs. He leaped from the
sloping trailer into the drainage ditch
in which it had overturned, about a
quarter mile from Dowdy’s trailer camp.
He climbed the ditch; stood squarely in
the center of the highway till silhouet-
ted in the headbeams of an oncoming
truck. He flagged it down and babbled
out his story to the driver. B. P. Goff,
of Wichita, Kansas. The latter cut his
bonds.
“Tl kill him,” Allen began to
scream. “So help me, I'll kill him.”
He raced toward the cab of his truck,
where he kept a .32 revolver beneath
the seat.
Carl Folk had begun pouring gaso-
line over the furnishings of the trailer,
the bodies of Betty Allen and her cry-
ing baby. As he backed into the second
compartment toward the door, he be-
came aware that Raymond Allen was
no longer there. He went to the door-
way and looked outside, just as Allen
rushed up, brandishing his revolver.
“What are you doing out there?”
Folk asked, surprised.
“P]] show you, you...” Allen cursed,
and triggered off six shots at Folk’s
giant frame. ;
However, his aim was overexcited.
Only one of the bullets hit its mark. It
burrowed deep into Folk’s guts. The big
man fell face forward, like a tall tim-
ber, in the ditch outside the trailer.
Goff by now had managed to stop
another truck, driven by Bill Rankin of
Beaumont, California, with Joe Bentley
spelling him at the wheel. The three
raced to the trailer. Inside, they found
Allen’s baby, bawling loudly. Allen was
stooped over the body of his wife,
weeping.
Betty Allen was nude, save for a
sheet tied tight around her neck. A
small blanket covered her face. Goff felt
her pulse and thinking he detected a
flicker of life tried artificial respiration
for 10 minutes. But Betty Allen was
dead.
While Rankin and Bentley remained
with the grieving husband, trying awk-
‘wardly to console him, Rice ran to
Dowd’s and telephoned the police of
Holbrook.
Patrolman Carl Back rushed the
wees NE coe
nem .
z
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seriously wounded rapist to the Hol-
brook Municipal Hospital in his patrol
car, where he was placed under a 24-
hour police guard. The disconsolate
Allen was temporarily sheltered with
his motherless baby son in the home of
a Holbrook schoolteacher. Betty’s body
was taken to a Holbrook funeral parlor
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Navajo County sheriff’s office carefully
examined the evidence at the scene of
the crime.
There could be no doubt whatsoever
precisely what had happened to Betty.
The following afternoon Dr. Donald De
Marse presented his autopsy report to
the coroner’s jury appointed by A. G.
McCloskey, the county coroner. It stated
that Betty Allen had died of strangula-
tion at the hands of Carl J. Folk; fur-
ther, that she had undergone seven
hours of the most agonizing torture.
Her hair and eyebrows had been singed
by matches or lighted cigarettes. Her
chin, neck, breasts, abdomen and thighs
had been badly burned; her body was
covered with bites and bruises. She
had been repeatedly assaulted sexually.
The perpetrator of this horror was
described by hospital doctors as in
“fairly good” condition. He pretended
to be unable to talk when questioned by
County Attorney Melvin T. Shelley: But
by December 15th, Folk was considered
to be out of danger and arraigned on
charges of first-degree murder. He was
held without bond.
Allen, meanwhile, had returned with
his small son and his wife’s body to
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plans were undecided except for ‘one
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and sentenced on February 18th, 1954,
by Superior Judge Don T. Udall, to die
in the gas chamber on April 30th.
His case was appealed, and Folk was
not actually strapped in the death chair
until 7 A.M. on the morning of March
4th, 1955. Dr. E. L. Heap, the prison
physician, pronounced him dead a few
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late to be of assistance to Betty Allen
or Eleonora Myers.
EDITOR’S NOTE: To protect the innocent,
the names, Eleonora Myers, B. P. Goff,
Bill Rankin, and Joe Bentley, are fic-
titious as used here.. THE END
She Was Queen of the Can
(continued from page 21)
their automobile half a block away.
Days of dull, tiresome waiting went
by without anyone showing up, or pay-
ing the least attention to the decoy.
However, on January 4th, at 10:30 in
the morning, Captain Cocozza saw a
pretty, young brunette turn the corner
into Calumet Street..She looked about
19 years old, and wore a leather jacket.
The sleuths watched the girl tensely
as her heels clicked on the sidewalk.
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took a step torward it, and looked in-
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“Let’s pick her up,” suggested Schaf-
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She stopped to look into Bamberger’s
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“Things aren’t going well for me at
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read and then glanced down at the girl.
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appearance. “All right. Genevieve! Be a
good girl and tell us about the murder
of William Barhorst last December
21st.” ;
“Why—what do you mean!” The girl
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69
[ Ger LARA |
Subj: Condemned U.S. Indian Allowed Rite
Date: 99-02-02 11:01:10 EST
From: AOL News
BCC: Galba33
Condemned U.S. Indian Allowed Rite
.c The Associated Press |
FLORENCE, Ariz. (AP) — For the first time since restoration of the death penalty, an American Indian awaiting execution for
murder has been allowed to undergo a traditional sweat lodge purification ritual in prison. .
Darrick Gerlaugh, scheduled to die Wednesday by injection, will be the sixth American Indian to be executed in the United
States since 1976, when the death penalty was restored, according to the Death Penalty Information Center in Washington.
Of the six, he is the first allowed to undergo the traditional purification ceremony, which was conducted Saturday, said Lenny
Foster, Gerlaugh's spiritual adviser and a coordinator for the National Native American Prisoners’ Rights Advocacy Coalition.
Foster said the other five asked for the ceremony but were denied on security grounds.
“Mt establishes a precedent throughout the United States," Foster said. “It allows Darrick Gerlaugh to make some peace with
himself and allows us to demonstrate to Arizona and prison officials across the country that there were no problems.”
State Department of Corrections Director Terry L. Stewart said officials were able to grant Gerlaugh's request without
endangering anyone. He didnt elaborate.
“Hf he were a Catholic, we could in essence bring the religious practice to him if he wanted to participate in any of the
sacraments,” Stewart said.
Gerlaugh, 38, whose mother was a Pima indian, refused requests for an interMew, but Foster was with him in the sweat lodge
for the prayer and singing ritual.
~The sweat lodge ceremony provided hirn one last opportunity to cleanse his mind and body and purify, to make things right
with his Creator," Foster said.
Gerlaugh has withdrawn his request for a emnency board hearing, and his lawyer said there was almost no chance of a stay
of execution.
He was sentenced to death for the 1980 killing of a man who gave a ride to him and two friends. The victim, 22-year-old Scott
Schwartz, was stabbed 30 to 40 times with a screwdriver. Gerlaugh’s two codefendants were sentenced to life in prison.
{
AP-NY-02-02-99 1059EST
Copyright 1998 The Associated Press. The information contained in the AP news report ray not be published, broadcast, rewritten or otherwise
~ distributed without prior written authority of The Associated Press.
To edit your profile, go to keyword NewsProfiles.
For all of today's news, go to keyword News.
Thureday February 1, 1996 America Online: Galba33 Page: 1
Matthew
Cecchi
in wait and using a knife. Trial
is set for Aug. 23.
penalty
By PAULA STORY |
ASSOCIATED PRESS
VISTA — A Wisconsin drifter .
who said he was hunting for a .
victim will face the death penalty
for killing a 9-year-old boy in a
public restroom while the boy’s
aunt waited outside, prosecutors
said Thursday.
Brandon Wilson, 21, admitted
slashing young Matthew Cecchi’s
throat in November at Oceanside
Harbor, north
of San Diego,
but he _ has
pleaded inno-
cent by reason
of insanity.
He is
charged with
first-degree
murder with
special circum-
stances of lying
Prosecutor David Rubin said
during a court hearing Thursday
that the special circumstance
and Wilson’s description of the
murder
prompted pros-
ecutors to seek
the death pen-
alty.
“We have a
very tragic
case, a very se-
rious case,”
— Rubin said.
Brandon “We. ised 8
Wilson young child
that was slaughtered in the bath-
room.”
Public defender Curt Owen
said Wilson, who appeared som-
ber in court, was prepared for
the decision.
“He understands the gravity of
it, definitely,” Owen said. “He’s
a very, very bright young man.”
At a preliminary hearing last
month, Superior Court Judge
John Einhorn read from a con-
fession Wilson made to police af-
ter he was captured in Holly-
wood for stabbing a woman and
trying to steal her purse. .
Wilson said that when he over-
heard Matthew tell his aunt that
he needed to go to the restroom,
| he knew he had an opportunity
to kill.
He followed the boy into the
restroom and smiled at him so
he wouldn’t be suspicious. When
. the boy looked away and faced
the urinal, Wilson said he
slashed the boy’s throat.
Members of the Cecchi and
Wilson families were not in the
courtroom Thursday, but Mat-
thew’s grandmother, Yola Cec-
chi, said by telephone they were
relieved with the decision to seek
ithe death penalty.
THE FRESNO BEE + FRIDAY, FEBRUARY 5, 1999 Bg
NEWS / FRIDAY, JANUARY 15, 1999 / DAILY NEWS
Plea changed to insanity
in 9-year-old boy’s slaying
Associated Press -
VISTA, Calif. — A drifter who
has admitted knifing a 9-year-old
' boy to death in a public beach
restroom changed his plea Thurs-
‘day to not guilty by reason of
insanity.
At his arraignment in November,
Brandon Wilson told the judge, “I
“killed the little boy,”/after public
* defender Curt Owen entered a not
guilty plea for him.
. .
“The question is not whether he
- committed the act; he’s admitted to
that,” Owen said after Thursday’s
reliminary hearing. “The question
is whether he was sane when the act
was committed.”
A court-appointed psychiatrist
determined last month that Wilson,
21; was mentally competent to
stand trial, but did not evaluate
Wilson’s sanity at the time he killed
Matthew: =
In astatement read at the hearing,
Wilson said he spent two days
hutting fora victim to kill when he
saw 9-year-old Matthew Cecchi go
“jrito a public beach restroom at
“ Oceanside, Calif.
Wilson said hesmiled at Matthew
because he didn’t want Matthew to
realize that he was about to kill him.
The little boy smiled back.
“Matt turned back. towards’ the
urinal and within two or three sec-
onds, Wilson came behind Mat-
thew. Wilson pulled out of his belt a
sharp hunting knife and grabbed
Matthew from behind,” the judge
read.
“Wilson grabbed Matthew from
the full head, pulled Matt’s head
back, baring Matt’s throat. Wilson
plunged the knife into the left side of
‘Matt’s throat.”
Prosecutor David Rubin said the
testimony was hard for the family to
hear.
“This was the first time they had
heard some of the details,” he said.
Wilson is charged with first-
degree ‘murder with special cir-
cumstances of lying in wait and
using a: knife. Conviction on the
charge carries an automatic sen-
tence of life imprisonment without | |
parole. The special circumstances
make him eligible for the death
penalty. ;
A judge ordered Rubin to report
Feb. 4.whether prosecutors will seek
the death penalty. If they do not, a
trial will begin March 5. If they seek
the death penalty, a trial will be held
later this year.
If Wilson is found insane, he will
be sent to a state mental hospital. If
he is found sane, the trial will move
into the penalty phase.
z
Tuesday, February 2, 1999
CC
3 0}
IS OS61 Up JO} poynuALLIOS 2oUDUAS STY Jo
rections, though, recognized the
significance of the ceremony and
Ma 9 granted the request, Director Terry
inmate’s "==
“If he were a Catholic, we could
in essence bring the religious prac-
tice to him if he wanted to
ae
last rites participate in any of the sacra-
i ments,” Stewart said. “We cannot
bring the sweat lodge to him.”
Teak:
d aBIg
oyqndey eBuozuy ou,
° —
Indian The Arizona Department of Cor-
B
. “QOUaIOL,
uogndexe s,Aepo}
sey oym “Yysnepen
AQUAUIA{O OYR)S OU} se
aeyeus pew Ag
dai ON
SIOKME| STY PIO} JOIes YsnepIC
we
P27
dAILI
MOI Wop UROLOUTY. AAHEN SIF OP SI oY osnedOq
history by becoming the first Na-
tive American with a death warrant
to be allowed to have the ancient
ceremony as part of his last rites.
Gerlaugh will be the sixth Native
American to be executed in the
Es United States
since 1976, ac-
cording to the
Death Penalty
Information
Center in
Washington,
D.C.
The five pre-
vious Native
Se Z Americans. re-
Darrick quested sweat
Gerlaugh/ He lodge ceremo-
faces death by nies and were
lethal injection denied because
Wednesday. of security con-
cerns, said
Lenny Foster, Gerlaugh’s spiritual
adviser and a coordinator for the
National Native American
Prisoners’ Rights Advocacy Coali-
tion. Courts have upheld security as
reasons to deny religious access to |
inmates. 4
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By Kelly Ettenborough et sed, “It allows Darick Coy =. Gee Cee B ee gas
| bine epamsca tcc himself and allows us to demon- 24 ae: B45 e 23 4 24 3 p & ct
FLORENCE — Convicted ‘son offi- eee se 86 BN. “es ,
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Inmate allowe “There will be rosaries and | O* o= 8
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traditional today,” said Gov. Mary Thomas of 432 = .
the Gila River community. Qa y~ 2
° Gerlaugh had asked the Ari- oe Sse
death rituals zona Board of Executive Clemen- 38 && Bs
cy not to- meet Tuesday to
TH UR consider his execution because gs 2
By Mark Shaffer 72. -“f— “he did not want the victim’s 3S Be
and Betty Beard ? family to relive the tragedy they eae
The Arizona Republic 7 suffered 19 years ago,” Thomas g ooh
FLORENCE — A convicted - said. ~~ 83e8
killer who fought to have Native. Thomas said she heard he had a3 “8h i
American death. rituals honored been relaxed lately, even joking 5 od Ga {
behind bars but did nothing to with guards. ; |e Es A
save his own life was executed As a result,.the family believed § Soy oa at -
Wednesday night. a. hearing” = 5 g i 5
Darick Leonard Gerlaugh, 38, wouldn’t ‘be | sea5
died from lethal injection at held. | gS FoR
7:09 p.m., an hour and a half after However, c Po =
the U.S. Supreme Court refused to they learned 658 23 =
consider one last desperate appeal that the board RE<s
to save his life by his attorney. met anyway: bes i
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member, had also appealed to the . o& who recom- | ow 2 oy Sf 8 98 35.8 3 greg | gssge B56
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refused to make any final com- fully asked the board to reconvene | “225 F°2 Bal°&S (58 Bo S@eesaksS §
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grandfather of 22-year-old Scott Gerlaugh’s family. wee a5 So Fk eee Ph. Phe af
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Arizona State Prison, Florence. Honduras President Carlos Flores : Ce, eee oO 8 a
About one minute after the deadly Facusse before the execution of | B PBLVSG YCeaoo is
mix of chemicals coursed through Jose Villafuerte in April.. “a 5. £5 Ey 4 3 se e707 c= #2 3 28
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and his fingers went limp. respect to my government and all BS Gatyo° 838s S35 »o of #58
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| pronounce | people, sSSEe2 Rops® gs0S= 50 OES
minutes later. said. 5 Be cos sSV ec bSs ex a, Be 9 2 pO
“This is long overdue,” said Thomas, who has known the | ® 55 52 c Seq alr 98 ee ee > 38 2.5
attorney Vince Imbordino, who Gerlaugh family all her life, said | & see z Ba 6.8 Mage £3o = re) ae evo gee
prosecuted Gerlaugh. Gerlaugh.had developed a “deep | &° SS Sel e SoesBes VRS 2. £6§ ye: &
But his’ family and other sense of remorse for his actions”; € 8. QSE%SE eSsss 5. mp =o Suse § =20
members of the Gila River Indian and had become a model prisoner. ag "des 32 46 S 2. gfe Sf gas 3 5 8
Community had sought last min- She also said the timing of the Ee 834 32 ° 2 3 8% GE 85 ers 286
ute reprieves on his behalf, and = src es sos saa see ale ae gpees i *
: i fe Ot Hn a] bs} wm 2 - 3S yy |
schoolchildren repeated _ Hail Please see \NMATE, Page B2 | 8 § £8536 2 $2 5 £ 3° B78 Ss EC g - §
Al2 © The Arizona Republic Tuesday, February 2, 1999
Death row inmate allowed ritual
— DEATH, from Page Al
+ cials across the country that there
were no problems. The Arizona
Department of Corrections needs to
be commended for their understand-
ing and respect.”
Corrections rules prohibited out-
side witnesses at the ceremony, but
Foster, who was with Gerlaugh in
the sweat lodge, shared details and
spoke on the convict’s behalf. Ger-
laugh, 38, has declined all interview
requests.
“There was a sense of peace and
serenity and a little sadness,” Foster
said Saturday. “The sweat lodge
ceremony provided him one last
opportunity to cleanse his mind and
body and purify, to make things
right with his Creator. He has made
prayers for his family and the
victims.. He’s making things right
for himself so he can be at peace as
he goes to the next world.”
Gerlaugh grew up away from the
Gila River Indian Community in a
military family with an Anglo father
and a Pima mother. He knew little
about traditional Indian practices.
He had been involved in drugs and
alcohol and already had a prior
conviction that was punishable by
life in prison before he killed
22-year-old Scott Schwartz.
Gerlaugh and two friends, all
Chandler residents, were hitchhiking
from Chandler to Phoenix on Jan. 24,
1980, and decided to rob the person
who offered them a ride. Schwartz,
who wore a leg brace and walked
with crutches, picked them up. At
gunpoint, they ordered Schwartz to
drive to the outskirts of Mesa."
The other two men held Schwartz
while Gerlaugh, then 19, drove the
car over Schwartz several times. The
victim did not appear to be dead so
Gerlaugh. and one man_ stabbed
Schwartz 30 to 40 times in the head,
neck and shoulders with a screw-
driver.
The men took $36 and the car.
Gerlaugh and: Joseph Encinas were
convicted of first-degree murder. En-
' cinas received a life sentence. The
other man, Matthew Leisure, pleaded
guilty and received a life sentence.
Gerlaugh received the death pen-
alty in 1981.
“He expressed many times a deep
remorse over what he had done,”
Foster said. “He knew he couldn’t
change what he did so he chose to
pray and ask forgiveness.”
Schwartz’s family declined to com-
ment on the scheduled execution.
Gerlaugh has been on a spiritual
Sweat lodge
Participants enter the lodge and the
first of the heated rocks are placed in
the center. ;
Lodge frame made with willow
poles and:completely covered
with blankets...
6-15)
NATIVE AMERICAN SWEAT LODGE
The participants in a sweat lodge ceremony offer sage, cedar and water to the
spirits as the participants seek to purify themselves. In the intense heat, they
meditate, pray, sing, drum and communicate.with the Creator. Death-row inmate
Darrick Gerlaugh’s last sweat lodge ceremony began at 8 a.m. Saturday in a
secure area set aside for such ceremonies. °
-rocks, and a sage switch is dipped in
Center altar _ Fire pit
Prayers are ~ Lava rocks are
said anda heated for
ceremonial approximately two
pipeisused. h afire.
ar leaves are scattered onthe -
water which is sprinkled on the rocks =.
reating steam. Periodically, the ==
odge's flap is opened so the
participants can cool down before
more rocks are brought in.
~ : ;
The Arizona Republic
are in U.S. prisons, and
about 4 percent of Ari-
zona’s 25,829 inmates are
Native American.
“The sweat lodge is
the most profound. thera-
py for Indians who are
incarcerated but it has
been denied many, many
times,” Foster __ said.
“Spiritually, you are
moved to take a deep
look at your inner self,
your shortcomings, your
actions, behavior. It al-
lows insight to who’ you
are as a human being. If
you're not in harmony
with your surroundings
and yourself, the sweat
lodge is one way to
become right with your-
self.” !
Arizona has been more
progressive than other
states, said Foster, who
performed the first sweat
lodge ceremony at an
‘Arizona prison in 1981.
Lenny Foster on Monday displays sacred In 1992, a sweat lodge
ceremonial objects including sage, drum, pipe, area was consecrated . in
cedar and tobacco.
path to discover and practice his
culture, tradition and beliefs for
most of his 18 years on death row,
according to Foster, who is the
director of the Navajo Nation Cor-
rections Project based in Window
Rock. Gerlaugh has participated in
nine previous sweat lodge ceremo-
nies over 15 years, Foster said.
At least 7,000 Native Americans
one of the Florence pris-
on’s two highest security
units, which is where Gerlaugh’s
ceremony was held.
Gerlaugh will have a final pipe
ceremony today and be moved to
the death house to await execution.
Foster will spend today and
Wednesday with him, and Gerlaugh
has requested his family not be
present at the execution.
Gerlaugh has withdrawn his re- .
Ria
FYI
Native Americans
on death row
¢ In the United States, 50 of the
3,517 inmates on death row are
Native American. Since 1976,
five of the 510 executions were
Native Americans.
¢ Five of the 120 inmates with
Arizona death sentences are
Native American. No Native
American has been executed in
Arizona.
Sources: Death Penalty Information
Center in Washington, D.C.; Arizona
Department of Corrections.
quest for a clemency board hearing,
and his lawyer contends there is
almost no chance at a stay of
execution.
His appeals have been exhausted
except for a recent filing citing
Gerlaugh’s dramatic _ behavior
change, said Marty Lieberman, his
court-appointed attorney since 1985.
“We see this claim a lot and it
never goes anywhere,” said Paul
McMurdie, the chief counsel in the
criminal appeals section at the Ari-
zona Attorney General’s Office. “We
are punishing him not for the person
he is on death row today. We are
punishing him for the crimes and the
actions he took 19 years ago.”
McMurdie added that the crime
was one of the more brutal among
those committed by the inmates who
are on death row.
Talking about death usually is
taboo for Native Americans, but in
Gerlaugh’s case it is unavoidable,
Foster said. He needed to prepare
for the return to his ancestors, and
now he is ready to accept his fate.
Saturday’s sweat lodge played a
significant part in that peace, Foster
said.
Inside the sweat lodge on Satur-
day, Foster and Gerlaugh prayed and
sang in Navajo and beat a drum.
“Some very good prayers were
made. The spirits were with us,”
Foster said. “I felt a real sense of
blessing, knowing that this was his
last sweat lodge ceremony. He stated
to me that he was glad he decided
to relearn his spirituality, his prayers
and songs, the traditions of his
people. He was happy. He was at
peace with his maker.”
Kelly Ettenborough can be reached at
444-4877 or at kelly.ettenborough@pni.com
via e-mail.
~~
Celebrating life at de
stgp EXECUTIONS
me Death Penatty
be iecuuaits Gt LOUK
Brenda Norrell Today staff
Standing for something: Octaviana Trujillo, Pascua Yaqui and professor
at Arizona State University, joins a vigil and protest outside Arizona State
Prison as Darrick Gerlaugh awaited execution.
ath’s door
Akimel O’otham
executed with
Pipe ceremony
as last rites
By Brenda Norrell
Today staff —
FLORENCE, Ariz. — While
celebrating the holiness and
ess of life, American Indi-
ans and activists protested the
death penalty and prayed for the
swift passage of Darrick Ger-
laugh soul into the Spirit World. —
ide the barbed prison fence
and compound of Arizona State
Prison, Gerlaugh awaited death by
lethal injection for a murder com-
mitted 18 years ago. __
A last-minute plea for clemen-
cy from Gila River Gov. M:
omas, and an appeal to the U.S.
Supreme Court resulted in a three-
hour stay of execution. But at 7:09
p.m. Feb. 3, Gerlaugh was pro-
nounced dead, minutes after the
chemicals passed through his
t the prison gate, Willarden
Lewis, fellow Akimel O’otham
from the Gila River Indian Com-
munity, stood in silent prayer.
“T don’t want him to pass into
the next world alone,” Lewis said.
A Navajo couple, who made
the long journey from the Four
Corners region, cried.
Citing other cases of seme
in Arizona, Lewis said, “If Darri
Gerlaugh’s skin was not dark —
he would not be dying ‘here
toda Me
With the sadness and outrage at
Please see Vigil A3
‘From A1
racial discrimination, however, there was a
also a life-affirming celebration and thank-
fulness.
Gerlaugh was the first American Indian
to receive the sweat lodge and Pipe cere-
mony as last rites..
Lenny Foster, serving as spiritual advis-
er in the ceremonies, said five American
Indians executed in the United States previ-
ously requested the sweat lodge an Pipe
ceremonies as last rites, but corrections
officials refused to allow the ceremonies.
“It sets a precedent for the entire United
States. It is the first time that prison officials
have allowed the sweat lodge and Pipe cer-
emony to be carried out as last rites,” said
Foster, Navajo and coordinator for the
National Native American Prisoners’
Rights Advocacy Coalition. a
e sweat lodge ceremony was held on
prison grounds five days before Gerlaugh’s
execution date and a final Pipe ceremony
was conducted prior to his execution.
Foster, who spent the final hours with
Gerlaugh, said,
ready.”
While a vigil and protest was held out-
‘He was happy. He was,
’ Prayer circle: American Indians and
religious leaders joined activists opposing
the death penalty outside the Arizona
State Prison,as Darrick Gerlaugh, Akimel
O’otham from the Gila River Indian
Community,was awaiting execution..
side the prison gate, Gerlaugh’s sister Bev-
erly Bruce, of the Lower Santan communi-
ty, prepared for the burial of her brother.
Choked with emotion, Bruce said, “He
will be allowed to wear his hair in braids.
“We asked the (tribal) governor to inter-
-vene so he could wear his hair in braids.
And so that a tribal representative could be
present,” Bruce said.
Family members did not witness the
execution. Gerlaugh’s mother Bulah Ger-
laugh, died in recent years. His father is
William Gerlaugh, an Anglo who served in
the military.
Bruce said, “I have four brothers includ-
ing Darrick and two sisters. There’s seven
of us.”
Speaking a few hours before the sched-
uled execution, Bruce read the strongly-
worded plea issued by Tribal Gov. Thomas,
seeking a last-minute clemency and
reprieve.
Gov. Thomas appealed for the clemency
board to reconvene, citing that the board
reconvened last year to hear a plea from
Honduras President Carlos Flores Facusse
oe the execution of Jose Villafuerte in
ril.
The state clemency board refused to rec-
FEBRUARY 15 - 22, 1999
Vigil: Allowing traditional
A3
— Indian Country Today
St rite in prison sets Precedent for entire United
a last-hour appeal to the U.S: Supreme _ receive the death paca, sentences and issuance
States
4] ommend to Arizona Gov. Jane Hull that Justice system has failed both men. In Ger- Don Norgard of the coalition Said the
| Gerlaugh be granted a reprieve. Gov. Hull laugh’s case, he is one of three men who _ actions of the USS. Justice System are clear.
| said she supported the board’s decision and committed the crime, but the only one to _ly racist, with skin color determining prison
of the death penalty.
Court was denied. “Justice should be equally distributed. In Norgard said that non-whites that com-
Gerlaugh was sentenced to death for the this case, there were three es thatcom- mit crimes against whites are far more like-
1980 killing of a man who gave him and mitted the crime,” Barney sai " ly to receive the death sentence.
two others a ride. The victim, Scott Barney said her brother, James Comell “Darrick was one of three people — this
Schwartz, was run over with his Own car Harrod, was convicted as a middle manina case just reeks of racism,” Norgard said.
and stabbed 30 to 40 times with a Screw- hit for hire scheme, but neither the wealthy Further, he said, “We are spending
driver. Gerlaugh’s co-defendants, Joseph Phoenix landowner, who allegedly hired money at the wrong end. We should be
Encinas and James Leisure, were sentenced him, nor the shooter has been indicted. spending money on education.”
to life in prison. Pointing out that Gerlaugh is the 14th “My feeling is that life is everlasting,”
Outside the prison at noon, three hours . person to be executed in Arizona, Harrod sai Chetches Nielsen, coalition member
before the scheduled execution, police and "said, “Arizona is being called the Killing from Tucson. “In the end, we all have to
Prison security set up additional roadblocks — fields.” take responsibility for our behavior.
and surrounded the area with police vehi- Harrod recalled seeing Gerlaugh visiting “It is not up to one human being to
cles. Yellow police tape was: stretched with his nieces and gal in prison. “He Judge, condemn and punish another,” she
around the prison arts and crafts store — is beautiful,” she said hours before his exe- said.
where the vigil was held at the main gate. _cution, -__ With tears streaming from her eyes, a
A mobile CNN television unit was posi- Navajo-Hopi woman gathered in a circle
tioned at the Blue Mist a —< the for = vigil with those opposed to the death
highway from the rison, and broadcast 1 a person i penalty.
im : © 6 [alvays feel a person is “You don’t kill an Indian,” said the
Calling to a cellular telephone outside salvageable. But, I’m - woman, who asked that her name not be
the prison gate, Vernon Bellecourt in Min- here too late. 1 should published, meaning it is wrong. “The white
neapolis expressed regret that the American have been here long before now,” man is always changing the laws so he can
Ung omakeasong speared sad Wilanden Lvs, anette poe
“We are outraged and wish it had been Akimel O’otham. court.”
brought to our attention earlier,” Bellecourt “This isn’t right,”
this man.” Tucson said the death Sentence sends a
“This should have gone down in a tribal
said her husband,
said. “Obviously this is totally barbaric and Navajo, as he cried and
we totally condemn the efforts to execute Coalition Vice President Ann Nichols of re: e traveled here fro:
i t
explained that the
m the Four Corners.
the set time of execution, 3 p.m.,
Octaviana Trujillo, Yaqui and education message that violence is a way to solve _ prison guards said Gerlaugh was ted a
l) q gran
a at Arizona
tate University, problems. three hour stay of execution. The news was
rought the message of the American “The cause of death on the death certifi- relayed by cellular phone to the nearby Gila
Friends Service Committee to the vigil. She cate is listed as homicide — because it is. It River Tribal Council, meeting in regular
deplored the death nalty and issued an is a death caused by another human being, session in nearby Sacaton.
appeal for human rights for American Indi- even if it is in the name of the state,” Remembering het fellow Akimel
ans. Nichols said. O’otham, Lewis Said,
“Tt is a sad day,
Franciscan Friars David Gaa of San She said the death penalty reflects bias | just wanted to be here and mark the
Xavier in Arizona and Mark Shroeder of and racism. “Usually, you don’t get the moment of the Passing of one of our com-
members
Oakland, Calif., came. “The death penalty death penalty for killing women or people munity
is legalized killing,” Shroeder said. of color.” “I am a mother and a grandmother. He
alling it institutionalized violence, Gaa Further, Nichols said the death penalty is could have been my son, grandchild, broth-
Said the circle of violence must be broken not a deterrent to homicides, because more er or nephew.
beginning now. often than not, they are acts of Passion with- “I always feel a pers
Members of the Coalition of Arizonans out reason or ge But, I’m here too late. I
to Abolish the Death Penalty were among She said Gerlaugh is not the man today here long before now.”
on is salvageable.
Should have been’
the first to arrive at the main gate and pre- he was 18 years ago. Lewis, a law school graduate, said the
- Sent protest signs. In a circle with American “Darrick developed his spiritual side, his community and U.S. Justice system failed
Indians, they poyed for Gerlaugh, the vic- artistic talent and he has e ucated: himself. Gerlaugh.
tim and their families. He has expressed mae remorse to his spir- “This gome man’s life was taken when
he was 19 years
June Harrod Barney, whose brother was _itual guide and prayed for the family,” she
said.
on Death Row with Gerlaugh, said the U.S. know who you are.”
old. At 19, you don’t even
Thursday, February 11, 1999 |
Navajo Times
he Newspaper of the Navajo Peoplet
50
.
= rE a
_F_ ; ; Window Rock, Navajo Nation, Arizona 86515-03
Gila man
executed
After 18 years on death row Darick
Gerlaugh i is given lethal injection
By MARLEY SHEBALA
Navajo Times Staff
FLORENCE - He turned away when he saw the
veins and muscles in the neck of Darick Gerlaugh
stiffen.
A couple of minutes later a voice announced that
Gerlaugh was dead. That was at 7:09 p.m. on Febru-
ary 3.
Navajo Nation Corrections Project Director Lenny
Foster witnessed the state’s execution of Gerlaugh by
lethal injection and called it “barbaric” and “calculated
cultural genocide.” Foster is also the coordinator for
the National Native American Prisoners’ Rights Ad-
vocacy Coalition.
Nineteen years ago, when Gerlaugh was 19, he and
two other young men murdered 22-year-old Scott
| Schwartz, who had stopped to give them a ride in his
' vehicle. That was on January 24, 1980.
Two of the men, Matt Leisure and Joey Encinas,
held down Schwartz and Gerlaugh ran over him sev-
eral times with Schwartz’s vehicle.
Schwartz was still alive and so Gerlaugh and one of
the other men stabbed him about 30 to 40 times in the
head and shoulders with a’ screwdriver that they found ~
in the victim’s vehicle. They also stole $36 from
Schwartz.
Marty Liberman, a state appointed attorney for
Gerlaugh, said Leisure, who was equally guilty, en-
tered into a plea bargain and escaped a jury trial and
the death penalty. Leisure received a life sentence.
Liberman said Encinas did ten years because the jury
found him “less culpable.”
The judge sentenced Gerlaugh to death by lethal
injection in February 1981.
Liberman’s been attempting for the past 18 years to
get Gerlaugh’s sentencing hearing reopened because
he believed that Gerlaugh’s attorney at the time didn’t
do anything to convince the judge that he deserved a
life sentence.
In November 1998, the Arizona Supreme Court af-
See Page A-2
aT Se —_-—— rs
ae Ror oe ae
Lene father, Navalo Nation Corrections Project Director, stands net to the sweat odge behind the Window Rock Pole
Department jall facilities. (Times photo - Paul Natonabah)
r officers fatally shot the driver
stolen van, which crashed zi
=
¢
+
a eee the .
‘410 The Arizona Republic, Sunday, August 7, 1988 :
78 breakout:
ere tr eae) SO
in Tison spree
- Not long after that, Tison plotted
“his
even. wil
* two of his three sons before” making
Investigators go,over the fugitives
ee ae There, Ricky pulled a sawed-off
Pinal County Superior Court, Tison | shotgun out of the box, got the drop
overpowered his guard on the way | on a guard and passed a pistol
back to prison, murdered themanand through a slot in the glass to
escaped. He was caught the next day. Greenawalt. Gary Tison and Greena-
This time, he got life in prison. walt changed clothes, herded guards
In 1977, he refused to take part ina- and visitors into a closet and strolled
prisoner work strike, and prison out of the prison with the Tison boys.
officials, fearing for his life in the A guard later said he saw one of
main yard, transferred him to the , them twirling keys on his finger before
minimum-security annex. they climbed into the LTD and drove
the time the guards broke
| ditched
en..conducting two dry.runs
third. and. final. escape henaute A
u
the big break. Prior to the breakout,
another prisoner, Bobby Tuzon,
warned then-Warden Harold Card- Jooking for them. -
well about it. Cardwell interrogated "They ditched the Lincoln in the
Tison and even gave him a lie-detector desert south of Quartzsite after killing
test. But he Jet him remain in | Marine Sgt. John F. Lyon of Yuma,
minimum security. | his wife, 22-month-old son and
Raymond Tison, 19, entered the — 15-year-old niece with shotguns and
visitors’ area about 8:45 a.m. on July stole his orange Mazda, later painting
30. He was checked for contraband | jt silver.
and allowed to join his father in the . Next, they ditched the Mazda in
outside visitation area. He brought | the woods near Flagstaff and got away
him sandwiches and pop. in a blue-and-white Chevrolet pickup
A short time later, Gary Tison truck a friend of Greenawalt had
entered’ the annex, which housed bought for them.
restrooms. Raymond followed mo- ¢ 4
ments later. Greenawalt entered the ik
control center to pick up a daily duty
roster for inmates on kitchen duty.
Ricky Tison, 18, and Donald Tison,
20, parked a green Ford LTD in the
visitors’ parking lot and, carrying a
cardboard box, went into the recep-
tion center.
—'78 BREAKOUT, from page Al
‘Some call it one of the slickest
prison breaks ever. Lawmen say it was
the biggest manhunt in Arizona
history.
The bloody chase began July 30,
1978, when three sons of murderer
Gary Gene Tison, 42, helped him and
his killer cellmate, Randy Greenawalt,
29, break out of prison.
., Between then and the Aug. 11
roadblock shootout, eight people died.
Six were immediately shot to death,
one slowly bled to death from shotgun |
wounds and one died of exposure.
< They’ were Tison and one of his
sons, a vacationing family of four and |
a*honeymooning Texas couple headed |
for an exhibition football game in
Denver.
Investigators and reporters repeat-
edly have studied what happened that
summer and tried to explain how and
why it occurred. Nobody, most admit, ©
probably will learn everything about
the big escape.
-" But, im retrospect, one must won- _
der: Could it happen again? Did
corrections officials and law-enforce-
ment agencies learn from the mistakes
of those 13 days in July and August?
“Anything is possible,” Deputy
Warden John Avenenti, then a major
on the correctional staff at. the
Florerice prison, said last week.
“Corrections traditionally is geared
to keep people in and prevent attack ,
from outside. But look at the recent
deals with helicopters,” he said,
referring to one used last month in a |
New Mexico escape.
“Warden Robert Goldsmith, a cap- |
tain at the prison in 1978, agreed that
anything is possible. te
But, asked whether ‘such an escape
could happen again, he added, “I
would certainly hope not. I wouldn’t
think it could.
“We have advanced in'our security
and classification system, training of
our staff. We have a training academy
that we didn’t have then. I think all of
those things, put together, would
make it very difficult.”
e C7 e
Randy Gr His
_was set aside Feb. 17/on groun
4 ;
constitutional rights were violate
Gary Tison first was sentenced to
the Arizona State Prison in 1954 for
robbery. He served seven years of a
seven- to 15-year sentence and was
paroled in 1961. But he robbed a
National Guard armory at Casa
Grande, was caught, escaped fron the
Pinal County Jail.and was recaptured
‘a few hours later. in’ a local theater.
This time, he got a 25- to 30-year
prisonterm. ©...
In 1966, he was paroled only to be
rearrested in 1967 for embezzlement.
A few minutes afte? his sentencing in
bt
2nd Tison son given red
By Brent Whiting
The Arizona Republic
A soft-spoken son of one of
Arizona’s most notorious killers tried
to distance himself from his father
Friday as he was rf
part in the slaying 0
a Yuma family in 1978.
Raymond Tis
Gregory Martin
esentenced for his
f four members of
on, 32, told Judge
of Maricopa County
Superior Court that he has spent the
past 14 years behind bars trying to
prove that he’s not like his father,
Gary Tison.
“P’m not Gary Tison,’
> he said. “I
don’t think I’m going to be Gary
Tison.”’
e
Raymond Tison, who has been
described by prison officials as a prison term. The two
model inmate, also said that he
expects to die in prison for his crimes
but wants to better himself and
improve his reputation. .
Raymond Tison offered the state-
ments moments before he won a final
reprieve from the gas chamber and
was sentenced to life in prison without
possibility of parole for 50 years on
four counts of first-degree murder.
Lawyers said Friday that Tison
probably will die in prison because he
also is serving a life sentence without
possibility of parole for kidnapping.
His brother, Ricky Tison, who also
has been on death row, was resent-
enced a week ago to an identical
——_—_—_— |
B6 The Arizona Republic
Saturday, July 18, 1992
father, and another brother, Donald,
iced term
Tisons, their at a police roadblock near Casa
Grande on Aug. 11, 1978. The other
Tison brothers and Greenawalt were
arrested at that time. Gary Tison
t;- eluded-officers at ‘the roadblock but
| -vidied of exposure in the desert. ra
is The death sentences of Raymond
< %
vethe* and Ricky Tison. were set aside by the
age » Atizona Supreme Court in 1989 after
f lawyers. argued that the brothers did
“not . participate in the slayings and
didn’t intend to kill the Yuma family.
Crane McClennen, an assistant
attorney general, said. ‘Friday that
Greenawalt, who has been-sentenced
to death for the four murders, could
be executed as early as next year if his
pending federal appeals fail:
GREENAWALT, Randy, white, injection, AZSP (Yuma) January 24
1997,
ie
Yom
-
It began shortly afte’ 9 o’clock in
the morning’ on a warm, mugey,
summer Sunday at
Prison at Florence. / |
There was an’ alnost picnic atmo-
sphere about it: 3 couple: of ham
sandwiches for Jad, a six-pack of
soda pop and ? ‘
might contain loos for the shut-in to
read. :
It ended 13 Jays later, shortly after
3 o'clock on aigher morning, along a
back road 2 miles south of Casa
Grande, | a
Then, thr¢ fugitives lay flat on the
dusty desertiloor, a police helicopter
shining ligt on. them from above.
Their stol’ van. sat nearby. in a
roadside dich where. it crashed at 90
{
By Richard Charnock 7. |
The Recta Republic eG Bet GE i
the Arizona State. i
z cardboard box ‘that -
i BB
: LU LL
Gary, Tison / He conducted tw
practice runs with two of his the sons
before making his final break.
mph after sheriff's deputies sot the
driver in the forehead, Killing ha.
The principal instigator lateryould
die nearby of exposure.
That was 10 years ago this summer.
— See '78 BREAKOUT, page \10
&
394 United States Supreme Court
[| CALIFORNIA
In discussing the legislative history of the Williams Act, the
Court, in Piper v. Chris-Craft Industries, Inc., 430 UA. 1 (1977),
looked to the legislative history of thé Williams Act ghd concluded
that the Act was designed to protect individual invgStors, not man-
agement 4nd not tender offerors‘ “The sponsors #f this legislation
were plainly sensitive to the Suggestion that the measure would
favor one side or the other in/control contests? however, they made
it clear that the legislation, was designed sol¢ly to get needed infor,
mation to the investor, the constant focal point of the committ
hearings.” Id., at
liams Act’s legislative/hi
some “takeover bids \. often servefa useful function.” J
As quoted by the majority, ante, at Z, the basic purpose
liams Act is “ ‘plac[ing] YwvestoyS on an equal footi
takeover bidder.’ ” Piper, stspra/ at 30 (emphasis added).
The Control Share Acquisit}ons Chapter, by desigh, will frustrate
individual Anvestment decisions. Concededly, MMe Control Share
Acquisitions Chapter allows the majority of a. orporation’s share-
holders(o block a tenderffer and thereby thwart the desires of an
individual investor to sell his stock.In the context of discussing
how/the Chapter can Je used to deal with the coercive aspects Sf
some tender offers, the majority states, “In such a situation under
the Indiana Act, thé shareholders as group, acting in the.corpora-
tion’s best interes, could reject the’offer, although individual share-
holders might b¢ inclined to accept it.” Ante, at \.. I do not dispute
that the Chap er provides addi recor or Indiana corpo-
with the
rations, parti ularly i in helpipfg those copporations maintain the sta-
it is clear to me that Indiana’s scheme conflicts with
the Willigfns Act’s careful balance which was intended to protect
individual investors and permit ‘them to decide whether it is in
their bet interests to tender their stock. As noted by the plurality
in MITB “Congress . . did not want to deny shareholders ‘the
opportuniWes which resu from the competitive bidfing for a block
of stock of a\given co poo , the opportynity to sell shares
tus quo. B
for a premiuty ovep’ their’ market price. 113/Cong. Rec. 24666
(1967) (remarks\oi yf Sen avits).” 1 Bdge v. MITE Corp., 457 US.
624, 633, n.9 (4
The majorig at at if the Willig Act pre-empts Indiana’s
Control Shafe Acquisifions Chapte ‘als
other copforate-control pro isions
staggersfg the terms of dird¢tgi
mental distinction between
sioxs and the Chapter; uD
is/designed to prevent {
At is transactional in pé4
as involving only
gine as cumulative voting or
. But this view ignores the funda-
hese other cofporate-control provi-
4 acterization given
[a challenged statu the courts of the State,’
but will déte mpact of the law.”
Hughes v. Ok D). The Contgol Share
Acquisitions inority shareholders
in some circly
offeror. It is the
conclusion that
ack to a wyling tender
Dter tha# leads to the
Given the impact 0
is clear that Indiana is wf
shares of stock in int¢
traded on the New Yr
ions Chapter, it
ase and sale of
TS’s stock is
¢ from all over
der Indiana’s
vely precluded
not be Sivan in ‘any oth er way witheut che ging ts meaning.
Since the restraint onthe transfér of voting rightsNs a restraint on
the transfer of shares, the Indiana Chapter, like the Illinois Act [in
MITE}, restrains ‘transfers of stock by stockholders to a third
pre-empts a number of |
party.’ ” Brief for Securities aad Exchange Commission and United
States as Amici Curiae 26. Vagree. The majority jgnores the practi-
cal \mpact of the Chapter in concluding‘that thé Chapter does not
violate the Commerce/Clause. The’Chapter/is characterized as
merel\ defining “the attributes ofshares in it§ corporations,” ante,
at —. Nhe majority sees the fees but\not the forest.
The Caemmerce Clause was included in gur Constitution by the
Framers ty prevent theVery type of econgmic protectionism Indi-
ana’s Conthol Share-Chapter represents;
“The few sjhple words of the Commerce Clause—‘The
Congress shall have Power ... To/regulate Commerce ...
among thé seVeral States . -X—Te ecfed a central concern of
the Frayhers that was an ipfimedtaté péason for calling the Con- |
stitufonal Convention: tthe co yxCtion that in order to suc-
cep, the new U jon would aye to_avoid the tendencies
b6ward economic Balkaniza én that hadplagued relations
among the peianaet ahd latef Among the States.under the Arti-
cles of Confederation. \ Hughes, supra, at 325-326.
The State of Indiana, in\ briefs admits that atleast one of the
Chapter’s goals is to protect Vndiana = rpe erations. The State notes
that the Chapter permits sHateholéd “to. determine . ». whether
[a tender offeror] will liquiga e ae mpany or remove it from the
State.” Brief for AppeHdyt in Ne 86-97 he State repeats
this point later ip-#fs brief: “The Sex iis parnitrsharchaldeis (who
may also be eémmunity residents. oremployees or suppliers of the
corporation) to deternpine the ip entions of any offeror concerning
the liqiidation of thd compary or it8possible removal from the
Sjate.” Id., at90. A state law which perm a majority of an Indiana
orporation’s stockHolders toiprevent indi ie dual investors, includ-
ing overstate stockholders, ‘from selling thayr stick to an out-of-
stat er offergr and thereby frustrate any thansfer-o e
control, is the arghetype-e at the Commerce
Clause forbie
Ufilike statefolue sky laws, Indiana’s Control Shak Acquisitions
Chapter regulates the purchase and sale of stock of Indiana corpo-
rations in int¢rstate : eed, a ect-abovesthe Chap-
ter witimevitably be used to block interst transaction in such
stock. Becajise the Commerce Clause per “interstate
market” in fuch securities, Exxon Corp. v. Governor of Maryland,
437 U.S. 147, 127 (1978), and because the Control Share Chapter
substantially interferes with this interstate market, the Chapter
clearly conflicts with the Commerce Clause.
With all due respect, I dissent.
Cite as 87 C.D.O.S. 394
RICK WAYNE TISON and RAYMOND
CURTIS TISON, Petitioners, v.
ARIZONA.
No. 84-6075
Certiorari to the Supreme Court of Arizona
(142 Ariz. 446, 690 P.2d 747, and 142 Ariz. 454, 690 P.2d 755)
Argued November 3, 1986
Filed April 21, 1987
Petitioner brothers, along with other members of their family,
planned and effected the escape of their father from prison where
he was serving a life sentence for having killed a guard during a pre-
vious escape. Petitioners entered the prison with a chest filled with
guns, armed their father and another convicted murderer, later
helped to abduct, detain, and rob a family of four, and watched
their father and the other convict murder the members of that fam-
ily with shotguns. Although they both later stated that they were
surprised by the shooting, neither petitioner made any effort to help
the victims, but drove away in the victims’ car with the rest of the
escape party. After the Arizona Supreme Court affirmed the peti-
tioners’ individual convictions for capital murder under that
State’s felony-murder and accomplice-liability statutes, petitioners
collaterally attacked their death sentences in state postconviction
proceedings, alleging that Enmund v. Florida, 458 U.S. 782, which
(ecnuale
DAILY OPINION SERVICE
United States Supreme Court 395
had been decided in the interim, required reversal. However, the
State Supreme Court determined that they should be executed,
holding that Enmund requires a finding of “intent to kill,” and
interpreting that phrase to include situations in which the defen-
dant intended, contemplated or anticipated that lethal force would
or might be used, or that life would or might be taken in accom-
plishing the underlying felony. Despite finding that petitioners did
not specifically intend that the victims die, plan the homicides in
advance, o: actually fire the shots, the court ruled that the requisite
intent was established by evidence that petitioners played an active
part in planning and executing the breakout and in the events that
lead to the murders, and that they did nothing to interfere with the
killings nor to disassociate themselves from the killers afterward.
Although only one of the petitioners testified that he would have
been willing to kill, the court found that both of them could have
anticipated the use of lethal force.
Held: Although petitioners neither intended to kill the victims nor
inflicted the fatal wounds, the record might support a finding that
they had the culpable mental state of reckless indifference to human
life. The Eighth Amendment does not prohibit the death penalty
as disproportionate in the case of a defendant whose participation
in a felony that results in murder is major and whose mental state
is one of reckless indifference. A survey of state felony murder laws
and judicial decisions after Enmund indicates a societal consensus
that that combination of factors may justify the death penalty even
without a specific “intent to kill.” Reckless disregard for human life
also represents a highly culpable mental state that may support a
capital sentencing judgment in combination with major participa-
tion in the felony resulting in death. Because the Arizona Supreme
Court affirmed these death sentences upon a finding that the defen-
dants “intended, contemplated, or anticipated that lethal force
would or might be used or that life would or might be taken,” the
case must be remanded. Pp. 9-20.
142 Ariz. 446, 690 P.2d 747, and 142 Ariz. 454, 690 P. 2d 755,
vacated and remanded.
O’CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, POWELL, and SCALIA, JJ.,
joined. BRENNAN, J., filed a dissenting opinion, in which MAR-
SHALL, J., joined, and in Parts I, II, III, and IV-A of which
BLACKMUN and STEVENS, JJ., joined.
JUSTICE O’CONNOR delivered the opinion of the Court.
The question presented is whether the petitioners’ participation
in the events leading up to and following the murder of four mem-
bers of a family makes the sentences of death imposed by the Ari-
zona courts constitutionally permissible although neither
petitioner specifically intended to kill the victims and neither
inflicted the fatal gunshot wounds. We hold that the Arizona
Supreme Court applied an erroneous standard in making the find-
ings required by Enmund v. Florida, 458 U.S. 782 (1982), and,
therefore, vacate the judgments below and remand the case for fur-
ther proceedings not inconsistent with this opinion.
I
Gary Tison was sentenced to life imprisonment as the result of
a prison escape during the course of which he had kiled a guard.
After he had been in prison a number of years, Gary Tison’s wife,
their three sons Donald, Ricky, and Raymond, Gary’s brother
Joseph, and other relatives made plans to help Gary Tison escape
again. See State v. Dorothy Tison, Cr. No. 108352 (Maricopa
County Super. Ct. 1981). The Tison family assembled a large arse-
nal of weapons for this purpose. Plans for escape were discussed
with Gary Tison, who insisted that his cellmate, Randy Greenaw-
alt, also a convicted murderer, be included in the prison break. The
following facts are largely evidenced by petitioners’ detailed confes-
sions given as part of a plea bargain according to the terms of which
the State agreed not to seek the death sentence. The Arizona courts
interpreted the plea agreement to require that petitioners testify to
the planning stages of the breakout. When they refused to do-so,
the bargain was rescinded and they were tried, convicted, and sen-
tenced to death.
On July 30, 1978, the three Tison brothers entered the Arizona
State Prison at Florence carrying a large ice chest filled with guns.
The Tisons armed Greenawalt and their father, and the group,
brandishing their weapons, locked the prison guards and visitors
present in a storage closet. The five men fled the prison grounds
in the Tisons’ Ford Galaxy automobile. No shots were fired at the
prison.
After leaving the prison, the men abandoned the Ford automo-
bile and proceeded on to an isolated house in a white Lincoln auto-
mobile that the brothers had parked at a hospital near the prison.
At the house, the Lincoln automobile had a flat tire; the only spare
tire was pressed into service. After two nights at the house, the
group drove towards Flagstaff. As the group traveled on back roads
and secondary highways through the desert, another tire blew out.
The group decided to flag down a passing motorist and steal a car.
Raymond stood out in front of the Lincoln; the other four armed
themselves and laid in wait by the side of the road. One car passed
by without stopping, but a second car, a Mazda occupied by John
Lyons, his wife Donnelda, his 2-year-old son Christopher and his
15-year-old niece, Theresa Tyson, pulled over to render aid.
As Raymond showed John Lyons the flat tire on the Lincoln, the
other Tisons and Greenawalt emerged. The Lyons family was
forced into the backseat of the Lincoln. Raymond and Donald
drove the Lincoln down a dirt road off the highway and then down
a gas line service road farther into the desert; Gary Tison, Ricky
Tison and Randy Greenawalt followed in the Lyons’ Mazda. The
two cars were parked trunk to trunk and the Lyons family was
ordered to stand in front of the Lincoln’s headlights. The Tisons
transferred their belongings from the Lincoln into the Mazda. They
discovered guns and money in the Mazda which they kept and they
put the rest of the Lyons’ possessions in the Lincoln.
Gary Tison then told Raymond to drive the Lincoln still farther
into the desert. Raymond did so, and, while the others guarded the
Lyons and Theresa Tyson, Gary fired his shotgun into the radiator,
presumably to completely disable the vehicle. The Lyons and The-
resa Tyson were then escorted to the Lincoln and again ordered to
stand in its headlights. Ricky Tison reported that John Lyons
begged, in comments “more or less directed at everybody,” “Jesus,
don’t kill me.” Gary Tison said he was “thinking about it.” App.
39, 108. John Lyons asked the Tisons and Greenawalt to “[g]ive
us some water . . . just leave us out here, and you all go home.” Gary
Tison then told his sons to go back to the Mazda and get some
water. Raymond later explained that his father “was like in conflict
with himself... [w]hat it was, I think it was the baby being there
and all this, and he wasn’t sure about what to do.” /d., at 20-21,
74.
The petitioners’ statements diverge to some extent, but it
appears that both of them went back towards the Mazda, along with
Donald, while Randy Greenawalt and Gary Tison stayed at the
Lincoln guarding the victims. Raymond recalled being at the
Mazda filling the water jug “when we started hearing ‘the shots.”
Id., at 21. Ricky said that the brothers gave the water jug to Gary
Tison who then, with Randy Greenawalt went behind the Lincoln,
where they spoke briefly, then raised the shotguns and started fir-
ing. Id., at 41, 111. In any event, petitioners agree they saw
Greenawalt and their father brutally murder their four captives
with repeated blasts from thier shotguns. Neither made an effort
to help the victims, though both later stated they were surprised
by the shooting. The Tisons got into the Mazda and drove away,
continuing their flight. Physical evidence suggested that Theresa
Tyson managed to crawl away from the bloodbath, severely
injured. She died in the desert after the Tisons left.
Several days later the Tisons and Greenawalt were apprehended
after a shootout at a police roadblock. Donald Tison was killed.
Gary Tison escaped into the desert where he subsequently died of
exposure. Raymond and Ricky Tyson and Randy Greenawalt were
captured and tried jointly for the crimes associated with the prison
break itself and the shootout at the roadblock; each was convicted
and sentenced.
The State then individually tried each of the petitioners for capi-
tal murder of the four victims as well as for the associated crimes
of armed robbery, kidnaping, and car theft. The capital murder
charges were based on Arizona felony-murder law providing that
a murder occurring during the perpetration of robbery or kidnaping
is capital murder, Ariz. Rev. Stat. Ann. § 13-452 (1956) (repealed
396 United States Supreme Court
CALIFORNIA
1978), and that each participant in the kidnaping or robbery is
legally responsible for the acts of his accomplices. Ariz. Rev. Stat.
Ann. § 13-139 (1956) (repealed 1978). Each of the petitioners was
convicted of the four murders under these accomplice liability and
felony-murder statutes.?
Arizona law also provided for a capital sentencing proceeding,
to be conducted without a jury, to determine whether the crime was
sufficiently aggravated to warrant the death sentence. Ariz. Rev.
Stat. Ann. § 13-454(A) (Supp. 1973) (repealed 1978). The statute
set out six aggravating and four mitigating factors. Ariz. Rev. Stat.
Ann. § 13-454(E), (F) (Supp. 1973) (repealed 1978). The judge
found three statutory aggravating factors:
(1) the Tisons had created a grave risk of death to others (not
the victims);
(2) the murders had been committed for pecuniary gain;
(3) the murders were especially heinous.
The judge found no statutory mitigating factor. Importantly, the
judge specifically found that the crime was not mitigated by the fact
that each of the petitioner’s “participation was relatively minor.”
Ariz. Rev. Stat. Ann. § 13-454(F)(3) (Supp. 1973) (repealed 1978).
Rather, he found that the “participation of each [petitioner] in the
crimes giving rise to the application of the felony murder rule in
this case was very substantial.” App. 284-285. The trial judge also .
specifically found, id, at 285, that each “could reasonably have
foreseen that his conduct . .. would cause or create a grave risk of
... death.” Ariz. Rev. Stat. Ann. § 13-454(F)(4) (Supp. 1973) (re-
pealed 1978). He did find, however, three nonstatutory mitigating
factors:
(1) the petitioners’ youth—Ricky was 20 and Raymond was 19;
(2) neither had prior felony records;
(3) each had been convicted of the murders under the felony-
murder rule.
Nevertheless, the judge sentenced both petitioners to death.
On direct appeal, the Arizona Supreme Court affirmed. The
Court found:
“The record establishes that both Ricky and Raymond Tison
were present when the homicides took place and that they
occurred as part of and in the course of the escape and continu-
ous attempt to prevent recapture. The deaths would not have
occurred but for their assistance. That they did not specifically
intend that the Lyonses and Theresa Tyson die, that they did
not plot in advance that these homicides would take place, or
that they did not actually pull the triggers on the guns which
inflicted the fatal wounds is of little significance.” State v.
(Ricky Wayne) Tison, 129 Ariz. 526, 545, 633 P.2d 335, 354
(1981).
In evaluating the trial court’s findings of aggravating and mitigating
factors, the Arizona Supreme Court found the first aggravating
factor—creation of grave risk to others—not supported by the evi-
dence. All those killed were intended victims, and no one else was
endangered. The Arizona Supreme Court, however, upheld the
“pecuniary gain” and “heinousness” aggravating circumstances
and the death sentences. This Court denied the Tisons’ petition for
certiorari. 459 U.S. 882 (1982).
Petitioners then collaterally attacked their death sentences in
state postconviction proceedings alleging that Enmund v. Florida,
458 U.S. 782 (1982), which had been decided in the interim,
required reversal. A divided Arizona Supreme Court, interpreting
Enmund to require a finding of “intent to kill,” declared in Ray-
mond Tison’s case “the dictate of Enmund is satisfied,” writing:
“Intend [sic] to kill includes the situation in which the
defendant intended, contemplated, or anticipated that lethal
force would or might be used or that life would or might be
taken in accomplishing the underlying felony. Enmund, supra;
State v. Emery, [141 Ariz. 549, 554, 688 P.2d 175, 180 (1984)]
filed June 6, 1984.
1arizona has recodified and broadened its felony-murder statute to include
killings occurring during the course of a variety of sex and narcotics offenses and
escape. See Ariz. Rev. Stat. Ann. §§ 13-1105(A)(2), (B) (Supp. 1986). The accom-
plice liability provisions of Arizona law have been modernized and recodified
also. See Ariz. Rev. Stat. Ann. §§ 13-301, 13-303(A)(3), (B)(2) (1978 and Supp.
1986). Neither change would have diminished Ricky or Raymond Tison’s legal
accountability for the deaths that occurred.
“In the present case the evidence does not show that peti-
tioner killed or attempted to kill. The evidence does demon-
strate beyond a reasonable doubt, however, that petitioner
intended to kill. Petitioner played an active part in preparing
the breakout, including obtaining a getaway car and various
weapons. At the breakout scene itself, petitioner played a cru-
cial role by, among other things, holding a gun on prison
guards. Petitioner knew that Gary Tison’s murder conviction
arose out of the killing of a guard during an earlier prison
escape attempt. Thus petitioner could anticipate the use of
lethal force during this attempt to flee 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 killings.
“The use of lethal force that petitioner contemplated indeed
occurred when the gang abducted the people who stopped on
the highway to render aid. Petitioner played an active part in
the events that led to the murders. He assisted in the abduction
by flagging down the victims as they drove by, while the other
members of the gang remained hidden and armed. He assisted
in escorting the vicitms to the murder site. At the site, peti-
tioner, Ricky Tison and Greenawalt placed the gang’s posses- -
sions in the victims’ Mazda and the victims’ possessions in the
gang’s disabled Lincoln Continental. After Gary Tison ren-
dered the Lincoln inoperable by firing into its engine. compart-
ment, petitioner assisted in escorting the victims to the
Lincoln. Petitioner then watched Gary Tison and Greenawalt
fire in the direction of the victims. Petitioner did nothing to
interfere. After the killings, petitioner did nothing to disassoci-
ate himself from Gary Tison and Greenawalt, but instead used
the victims’ car to continue on the joint venture, a venture that
lasted several more days.
“From these facts we conclude that petitioner intended to
kill. Petitioner’s participation up to the moment of the firing
of the fatal shots was substantially the same as that of Gary
Tison and Greenawalt. ... Petitioner, actively participated in
the events leading to death by, inter alia, providing the murder
weapons and helping abduct the victims. Also petitioner was
present at the murder site, did nothing to interfere with the
murders, and after the murders even continued on the joint
venture.
. In Enmund, unlike in the present case, the defendant
did not actively participate in the events leading to death (by,
for example, as in the present case, helping abduct the vici-
tims) and was not present at the murder site.” State v.
(Raymond Curtis) Tison, 142 Ariz. 454, 456-457, 690 P.2d
755, 757-758 (1984).
In Ricky Tison’s case the Arizona Supreme Court relied on a
similar recitation of acts to find intent. It found that though Ricky
Tison had not said that he would have been willing to kill, he “could
anticipate the use of lethal force during this attempt to flee
confinement.” State v. (Ricky Wayne) Tison, 142 Ariz. 446, 448,
690 P.2d 747, 749 (1984). The Court noted that Ricky Tyson
armed himself and hid on the side of the road with the others while
Raymond flagged down the Lyons family. Ricky claimed to have
a ‘somewhat better view than Raymond did of the actual killing.
Otherwise, the court noted Ricky Tison’s participation was sub-
stantially the same as Raymond’s. Id., at 447-448, 690 P.2d, at 748-
749. We granted certiorari in order to consider the Arizona
Supreme Court’s application of Enmund. 475 U.S. — (1986).?
2Petitioners devote a substantial portion of their brief on the merits to arguing
that Arizona has given an unconstitutionally broad construction to the aggravat-
ing factors in its capital sentencing statute. See Godfrey v. Georgia, 446 U.S. 420
(1980). This Court granted certiorari on the following question:
“Is the December 4, 1984 decision of the Arizona Supreme Court to execute peti-
tioners in conflict with the holding of Enmund v. Florida, 458 U.S. 782 (1982),
where—in words of the Arizona Supreme Court—petitioners ‘did not specifically
intend that the [victims] die, ... did not plot in advance that these homicides
would take place, or ... did not actually pull the triggers on the guns which
inflicted the fatal wounds ...’” Pet. for Cert. 2. In our view, the question pres-
ented does not fairly encompass an attack on Arizona’s construction of its aggra-
vating factors and we express no view on that subject. See this Court’s Rule
21.1(a).
se SAMMI Bis 8S Sk Senger erm ea
DAILY OPINION SERVICE
United States Supreme Court 393
D
Dynamics’ argument that the Act is unconstitutional ultimately
rests on its contention that the Act will limit the number of success-
ful tender offers. There is little evidence that this will occur. But
even if true, this result would not substantially affect our Com-
merce Clause analysis. We reiterate that this Act does not prohibit
any entity—resident or nonresident—from offering to purchase, or
from purchasing, shares in Indiana corporations, or from attempt-
ing thereby to gain control. It only provides regulatory procedures
designed for the better protection of the corporations’ sharehold-
ers. We have rejected the “notion that the Commerce Clause pro-
tects the particular structure or methods of operation ina...
market.” Exxon Corp. v. Governor of Maryland, 437 U.S., at 127.
The very commodity that is traded in the securities market is one
whose characteristics are defined by state law. Similarly, the very
commodity that is traded in the “market for corporate control” —
the corporation—is one that owes its existence and attributes to
state law. Indiana need not define these commodities as other
States do; it need only provide that residents and nonresidents have
equal access to them. This Indiana has done. Accordingly, even if
the Act should decrease the number of successful tender offers for
Indiana corporations, this would not offend the Commerce
Clause.'4
IV
On its face, the Indiana Control Share Acquisitions Chapter
evenhandedly determines the voting rights of shares of Indiana cor-
porations. The Act does not conflict with the provisions or pur-
poses of the Williams Act. To the limited extent that the Act affects
interstate commerce, this is justified by the State’s interests in
defining the attributes of shares in its corporations and in protect-
ing shareholders. Congress has never questioned the need for state
regulation of these matters. Nor do we think such regulation
offends the Constitution. Accordingly, we reverse the judgment of
the Court of Appeals.
It is so ordered.
JUSTICE SCALIA, concurring in part and concurring in the
judgment.
I join Parts I, III-A, and III-B of the Court’s opinion. However,
having found, as those Parts do, that the Indiana Control Share
Acquisitions Chapter neither “discriminates against interstate
commerce,” ante, at —, nor “create[s] an impermissible risk of
inconsistent regulation by different States,” ante, at —, I would con-
clude without further analysis that it is not invalid under the dor-
mant Commerce Clause. While it has become standard practice at
least since Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), to con-
sider, in addition to these factors, whether the burden on commerce
imposed by a state statute “is clearly excessive in relation to the
putative local benefits.” id., at 142, such an inquiry is ill suited to
the judicial function and should be undertaken rarely if at all. This
case is a good illustration of the point. Whether the control shares
statute “protects shareholders of Indiana corporations,” Brief for
Appellant in No. 86-97, p. 88, or protects incumbent management
seems to me a highly debatable question, but it is extraordinary to
think that the constitutionality of the Act should depend on the
answer. Nothing in the Constitution says that the protection of
entrenched management is any less important a “putative local
benefit” than the protection of entrenched shareholders, and I do
not know what qualifies us to make that judgment—or the related
judgment as to how effective the present statute is in achieving one
or the other objective—or the ultimate (and most ineffable) judg-
ment as to whether, given importance-level x, and effectiveness-
level y, the worth of the statute is “outweighed” by impact-on-
commerce 2.
One commentator has suggested that, at least much of the time,
we do not in fact mean what we say when we declare that statutes
which neither discriminate against commerce nor present a threat
14CTs also contends that the Act does not violate the Commerce Clause—
regardless of any burdens it may impose on interstate commerce—because a cor-
poration’s decision to be covered by the Act is purely “private” activity beyond
the reach of the Commerce Clause. Because we reverse the judgment of the Court
of Appeals on other grounds, we have no occasion to consider this argument.
of multiple and inconsistent burdens might nonetheless be uncon-
stitutional under a “balancing” test. See Regan, The Supreme Court
and State Protectionism: Making Sense of the Dormant Commerce
Clause, 84 Mich. L. Rev. 1091 (1986). If he is not correct, he ought
to be. As long as a State’s corporation law governs only its own cor-
porations and does not discriminate against out-of-state interests,
it should survive this Court’s scrutiny under the Commerce Clause,
whether it promotes shareholder welfare or industrial stagnation.
Beyond that, it is for Congress to prescribe its invalidity.
I also agree with the Court that the Indiana control shares Act
is not pre-empted by the Williams Act, but I reach that conclusion
without entering into the debate over the purposes of the two stat-
utes. The Williams Act is governed by the antipre-emption provi-
sion of the Securities Exchange Act of 1934, 15 U.S.C. § 78bb(a),
which provides that nothing it contains “shall affect the jurisdiction
of the securities commission (or any agency or officer performing
like functions) of any State over any security or any person insofar
as it does not conflict with the provisions of this chapter or the rules
and regulations thereunder.” Unless it serves no function, that lan-
guage forecloses pre-emption on the basis of conflicting “purpose”
as opposed to conflicting “provision.” Even if it does not have lit-
eral application to the present case (because, perhaps, the Indiana
agency responsible for securities matters has no enforcement
responsibility with regard to this legislation), it nonetheless refutes
the proposition that Congress meant the Williams Act to displace
all state laws with conflicting purpose. And if any are to survive,
surely the States’ corporation codes are among them. It would be
peculiar to hold that Indiana could have pursued the purpose at
issue here through its blue-sky laws, but cannot pursue it through
the State’s even more sacrosanct authority over the structure of
domestic corporations. Prescribing voting rights for the governance
of state-chartered companies is a traditional state function with
which the Federal Congress has never, to my knowledge, intention-
ally interfered. I would require far more evidence than is available
here to find implicit pre-emption of that function by a federal stat-
ute whose provisions concededly do not conflict with the state law.
I do not share the Court’s apparent high estimation of the benefi-
cence of the state statute at issue here. But a law can be both eco-
nomic folly and constitutional. The Indiana Control Shares
Acquisition Chapter is at least the latter. I therefore concur in the
judgment of the Court.
JUSTICE WHITE, with whom JUSTICE BLACKMUN and
JUSTICE STEVENS joins as to Part II, dissenting.
The majority today upholds Indiana’s Control Share Acquisi-
tions Chapter, a statute which will predictably foreclose completely
some tender offers for stock in Indiana corporations. I disagree with
the conclusion that the Chapter is neither pre-empted by the Wil-
liams Act nor in conflict with the Commerce Clause. The Chapter
undermines the policy of the Williams Act by effectively preventing
minority shareholders, in some circumstances, from acting in their
own best interests by selling their stock. In addition, the Chapter
will substantially burden the interstate market in corporate owner-
ship, particularly if other States follow Indiana’s lead as many
already have done. The Chapter, therefore, directly inhibits inter-
state commerce, the very economic consequences the Commerce
Clause was intended to prevent. The opinion of the Court of
Appeals is far more persuasive than that of the majority today, and
the judgment of that court should be affirmed.
The Williams Act expressed Congress’ concern that individual
investors be given sufficient information so that they could make
an informed choice on whether to tender their stock in response
to a tender offer. The problem with the approach the majority
adopts today is that it equates protection of individual investors,
the focus of the Williams Act, with the protection of shareholders
as a group. Indiana’s Control Share Acquisitions Chapter undoubt-
edly helps protect the interests of a majority of the shareholders in
any corporation subject to its terms, but in many instances, it will
effectively prevent an individual investor from selling his stock at
a premium. Indiana’s statute, therefore, does not “furthe[r] the fed-
eral policy of investor protection,” ante, at—(emphasis added), as
the majority claims.
om
a effort to cure him, she”
the, backyard and forced
three boxes of matches
ched. But Fred, instead ~~
Jy for more match
prodigious jumper, too,
1 he was 9 years old he
times from a_ secon
f the family home.
» very fond of animals,
‘as at times cruel. She
ae when he tossed three
icy pond and exclaimed:
1 to see if they could ‘i .
s pets, said the mother, |
ouse, which he kept in
hen he came home from
sh to feed it cake and
‘fore Fred went off to ©
's, Mrs. McManus said,
stairs “with a terrible
face” and announced:
lushed the mouse down
cought out in Mrs. Mc-
ty that her son never
‘iends. She told, too, of
ppiness in the family.
> 5, she said, she and
ore separated for nine
jue ng, the mother
red never been an
: had never in his life
2 lips.
-s took the stand. He
did not believe in cod-
Te had wanted to raise .
l-fashioned” lines and
a when he misbehaved.
sss called by the de-
ristopher M. Terrence,
tochester State Hospi-
d Fred as a “mama’s
iis father and who had
by his parents’ quar-
on...:*
hiatrist, Dr. Morton
called. During his most »
ion of .the youth, he
want to be alone with
considered him “dan-
terview, said the doc-
out a list of 22 ques-
wanted his lawyer to
sses. The handwriting
id the spelling pretty
dsworth, but the ques-
understood his own
1es cited by the
exe was: “Are
nail-breaking and
‘indows, as done by a
tion of a conscious
truction?”
him, Dr. Wadsworth
said, that he would “do it all over
again—because I got no more feeling
about killing a person that I have
about killing a deer. The only time I
ever felt sorry about killing was my
pet mouse. Every time I get excited I
can’t control myself.”
Dr. Wadsworth wound up his testi-
mony for the defense by declaring: “I
think anybody who commits five mur-
ders on his honeymoon is insane.”
The battle of psychiatrists was
joined when, in ‘rebuttal, the State
called its ace, Dr. Kenneth Keill, of
Willard State Hospital. It was Dr.
Keill who had decided Fred was legal-
ly sane after observing him for an
entire month.
“Maybe he’s psychotic, maybe he’s
a psychopath without psychosis,” said
the doctor. “But he’s not insane.”
“Did he know what he was doing
when he killed Braverman?” asked
the District Attorney.
“He was functioning as a human
being,” replied Dr. Keill, “and he
knew what he was doing.”
“Did Fred suffer any brain injury
during the difficult birth (described
by his mother) ?”
“I saw no evidence of nerve damage
on any part of the anatomy, which
would have been the case had the brain
been affected.”
“What about the child’s great in-
terest in animals — hamsters, chip-
munks, mice?” asked District Attorney
Croucher.
“After all,” answered the psychi-
atrist, “there was no one else around
whose company he liked.” -
In Dr. Keill’s opinion, Fred had
grown up in an average way and “the
nine months’ separation of his parents
was probably the most serious insult
he ever had.” Fred began going with
girls when he was 12, he said, with
his mother’s encouragement and “for
his own self-interest.”
“And why did he join the Marines?”
pursued Croucher.
“Out of self-interest. In the papers
and on the radio, he read and heard
what heroes they were. They had a
beautiful uniform. With his good
looks, he felt he’d be a knockout in
that uniform.”
“What about his voluntary return
-_to New York State to face trial. Wasn’t
that an insane act?”
“Not at all,” answered Keill. “He
was ham-acting.”
Now attorney Chacchia came to bat
on cross-examination and attempted
to show that McManus was “seclu-
sive,” always wanted to be alone—a
symptom of schizophrenia. But Dr.
Kreill wouldn’t go along.
“Quite the contrary,” he testified.
“Fred was regularly in the dayroom.
He played cribbage and put together
' Diana .Marie
jigsaw puzzles. In the beginning, he
was afraid the other patients were
afraid of him.
“But he got over that. The two
’ patients he was most friendly with
were an arsonist and a sex criminal.”
Fred lacked still another schizo-
phrenic symptoms, a “blunting of the
emotions,” said the witness. “His emo-
tions were quick, anything but dull.”
Finally, in the closing hours of the
sensational trial, McManus’ own. at-
torney described him as a “dangerous,
insane person who should never go
free again.”
The prosecutor, in his summation,
put it a bit differently, calling Mc-
Manus “a wicked, merciless killer —
who hid Bill Braverman’s body be-
- cause he knew it was wrong to’ kill.”
If Fred Eugene McManus really
meant it, back in March at the time
of his arrest, that he “wanted to die”
and was “ready for the chair,” the
jury disappointed him,
After 26 hours of deliberation, the
jurors brought in their verdict: Guilty
of murder in the first dégree, with a
recommendation for life imprisonment.
The honeymoon was really over now.
Fred McManus, confessed killer of
five, convicted murderer at 18, and
Weggland, his child
“bride,” had “shown the world.”
EDITOR’S NOTE: The name, David Wil-
liams, as used in the foregoing story,
is not the name of the actual person
involved. This person has been given a
fictitious name in order to spare him
possible embarrassment. THE END
SEX SADIST!
’ (continued from page 6)
“My wife won’t bother us here,” he
laughed, and added, “Anyway, she’s in
Texas.” He then ripped all the clothes
from her body.
Half-crazed though she was by her
experience—she was later committed to
a state insane asylum as a result —
Eleonora Myers had memorized the
plate number of her attacker’s car.
Captain Garcia promptly made an ar-
rest.
He was Carl J. Folk, 55-year-old,
owner of Folk’s Celebration Shows, a
traveling carnival with headquarters in
Albuquerque. He was as large and
husky as Eleonora had described.
Folk readily admitted the attack; in
fact he seemed rather proud of it,
certain aspects of which may appear
understandable in view of his age. But
he also had an excuse. While poor
Eleonora was about to slowly go nuts,
\
mei cae) Ao
iach ls
rf
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MY ram
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Bea widen Whe la the Si
Sauce for the Gander » A Tasty
~ Plus 43 Breezy !Ilustra:
In THE QUEEN’ OF CAPE
best of the Heptameron by Ma
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FODK, Carl, white, gassed AZSP (Navajo) January 4,
One: tortured victim: :
"became: hopelessly insane. Maybe
Hae _ poor: Betty: was: better off...
winds south towards San Ysi-
dro, New Mexico, through some
of the most picturesquely beautiful
desert scenery in the Southwest. Yet
the sight which loomed suddenly be-
fore two young Eastern college stu-
dents touring on vacation in an old
jalopy that summer, surpassed all ex-
pectations. It was definitely not listed
in ‘tthe guidebooks.
‘She was young. She was pretty
Ce HIGHWAY Number 44
and pretty shapely. She was spread-
eagled and bound by knotted strips
of cloth to a pinon tree. And she was
stark, staring naked.
, The driver nearly ran off the road,
then slowed for a closer look. The
myriad of welts, bruises, _gashes_ and
Pe oe
burns covering her body, burned raw
by the desert sun, convinced him that
this was no sorority initiation. He
stopped the car and they quickly loos-
ened her from the strips of her own
dress that had been used to bind her.
They helped her into an extra shirt
and a pair of pants and drove her
first to the nearest state police station,
and from there to the hospital. Her
tongue and lips were blackened and
swollen with thirst. At first, she was
too hysterical to talk.
She had been raped three times,
the doctors said, and tortured by the
hour with lighted cigarette ends, a
sharp knife, and lighted matches in-
serted -beneath her fingernails. After
a sedative and_a long sleep, she was
POLICE DETECTIVE, June, 1963
Same article: POLICE DETECTIVE, June, 1964; REAL DETECTIVE, X&X® Sept. 1972,p12
1955
able to tell Captain Nash Garcia
of the State Police how it all had
happened.
She was Eleonora Myers, 17-years-
old. She had inserted an ad in the
Albuquerque newspaper for a job as
a part-time domestic. A man had
phoned, made a date to meet her in
front of the post office. He was huge,
but middle-aged and white-haired,
and so fatherly in manner that she
had not hesitated to get into his car and
drive home with him to meet his wife
—at least, that’s where he said they
were going. But when he pulled off to
the side of the road, 18 miles north of
San Ysidro in the middle of the des-
ert, Eleonora suddenly became sus-
picious. (continued on page 65)
Ape
built by aged X-ray
left) to house the body
Mesa (above right),
cemetery elopement. The
or the dead bride’s ears.
one-sided,” unrequited
Macabre romances ever
in Ordinary grave after
however, Karl Tanzler
Sto allow him to build
e¢ in the style that he
caretaker saw that a
' Was missing. He im-
nm to Mrs. Florinda
kle building known as
me. After some argu-
to Elena Mesa’s tomb,
vault was built.
ig for the key to the
\t to a bed obviously
» another covered by
ecognized this bed as
she pulled aside the
body of her long-dead
ikets and with checks
‘nued on page 48)
IRAGNET CASES
Carnival impresario Carl Folk was shot in the
stomach by Allen but survived the wound only
die in gas chamber for his bestial sadism.
HEN General Electric, in: November of 1953,
transferred Raymond Bruce Allen from Erie,
Pennsylvania, to its plant in San Jose, California,
young Allen stowed his machine repair tools into
the back of his pickup, hitched the truck to his
two-room trailer, and headed west with his pretty
wife Betty and their 10-months-old baby son. They traveled
slowly and saw the country, thanks to the three-months leave
of absence the company had granted Raymond.
On December Ist, they passed through Albuquerque. That
evening they crossed the New Mexico line into Arizona and
stopped for the night at Dowdy’s Service Station on High-
way 66, where they were permitted to plug the trailer’s
electrical connection into the tourist camp’s power supply.
They went to bed early, at ten. But they didn’t sleep for
long. A glaring light in his eyes roused Raymond. An in-
truder with a flashlight was in the trailer, an intruder who
made his evil intentions clear with a forceful sock on the
jaw that almost stunned the young repairman. The slecp-
dazed Betty fared no better, a massive hand clamping around
her neck before she could cry out.
By the time young Allen came to his senses, both he and
Betty were trussed up and the light, now burning, showed
the intruder to be a big, powerful man. Allen recognized him
instantly as the motorist they had met that morning at a
gas station outside of Albuquerque. The big man had driven
up in a 1939 Ford coupe and had chatted with the Allens
while the attendant was filling their tank.
Later, the Ford had kept pace with them on Highway 66,
sometimes speeding ahead, sometimes falling behind, but the
POLICE DRAGNET CASES
4, Ltjrcthe ANee
Mr. and Mrs. Raymond Bruce
Allen embarked on a happy
trip to California to start
_ a new life only to encounter
tortured and killed the wife.
the ARIZONA
sadist
by John P. Duncan
Out of the desert night came a man
animal to rob, ravish, kill
with cruelty of a jungle beast
Allens had paid no attention to it, as the big man had said
that he, too, was headed for California. All this raced
through Allen’s mind as he saw the big man whip out a
switch-knife and unsnap a long, vicious-looking blade. The
big man helped himself to Allen’s cash and $140 in traveler's
checks, then he walked out. Allen heaved a sigh of relief
until, suddenly, the lights went out and the trailer jolted
into motion.
Allen fought to free himself, but before he could loosen
his: bonds, the trailer stopped and the man was back with
his knife. He stared at Betty with hungry, gloating eyes and,
with one thrust of his heavy hand, ripped off her flimsy night-
gown. Allen yelled in helpless fury, and the big man picked
him up as if he were no,heavier than a sack of potatoes and
lugged him into the other room. Then he went back to
Betty.
Allen heard his wife’s outcries, then moans which drove
him almost crazy: He strove desperately to free himself,
goaded almost beyond endurance by the noises that came
from the other room. :
Hours passed, a nightmare of dragging time. At last he
managed to free his legs and stumble outside, Somehow he
got to the road and stopped a truck driven by C, J. Rice, of
Wichita, Kansas.
Rice listened to the ghastly story as he untied Allen’s
hands, then Rice drove away to get the police while young
Allen raced back to his pickup (Continued on page 46)
19
a human savage who brutally
IS LEGALIZED PROSTITUTION
AN ANSWER?
(Continued from page 31)
harass the ranks of the innocent. They :
ravage and rape like any rampaging
army of ancient huns. That they prey
upon the young, the unguarded, the
weak is all too inevitable.
Great’ Britain, with a keen’ social
awareness and an admirable insight into
the profundities of human nature has
withdrawn from an intérnational cove-
nant which arose in the United Nations
for the purpose of outlawing prostitu-
tion.
Great Britain recognizes that traffic
in prostitutes can be outlawed, but that
prostitution itself can never be made to
disappear. France, too, has objected to
signing the United Nations covenant.
“On. strictly practical grounds,” Mrs.
Paul Bastid averred, “my countrymen
feel it would be -most unwise to give
up all health controls of known prosti-
tutes,” ‘
It is an interesting sidelight to note
that among the major nations which
have refused to sign the covenant are
the United States and Russia.
Mr. Alexander S, Panyushkin, speak-
ing for the Soviet Union, advances the
unique observation that) “prostitution
only occurs under the capitalistic sys-
tem. Prostitution cannot exist in Soviet
Russia.”
The United States had not signed the
agreement simply because the federal
government, under our constitution,
may not formulate the criminal codes
for the various states. Each state has
the right to formulate its own such
laws. Our United Nations delegate,
therefore, is not empowered to commit
the individual states to any interna-
tional agreement regarding criminal
matters.
HE fact that’ the several states have
no uniform policy with regard to
the punishment of the various categories
of sex criminals is of itself an astound-
ing consideration. There are no two
States in America with identical sex
laws! A rapist in Rhode Island goes to
jail for’ a maximum of five years: In
North Carolina, the same crime may be
punishable by death! In North Dakota,
a man who commits statutory rape can
look forward to no more than a scant
year in jail, but the same crime in Mon-
tana could keep him behind bars for 99
years. New Hampshire’s penal code
doesn’t even list sodomy as a crime, yet
a sodomist in Georgia is subject to life
imprisonment!
Inherent in this lack of uniformity
which characterizes the individual states’
attitude towards sex-crime problems is
the basic truth that not all sex offenders
are to be considered in the same light.
A man-on-the-make is not necessarily
a constitutional psychopathic inferior.
A girl who steps into the automobile of
an exuberantly amorous lothario has an
excellent chance of stepping out again,
not much the worse for the experience
or wear. A girl who gets into the car
of a constitutional psychopathic inferior
faces the fifty-fifty odds that she will be
dead before the night is over! |
THE ARIZONA SADIST
(Continued from page 19)
truck for the .32-caliber revolver he
kept in the panel compartment. As he
headed for the trailer, he smelled gaso-
line, and just then the big man lurched
through the door, his face sweaty and
his eyes glittering wildly.
Allen fired. Six times he squeezed the
trigger, and the big man slumped to the
ground with a bullet in his abdomen.
NSIDE the trailer, Betty Allen’s naked
body provided grisly evidence of the
demoniacal tortures she had endured
before brutal fingers on her throat had
snuffed out her life. Her hair and eye-
brows were scorched, ugly burns and
livid bruises scarred her face, throat,
breast and stomach. And, the autopsy
later showed, she had been raped.
The trailer’s interior was drenched
with gasoline, and only Allen's timely
appearance with his revolver had pre-
vented a holocaust which might have
cost the life of the baby as well as the
mother.
Highway Patrolman Carl Back, first
officer at the scene, hustled the wounded
torturer to the Holbrook Municipal
Hospital where he was identified as
Carl Folk, a former carnival impresario,
already known to the New Mexico
police.
Back in July of 1949 when he was
46
owner of Folk's Celebration Shows. in
Albuquerque,’ Folk had answered the
ad of a teen-age girl who was secking
part-time work, Under pretext of taking
her to meet his wife, he enticed her into
his car and drove her to a lonely patch
of scrub outside San Ysidro. There he
beat her, scratched her, cut her with
his switch-knife, and raped her three
times. Then he tied her to a tree with
strips torn from her dress. She «was
luckier than Betty Allen, for Folk left
her alive, after’ wreaking his sadistic
lust on her for two agonizing hours.
The teen-ager remembered his license
number and the police quickly picked
him up, but his plea of insanity stalled
prosecution, Finally, after a stay at
New Mexico's ‘State Insane Asylum at
Las Vegas and a tangle of legal proceed-
ings, he was adjudged sane and pleaded
guilty in November of 1952 to con- ,
tributing to the delinquency of a minor.
The five-year sentence he was given
was suspended.
Although Folk had escaped practic-
ally unpunished in his first brush with
the law, it was not to happen again.
Recovering from the wound dealt him
by the outraged husband of Betty Allen,
Folk was tried for murder and con-
victed before Superior Judge Don T.
Udall.
On March 4th, 955, he was con-
ducted to the gas chamber in the State
Prison and executed. |
Pennsylvania’s Alexander R. Meyer
tried to pick up lovely, sixteen-year-old
Helen Moyer on a country road. The
school girl turned up her pretty nose
and walked ‘a little faster. Meyer, not
content to shrug off the rebuff and look
elsewhere, backed up the truck, took
careful aim, and then deliberately ran
the girl down! He ravished her broken
body and then dumped the nude corpse
of his victim: into an unused well,
Meyer was a CPI. Even if he had
recourse to a legalized prostitute, there
is no guarantee that he would not have
slain his hired paramour in a fit of un-
bridled passion. The same is true of
each and every other such offender from
the infamous Robert Coombes to James
Monroe Jackson, who raped and mur-
dered Texas beauty Mellvita Sacket in
a pecan grove north of Liberty. Legal-
ized prostitution would make no dif-
ference to such ravening beasts, and,
consequently, would have no effect on
a certain standard proportion of the
national sex crime tally.
HE effect of condoned red_ light
districts would be to cut down on
the vast number of incidental crimes as
well as on the violations and indecencies
foisted upon the innocent by otherwise
perfectly normal Joes with a couple of
“CATCH ME BEFORE
I KILL AGAIN!”
(Continued from page 13)
For heavens sake catch me before 1
kill more,
7 cannot control myself.
The slim, nude body of a petite bru-
nette was draped over the tub in the
bathroom. ‘The top part of her pajamas
was around her neck, and a long bread-
knife was sticking in her neck just be-
low the left ear,
The victim was Frances Brown and,
as with Mrs. Ross, the killer had washed
the blood from her body.
This second murder brought Licu-
tenant Philip Breitzke and Detective
Chief Walter Storms to the scene. ‘
Entrance to the girl's room was be-
lieved to have been made via a fire
escape, but in order to reach it without
entering the hotel, the killer would have
had to scale an cight-foot fence. Evi-
dence again showed the intruder had
remained with his nude victim almost
two hours. Although doors and wood-
work had been wiped clean, one finger-
print was found. The lipstick used to
write the weird message on the wall had
belonged to Miss Brown.
Captain Reynolds reasoned that one
and the same person had killed both
Mrs. Ross and Miss Brown. There was
no other connection between the two
women, however.
Then, on January 7th, 1946, a six-
year-old girl, Suzanne Degnan, was kid-
naped from her apartment on North
Kenmore Avenue, a mile away from
where Mrs. Ross had been murdered.
POLICE DRAGNET CASES
drinks too many and .
pulses too strong to be
Legalized sex for t
this world, for the vast
nary men who are ay
drives for which there i
outlets, is not much di
—than providing them
cater to their occasior
drink, or burlesque shi
on exhibition the very
they are denied.
It is not suggested |
stalk through the cou
whip and a long chain
nocent girls to be led
shame. The mechanics
ting up regulatory meas
trol of prostitution ar
than organizing method
Disgraceful or no, the
to be a fairly constant n
tutes Who ply their illic
a standard service for
sideration. The socioloy
of this truth are many
at the moment, beyond
prostitution is not conti
it soon falls under the
ciety’s outlaws. Pimps,
curers of a dozen differ
overas a racket-a p
has survived reforms, ¢!
rise and fall of many so
A piece of oil-stained f
in the room. it read:
Get $20,000) read
word, Do not notify
Bills in S's and 10's.
When all available 1
in on this crime it was
vious that oa criminal |
the scene of his crime
The “e's” in the ranso:
lipstick printing on Mi
were identical. One
found in the little girl's
When this was com
partial print) found a
nurse had been beaten
Reasoning that if th
the same man who had
and Miss Brown little
was most likely alrea
Storms’ officers search
bish heaps, garbage ca:
places a killer might dis
Two of these men |
a catch basin several |
Degnan home. The hea
girl was floating in the
of the body was missir
An intensive search
made and within a few
of the dissected body, «
were found near the D
Autopsy surgeons si
such as a surgeon's
used by the fiendish hi
ous parts of the body ¢
ebeen washed after the
appeared to be coal
in the child’s hair and
her feet.
Chief Storms believe
could have taken place
and investigated all cc
POLICE DRAGNET Cé
ARIZOMA RE/UPL JC
nies
Greenawal
Gary Tison was serving a life term
for murder when. Ricky and Ray-
mond Tison smuggled guns to them
‘during. a visit -to. Arizona: State
lizone Cepsblic
challenge:
mrevived —
Prison at Florence in: July 1978.
The court said the;men. escaped
to a nearby car driven’ by*Donald
‘Fison and drove off. A week Tater,
‘the ‘court’ said, the bodies of John
and Donnelda Lyons and their son,
Christopher, were found near the
escapees’ abandoned car in Yuma
‘County; the body ‘of the Lyonses’
niece,. Theresa Tyson, was found
nearby five days later. |
Twelve days after the escape,
Greenawalt and the Tisons tried to
drive a‘ stolen van through two
police’ roadblocks, the court said.
Donald Tison was shot to death,
and Gary Tison later was found
dead in the desert. The other three
were captured. . . .
- Several hours. later, the court
said, a jail warden advised Greena-
— walt of his right to remain silent
and to speak to a lawyer, and
Greenawalt said he did not want to
answer questions and requested a,
lawyer. : .
Over the:next nine hours, officers
approached Greenawalt six times
and asked to speak with him, on
most: of those occasions advising
~ him of his rights, the court said.
An hour before the sixth ap-
proach, the court said, a lawyer was
allowed to speak with Greenawalt,
‘but-the lawyer was not present that
sixth time, when he talked: to
_ detective.
Page Ten — Section B
he Arizona
-Greenawalt, on death row,
Is granted a new lawyer
YUMA (AP) — Convicted killer
Randy Greenawalt has requested
and received a new lawyer after
claiming that his previous attorneys
were ineffective during his trial and
appeals.
Presiding Judge Douglas W. Ked-
die assigned Greenawalt a new law-
yer Friday from the Arizona Capital ©
Representation Project in Tempe,
after Yuma County Superior Court
officials received his ponent for one
on Nov. 12..
Greenawalt, 43, is scheduled to be
executed Feb. 17, but representa-
tives of the Capital Representation
Project said they probably will peti-
tion the state Supreme Court for a
' stay of execution.
Greenawalt has 120 days to file a
petition of post-conviction relief
arguing his case and specifying rea-
sons why he should get a new hear-
ing, a new trial or another appeal.
The U.S. Supreme Court upheld
.. Greenawalt’s death sentence last
' month after the 9th U.S. Circuit
‘Court of Appeals in San Francisco.
refused to reconsider it in April.
In his appeal to the U.S. Supreme
Court, Greenawalt challenged the
validity of using as evidence incri-
minating statements he made to po-
lice after his arrest in the pinings 0 of
four people in 1978.
Greenawalt, who was serving a
life sentence in the state prison at
Florence for murdering a_ truck
driver in Flagstaff, escaped on July
30, 1978, along with Gary Tison, who
also was serving a life sentence for
murder. —
They were assisted in their escape
by three of Tison’s sons — Ricky,
Raymond and Donald — who smug-
gled guns into the prison.
Authorities said the Tisons and
‘Greenawalt commandeered a car
near Quartzsite and killed its four
occupants — a Yuma Marine, his
wife, their 2-year-old son and a 15-
year-old niece.
Gary Tison died of exposure in the
desert after the gang was stopped on
Aug. 11, 1978, at a police roadblock
near Casa Grande where Donald
Tison was killed by gunfire.
‘Ricky and Raymond Tison and
Greenawalt were captured and all
three were sentenced to death in
March 1979.
The Tisons were resentenced to
life in prison after the Arizona Su-
preme Court ruled in 1989 that the
brothers were entitled to a new
hearing.
Greenawalt, who has appealed his
conviction numerous times over the
past decade, could become the sec-
ond person executed in Arizona
within a year.
Donald Eugene Harding, who had
1979 AP photo
,
Randy Greenawalt, 43,
is scheduled to be
. executed Feb. 17, but the
Arizona Supreme Court i is
expected to receive a
petition for a stay of
execution.
been on death row since 1982, died
in the Florence prison’s gas cham-
ber on April 6.
The 43-year-old Harding was con-
victed of killing three people during
a two-day crime spree in Phoenix
and Tucson in 1980.
It was the state’s first execution
since 1963.
@he Arizona Daily Star
Tucson, Sunday, November 22, 1992
PRROREIRDSSFL NIA ST
en
By Pamela Manson
The Arizona Republic
Ricky Tison, described as the
manipulated son of “‘one of the biggest
sociopaths in- Arizona history,” on
Friday won a final reprieve from the
gas chamber when he was given life
sentences for his part in the slaying of
four people. |
Judge Robert Gottsfield of Mari-
copa County Superior Court imposed
four life sentences, making two of
them consecutive and two concurrent.
Tison, who has been on and off
death row since 1979, will be required
to serve 50 years before he theoreti-
cally could be paroled.
The odds are overwhelming that he
will die in prison. Under the state’s
old criminal code, he is serving life
sentences without possibility of parole
— meaning to the end of his natural
life — for kidnapping.
Tison, 33, apologized for his
crimes, which his lawyer said he
committed because he was manipu-
lated by his father.
“I wish I had the insight back
then,” he said. “It wouldn’t have
happened if I did.”
His brother, Raymond, who also
had been on death row, will be
resentenced Friday.
The Tisons, their brother and their
father were part of one of the most
notorious crime sprees in the state. _
~ Pool photo by Tom Tingle/The Phoenix Gazette
Raymond, then 18, Ricky, then 19,
and Donald, then 20, smuggled guns
into the Arizona State Prison at
Florence in July 1978 and forced
guards to release their father, Gary
Tison, and fellow inmate Randy
Greenawalt. The two were serving life
sentences for murder. After the
escape, members of the gang gunned
down a family near Quartzsite.
"Donald Tison was killed at a police,
roadblock near Casa Grande in
August 1978. Gary Tison escaped into
B2 The Arizona Republic
“aes
oa
. Ricky. Tison
_ appears in
‘ .-Maricopa County
Superior Court
for resentencing.
Tison, who was
19 when he was
involved in one
of the state’s
‘most notorious
‘crime sprees,
apglogized for
his involvement.
— “| wish | had the
insight back
then,” he said.
the desert, where he died of exposure.
The other Tison; brothers and
Greenawalt were convicted of murder
and were sentenced to death in 1979.
The Tisons’ sentences were set
aside in 1989 by the Arizona Supreme
Court, which said that a hearing must
be held on whether the brothers either
intended to kill or displayed “reckless
indifference” toward human. life. The
brothers always have«contended that
they were unaware theif father and
Greenawalt would kill the family.
*
Saturday, July 11, 1992
Crane McClennen, an assistant
attorney general, argued Friday for
four consecutive life terms for Ricky.
“There are four people you have
not heard from,” he told Gottsfield.
“John Lyons. Donnelda Lyons, Chris-
topher Lyons. Theresa Tyson. They’re
dead. Those four people are dead
because of what he did. He owes this
state four lives.”
McClennen said later that he did
not ask for the death penalty because
statements the Tisons made to author-
ities were thrown out. Prosecutors
said those statements were needed to
show that the brothers were major
participants in the slaying, a standard
that must be met for a death sentence.
He sought consecutive sentences
because of the possibility that the
other prison terms could be com-
muted someday, McClennen said.
A psychiatrist who testified at
Friday’s hearing said Gary Tison was
“one of the biggest sociopaths in
Arizona history.”
The father was ‘“‘profoundly”
skilled at manipulation and convinced
his sons that he was a victim, Dr.
Thomas N. Thomas said.
“That’s the only way you can
understand this insane tragedy,”
Thomas said.
| ‘than 14: years ago, has been granted
a stay of execution by the Arizona
Supreme Court... eae
be The Surremaias Court sal Tuesday
in a Stay mad :
: “new. requests to ‘overtura thetr sen-
gino yeas
_ Greenawalt, 4 43, who was as assigned
a new lawyer in November, says
‘Previous attorneys were ineffective.
~ Also Tuesday, the court denied a
‘request to reconsider a warrant of
execution issued for John George
Brewer, 27, who is scheduled to die
“March 3 for the 1987 murder of his
pregnant girlfriend in Flagstaff.
<: Brewer, . who wants. to. be. -exe-
cuted, had filed a otiod asking the
court to restrict “unwanted and
unrequested access” to his case by
third parties. The court said it
treated the. motion as a request by
Brewer to continue representing
himself and granted it.
Yesterday, the high court unan-
imously upheld the death sentence
of Clarence David Hill, 44, who
killed his landlord in 1989 by ne :
_him on fire,
i
~~ Page Six — Section B ARIZONA DAILY STAR Tucson, Friday, jesus 15, 1993
cE ha SC — AEE es
ae _ ,
Tison pair
again fight
for lives |
Appeal second
execution order 7
By Gene Varn /0 . IS
Southern Arizona Bureau
TUCSON — Lawyers for Ray-
mond and Ricky Tison, convicted of
four murders during their father’s
infamous prison escape 10 years ago,
asked the Arizona Supreme Court on
Friday to change their death sentences
to life imprisonment.
The lawyers told the court that the
brothers, both teen-agers at the time,
“desperately didn’t want anyone to
die” at the hands of their father, Gary
Tison, and another escaped convict,
Randy Greenawalt.
But William Schafer of the state.
attorney general’s office said the.
brothers, who helped their father and
Greenawalt break out of prison July
30, 1978, should be executed because
they “did everything except pull the
trigger” in the murders. .
The arguments were made during a
special court session convened to
examine the brothers’ involvement in
the killing of a family of four during
the so-called Tison gang’s flight after
the prison escape. .
On the night after the escape from
Arizona State Prison at Florence,
Marine Sgt. John Lyons and his wife,
Donnelda, both 24, along with their
son, Christopher, 22 months, and
niece, Teresa Tyson, 15, were killed
by Gary Tison and Greenawalt,
according to court records.
vr
The family members were shot with
at least 18 shotgun rounds at
point-blank range as they huddled in
the back seat of a car parked near a
remote desert road.
Ricky Tison, then 19, and Ray-
mond Tison, then 18, have maintained
- that they were several feet from the
car when the shots were fired and
were surprised by the actions of the
other gang members.
The brothers’ original murder con-
victions and death sentences, imposed
in 1979, were upheld by the Arizona
Supreme Court in 1984. But in 1987,
the U.S. Supreme Court, in a ruling
written by Justice Sandra O’Connor,
overturned the death sentences.
In that decision, which includes
what is known in legal circles as “‘the
Tison rule,” the court set standards
about when the death sentence can be
imposed on participants who did not
intend that the victims be killed.
The. high court ruled that they
must be found to have been “major
participants” who “acted with reck-
less indifference to human life” before
the death sentence can be imposed.
The Supreme Court ordered that
the Tisons’ death sentences must be
reconsidered in a hearing conducted
under its new guidelines.
Last November, Judge Douglas
Keddie of Yuma County Superior
Court resentenced the Tisons to death
after determining that they showed
“reckless indifference” in the killing of
the family.
— See TISON, page B7 .
Akigena Hrepublic
HOENIKE AZ
Tison pair —
again fight
for lives j-/-
—TISON, from page BI $F
At a rare court session Friday at
the University of Arizona College of
Law in Tucson, the Arizona Supreme
Court heard oral arguments in the
appeal from the Tisons’ lawyers before
taking the matter under advisement.
Alan Dershowitz, a Harvard Uni-
versity law professor who represents
the Tisons, and David Heller, a
Phoenix lawyer, asked the court to |
throw out the death sentences and
sentence the Tisons to life in prison.
If the court chooses not to do that,
it should direct Keddie to conduct
another hearing, the Tisons’ lawyers
said. .
Dershowitz told the court, “These
are kids who wanted people to live but
simply couldn’t control the situation.”
The ‘Tison brothers along with
another brother, Donald, who was
killed when the ‘ison gang was
captured 13 days after the escape, had
gone to get water for the family
members before their father and
Greenawalt shot them, the defense
lawyers said.
_-~--.--#
the brothers wanted the family mem-
bers to live, the lawyers argued. The
~ brothers were shocked and horrified
by the actions of their father and
_Greenawalt, the lawyers said.
_ Schafer disagreed.
“They may be saying that now,” he
told the court. “But they weren’t
surprised or shocked ... there was
indifference becausesthey didn’t care
what was going to happen.”
In written documents submitted to
the state Supreme Court, Schafer said
the brothers had posed as stranded
motorists ‘to lure the family off a
. highway.
‘The brothers also escorted the
family at gunpoint to the Tisons’ car,
which had a flat tire, and Raymond
Tison drove that car a few ‘miles into
— the desert to the place the family was
killed, Schafer said in the documents.
‘After the killings, the gang mem-
bers continued their flight in the
family’s car. ;
On Aug. 11, 1978, the gang was
captured at a roadblock near Casa
Grande. fo
Donald Tison was killed in an
exchange of gunfire, and Gary Tison,
who eluded authorities by fleeing into
‘the desert, later was found dead of
exposure.
Greenawalt also has been sentenced
to death in the murders of the family
members.
} ~~ The brothers’ mother, Dorothy
Tison, attended the Supreme Court
hearing Friday.
Afterward, she said only that it had
been “very interesting” and refused
further comment.
Brothers’
By John Rawlinson /0 -| i 8 g
TheA
@ Arizona Dally Star TU C (e)
Raymond Tison gets 30 cents an
hour cutting hair, and brother Ricky
gets 20 cents for mopping and
Sweeping the prison floors.
The two brothers are housed with
62 other death row inmates in Cell-
block Six in separate, but adjoining,
cells at the Arizona State Prison in
Florence, according to Sam Sublett,
deputy warden in charge of that
cellblock,
Status
‘burns up’ retired investigator
But not everyone: is happy the
Tisons have jobs and are able to
move around inside the cellblock.
“I think it’s a damn shame they're
letting them out to work. That’s the
way Gary (Tison) and (Randy)
Greenawalt did it — they manipu-
lated the system,” Tom Brawley, the
chief investigator in the Tison es-
Cape, said yesterday.
Despite being convicted murder-
ers, Gary Tison and Greenawalt,
considered to be model prisoners,
managed to have themselves as-
Signed to the medium security sec-
tion from which they easily
escaped.
Ricky and Raymond joined
brother Donald in helping their fa-
ther, Gary, and Greenawalt break
out of prison July 30, 1978, The gang
Swept across Arizona, New Mexico
and Colorado during a 13-day spree
in which they killed a family of four _
near Quartzsite and murdered a
OS ee
See BROTHERS, Page 4B |
. a ae
he Arizona Dailn Star Tues” AZ
Brothers
Continued from Page 1B
honeymoon couple in Colorado for
their van.
Donald died in a shoot-out with
police near Casa Grande, and Gary
died in the desert of exposure. The
Surviving sons and Greenawalt were
convicted of murder. Bs]
“They’ve proven themselves wor-
thy of a little more movement,” Sub-
lett said yesterday of the Tison sons.
“They haven’t caused me any prob- -
lems. I like to think a similar escape
is impossible. Cellblock Six didn’t
exist in 1978,
“The men are locked up 22 to 24
hours a day and everything is
brought to them in their cell, includ-
ing their food. We have a double
—
fence around the building and the
building is built of concrete and
steel,” Sublett said.
Brawley, 47, worked 30 months on
the Tison escape investigation. He is
retired and living out of state. He
does not want to say where, he said
yesterday in a telephone interview,
because he has been involved in
more than 100 murder cases,
“It just burns me up that the sys-
tem is being manipulated,” the 25-
year law enforcement veteran said.
“The Tisons are strong examples of
why we should have and use the
death penalty.”
The two sons and Greenawalt
were convicted in the murders of
John Lyons, 24, his wife, Donnelda,
23, their 22-month-old son and a 15-
year-old niece. During the escape,
they were stopped by one of the
Tison sons who pretended he was
_ alone and stranded by a car.
Gary Tison and Greenawalt then
forced them into the back of the car
they had been driving, drove them
into the desert and shotgunned them
to death.
Brawley said the family was killed
for two reasons: The gang did not
want to be identified and Gary Tison
and Greenawalt enjoyed killing peo-
ple. Greenawalt got a sexual pleas-
ure from Killing people, the investi-
gator said. The two men were
sociopaths, he said.
Margene and James Judge were
~ honeymooning in Colorado when
Tison and Greenawalt jumped in
their van at a construction road-
block, Brawley said. They killed the
couple because they needed the van
to conceal themselves while they
were trying to make it to Mexico, he
said.
No charges have been filed in the
Tucson, Saturday, October : 198 * te
Colorado murders. “If by:chance wey
lose our death ‘penalties there, then |
we still have a chance’on'those twoai
in Colorado,” Brawley said.
“Sociopaths don’t. feel. guilt,"
Brawley said. “I’ve convicted
Greenawalt of seven or eight mur- ;
ders. They have no guilt.”
Dave Harrington was a Pinal
County Sheriff's Department ser-
geant when the Tisons tried running |...
a roadblock lawmen had set up. He:
was a personal acquaintance of! ay
Gary Tison, if
io:
*
=)
tt
As for the fate of the sons, Hars |
rington sald: “I don’t know if they.|
pulled any of the triggers. But there}
are six people dead because of |:
them, so they deserve the death pen-,.
alty.” '
Mk]
‘dl ic.
£ xpayhey, & fay
tute ak Dkk
Aeiz. Dpily Stea- Tucson, RINE /T-[o-
[[-¢- <70.
* Section B — Page Three
will ask the Arizona Supreme Court
today to assign different judges to
resentence Randy and Ricky Tison
for their roles in their father’s
prison escape and bloody crime
spree. —
The Tison brothers were. sen-
tenced to death by Yuma County Su-
perior Court Judge Douglas Keddie
on two occasions but have had both
sentences overturned on appeal.
Prosecutors agreed. to separate
the cases bounced around to judges |
in three different trial courts before
County Superior Court Judge Gre-
gory Martin. —
Martin ordered that the two cases
be merged together again and sent
them on to Judge Robert Gottsfield.
Lawyers for the Tisons said they
issue both sentences as long as-each
decision was made solely on the evi-
dence © Ne against — that —
PHOENIX (AP) — Prosecutors
hearings and separate judges, and
ending up in front of Maricopa ~
were willing to have the same-judge
, Prosecutors want 2 judges
brother and not the other one.
But the state objected, saying it
feared that having the same judge
consider both cases would just allow
the Tisons to hire a new set of law-
yers after the sentencing and to
argue that the proceeding was fun-
damentally unfair despite what the
- current lawyers said.
The Supreme Court should decide
the matter now for the sake of judi-
cial economy, assistant Attorney
_General Paul McMurdie said.
Prosecutors say the Tisons, to-
-gether with their brother, Donnie,
helped their father Gary Tison and
fellow inmate Randy Greenawalt es-
cape from the Arizona State Prison
in Florence on July 30, 1978. They
were accused of murdering six peo-
ple in Arizona and Colorado before a
gun battle at a Pinal County road-
block on Aug. 11, 1978.
The gun battle left Donnie Tison
dead. Gary Tison was found dead in
_ the desert several days later.
COURTS <2//Zon4 Lub hi
(hoe ny, aS
Court separates
Tison hearings
The Arizona Supreme Court has
ordered separate sentencing judges for
Ricky and Raymond Tison, two of the
three surviving participants in a 1978
- crime spree following a prison escape.
Both brothers were sentenced to
death twice in combined hearings, and
both times their sentences were
overturned. As a result of Wednes-
day’s Supreme Court decision, they
will be scheduled for new sentencing
hearings before two Maricopa County
Superior Court judges.
The Tisons, along with co-defen-
dant Randy Greenawalt, had been
convicted in Yuma County Superior
Court of 92 felonies, including in-
volvement in four murders, after they
broke their father, Gary Tison, out of
the Arizona State Prison at Florence.
The court ordered Raymond Ti-
son’s sentencing sent back to Judge
Gregory Martin. That leaves Judge
Robert Gottsfield to conduct a sen-
tencing hearing for Ricky Tison.
som / _
The Arizona Daily sa Y. Az / vi q = 70
Section B — Page Five
High court orders separate judges
for sentencing of Tison brothers ©
PHOENIX (AP) — The Arizona Supreme Court has
ordered separate sentencing judges for Ricky and Ray-
mond Tison, two of the three surviving participants in a
1978 crime spree that followed a prison escape.
Both brothers were sentenced to death twice in
combined hearings, and both times their sentences have
been overturned. As a result of Wednesday’s Supreme
Court decision, they will be scheduled for new sentenc-
ing hearings before two Maricopa County Superior Court
judges.
The Tisons, along with co-defendant Randy Green-
awalt, had been convicted in Yuma County Superior
Court of 92 felonies, including involvement in four mur-
ders.
Different judges asked
When the Supreme Court ordered a third sentenc-
ing for the brothers in May, the pair asked that their
cases be severed and that they be assigned to different
judges.
After several changes of judges, Raymond Tison’s
Case was assigned to Judge Gregory Martin of Mari-
copa County Superior Court, and Ricky Tison’s to Judge
Stewart Bradshaw of Yuma County Superior Court. How-
ever, Ricky Tison then waived his right to a separate
sentencing, and his case was sent to Martin, who recon-
solidated the two.
After hearings on the matter, Martin then trans-
ferred the sentencings to Judge Robert Gottsfield of
Maricopa County Superior Court.
Severed hearings again sought
The Arizona Attorney General’s Office then filed a
special action, asking the Supreme Court to sever the
sentencing hearings again so the issue of a joint sentenc-
ing could not be the basis of yet another appeal.
Ricky Tison was not a party in the special action.
Raymond Tison’s attorney said he wanted the cases se-
vered or an order from the high court requiring Gotts-
field to sentence his client first. a ene gt
The Supreme Court agreed to sever the cases, .
“Here we are a year and a half after our order. (for
new sentencings), and we don’t even have a decision on
a judge to hear the case. It seems to me somebody
should take control of it,” Justice Robert J; Corcoran
said at a hearing Tuesday. os
The court ordered Raymond Tison’s: sentencing
sent back to Martin. That leaves Gottsfield to conduct
Ricky Tison’s sentencing hearing separately,’ .°.' 2°
-
.
Rampage followed escape See ie BE
r
Raymond Tison, then 18, Ricky Tison, then 19,’and
their brother Donald, 20, engineered the escape of their
father, Gary Tison, 42, and Greenawalt, then 29,.from
the Florence state prison on July 30, 1978;, Thé élder
Tison and Greenawalt were serving life sentences for.
murder. cpk petit, &
Shortly after the escape, a tire on their car went flat
on an isolated stretch of Arizona 95, about’25 miles |
south of Quartzsite. A Marine Corps sergeant, his. wife,
their 22-month old son and 15-year-old niece stopped to
help them and were killed by 16 blasts from shotguns
fired by Gary Tison and Greenawalt. Tee,
The three Tison brothers were nearby, but did not
participate in the shootings, according to testimony. at
the trials. as
The fugitives then fled to New Mexicd and Colo-
rado, where they are accused of killing a young Texas
couple al a remote campsite, and then back to Arizona,
On Aug. 11, 1978, they were stopped at a roadblock
near Casa Grande. In the shootout that followed, Ricky
and Raymond Tison and Greenawalt were’ captured,
Donald Tison was killed and Gary Tison escaped'into the
desert, where he was found dead. of exposure: sev-
eral days later. oh ie ed
Greenwalt and the Tison brothers were not brought
to trial in the two Colorado deaths. ee eR Te
‘
i
~
Clarence Dupnik &
Pima County
Clarence Dupnik grew up in Bisbee
and, after graduation from high school,
he moved to Tucson to attend the Univer-
sity of Arizona. After a brief stint in col-
lege, he hired out at the Tucson Police De-
partment, where he spent the next 20 years.
He rose to the rank of major before retir-
88/ PHOENIX Magazine
ing in 1976 to accept a job as chief deputy
in the Sheriffs Office. Four years later, he
was elected sheriff even though he was a
novice. “I spent 20 years as a bureaucrat,”
he says, “and the last five have been in the
political arena. In that time, I have learned
to enjoy something that I used to detest
— and that’s politics. To some extent I still
detest part of the decision-making process
that occurs in politics because sometimes
the merits of the issue tend to get lost in
favor of political considerations.” «
Glen Flake >&
Navajo County
Glen Flake of Navajo is a modern-day
cattleman-turned-sheriff. “Well, I got
married when I was pretty young,” he says
with a drawl, “and I had to find something
that paid better than punchin’ cows.” He
went to work for the Highway Patrol in
northern Arizona in 1953. A year later, he
was elected sheriff of Navajo County.
During the 1960°s, he served a term in the
State Legislature. He returned to law en-
forcement in 1974, hiring on as a deputy
in Navajo County. Last year, he ran for
sheriff again and was elected.
Lawmen are rather common in the
Flake family. A brother, Sanford, is chief
of police in Snowflake, and their grand-
Father James was a lawman, as was their
great-grandfather William J. Flake. The
elder Flake bought a ranch on Silver
Creek in 1878 and offered a piece of it to
some destitute Mormon families whose
farms had been flooded by the Little Col-
orado River where Winslow is today. A
town site was laid out and named Snow-
flake. The Snow was for Erastus Snow,
leader of the refugees from Sunset Cross-
ing, and Flake in honor of the generous
rancher.
Along with having a town named after
him, William J. Flake is immortalized as
one of Arizona’s few representatives in the
National Cowboy Hall of Fame.
Glen Flake’s father, Eugene, also was
a Navajo County deputy once and was an
inspiration for his son. “I wanted to grow
up and be like my dad,” he says with un-
mistakable pride.
The criminal justice system is a lot more
difficult today than it was in the days of
Glen Flake’s noted ancestors, or even
when he first started out in the early 1950's.
“It’s a lot tougher than it used to be,” he
says. “You have to give everyone every op-
portunity in the world to get out of it. The
county has to pay for the sheriffs and dep-
uties to apprehend a suspect, then they
have to pay for a prosecuting attorney to
prosecute and a defense attorney to defend
and investigators for both sides to go out
and try to outinvestigate each other.” ¢
—-
“-
Joe Rodriquez *
Gila County
Geographically, the most difficult area
to cover is mountainous Gila County. Joe
Rodriquez, who is newly elected and has
13 years background in law enforcement,
is responsible for, among other cities,
Globe and Payson — worlds apart in
more ways than one. Globe is an old min-
ing community trying to stay alive in the
changing times and fortunes of the copper
industry, while Payson 85 miles away is
bustin’ at the seams with tourism and new
growth. Feeling the differences were too
great to reconcile, residents of northwest
Gila County in 1984 tried to break off and
form a new county. The referendum lost
at the ballot box, but the issues remain.
Another hot topic in Gila County these
days is also the main concern of the sher-
iff’s department. “Our biggest problem in
these remote areas today isn’t cattle rus-
tling like the old days,” Rodriquez says
matter-of-factly. “It’s dope running.”
Parts of Gila County present an impen-
etrable maze of rocks, cliffs and side can-
yons with many still untouched wilderness
recesses — an ideal place for drug runners
to ply their trade. “They make their own
landing strips by clearing a little area, set-
ting up flags for the plane to land,” Rod-
riquez says. “The craft makes a quick drop
and clears out.” He shakes his head slowly,
then continues: “If you drive that area,
you see how big and remote it is, and
you'll also know there is no way to catch
them all. We’re not going to stop it, but
we're gonna slow it down.”
Rodriquez began his career with the
Gila County Sheriff's Office back in 1960.
During the next 13 years, the Miami, Ariz,
native rose through the ranks to chief dep-
uty before retiring into private business.
He might never have considered running
Sor sheriff in 1984 if his old boss, Lyman
Peace, hadn’t run into some political
trouble. Peace, it was reported, allegedly
went to the top of a hill and talked to
God. That alone might have caused little
more than a few raised eyebrows. How-
ever, the sheriff insisted the Almighty was
wearing cowboy boots at the time.
A number of citizens in Gila County
persuaded Rodriquez to challenge Peace
in the primary. After losing the election,
Peace said, “If I had to lose this election,
I’m glad it was to Joe.” °
Joe Richards *&
Coconino County
The first day on the job turned out to
be one of the most challenging for Joe
Richards. The day he took office, Jan. 1,
1973, five young hikers were lost high in
the snow-covered San Francisco Moun-
tains. A fierce winter storm had swept
across northern Arizona, trapping the
youngsters on a wind-swept peak. The
new Sheriff, who is an avid outdoorsman,
organized search parties and located the
lost campers. Thanks to the sheriff's quick
action, four of the five survived the ordeal.
Richards has been in law enforcement
24 years; all but one of those years has
been spent in the Coconino County Sher-
iff's Office. He holds a bachelor’s and a
master’s degree in police administration
from Northern Arizona University and
was awarded NAU’s Alumni Achievement
Award in 1982. He is a well-trained profes-
sional with a long list of credits, organiza-
tions and affiliations.
Coconino, the nation’s second largest
county at 18,608 square miles, is patrolled
by 74 deputies. The county includes parts
of the Navajo, Hualapai, Kaibab and
Hopi Indian reservations; the Grand Can-
yon; most of Sedona; and a long stretch
of Interstate 40, better-known to older res-
idents as Route 66. The highway, along
with the Santa Fe main line, contributes
to a large, troublesome transient element
in the county. “Flagstaff is a crossroads,”
Richards says, “I-17, I-40 and US. 89 all
intersect here, and we are periodically a
dumping ground for bodies.” e
September 1985/87
Jimmy Judd *&
Cochise County
One of the most controversial incidents
in the state in recent years involved Jimmy
Judd and a church group that had moved
from Chicago to Miracle Valley, an area
west of Bisbee. Although claiming to be
peace-loving pilgrims, locals say they
more closely resembled an armed camp.
A confrontation between peace officers
and members of the church group was in-
evitable. The so-called Miracle Valley War
made national headlines. The reports por-
trayed the cult as victims of police brutal-
ity and Jimmy Judd as the stereotypical
red-neck sheriff. “People can worship any-
way they want and I'll protect anybody’s
rights,” Judd says. “They can worship a
fence post if they want to, but when they
infringe on everyone else, then you’ve got
a problem. All in the name of religion,
they had guns, bombs and Molotov cock-
tails.”
Judd, a church-going man who was
easily re-elected following the incident, de-
Sends his actions with all the zeal of a mis-
sionary: “I want everybody in the world
to know that we didn’t do anything wrong.
We tried to work with those folks and to
have them get along with everyone else
and it just didn’t work. It was a tragic
thing, but when people choose to thumb
their nose at the law....”
How do you think people will remem-
ber you? I asked. “Well,” he says, “I'd hope
that people remember Jimmy Judd as a
professional peace officer who has a nice
smile and is a hell of a guy.” He pauses
as a slow grin warms his face. “But ya
know, they’re only going to remember me
for Miracle Valley.” °
September 1985/91
Dick Godbehere *&
Maricopa County
Dick Godbehere’s political detractors
called him inexperienced and a political
lightweight during the 1984 campaign for
sheriff. Godbehere might be new in the
political arena, but his roots grow deep in
Arizona. Both sides of his family came
here during the 19th century in covered
wagons. He grew up in a tough neighbor-
hood in west Phoenix, then worked his
way through college as an officer with the
Tempe Police Department. After gradua-
tion, he entered the Navy’s officer training
school. For the next 20 years, Godbehere
built a splendid military career. His politi-
cal supporters believe his well-developed
administrative background makes up for
his lack of experience in civilian law en-
forcement. Besides, today’s Maricopa
County sheriff is supposed to be more of
an administrator, spending more time in
the office than out making arrests. (Re-
cently, however, Godbehere stirred up a
lot of controversy when he staged a ques-
tionable drug bust that his critics labeled
a blatant publicity stunt.)
Godbehere is also a bona fide war hero,
having earned two Purple Hearts and the
Bronze Star. In Vietnam, he was a skipper
on a patrol boat for eight months. “There’s
one thing I learned in Vietnam,” he says
grinning, “it didn’t take a lot of guts to
go up one of those rivers and have some-
one shoot the livin’ heck out of you. What
really took guts was to go back three or
Jour days later knowing they’re in there
waiting for you.” e
90/PHOENIX Magazine
John Phipps +
Yuma County
John Phipps is a big, likable 6-foot-6
Yuma native who was the Marlboro Man
back in the 1960’s, is an ex-rodeo cowboy
and was a stuntman in Hollywood. He’s
also the personification of the rawhide-
tough old-time lawman immortalized on
the silver screen and in the novels of Louis
LAmour.
He’s much more than the stereotype,
however, and has the credentials to prove
it. He is a graduate of the prestigious Na-
tional F-B.I. Academy and has more than
3,500 hours of police classes. That’s a far
cry from back in 1963, when, as a green
kid, they pinned a badge on him and as-
signed him to Wellton, a rough town east
of Yuma. “I got shot at and stabbed before
I got out of that town,” he says.
Phipps worked his way through the
ranks. He made sergeant in 1965 and was
promoted to lieutenant seven years later.
When his mentor, longtime Sheriff Bud
Yancy, retired in 1980, Phipps ran for the
Sheriff's Office and was elected with an
overwhelming majority. °
or work-
viler con-
yf.
fueal of the state hoard ot J
and paroles to intervene in his be-
half.
From that point on, according to
Prison Chaplain .R. M. Odom, spiri-
4
GOOD
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er een ae
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- Take a leaf of this Bread home with
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Be
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RA Miayea ania CInOCG., Filg [a-
Vorite verses were those from the
Book of John, the passages fron.
verses three.to 27 of. the third
chapter.
‘An hour before the time of exe-
cution he dressed with meticulous
care in a neat black suit of
his own, carefully knotting the black,
four-in-hand tie. Then he waited,
reading the Bible, talking and pray-
ing with Dr. Cdom, He arnoked cig-
arettes continuously, inhaling and
exhaling the smoke slowly,
Faces Spectators
His final spiritual preparations
were halted by- the anproach of -the
46 men who were admitted to the
death room as witnesses. The death
cell occupied by Flowers is on the
ground floor, opening through a door
of wide bars at the foot of the stair-
way leading to the death trap. Wit-
nesses passed directly by the cell
to reach their positions. .
Flowers stood facing the spectators
ag they filed by himself leaning for-
ward against the bars which many
of the witnesses brushed. With one
hand on his hip; he used the other
in carrying a cigarette to his lips
for occasional puffs. There wag noth-
ing hurried about his smoking, and
nothing of nervousness in his hand-
ling of the tiny cylinder.
As the last of the spectators passed
Flowers drew long on the cigarette
and held'‘the smoke in his lungs as
half a dozen husky prison guards
were opening the @door to his cell,
then quickly exhalied as the bars
were flung onen. yi
the guards and shook hands with
each. The only word spoken was
by one of the guards, and that was,
“Goodbye Sam” as the hands clasped.
An inasatant later, the guards were
at their work of strapping his hands
securely behind him. Then,’ with
Flowers leading, they marched up
the steps to the death room, where
the negro, without direction, took
position astride the center of the
floor-level dividing-doors which form
the trap. His feet then were lashed
together at the knees and at the
ankles
Flowers, after watching the strap-
ping process until its completion,
lifted his eyes to the diminutive
chaplain, who with drawn face and
‘tear stained eyes stood an arm's
The minister thumbed
found the
length away.
his testament ‘nervously,
place he had marked, and read three
verses from the eleventh chapter of
St. John. A brief prayer completed
the religious ‘exercises, and then
there was dead silence of perhaps
half a minute, broken by Warde
Sima.
“Have you anything to say, Sam?”
the warden inquired,
“Naw sir.” was the reply, “Luck
| to everybody; mag God bless you.”
Speaks Evenly
Flowers spoke in an even tone-—
more even than that of the warden.
who is avowedly opposed to capital
punishment. °
As Flowers finished, a’ guard
stepped forward and d@repped the
black mask over the cendemned
man's face.’ The rope was quickly
adjusted and drawn ‘tight, with the]
huge hangman's knot ditectly under | |
guard)
nd signal was)
Flowers’ right ear. The-
stepped back. A W
waved, Somewhe ow the pik
trisger was pulled, and Flower
downward, the |
He stepped among’
‘gon had signed contracts for
wife was conversing with two other |
women, and had shot her to death.
The state argued that Flowers was
angered by the refusal of his wife
to agree to a reconciliation after a
separation.
Flowers contended
fired in self defense. He said he
went into the house not knowing
his wife was there; that as he en-
tered the house she advanced toward
him feeling into her waist where she
habitually carried a razor. She
knocked him against the wall, from
which he fired, according to his
claims. Evidence wis offered that
a razor was found in the dead wom-
an's waist, In the place for which.
Flowers’ testified she was reaching.
Flowers also offered evidence at-
tempting to show that his wife was
a woman of dangerous disposition.
Evidence was offered that she had
served a penitentiary term in Texas,
that on one ocrasion she had pursued
Flowers down the street of a Texas
city brandishing a butcher knife, and
that on another occasion she had |
pursued him with a pistol.
The courts held that even though
it was true that the woman was of
a vicious disposition, Flowers was
not legally justified in taking her
life under the peculiar circumstancess
O
Commission Hears
Light Plant Case
Of Cochise Towns
If given a certificate of conveni-
ence and necessity to install an elec-
tric plant in Benson and another in
W:llcox, Henry Schlegel testified
Thursday at a hearing before the ’
Arizona Corporation Commission on
his application for the certificate,
that it is his intention to install the
very latest modern eyuipment in both
plants. The hearing was held by
Commissioner William D. Claypool.
At the close of the hearing, the
cage was taken under advisemént ‘
pending the’ filing by Mr, Schlegel of
a schedule of rates for the proposed.
service, and also the filing of fran-
chises from the towns of Benson and
Willeox authorizing him to operate
a plant and erect transmission lines
within the city limits of the two.
towns,
It was brought out at the hearing
that the ora, Benson was recent-
that he had
ly incorporafed, and that so far
neither thedecity council of that
place, nor of Willcox, aleo an ite |
corporated town, had granted a fran-
chise for the installation. Mr
Schlegel stated that he would obtain
these at once, is
The applicant testified that mo
than 100 people {jn the tawn of |
damestic and commercial lgh
and that a large number of si
contracts had been. receives
people in Willcox, He test
0
IN
if
for the
ol} was
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He was
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SAM, BLACK
a tiia: 5 pase Bie
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F ee ‘k ;
FLOWERS,
Flowers
Sam Flowers, celored, for whom a
death in terror had been forecast,
mounted the gallows without a sign
of fear and dropped Into eternity at
the state penitentiary at Florence
yesterday morning in legal expia-
tion of the slaying of his wife, Sa-
bina, in Tucson early in 1923,
The last spoken words of the dap-
per little negro were “luck to
every body; may God bless you.”. His
last written words were contained
in m letter to his sister, in Terrell.
Texas, admonishing -her that “you
must be good forever.” 4 le
The very last of his written. words
was the: signing of his name ito a
check drawn on the prison bank
nigning over to the same sister the
$26 which comprised the slayer’s
worldly effects. - ss
The pronouncement that Flowers
was dead 11 minutes and 30 seconds
after the trap had been sprung at
5:03 a. m. completed one of the
most perfectly carriel ott execu-
tiona in the history of the Arizona
prison. He was unconscious, e6Xx-
aminers declared, the instant his
body snapped at the end of the
hangman's rope—with his neck brok-
en and his spinal cord severed. No*
a quiver of hands or limbs was vis-
able. Sven the usual swaying of a
body suddenly dropped to suspension
on a cord was almost entirely absent.
The execution was the speediest in
the histo death infliction ats the
atate penitenflary. Less than 20
minutes elapsed\ for Flowers between
the death cell \jand the coffin. At
4:57 he stepped from his death cell
to be prepared for the gallows. At
5:17, the body repoged in the.coffin.
Dr. F. P.. Perkins, medical attend-
ant, announced that a shorter g¢ime
elapsed between the springing of the
trap and the pronouncement that life
was extinct than in any case with
which he was familiar.
The nervousness that had char-
acterized Flowers’ demeanor during
the several days immediately pre-
ceeding his execution departed, ac-
cording to spiritual advises, when
his last hope of life passed away
less than 24 hours before the time
set for the execution with the re-
fusal of the state board of pardons
and paroles to intervene in his be-
half
From that naint on
aceordine to
ey
5 ia } 3% rire
a Sat
| seemed to be lost in the philosophy
,Ordinarily: th® person who has com-
j mitted a capital ¢rime goes to death
expressing, bitterness that the ex-
h,
tual adviser during the man’s last
hours, Flowers’ attitude was one of
complete resignation, fully realizing
the hopelessness of his case and
anxious to,;have it over.: Even the
defense that he had urged—that he4
had killed to save his own life—
that.after trying and failing, there
no longer was ‘use for worry. The
attitude contrasted with the usual.
teruations offered as a defense had
not. been accepted, according to. War-
den R..S, Sims, of the penitentiary.
Flowers Calm
No man of the 47 in the death
chamber was calmer than the man
condemned; few if any, were as calm.
None was more interested as a spec-
tator than Flowers up to the mo-
ment the black mask waa dropped
over his face as the final preliminary
to the adjusting of the noose.
The final hours spent by Flowers
were practically devoid of tiiisual
features. The news that the pardon
board had declined to take action
was broken to Flowers Thursday aft-
ecnoon. It brought mo surprise, al-
though the negro had carried a faint
hope that something might be done.
The rest of the afternoon was spent
by him in reading the Bible, and
conversing witn Dr. Odom, who prob-
ably was closer to the condemned
man than any other, and who prob-
ably had done more than any other
to prepare F¥wers for: the adverse
action of the board.
Dr. Odom and Flowers continued
their talk throughtout the night. He
did not retire. Flowers did not ayall
himself of the opportunity to choose
hig fare for his last meal, served
early Thursday evening, partaking
lightly of substantial prison food
served him. ~
The remainder of his evening was
occupied in reading a copy of The
Arizona Republican, and in writing
the” letter to his sister, ehclosing
with the letter the check for §26
and a clipping from The Republican.
Then he read at length from the
Bible and prayed and talked. Hig fa-
Vorite verses were, those from the
Book of John, the pasdages fron.
Vewses three.to 27 af. tha thira |
ee abs:
Ke cee een we
Pays Deat
At Florence For Wife Murder
.
THE ARIZONA REPUBLICAN, PHOENIX,
il Company Starts Construction
Penalty |
the extreme penalty in the Arizona
state penitentiary.
The spectators were’ held -in the
execution chamber until heart action
had’ stopped 10 minutes later. They.
then filed down the stairs, and were
permitted to circle the tiny room in
which the body was still suspended.
Framed on the walls of the room
are the pictures of men who pre-
Viously have been hanged there, each
picture circled by the noose which
caused death. ‘
.. The Flowers’ body wag cut down,
was placed in- the plain pine box
which awaited it. and was carried
to the prison yard to be mterred.
The letter the man had left was
addressed to his only relative of
which prison authorities have knowl-
edge, It read: .
“Mrs, Luella "Flowers, Terrell,
Texas, 802 8. nelg street. My
dear sister as these are the last
words I will say hello and by by
to you and al, and you must be
good for ever and 4@on'’t geave
(grieve) over me for we hafter
die so trying be ready for that day.
I am sending $26 twenty-six dollars
80 give love to all as I will close
with lové to you your brother Sam
Flowers.”
A postscript written in the upper
right hand corner of the letter added. }
“May God be with you till we meet
beyond the shore where there i«#
rest forever.” The letter was writ-
ten in an even and readily legible} ™
hang
Sends Tract .--
Enclosed
with the
¥
letter was al”
tract on. which were priuted verses .-
16 and 17 from the third chapter of} .. >
St. John, and the thirty-sixth verse} o-
of the eighth chapted of Mark. =}
Another enclosure was’ a cll
from The Arizona Republics
cember 31, headed “death watch over
Flowers is begun at state prison.”
The execution yesterday definitely
ended a case which started early in
1923 with the slaying by Flowers of} tui
his wife at Tucson. Evidence pre-
sented at the trial was that Flowers
had forced hia entrance into the
house of another person where his
wife was conversing with two other}
women, and had shot her to death.)
The state argued that Flowers was
on ene
Suspect in Attack-killing
Refuses to Discuss Case
4 HOLBROOK, ARIZ. —(®)— Carl J. Folk, 60, a 215-pounc
} - carnival owner, refused to talk today in a local hospital after
being charged with the rape-slaying of a woman while her hus-
bane lay bound and gagged nearby.
af *'Folk was accused of killing Mrs. Betty Faye Allen, Watts-
“bie, Pa., 22, in a trailer near here,
“Her husband, Raymond, 25, a arama
* machine tool repairman, spent
a night of horror while tied
-hand and foot in the trailer
‘and listening to his wife’s
screams.
ey
He finally wiggled loose and
shot the assailant in the stom-
ach. Folk’s condition is not re-
garded as serious.
Investigating officers said
Mrs. Allen’s hair and body had
been burned by her tormentor.
Her hands and feet were tied
and there was a sheet knotted |
around her neck.
Meanwhile, the Allens’ 2-
year-old son slept undisturbed
in the trailer.
It was reported from Albu- |;
querque, N. M., that Folk Is
under a five-year suspended
sentence in connection with
raping a young girl. After be-
ing committed to -the insane
asylum, he was released a few |
weeks later on a convalescent
parole.
( oT eer
. age-30 Carl, whites “atseee? iris, (Navajo) 3--19550 The Arizona Republic, Phoe
/
urderer Executed
Dennis The Menace By Hank Ketcham
~ TStill Think TAm Not |
Guilty-Folk’s Last Word
FLORENCE (Special)—Mrs, Carl J, Folk. Joyal to the end, yes. !
terday claimed the body of her
oversaw private funeral services,
As hefore, she made no bitter o
decree her hushand’s death in
short, simple prayers and scrip-
tures were read at the funeral,
her brave mack of the past few
weeks broke into tears,
Foik, convicted torturer and
murderer of a 22-year-old Penn-
sylvania was. sleeping!
soundly when time for the execu.)
tion came, Warden Frank Eyman
awakened him,
HF ASKED Folk if he needed!
help in walking to the gas cham-
ber, Folk shook his head.
Guards Wheeler Holmes and
Joe Argel, who led Folk from his|
death row cell into the lethal)
chamber at 5:01 a.m., said they
did not have to force him. The 57 |
_year-old New Mexico carnival)
operator did not appear to notice!
the 26 official witnesses sitting)
near the chamber.
mother,
Clad only in a pair of white
trunks, he walked clumsily into
the hexagonal steel chamber. The
guards strapped him into the
death chair.
IT WAS then that Folk showed,
the emotions that racked his ane
minutes, He trembled violently.
The officer who investigated
executed husband, and tenderly |
utburst against the society which
the prison gas chamber. But as |
against the restraining straps. |
Then his head fell backward, Dr.
Heap pronounced him dead at
5:03 a.m.
“Gentelmen, that is it,” a |
guard told the ashen-faced wit-!
nesses, |
As the witnesses filed out, |
Folk's body went into convul- |
sions, then moved no more,
Folk, the 3rd person to be
executed by gas here, was con-
victed. of the murder of Mrs.
Betty Faye Allen of Wattsburg,
Pa, She was killed Feb. 13, 1954,
in a trailer house near Holbrook.
Her 27-year-old husband, Ray-
mond, lay bound in the trailer
while his wife vas burned with
newspapers and molested several
hours before she was strangled. |
When Allen finally freed himself, |
he shot Folk with a rifle. The)
scar of the stomach wound |
showed clearly as Folk was led
“That's the way, Miss Anderson. Now deduct your
weight from the total.”
to his death yesterday.
THE HUSBAND said _ Folk,
holding a gun, burst into the
trailer, parked at the side of the
road, demanded money, bound
Allen, and tortured Mrs. Allen!
while the couple’s 10-month-old
Board To Sell School Desks
Used 45 Years Ago In PUHS
Wes
Regist
Take I
Resignation of
ford, West Ph
registrar, was a
by the high sc
board of educat
Bradford, 42,
Phoenix as a m
HE’LL TAKE
duties as soon
jreplacement, Ma
acquainted with
istrar. DeRodefi
High busines
teacher.
Bradford is m
of two children.
at 1917 E. Pine
Also accepted
tion of Mrs.
Phoenix College
for the past se
leave in June.
Charles R. N
Orange Blossom
THE BOARD
of compulsory r
employes when
Policy becomes
school year 1956
.
At present, 22
or will be 65
the murder, Undersheriff Tony J. baby slept nearby.
Ortega of Navajo County, com-
mented: / Folk’s wife, Mary, stood by
“Pe is going/out a lot easier | her husband from the time of the'
than the! poor woman he killed.” | arrest.
Want to buy some 45-year-old;desks and other obsolete items
combination desk and seat units?/for sale by bid.
The high He said the Mexican govern-
system has 483 desks and seatSiment some years ago purchased
schools and college
school year beg
Teachers prey
itire at 65 and if
lat 70. Policy o
was never defind
The position o
intendent for ed
was established
| f ; jit wants to get rid of. Some of: cimilar desks for $1 apiece. But i :
m Ipe placed the ine brief funeral was conduct- | ifective July 1.
Guard | at Cole an them originally were installed injthe Mexicans don't want any
ryanide fellets into a receptacle) nore About Oe perenne eitenaed Phoenix Union High School in|more. The administ
heneath the chair. E, L. Heap,} including two unidentified et '1910, | . , _ {dinate instructi(
prison physician, taped rubber 4, officials. pris | Under Arizona laws, school dis-lrect the traini
stethoscope tubes to Folk’s chest. ; “chofield Schwartz. supervisor |tricts can't throw anything away.|teachers, an
Then. by turns, Folk was em-|tiry was in Florence Ceme- vi buildings and grounds, was|They have to sell it, even as services as audi
: . igi ing, and testing.
braced by the Rev. Stanley
Jones, prison chaplain, the Rev.
Robert Babcock of Holbrook, and}
the Rev, Sam Hannah, former}
chaplain. |
Warden Eyman, who conducted |
the execution with the precision |
of a machine, was the last man
to speak to Folk.
}
“TELL MY wife goodby,” Folk |
told Eyman ag the warden bent’
oyer the chair.
“God bless you,” said Eyman, |
pressing Folk’s hand.
Folk answered:
"Thank you for your kindness. |
I still think I am not guilty.” |
Then Eyman stepped away, and
the airtight door was closed. Ey-|
man pulled the lever that re-'!
leased the cyanide pellets into!
acid. The gas swirled upward.
Folk took three quick breaths, |
held the last one, and stiffened |
ag the gas struck his lungs, |
For an instant, he lunged;
Dulles Will Report
To Nation Tuesday
WASHINGTON (UP) —Secre-
tary of State Dulles will report
tel the nation Tuesday night on
East trip, the state de-
announced
hig Far
ps Bil yesterday.
ven permission to offer the!Scrap.
luncheon, |2
an entertaining idea
buffet luncheon and
fashion show at
Camalhecl Srv
for reservations call Camelback Inn, WH 5-8441
y
() )
oy
store
spor
you'll ¢
these §$
~» » tal
care usu
priced
crease-f
pacifi¢
toast, bi
shirt, li
with nd
brown
scottsde
i
yt. gy Late oa WE e F
G re e y i} a re
Continue from Page One
Dale Baich. =
Federal and state courts have
|. upheld Greenawalt’s execution
through 18 years of legal wran-
-| | gling.
Pes Tison’s three sons, Ricky,
Raymond and Donald, helped
Greenawalt: and their father
escape by smuggling guns into the
_ prison during a visit.
After the fugitives’ car got two
flat tires, they flagged down a
Yuma family near Quartzsite. Gary
Tison and Greenawalt then killed
Marine Sgt. John Lyons, 24; his
wife, Donnelda, 23; the couple’s
22-month-old son, Christopher;
and their 15-year-old niece,
Theresa Tyson, of Las Vegas.
After those killings, the fugi-
tives apparently headed to south-
western Colorado and killed a
honeymooning Texas couple for
their van.
They then drove the van
through New Mexico and _ into
Arizona, where Pinal County sher-
iff’s deputies captured
Greenawalt and Raymond Tison,
then 19, and Ricky Tison, then 18,
in a pre-dawn shootout at a road-
block near Casa Grande.
Murderer
| executed
By Eric Miller
Staff writer ;
FLORENCE — He went
peacefully, with a smile on his
face.
No confessions. No angry ges-
tures. No displays of remorse for
his senseless acts of violence.
His only words and smiles
were for his sister, standing in
the darkness on the other side of
a large window inside the tiny
death house at the Arizona State
Prison.
He mouthed the words, “I love
you.”
At precisely 12:07 a.m. Thurs-
day, Randy Greenawalt, the man
convicted in the 1970s for the
brutal murders of a Yuma family
and truck driver, was adminis-
tered a lethal injection,
His chest heaved and his body
jerked several times before he
was pronounced dead three min-
utes later.
After nearly two decades of
legal delays, the execution closed
a chapter on one of Arizona’s
most notorious crime sprees,
Before the execution, a crowd
of roughly 120 people, mostly
from Catholic dioceses in Tucson
and Phoenix, peacefully demon-
strated near the prison’s entrance.
“He was convicted of a hor-
rendous crime,” said one of the
protesters, Judy Gifford, coordi-
nator of life issues for the
Phoenix Catholic Diocese. “But
it’s wrong to take a life.”
— See TISON, page B2
in silence —
When the state
punishment after a 29-year hiatus. -
He had been a resident on
Arizona’s death TOW since 1979.
Just before the execution, Terry
Stewart, director of the state Depart-
ment of Corrections, Said he asked
Greenawalt Whether he had any last
words,
His response: “Yes, I do. | have
Prayed for you many times, and the
Lord is Using you well. Don't worry
e
about me. [’I| be fine.”
On hand Were 18 law-enforce-
ment, corrections and Prosecutorial
officials: eight members of the
media: Greenawalt’s sister, Darlene
Anna Greenawalt; and allorney Jef-
frey Kelleher, who had been invited
by Greenawalt. :
Greenawalt’s last’ meal was two
cheeseburgers, fries, milk and cof-
fee. :
Greenawalt was a member of the
infamous “Tison Gang,” which
busted out of a unit at the Arizona
State Prison at llorence on July 30,
1978. The break was orchestrated
by Greenawalt and inmate Gary
Tison with the aid of Tison’s three
sons, who had smuggled guns into a
prison (rusty annex,
At the time of the Prison break,
Greenawalt was serving a life sen-
lence for murdering a truck driver,
While on the run, the fugitives
left a trail of death, including the
murder of a family of four near
Quartzsite and of a Texas couple
honeymooning in Colorado. The
Spree ended in a bloody gunbattle
with officers near Casa Grande.
Greenawalt. then 29) and two of
Tison’s sons. Ricky, 19, and Ray-
Mond, 18, were the only survivors
OF the prison break.
MO1A0U seboa Sl&1/89
€zZ Ayenuer ‘Kepsiny yyeusnor-
L661 °
Pain lingers
from ’78 killing
C Ed Carroll hopes that the
execution of one of the men
who murdered his high schoo!
sweetheart brings closure.
By Glenn Puit “4
Review-Journal
For Las Vegan Ed Carroll, it seems like =
a lifetime since his high school sweetheart -:
was murdered. “
Eighteen years after Theresa Tyson and >
three of her relatives were kidnapped and -
killed, Randy Greenawalt, 47, was execut- >] |
ed at 12:05 a.m. today in Arizona for his ~~:
role in the crime. Pee:
“What I’m hoping is that everyone will ~4
have a sense of closure from this,” said.
Carroll, 33, now a Las Vegas police patrol “*
officer. “It was something that has always: >
remained open.”
In 1978, Carroll was a freshman at Ran---]
cho High School in Las Vegas, while Ty- =
son, 15, was a sophomore at the school. -
The pair hit it off immediately.
ne
an oe
oe
Please see EXECUTION/5B
came in four times to load up on groceries and gasoline, the clerk gave police a description of the car the men were driving -- a Mazda,
spray -painted silver.
Pinal County deputies set up two roadblocks on Interstate 10, believing the Tisons would use it on the way to Mexico.
What police could not know was that the gang had ditched the Mazda and was now driving the Judges' van. It was loaded with guns
and ammunition.
"So here comes this van with Texas plates and nobody has any idea the Tisons and Greenawalt are in it," said James W. Clarke, a
University of Arizona professor who wrote ‘The Last Rampage" about the case. ‘The van runs the first roadblock and then the second
as shots are being fired.”
When the shooting stopped, police crawled up to the van and found the dying driver. ‘That's when they discovered they had Don
Tison. It was dumb luck," Clarke said.
The others had run off into the desert. Greenawalt and brothers Raymond and Ricky were caught immediately. Gary Tison was found
dead of exposure 11 days later, one mile from the shootout site.
Greenawalt and the surviving Tisons were charged with 92 crimes, including four counts of murder. All were convicted and sentenced to
death in March 1979.
Thirteen years later, the state Supreme Court ruled the prosecution had failed to prove the brothers had shown reckless indifference
toward human life, since their father and Greenawalt had done the shootings. They were resentenced to life in prison.
The 1983 made-for-TV movie about the escape, ‘A Killer in the Family," concentrated on the Tisons. Clarke, whose book came out five
years later, thought the movie was overly sympathetic to the sons. In his opinion, the boys were brainwashed by an overbearing father
who persuaded themto help him escape.
Corbin, the former attomey general, was asked about all this attention accorded the case.
“People shouldn't make heroes out of killers," he responded. “These people were cold-blooded murderers. They killed four people in
Arizona and two more in Colorado. That's what people should remember."
AP-NY-01-19-97 1229EST
Copyright 1997 The Associated Press. The information contained in the AP news report may not be published, broadcast, rewritten
or otherwise distributed without prior written authority of The Associated Press.
Monday January 20, 1987 America Online: Galba33 Page: 2
“Gate
Anger still
there after
execution
Sheriff's official upset
2 in Tison Gang alive
By Mark Flatten
Tribune writer
Perry Holmes helped end the
carnage of the Tison Gang 19
years ago. He and three other
Pinal County sheriff's deputies
fired the shots that brought the
gang’s getaway van to a halt ona
deserted highway south of Casa
Grande.
On Thursday night, Holmes
silently watched as the most noto-
rious survivor of the gang, Randy
Greenawalt, was put to death by
lethal injection at the Arizona
State Prison in Florence.
Greenawalt’s death brought little
satisfaction to Holmes. Two of the
Tisons, Raymond and Ricky, still
are alive and, to Holmes, that
always will be unsettling.
“I still think that there’s two
more,” said Holmes, who heads
the Pinal County sheriff’s search
and rescue squad. “That part of it
is still open to me. Until either
they’re gone or I’m gone, I'll
always wonder if it’s over.”
On Aug. 11, 1978, Holmes and
the three other deputies were sta-
tioned at a roadblock on the
Chuichu Highway about 20 miles
south of Casa Grande. Another
roadblock was set up farther
north.
Greenawalt, 29 at the time, and
Gary Tison, 42, both doing life
terms for murder, broke out of
the Arizona State Prison in Flo-
rence July 30 with the help of
Tison’s three sons, Donald, 20,
Raymond, 19, and Ricky, 18.
Thus began a killing spree that
left a young family of four dead
near Quartzsite and a honey-
mooning couple dead in Colo-
rado. Gary Tison and Greenawalt
were the triggermen in both
murders.
Donald Tison was driving the
van that the honeymooners had
been killed for as it approached
-the first roadblock. Gary Tison
yelled for him to run it. Though
they made it through the first line
of deputies, the gang’s 13-day .
reign of terror ended at the sec-
ond. Donald Tison was killed in
the shootout. Greenawalt, Ray-
mond and Ricky Tison were cap-
tured. Gary Tison escaped into
the desert and died of exposure.
Holmes said he has always
ea, ‘
The Associated Pres:
Donna Hamm, right, and John Johnson, left, of the group Middle
Ground Prison Reform gather with other groups from across Ari- #
zona late Wednesday night before the execution of Randy
Greenawalt. Man in middle is unidentified.
regretted the Tisons did not put
up more of a fight that night, so
that the deputies could have
wiped out the gang then and
there.
Greenawalt looked far differ-
ent just after midnight Thursday
morning than he did that night at
the roadblock, Holmes said.
Aging, pudgy and with a boyish
smile and _ thick _ glasses,
Greenawalt almost looked more
like a crime victim than the
depraved killer he was, Holmes
said.
Death came quickly to the 47-
year-old Greenawalt, three min-
utes by the official count. About
12:07 a.m. Thursday, the curtain
to the witness viewing area was
opened to reveal Greenawalt
strapped to a gurney in the small,
plain room, covered to his chest
with a sheet. Greenawalt scanned
the crowd of 28 witnesses, and
mouthed “I love you” to his sister,
Darlene.
About 30 seconds later, a lethal
mix of sodium pentothal, pavulon
and potassium chloride began
flowing through the needle into
Greenawalt’s veins. There were a
few small twitches, then a gag as
though he was going to throw up.
Then Greenawalt’s chest heaved
twice more and he laid still until
the voice of Terry Stewart, direc-
tor of the state Department of
Corrections, came over the loud-
speaker to announce the execu-
tion was finished.
Greenawalt’s last words to
Stewart: “I have prayed for you
many times and the Lord is using
you well. Don’t worry about me.
lll be fine.”
It is not Greenawalt that
Holmes worries about now. It is
Raymond and Ricky Tison.
Both were originally sentenced
to death for their role in the crime
spree. But in 1992, their death
sentences were overturned
because it could not be shown
they had pulled the triggers on
any of their victims. The Tison
brothers were resentenced to life
in prison but are eligible for early
release in 2008, said Mike Arra,
Corrections spokesman.
Since going to prison, neither
Raymond nor Ricky Tison has
been written up for a disciplinary
breech at the Florence prison,
where they are housed in maxi-
mum security but allowed to mix
with the general population, Arra
said.
Weapon seized from slaying suspects’ family
Fhe Associated Press
information that we’re pursuing
at this point, and we continue ++
. “ditional leads sin
of sw nts of first-degree mur-
ont of attempted
+
Bo The Arizona Republic Friday, January 24, 1997 c
THE ARIZONA REPUBLIC LOUIS A. WEIL II
Chairman President
Incorporating The Phoenix Gazette
200 E. Van Buren, Phoenix AZ 85004
Founded in 1890
EUGENE S. PULLIAM
JOHN F. OPPEDAHL
Publisher / CEO
Phoenix Newspapers Inc.
PAM JOHNSON, Vice President/News and Executive Editor
DON HENNINGER, Managing Editor/Presentation
STEVE KNICKMEYER, Managing Editor/Content
PAUL J. SCHATT, Editor of the Editorial Pages
EUGENE C. PULLIAM
1889-1975
Publisher, 1946-1975
Where The Spirit Of The Lord Is,
There is Liberty - II Corinthians 3:17
CATHY DAVIS, Senior Vice President /Marketing & Development
RICH COX, Vice President/Operations & Product Management
WILLIAM R. SHOVER, Director of Public Affairs
JON HELD, Chief Financial Office
This shouldn't be easy
andy Greenawalt, 47, died early
Thursday morning at the hands of
the state of Arizona.
He perished just as did the other
condemned killers who preceded him to the
Florence lethal injection chamber — in a
sublimely ceaberul way.
His death was antiseptic. It was quiet. It
was almost, well, perfunctory.
It was a sterile tableau. Greenawalt was
tied to a table, about to breathe his last, as
somber witnesses looked on. Curiously
absent was any sense of anguish. Or fear —
either Greenawalt’s or Arizona’s.
Fear is certainly something that Randy
Greenawalt, a cold-blooded killer, easily
dispensed after his escape from the Arizona
State Prison annex in Florence on July 30,
1978.
Gary Tison, aided by his sons, Raymond,
Donald and Ricky, also fled with Greena-
walt, and began nearly two weeks of
bloodletting.
Marine Sgt. John EF. Lyons, his wife,
Donnelda, their 22-month-old son, Christo-
pher, and 15-year-old niece, Teresa Tyson,
were slaughtered with 16 rounds from
shotguns, the baby still in his mother’s lap
when they both died.
Teresa didn’t die right away. Struck in the
hip and buttocks, she crawled away in
excruciating pain and bled to death.
Randy Greenawalt and the Tisons then
murdered newlyweds James and Margene
Judge, and stole their van.
Subsequently falling into the hands of
the authorities, Randy Greenawalt and the
surviving Tisons then began their long
litigious journey through the courts.
Prior to the 1978 escape, Greenawalt was
serving a life sentence for a 1974 murder.
His subsequent legal maneuvers included
an execution delay based upon the argu-
ment that police obtained his confession
illegally and that his previous attorneys
were ineffective.
“It is absolutely absurd with the amount
of review this case has received, with no
protestation of innocence, with a proven
record of murder, that this guy would have
19 years of litigation,” said Tom McGov-
ern, Arizona’s special assistant attorney
general.
Such sentiments about Randy Greenawalt
are nothing new.
At the time of the escape, then-Gov.
Bruce Babbitt offered a $10,000 reward and
said the Tison gang members were a
“classic illustration of why we must have
the death penalty and why we must apply
rt"
“He deserves (the death penalty)” said
Bob Corbin, Arizona’s attorney general
from 1978-90. “If they executed him for
his crime the first time, those people might
still be alive today.”
That’s true.
But not long ago, Arizona’s new Chief
Justice, Thomas A. Zlaket, brought a fresh
edge to the capital punishment debate when
he said, “I don’t think there is one reliable
study in this country or anywhere else that
shows that the death penalty deters any-
thing other than that person, other than that
one defendant, from committing another
crime.”
The chief justice went on, “Most people
don’t have the slightest clue how difficult it
is to administer the death penalty in a
consistent fashion ... We are charged with
applying a statute that lists certain aggrava-
tors and certain mitigators and trying to
apply them in each and every case in such
a way that we ... tip the balance either in
favor of or against the death penalty. Well,
it sounds so easy... ”
Randy Greenawalt was a monster. But
will the evil show through so clearly on all
hi ushered into Arizona’s death cham-
er?
We wonder.
Somehow, there should be a_ nexus
between the difficult legal questions that
thread through capital punishment appeals,
and the act of execution itself. Today, there
is an unsettling void between the two,
bridged only by the sublimely peaceful,
antiseptic death by lethal injection.
Che Arizona Daily Star L DF
Tucson, es caret April 11, 1992
Prosecutor says high court rulin
shields Tisons from death penalty
_ PHOENIX (AP) — A prosecutor says a State. Su-
preme Court ruling has the effect of guaranteeing life.
imprisonment, instead of death sentences, for. Raymond~.
and Ricky Tison for their parts in a 1978 murder ram- ©
page.
The brothers were convicted and sentenced to
death in 1979, but the state high court in 1989 ordered a -
new set of sentencing hearings for the Tisons.
To get another death sentence, the sentencing judge
had to determine that the brothers either intended to kill
or displayed “reckless indifference” toward human life
in shooting a family of four near Quartzsite, the j justices ~
Said in the 1989 decision.
In December 1990, Judge Gregory Martin of Mari-
copa County Superior Court ruled that the Tison broth-
ers’ statements to authorities that placed them at the
murder scene could not be used by the prosecution.
Attorney General Grant Woods argued Thursday
before the state Supreme Court that the statements
were needed to meet the death penalty standard.
But the high court declined Thursday to take juris-
diction in the matter, affirming Martin’s ruling.
“There’s no hope of the death penalty,” said Assist-
ant Attorney General Paul McMurdie, who added that
it’s too soon to decide whether state officials would ap-
peal the decision to the U. S. Supreme Court.
Raymond Tison, then 18, and Ricky Tison, then 19,
and their brother Donald, then 20, smuggled guns ‘into
the Arizona State Prison at Florence on J uly 30, 1978.
They- forced guards to release their 42- -year-old ae
ther, Gary Tison, and fellow inmate Randy Green-
awalt, then 29. Both were serving life sentences for mur-
der.
The day after the escape, a tire on the gang 's get-
away, car went flat on an isolated stretch of a 95
__about 25. miles south of Quartzsite. por
A married couple — John and Donnelda Lyons: —
rode by with their infant son, Christopher, and 15-year-
old neice, Theresa Tyson. They offered to help but were
killed by 16 shotgun blasts from gang members, court
records showed.
The fugitives fled to New Mexico and Colorado be-
fore returning to Arizona and running into a police
roadblock near Casa Grande on Aug. 11, 1978.
During a shoot-out with police, Donald Tison Was
killed and Greenawalt was arrested along with Ray-
mond and Ricky Tison. Gary Tison escaped into the
desert but was found dead of exposure several days
later.
Ws fae enea.
DAILY OPINION SERVICE
United States Supreme Court 403
“quite unconvinced ... 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 premedi-
tation and deliberation’. .. .” Enmund, supra, at 798-799.
As for retribution, the Court again found that Enmund’s lack of
intent, together with the fact that he did not kill the victim, was
decisive. “American criminal law has long considered a defendant’s
intention—and therefore his moral guilt—to be critical to the ‘de-
gree of [his] criminal culpability.’ ” 458 U.S., at 800 (citation omit-
ted). The Court concluded that “[pJutting Enmund to death to
avenge two killings that he did not commit and had no intention
of committing or causing does not measurably contribute to the
retributive end of ensuring that the criminal gets his just deserts.”
Id., at 801. Thus, in Enmund the Court established that a finding
of an intent to kill was a constitutional prerequisite for the imposi-
tion of the death penalty on an accomplice who did not kill. The
Court has since reiterated that “Enmund . . . imposes a categorical
rule: a person who has not in fact killed, attempted to kill, or
intended that a killing take place or that lethal force be used may
not be sentenced to death.” Cabana v. Bullock, supra, at — (slip
op. 9). The Court’s decision today to approve the death penalty for
accomplices who lack this mental state is inconsistent with
Enmund and with the only justifications this Court has put forth
for imposing the death penalty in any case.
B
The Court’s second reason for abandoning the intent require-
ment is based on its survey of state statutes authorizing the death
penalty for felony murder, and on a handful of state cases.!2 On
this basis, the Court concludes that “[o]nly a small minority of those
jurisdictions imposing capital punishment for felony murder have
rejected the possibility of a capital sentence absent an intent to kill
11The Court acknowledged that “[i]t 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.” 458 U.S., at
799. Nevertheless, the Court saw no reason to depart from its conclusion that the
death penalty could not be justified as a deterrent in that case, because
“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 jus-
tifiable deterrent to the felony itself.” bid. The trial court found that the killings
in the case were not an essential ingredient of the felony. App. 283, quoted infra,
at —. Thus the goal of deterrence is no more served in this case than it was in
Enmund.
12We should be reluctant to conclude too much from the Court’s survey of state
decisions, because most jurisdictions would not approve the death penalty in the
circumstances here, see n. 13, infra, and the Court neglects decisions applying the
law of those States. E.g., Clark v. Louisiana State Penitentiary, 694 F.2d 75 (CA5
1982) (under Louisiana law, jury must find specific intent to kill); People v.
‘ Garcia, 36 Cal.3d 539, 684 P.2d 826 (1984) (death penalty for felony murder may
not be imposed without finding of specific intent to kill), cert. denied, 469 U.S.
1229 (1985).
Moreover, the cases the Court does cite are dis.‘ngu hable from this case. In
four of the five cases cited as evidence of an “apparent consensus” that intent to
kill is not a prerequisite for imposing the death penalty, the court did not specifi-
cally find an absence of any act or intent to kill. Moreover, in each of these cases
the court at least suggested that the defendants intended to kill, attempted to kill,
or participated in the actual killing. Clines v. State, 280 Ark. 77, 84, 656 S.W.2d
684, 687 (1983) (“There was direct evidence from more than one source that
appellants had discussed among themselves the necessity of murder if they met
resistance” and evidence that victim “was immediately attacked by appellants,
sustaining blows to his head and face from the metal chain and a mortal wound
to the chese”), cert. denied, 465 U.S. 1051 (1984); Deputy v. State, 500 A.2d 581,
599 (Del. 1985) (“Deputy was not solely a participant in the underlying felony,
but was instead present during, and involved in, the actual murders”), cert. pend-
ing, No. 85-6272; Ruffin v. State, 420 So.2d 591, 594 (Fla. 1982) (“evidence is
abundantly clear and sufficient to demonstrate Ruffin’s joint participation in the
premeditated murder of Karol Hurst”); Selvage v. State, 680 S.W.2d 17, 22
(Tex.Cr.App. 1984) (“Unlike Enmund, appellant used lethal force to effectuate
a safe escape and attempted to kill Ventura and Roberts as they pursued him and
his companion from the jewelry store”). As for the fifth case, People v. Davis, 95
Ill.2d 1, 52-53, 447 N.E.2d 353, 378-379 (1983) (defendant received death sen-
tence for his role in successive burglaries during each of which co-defendant killed
resident), the court appears to have held that the defendant “knew” that his co-
defendant would commit the murder, a mental state significantly different than
that attributed to the Tisons.
and we do not find this minority position constitutionally
required.” Ante, at — (slip op. 21) (emphasis added). The Court
would thus have us believe that “the majority of American jurisdic-
tions clearly authorize capital punishment” in cases such as this.
Id., at — (slip op. 18). This is not the case. First, the Court excludes
from its survey those jurisdictions that have abolished the death
penalty and those that have authorized it only in circumstances dif-
ferent from those presented here. When these jurisdictions are
included, and are considered with those jurisdictions that require
a finding of intent to kill in order to impose the death sentence for
felony murder, one discovers that approximately three-fifths of
American jurisdictions do not authorize the death penalty for a
nontriggerman absent a finding that he intended to kill. Thus, con-
trary to the Court’s implication that its view is consonant with that
of “the majority of American jurisdictions,” Jbid., the Court’s view
is itself distinctly the minority position.)
Second, it is critical to examine not simply those jurisdictions
that authorize the death penalty in a given circumstance, but those
that actually impose it. Evidence that a penalty is imposed only
infrequently suggests not only that jurisdictions are reluctant to
apply it but also that, when it is applied, its imposition is arbitrary
and therefore unconstitutional. Furman v. Georgia, 408 U.S. 238
(1972). Thus, the Court in Enmund examined the relevant statistics
on the imposition of the death penalty for accomplices in a felony
.murder. The Court found that of all executions between 1954 and
1982, there were “only 6 cases out of 362 where a nontriggerman
felony murderer was executed. All six executions took place in
1955.” 458 U.S., at 794 (emphasis added). This evidence obviously
militates against imposing the death penalty on petitioners as pow-
erfully as it did against imposing it on Enmund.'4
13Thirteen States and the District of Columbia have abolished the death pen-
alty. NAACP Legal Defense and Educational Fund, Death Row U.S.A. 1 (Aug.
1986). According to the Court, ante, at, n. 10, 1.1 States would not authorize the
death penalty in the circumstances presented here. At least four other States not
cataloged by the Court also restrict the imposition of capital punishment to those
who actually commit and intend to commit murder, and two more States reject
the death penalty for most felony murders, see infra at —. In addition, the
Supreme Court of at least one of the States cited by the majority as a State autho-
rizing the death penalty absent a finding of intent has explicitly ruled that juries
must find that a felony-murder defendant had a specific intent to kill before
imposing the death sentence. Carlos v. Superior Court of Los Angeles Co., 35
Cal.3d 131, 672 P.2d 862 (1983). Thus it appears that about three-fifths of the
States and the District of Columbia have rejected the position the Court adopts
today.
For States that restrict the imposition of capital punishment to those who actu-
ally and intentionally kill, see Mo. Rev. Stat. §§ 565.001, 565.003, 565.020 (1986)
(death penalty reserved for those who intentionally, knowingly, and deliberately
cause death); 18 Pa.Cons. Stat. §§ 2502(a), (b), (d), 1102 (1982) (death penalty
reserved for those who commit an intentional killing); Vt. Stat. Ann., Tit. 13,
§§ 2303(b), (c) (Supp. 1986) (only murderers of correctional officers subject to
death penalty); Wash. Rev. Code. §§ 9A.32.030., 10.95.020 (1985) (death penalty
reserved for who commit premeditated killing with at least one aggravating cir-
cumstance). Two other States also forbid imposition of the death penalty under
the general standards announced today, although other aspects of their statutes
might render them applicable to these defendants on the facts of this case. See
Md. Ann. Code Art 27, §§ 410, 412(b), 413(d)(10), 413(e)(1), 413(d)(5) (1957 and
Supp. 1986) (death penalty may be imposed only on person who committed the
killing, but possible exception if victim is a child); N. H. Rev. Stat. Ann. §§ 630:1,
630:1(1ID), 630:1-a(I)(b)(2) (1986) (death penalty reserved for killing a law
enforcement officer, murder for hire, and killing during a kidnaping).
14a ithough the Court ignores the statistics on actual executions, it does refer
earlier in its opinion to the evidence discussed in Enmund that of the 739 inmates
on death row for whom sufficient data were available, only 41 did not participate
in the fatal assault on the victim and only 16 were not present. Ante, at 10; see
Enmund, supra, at 795. While in Enmund the Court focused on a breakdown of
these statistics into those physically present at the scene and those not, that infor-
mation is not relevant here. What would be relevant, and what the summary in
Enmund does not tell us, is how many of the 41 who did not participated were
also found not to have intended that the murder occur.
Although statistics on the average sentences given for nontriggermen in felony
murders were not presented to the Court, it is possible that such statistics would
reveal a wide range of results. One felony-murder case worth noting in this regard
is People v. Ganter, 56 Ill.App.3d 316, 371 N.E.2d 1072, (1977). Ganter and co-
defendant committed an armed robbery of a store, during which Ganter killed
one of the store’s owners. “The evidence at trial showed defendant was the actual
murderer. He shot Thomas at close range, without provocation and as Thomas
stood in a helpless position. The accomplice, although accountable for the death
by his participation in the attempt [sic] armed robbery, did not do the actual
killing.” Jd., at 328, 371 N.E.2d, at 1080-1081. Ganter was sentenced to 20-30
years; his accomplice was sentenced to 3 to 6 years. /d., at 321 327, 371 N.E.2d,
at 1076, 1080.
404 United States Supreme Court
¥ , °
CALIFORNIA
The Court in Enmund also looked at the imposition of the death
penalty for felony murder within Florida, the State that had sen-
tenced Enmund. Of the 45 murderers then on death row, 36 had
been found to have “intended” to take life, and 8 of the 9 for which
there was no finding of intent had been the triggerman. Thus in only
one case—Enmund—had someone (such as the Tisons) who had
neither killed nor intended to kill received the death sentence.
Finally, the Court noted that in no Commonwealth or European
country could Enmund have been executed, since all have either
abolished or never employed a felony-murder doctrine. /d., at 796-
Win 7x"
The Court today neither reviews nor updates this evidence. Had
it done so, it would have discovered that, even including the 65 exe-
cutions since Enmund, “[t]he fact remains that we are not aware
of a single person convicted of felony murder over the past quarter
century who did not kill or attempt to kill, and did not intend the
death of the victim, who has been executed. . . .” 458 U.S., at 796.'®
Of the 64 persons.on death row in Arizona, all of those who have
raised and lost an Enmund challenge in the Arizona Supreme Court
have been found either to have killed or to have specifically
intended to kill.!” Thus, like Enmund, the Tisons’ sentence appears
to be an aberration within Arizona itself as well as nationally and
internationally. The Court’s objective evidence that the statutes of
roughly 20 States appear to authorize the death penalty for defen-
dants in the Court’s new category is therefore an inadequate substi-
tute for a proper proportionality analysis, and is not persuasive
evidence that the punishment that was unconstitutional for
Enmund is constitutional for the Tisons.
.
The Court’s failure to examine the full range of relevant evidence
is troubling not simply because of what that examination would
have revealed, but because until today such an examination has
15gince Enmund was decided, the Netherlands and Australia have abolished
the death penalty for all offenses, and Cyprus, El Salvador, and Argentina have
abolished it for all crimes except those committed in wartime or in violation of
military law. Amnesty International, United States of America, The Death Pen-
alty 228-231 (1987).
16] ists of those executed and those on death row are published in NAACP
Legal Defense Fund, Death Row U.S.A. (Mar. 1987). Review of those executed
since 1982 reveals that each person executed was found to have committed a kill:
ing and/or to have intended to kill. In only two cases does there remain some
doubt whether the person executed actually killed the victim; in each case, how-
ever, the defendant was found at a minimum to have intended to kill. Green v.
Zant, 738 F.2d 1529, 1533-34 (CA11) (case was presented to jury on malice-
murder rather than felony-murder theory, and evidence supported verdict on that
theory), cert. denied, 469 U.S. 1098 (1984); Skillern v. Estelle, 720 F.2d 839, 844
(CA5 1983) (evidence supports finding that Skillern agreed and “plotted in
advance” to kill the eventual victim), cert. denied, sub nom. Skillern v. Procunier,
469 U.S. 1067 (1984).
17 See Amnesty International, supra, at 192 (listing death row totals by State
as of Oct. 1986). The cases since Enmund in which the Arizona Supreme Court
has rejected the defendant’s Enmund challenge and affirmed the death sentence
are: State v. Correll, 148 Ariz. 468, 478, 715 P.2d 721, 731 (1986) (defendant
intended to kill victims and “verbally encouraged” co-defendant to proceed with
killing); State v. Martinez-Villareal, 145 Ariz. 441, 702 P.2d 670 (defendant
actively took part in the murder and intended to kill), cert. denied, 474 U.S. —
(1985); State v. Hooper, 145 Ariz. 538, 703 P.2d 482 (1985) (defendant killed for
hire), cert. denied, 474 U.S. — (1986); State v. Bishop, 144 Ariz. 521, 698 P.2d
1240 (1985) (defendant planned and intended to kill, assaulted victim, and aban-
doned victim in mine shaft); State v. Poland, 144 Ariz. 388, 698 P.2d 183 (1985)
(defendants killed victims), affirmed, 476 U.S. — (1986); State v. Villafuerte, 142
Ariz. 323, 690 P.2d 42 (defendant killed victim), cert. denied, 469 U.S. 1230
(1985); State v. Fisher, 141 Atiz. 227, 686 P.2d 750 (defendant killed victim),
cert. denied, 469 U.S. 1066 (1984); State v. James, 141 Ariz. 141, 685 P.2d 1293
(1984) (defendant killed and intended to kill), cert. denied, 469 U.S. 990 (1984);
State v. Harding, 141 Ariz. 492, 687 P.2d 1247 (1984) (defendant killed victim);
State v. Libberton, 141 Ariz. 132, 685 P.2d 1284 (1984) (defendant killed victim);
State v. Jordan, 137 Ariz. 504, 672 P.2d 169 (1983) (defendant killed and
intended to kill); State v. Smith, 138 Ariz. 79, 673 P.2d 17 (1983) (defendant
killed and intended to kill), cert. denied, 465 U.S. 1074 (1984); State v.
Richmond, 136 Ariz. 312, 666 P.2d 57 (defendant intended to kill, participated
in assault that led to death), cert. denied, 464 U.S. 986 (1983); State v. McDaniel,
136 Ariz. 188, 665 P.2d 70 (1983) (defendant killed victim); State v. Gillies, 135”
Ariz. 500, 662 P.2d 1007 (1983) (defendant took an active and deliberate part
in the killing). Although the Court suggests otherwise, ante, at — n. 11, in none
of these cases does the Arizona Supreme Court’s finding of intent appear to rest,
as it did here, on a finding that a killing was merely foreseeable.
been treated as constitutionally required whenever the Court under-
takes to determine whether a given punishment is disproportionate
to the severity of a given crime. Enmund is only one of a series of
cases that have framed the proportionality inquiry in this way. See,
e.g., Coker v. Georgia, 433 U.S. 584 (1977). In the most recent such
case, Solem v. Helm, 463 U.S. 277, 292 (1983), the Court summa-
rized the essence of the inquiry:
“In sum, a court’s proportionality analysis under the Eighth
Amendment should be guided by objective criteria, including
(i) the gravity of the offense and the harshness of the penalty;
(11) the sentences imposed on other criminals in the same juris-
diction; and (iii) the sentences imposed for commission of the
same crime in other jurisdictions” (emphasis added).
By addressing at best only the first of these criteria, the Court has
ignored most of the guidance this Court has developed for evaluat-
ing the proportionality of punishment.
Such guidance is essential in determining the constitutional lim-
its on the State’s power to punish. These limits must be defined
with care, not simply because the death penalty is involved, but
because the social purposes that the Court has said justify the death
penalty—retribution and deterrence—are justifications that pos-
sess inadequate self-limiting principles. As Professor Packer
observed, under a theory of deterrence the state may justify such
punishments as “boiling people in oil; a slow and painful death may
be thought more of a deterrent to crime than a quick and painless
one.” Packer, Making the Punishment Fit the Crime, 77 Harv. L.
Rev. 1071, 1076 (1964).'® Retribution, which has as its core logic
the crude proportionality of “an eye for an eye,” has been regarded
‘as a constitutionally valid basis for punishment only when the pun-
ishment is consistent with an “individualized consideration” of the
defendant’s culpability, Lockett v. Ohio, 438 U.S. 586, 605 (1978),
and when “the administration of criminal justice” works to
“channe[l]” society’s “instinct for retribution.” Furman v. Georgia,
408 U.S, 238, 308 (1972) (Stewart, J., concurring). Without such
channeling, a State court impose a judgment of execution by tor-
ture as appropriate retribution for murder by torture.!? Thus,
under a simple theory either of deterrence or retribution, unfet-
tered by the Constitution, results disturbing to civil sensibilities
and inconsistent with “the evolving standards of decency” in our
18The utilitarian logic of deterrence can also justify unjust punishments that
are more commonly dispensed. See Fletcher, Rethinking Criminal Law, at 415
(“Judges in traffic courts are readily tempted by the philosophy that regardless
of whether the particular suspect has committed the violation, a punitive fine will
make him drive more carefully in the future”). p
A sophisticated utilitarian theory of deterrence might propose some limiting
principles, ¢.g., “no punishment must cause more misery than the offense
unchecked.” H. Hart, Punishment and Responsibility 76 (1968). But as Hart
points out, this other principles “do not seem to account for the character of the
normal unwillingness to ‘punish’ those who have not broken the law at all, nor
for the moral objection to strict liability which permits the punishment of those
who act without mens rea.” Ibid. In Hart’s view, “civilized moral thought” would
limit the utilitarian theories of punishment “by the demand that punishment
should not be applied to the innocent,” and by limiting “punishments in order
to maintain a scale for different offenses which reflec[t], albeit very roughly, the
distinction felt between the moral gravity of these offenses. Thus we make some
approximation to the idea of justice of treating morally like cases alike and mor-
ally different ones differently.” /d., at 80. It is worth noting that both of the limits
, Hart identifies have been given vitality in the Court’s proportionality jurispru-
dence. E.g., Robinson v. California, 370 U.S. 660, 667 (1962) (“Even one day in
prison would be a cruel and unusual punishment for the ‘crime’ of having a com-
mon cold”); Enmund v. Florida, 458 U.S., at 801 (Enmund’s “punishment must
be tailored to his personal responsibility and moral guilt”).
19Such punishment might also be defended on the utilitarian ground that it
was necessary to satisfy the community’s thirst for retribution and thereby keep
the peace. Such grounds can be used to justify the punishment even of innocent
people when the guilty have not been found and the mob threatens new violence.
It is thus clear that “channeling” retributive instincts requires the state to do more
than simply replicate the punishment that private vengeance would exact. To do
less is simply to socialize vigilantism. As JUSTICE MARSHALL has stated:
“(T]he Eighth Amendment is our insulation from our baser selves. The ‘cruel and
unusual’ language limits the avenues through which vengeance can be channeled.
Were this not so, the language would be empty and a return to the rack and other
tortures would be possible in a given case.” Furman v. Georgia, 408 U.S. 238,
345 (1972) (concurring opinion). See also Gregg v. Georgia, 428 U.S. 153, 237-
241 (1976) (MARSHALL, J., dissenting) (death penalty unnecessary to further
legitimate retributive goals).
DAILY OPINION SERVICE
United States Supreme Court 401
observes, in dictum, that “the record would support a finding of the
culpable mental state of reckless indifference to human life.” Id.,
at — (slip op. 14); see also Jbid. (“The facts . . . would clearly sup-
port a finding that both [sons] subjectively appreciated that their
acts were likely to result in the taking of human life”).
I join no part of this. First, the Court’s dictum that its new cate-
gory of mens rea is applicable to these petitioners is not supported
by the record. Second, even assuming petitioners may be so catego-
rized, objective evidence and this Court’s Eighth Amendment
jurisprudence demonstrate that the death penalty is disproportion-
ate punishment for this category of defendants. Finally, the fact
that the Court reaches a different conclusion is illustrative of the
profound problems that continue to plague capital sentencing.
II
The facts on which the Court relies are not sufficient, in my view,
to support the Court’s conclusion that petitioners acted with reck-
less disregard for human life.* But even if they were, the Court’s
decision to restrict its vision to the limited set of facts that “the Ari-
zona Supreme Court has given ... to us” ante, at — (slip op. 14)
is improper.° By limiting itself to the facts the lower court found
relevant to the foreseeability standard, this Court insulates itself
from other evidence in the record directly relevant to the new stan-
dard articulated today. This evidence suggests that the question of
petitioners’ mental states with respect to the shootings is very much
an open one to be decided only after a thorough evidentiary hear-
ing. I therefore stress that nothing in the Court’s opinion abrogates
the state’s responsibility independently and fairly to consider all
the relevant evidence before applying the Court’s new standard.
See Cabana v. Bullock, 474 U.S. —, — (1986) (slip op. 9)
(“Considerations of comity and federalism counsel respect for the
ability of state courts to carry out their role as the primary protec-
tors of the rights of criminal defendants”).
The evidence in the record overlooked today regarding petition-
ers’ mental states with respect to the shootings is not trivial. For
example, while the Court has found that petitioners made no effort
prior to the shooting to assist the victims, the uncontradicted state-
ments of both petitioners are that just prior to the shootings they
were attempting to find a jug of water to give to the family. App.
20-21, 39-41, 74-75, 109. While the Court states that petitioners
were on the scene during the shooting and that they watched it
occur, Raymond stated that he and Ricky were still engaged in
repacking the Mazda after finding the water jug when the shootings
occurred. Jd., at 21, 75. Ricky stated that they had returned with
4Petitioners’ presence at the scene of the murders, and their participation in
flagging down the vehicle, and robbing and guarding the family, indicate nothing
whatsoever about their subjective appreciation that their father and his friend
would suddenly decide to kill the family. Each of the petitioners’ actions was per-
fectly consistent with, and indeed necessary to, the felony of stealing a car in order
to continue the flight from prison. Nothing in the record suggests that any of their
actions were inconsistent with that aim. Indeed, the trial court recognized the dis-
junction between the felonies and the murders when it found that Gary Tison’s
and Greenawalt’s decision to murder the family was senseless and unnecessary
to the escape. The court based its finding of aggravating circumstances in part “on
the senselessness of the murders,” and stated that:
“It was not essential to the defendants’ continuing evasion of arrest that these per-
sons were murdered. The victims could easily have been restrained sufficiently
to permit the defendants to travel a long distance before the robberies, the kidnap-
pings, and the theft were reported.” App. 283.
Thus the Court’s findings about petitioners’ mental states regarding the murders
are based solely on inferences from petitioners’ participation in the underlying
felonies. Their decision to provide arms for and participate in a prison breakout
and escape may support the lower court’s finding that they should have antici-
pated that lethal force might be used during the breakout and subsequent flight,
but it does not support the Court’s conclusions about petitioners’ mental states
concerning the shootings that actually occurred.
5When the Arizona Supreme Court first reviewed this case on appeal, it stated ~
that petitioners’ degree of mens rea was of little significance to the case. On
rehearing, the Arizona Supreme Court did make a finding that petitioners could
have anticipated that lethal force would be used during the breakout or subse-
quent flight. In that regard, it referred to facts concerning the breakout and escape.
See ante, at — (slip op. 6-8). The court did not refer to the evidence in the record
of petitioners’ mental states concerning the actual shootings, however, nor was
such evidence relevant to its decision. Given the question it had chosen to
address, evidence regarding petitioners’ actual mental states with regard to the
shooting was superfluous.
the water, but were still some distance (“farther than this room”)
from the Lincoln when the shootings started, Jd., at 40-41, 111, and
that the brothers then turned away from the scene and went back
to the Mazda, /d., at 113. Neither stated that they anticipated that
the shootings would occur, or that they could have done anything
to prevent them or to help the victims afterward.® Both, however,
expressed feelings of surprise, helplessness, and regret. This state-
ment of Raymond’s is illustrative:
“Well, I just think you should know when we first came into
this we had an agreement with my dad that nobody would get
hurt because we [the brothers] wanted no one hurt. And when
this [killing of the kidnap victims] came about we were not
expecting it. And it took us by surprise as much as it took the
family [the victims] by surprise because we were not expecting
this to happen. And I feel bad about it happening. I wish we
could [have done] something to stop it, but by the time it hap-
pened it was too late to stop it. And it’s just something we are
going to live with the rest of our lives. It will always be there.”
142 Ariz., at 462, 690 P.2d, at 763; see also App. 242.”
In light of this evidence, it is not surprising that the Arizona
Supreme Court rested its judgment on the narrow ground that peti-
tioners could have anticipated that lethal force might be used dur-
ing the escape, or that the state probation officer—who reviewed
at length all the facts concerning the sons’ mental states—did not
recommend that the death sentence be imposed. The discrepancy
between those aspects of the record on which the Court has chosen
to focus and those aspects it has chosen to ignore underscores the
point that a reliable and individualized Enmund determination can
be made only by the trial court following an evidentiary hearing:
See Cabana v. Bullock, supra, at ~ (BLACKMUN, J., dissenting);
id., at _. (STEVENS, J., dissenting).
Ill
Notwithstanding the Court’s unwarranted observations on the
applicability of its new standard to this case, the basic flaw in
In addition, the Court’s statement that Raymond did not act to assist the vic-
tims “after” the shooting, and its statement that Ricky “watched the killing after
which he chose to aid those whom he had placed in the position to kill rather than
their victims,” ante, at 14, takes license with the facts found by the Arizona
Supreme Court. That court did not say whether petitioners did anything to help
the victims following the shooting, nor did it make any findings that would lead
one to believe that something could have been done to assist them. The lower
court merely stated that petitioners did not “disassociate” themselves from their
father and Greenawalt after the shooting. Ante, at 7 (citation omitted).
7These expressions are consistent with other evidence about the sons’ mental
states that this Court, like the lower courts, has neglected. Neither son had a prior
felony record. App. 233-234. Both lived at home with their mother, and visited
their father, whom they believed to be “a model prisoner,” each week. See Brief
for Petitioners 3 (citing Tr. of March 14, 1979 hearing). They did not plan the
breakout or escape; rather their father, after thinking about it himself for a year,
mentioned the idea to Raymond for the first time one week before the breakout,
and discussed with his sons the possibility of having them participate only the
day before the breakout. App. 50-51, 91. The sons conditioned their participation
on their father’s promise that no one would get hurt; during the breakout, their
father kept his word. The trial court found that the murders their father later com-
mitted were senseless and unnecessary to the felony of stealing a car in which the
sons participated; and just prior to the shootings the sons were retrieving a water
jug for the family. Given these circumstances, the sons’ own testimony that they
were surprised by the killings, and did not expect them to occur, appears more
plausible than the Court’s speculation that they “subjectively appreciated that
their activities were likely to result in the taking of innocent life.” The report of
the psychologist, who examined both sons, also suggests that they may not have
appreciated the consequences of their participation:
“These most unfortunate youngsters were born into an extremely pathological
family and were exposed to one of the premier sociopaths of recent Arizona his-
tory. In my opinion this very fact had a severe influence upon the personality
structure of these youngsters ....
I do believe their father, Gary Tison, exerted a strong, consistent, destructive but
subtle pressure upon these youngsters and I believe that these young men got com-
mitted to an act which was essentially ‘over their heads.’ Once committed, it was
too late and there does not appear to be any true defense based on brainwashing,
mental deficiency, mental illness or irresistable urge. There was a family obses-
sion, the boys were ‘trained’ to think of their father as an innocent person being
victimized in the state prison but both boys have made perfectly clear that they
were functioning of their own volition. At a deeper psychological level it may have
been less of their own volition than as a result of Mr. Tison’s ‘conditioning’ and
rather amoral attitudes within the family home.” Brief for Petitioners 11-12 n.
16.
402 United States Supreme Court
CALIFORNIA
today’s decision is the Court’s failure to conduct the sort of propor-
tionality analysis that the Constitution and past cases require. Cre-
ation of a new category of culpability is not enough to distinguish
this case from Enmund. The Court must also establish that death
is a proportionate punishment for individuals in this category. In
other words, the Court must demonstrate that major participation
in a felony with a state of mind of reckless indifference to human
life deserves the same punishment as intending to commit a mur-
der or actually committing a murder. The Court does not attempt
to conduct a proportionality review of the kind performed in past
cases raising a proportionality question, e.g., Solem v. Helm, 463
U.S. 277 (1983); Enmund v. Florida, 458 U.S. 782 (1982); Coker
v. Georgia, 433 U.S. 584 (1977), but instead offers two reasons in
support of its view.
A
One reason the Court offers for its conclusion that death is pro-
protionate punishment for persons falling within its new category
is that limiting the death penalty to those who intend to kill “is a
highly unsatisfactory means of definitively distinguishing the most
culpable and dangerous of murderers.” Ante, at — (slip op. 19). To
illustrate that intention cannot be dispositive, the Court offers as
examples “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.” Jbid. (emphasis added). Influential
commentators and some States have approved the use of the death
penalty for persons, like those given in the Court’s examples, who
kill others in circumstances manifesting an extreme indifference to
the value of human life.® Thus an exception to the requirement that
only intentional murders be punished with death might be made
for persons who actually commit an act of homicide; Enmund, by
distinguishing from the accomplice case “those who kill,” clearly
reserved that question. But the constitutionality of the death pen-
alty for those individuals is no more relevant to this case than it
was to Enmund, because this case, like Enmund, involves accom-
plices who did not kill. Thus, although some of the “most culpable
and dangerous of murderers” may be those who killed without spe-
cifically intending to kill, it is considerably more difficult to apply
that rubric convincingly to those who not only did not intend to
kill, but who also have not killed.®
It is precisely in this context—where the defendant has not killed
—that a finding that he or she nevertheless intended to kill seems
indispensable to establishing capital culpability. It is important
first to note that such a defendant has not committed an act for
which he or she could be sentenced to death. The applicability of
the death penalty therefore turns entirely on the defendant’s mental
state with regard to an act committed by another. Factors such as
the defendant’s major participation in the events surrounding the
killing or the defendant’s presence at the scene are relevant insofar
as they illuminate the defendant’s mental state with regard to the
8For example, the Court quotes Professor Fletcher’s observation that “the
Model Penal Code treats reckless killing as equivalent to purposeful and knowing
killing.” Ante, at — (slip op. 20) (emphasis added). The Model Penal Code advo-
cates placing the felony-murder rule with a rule that allows a conviction for mur-
der only when the killer acted with intent, purpose, or acted “recklessly under
circumstances manifesting extreme indifference to the value of human life.” See
ALI, Model Penal Code § 210.2, p. 13. The Code offers as examples shooting into
a crowd or an automobile, or shooting a person in the course of playing Russian
roulette. [d., at 22-23.
94 second problem with the Court’s examples is that they illustrate wanton,
but nevertheless intentional, killings, rather than unintentional killings. The ele-
ment that these wanton killings lack is not intent, but rather premeditation and
deliberation. Professor Fletcher explains the point:
“(While planning and calculation represent one form of heinous or cold-blooded
murder, premeditation is not the only feature that makes intentional killings
wicked. Wanton killings are generally regarded as among the most wicked, and
‘the feature that makes a killing wanton is precisely the absence of detached reflec-
tion before the deed. Fitzjames Stephen put the case of a man who ‘sees a boy
sitting on a bridge over a deep river and, out of mere wanton barbarity, pushes
him into it and so drowns him.’ Killing without a motive can usually be just as
wicked as killing after detached reflection about one’s goals.” G. Fletcher,
Rethinking Criminal Law 254 (1978) (footnote omitted, emphasis added).
killings. They cannot serve, however, as independent grounds for
imposing the death penalty.
Second, when evaluating such a defendant’s mental state, a
determination that the defendant acted with intent is qualitatively
different from a determination that the defendant acted with reck-
less indifference to human life. The difference lies in the nature of
the choice each has made. The reckless actor has not chosen to bring
about the killing in the way the intentional actor has. The person
who chooses to act recklessly and is indifferent to the possibility
of fatal consequences often deserves serious punishment. But
because that person has not chosen to kill, his or her moral and
criminal culpability is of a different degree than that of one who
killed or intended to kill.
The importance of distinguishing between these different choices
is rooted in our belief in the “freedom of the human will and a con-
sequent ability and duty of the normal individual to choose
between good and evil.” Morissette v. United States, 342 U.S. 246,
250 (1952). To be faithful to this belief, which is “universal and
persistent in mature systems of law,” ibid., the criminal law must
ensure that the punishment an individual receives conforms to the
choices that individual has made.’° Differential punishment of
reckless and intentional actions is therefore essential if we are to
retain “the relation between criminal liability and moral
culpability” on which criminal justice depends. People v.
Washington, 62 Cal.2d 777, 783, 402 P.2d 130, 134, (1965) (Tray-
nor, C.J.). The State’s ultimate sanction—if it is ever to be used—
must be reserved for those whose culpability is greatest. Cf.
Enmund, supra, at 798 (“It is fundamental that ‘causing harm
intentionally must be punished more severly than causing the same
harm unintentionally’ ”) (citation omitted); United States v. United
States Gypsum Co., 438 U.S. 422, 444 (1978).
Distinguishing intentional from reckless action in assessing cul-
pability is particularly important in felonyy-murder cases. JUS-
TICE WHITE stressed the importance of this distinction in Lockett
v. Ohio, 438 U.S. 586 (1978), a felony-murder case in which the
petitioner’s death sentence was vacated on other grounds.
“[S]ociety has made a judgment, which has deep roots in the
history of the criminal law ... distinguishing at least for pur-
pose of the imposition of the death penalty between the culpa-
bility of those who acted with and those who acted without a
purpose to destroy life.
“[T]he type of conduct which Ohio would punish by death
requires at most the degree of mens rea defined by the ALI
Model Penal Code (1962) as recklessness: conduct undertaken
with knowledge that death is likely to follow. Since I would
hold that death may not be inflicted for killings consistent with
the Eighth Amendment without a finding that the defendant
engaged in conduct with the conscious purpose of producing
death, these sentences must be set aside.” Jd., at 626-628 (em-
phasis added; footnotes omitted).
In Enmund, the Court explained at length the reasons a finding
of intent is a necessary prerequisite to the imposition of the death
penalty. In any given case, the Court said, the death penalty must
“measurably constibut[e]” to one or both of the two “social
purposes”—deterrence and retribution—which this Court has
accepted as justifications for the death penalty. Enmund, supra, at
798, citing Gregg v. Georgia, 428 U.S. 153, 183 (1976). If it does
not so contribute, it “‘is othing more than the purposeless and
needless imposition of pain and suffering’ and hence an unconstitu-
tional punishment.” Enmund, supra, at 798, quoting Coker v.
Georgia, 433 U.S. at 592. Enmund’s lack of intent to commit the
murder—rather than the lack of evidence as to his mental state—
was the decisive factor in the Court’s decision that the death pen-
alty served neither of the two purposes. With regard to deterrence,
the Court was
10We show this fidelity, for example, when we decline to hold a young child
as morally and criminally responsible for an illegal act as we would hold an adult
who committed the same act. Although the child has committed the illegal act
and caused the harmful result, the child’s actions are presumed not to reflect a
mature capacity for choice, and the child’s culpability for the act is accordingly
reduced.
~~ €
DEATH ASKED
FOR SLAYER OF
TRAILER WIFE
Holbrook, Ariz., Feb. 13 (Ri—
The state demanded today the
death sentence for Carl J.
Folk for the torture slaying of
Mrs. Bettye Allen in her hus-
band’s trailer. .
Then Folk’s court appointed
counsel, W. Dean Nutting, told
the jury the defendant, .a for-
mer carnival owner, should be
placed in an asylum as men-
tally abnormal.
The bruised, burned body of
Mrs. Allen, 22, was found in the
house trailer 14 miles east of
here Dec. 1. Her hands were
tied and she apparently had
died of strangulation.
Calls Plea False
County Atty. Melvyn Shelley
began his closing arguments by
declaring Folk had never been
declared legally insane even
tho he was committed to a
New Mexico asylum three
months in 1949. |
- “This man used the defense
of insanity once to escape jail,
and he is trying it again,”
Shelley argued. “He says he
didn’t kill anybody, ‘but if I
did I was legally insane.’
_ “Yet two psychiatrists, after
expert examination, testified
that they had no doubt of his
legal sanity. There has not
been one iota of evidence here
that he was insane. In fact
everything showed he could
understand the nature and con-
sequences of his acts the night
and morning of Dec. 1.”
Four Crimes Cited
Shelley contended the state
had proved Folk was guilty of
Chiragn Sunday Cribune
February 14, 1954
x Part 1—Page 7
murder by torture, rape, bur-
glary, and robbery.
“Any one of these consti-
tutes first degree murder,”
Shelley added.
Folk held his arm around
his wife, Mary, and they both
listened intently during Shel-
ley’s summation.
The state presented 18 wit-
nesses, including the victim’s
husband, Raymond. It charged
|Folk followed Allen’s trailer
{ from: New Mexico as the couple
was driving west and entered
it while the pair slept and tied
them up before killing Mrs.
Allen,
Folk Takes Stand
The defendant and his wife
took the stand in an effort to
show he was insane during the
seven. hours he said he was in
or near the trailer. Folk
claimed he only tied up the
couple so he could take their
pickup truck.
Folk has admitted felony
convictions in Indiana and New
Mexico..
FODK, Carl J., wh, gassed AZ (Navajo) January 4, 1955
i e A es i ,
} BL
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J
THE CANDID REPORTER
HUSBAND SHOOTS WIFE’S RAPE-SLAYER. Mrs.
Betty Faye Allen, 22, shown in wedding photo with her hus-
band, Raymond Bruce Allen, 25, was raped, tortured and
; strangled in the Allen trailer as her agonized husband, bound
i tightly by a roadside holdup man, was forced to listen help-
lessly from only a few feet away. The Allens, bedded in their
trailer near Holbrook, Arizona, were awakened by an in- LO’'
truder. Announcing, “This is a holdup,” the man promptly but
bound Mr. and Mrs. Allen’s hands and feet and covered their Gute —
heads with blankets, after which he proceeded to attack Mrs. mon |
Allen. Hours later, by the time Allen managed to free himself, hero —
his wife’s cries were barely audible. Allen escaped from the g00¢
trailer, secured a gun and returned to fire six shots and waldo
severely wound his wife’s attacker. The sheriff’s office identi- with
fied the alleged rape-slayer as Carl J. Folk, 60, extreme right. ——
- ew
incr¢ |
KIDNAP-RAPE SUSPECT GIVES UP. Anthony Pa- dese |
lazzola, 26, far left, walked into the Tampa, Florida, police ee
station and gave himself up as the man wanted in the New jen
York City kidnaping and rape of Dorothea Del Longo, 13, Gad
shown here with her mother. Returned to New York, the » stu .
alleged kidnaper-rapist faced a ten-count indictment. It pur- ae
i ports that Palazzola broke into the East Side apartment of ov
i James Botticelli early on the morning of November 13,
1 threatened the mother and stepfather of young Dorothea,
i stole $87 and a ‘wire recorder and forced Dorothea to ac-
company him. He allegedly took the pajama-clad girl to an
i East Side hotel, attacked her there, then drove her’ around
i Qteens for several hours, where, he put her out of the car
i after giving her $5. Despite a dramatic confrontation by the
i 13-year-old victim, ex-con Palazzola now denies everything.
; ‘
1
| CASHIER SHOT FOILING HOLDUP. Roy Bogan, as- |
} sistant manager of the RKO Grand Theater in Chicago’s |
} Loop, relieving the regular cashier at the height of the eve- |
| ning rush hour, punched out a ticket for a waiting customer,
‘ then looked up in surprise as a .32-caliber revolver was poked-
| through the ticket-window opehing. The middle-aged man
behind the gun twice demanded that Bogan “hand over the
{ } money.” When thé gunman threatened to shoot, Bogan told
. i him to go ahead. “I thought he was kidding,” Bogan related
later from his hospital bed. Policeman Joseph Ostermann,
directing traffic nearby, heard the shot and chased the fleeing
? gunman. The gunman fired twice at the pursuing officer. The ‘
, policeman returned two shots, then held fire because of heavy
» pedestrian traffic, and the wily gunman slipped away in the
crowd. Here, Detective J. Johnston checks for fingerprints.
4 A | ;
Ot ie
‘
SES, ager pene na en
eh ig
HOLBROOK, ARIZ., DECEMBER 9, 1953.
@ The people out here were mighty friend-
ly, and the Allens could see the man’s
handshake and poker face. But they
couldn’t see his mad, twisted mind. The
Allens were only tourists, going from Penn-’
sylvania to California. They didn’t know
the maniac was out to get his kicks on
Route 66. They didn’t know they let them
run loose out here, to window-peep, molest
children and finally the big ones—rape and
torture and murder.
They first saw the hulking, friendly man
when they stopped at ten in the morning
to gas up at Cline’s Corner on U. S. 66 east
of Albuquerque, N. M. He was middle-
aged, about 60, six feet tall and weighing
over 200 pounds, Aman with a wide
brimmed western hat and, hairy strong
hands and. he was just standing in the-
service station breezeway.
The stranger -squinted pig-eyed, through |
the car window. It.took only an instant—
he saw the pink soft flesh of Mrs. Allen’s’
calves;:the swell and curve of thigh under
her skirt. He glanced at the license plate,
turned to Allen and thrust out his hand.
~“T see you’re from, Pennsylvania. Wel-
For the killer, one bullet that was lodged harmlessly against a rib.
come to New Mexico, the Land of Enchant-
ment, Welcome to the great Southwest.”
Allen murmured thanks and shook the
hairy hand while the big man rambled on
in the confidential, fast tones of a carnival
" barker. “Bet you're going right on to Cali-
fornia, eh? Well. with luck you ought to
“make it to Holbrook or Winslow, Ariz., be-
fore night. Yes sir, before night.”
Allen nodded and climbed into his pick-
up truck. He threw it into gear and as he
pulled out onto 66 the big man standing
- poker-facedly in the breezeway waved and
called out, “Enjoy your trip. I'll be seeing
you
”
“BOY: they are really friendly out here.
You can’t get away from them,” Allen
said. His wife, Betty Faye; scooted closer to
him. They both knew this trip was going to
_mean.a lot to them. New job. New home in
California. U. S. 66-stretched ahead like a
‘velvet carpet. through the garish, painted
landscape of New Mexico. It stretched
ahead to the exact point where the land
met. the sky. It was so Straight it went to
the skyline and there it looked like it just
dropped off the edge of the world.
VERYON
**I laugh at law. I never
‘spent a day in the penitentiary.
you'll know me best of all.”
by STANLEY HARRISON
| Stranger’s
watched hi
}man stayer
‘should pass
Everybody knows me,” the mad moa house traile:
lother cars \
boasted. .. . “‘ and girlie, Iman would .
this pig ey.
‘straight ahe
fwould have :
i’ Betty swa
her son clos:
jshe said. “D
tus?”
| “On Route
said, He la:
Don’t you \
highway bet
dressed man
wouldn’t bot
They felt good, sitting close together }
their pickup truck, their thighs touchi
their blond, blue-eyed ten-months-old sog
Larry, asleep on her lap, the truck mot They trave
purring and their 30-foot four-room hougyy into Ga!
trailer rolling smoothly behind them, hook nch-style hi
securely to their truck. Everything shi meday in C:
shape and secure, rolling over the hi “There wou
plateau country, the sun riding high in th house trail;
sky above. They started singing “Oklahomte're going ti
City is mighty pretty ... You'll see Am? years old
rillo, Gallup, New Mexico .. . Get Yepairman. Th
kicks on Route 66... .” lrg, Pa. and
Before they reached Albuquerque, @ % take the bis
shot past them and slowed so they had he west saat.
pass right away. When they pulled arou They. talked
the car, Allen looked down into the drivég;
poker face. , ossed the Ne
“Say, that’s the old guy we saw backpng and watc!
Cline’s Corner. He must be dipping bchnicolor bla:
wings at us.” headlights
They went through Albuquerque, and tack and trail
driver passed them, then dropped back
let them pass him again.
tty said anyt
“He must be going to California, t They stoppe:
Betty said. Several- hours later when fater Stati on
stranger went by them Allen said, “Triz, and ate -
old guy’s almost too friendly.” ’
iler several
@
ONEKNOWS C
Stranger’s car dropped back and Allen
watched his rear view mirror. The old
man stayed too close behind. Any car
should pass a slow-moving truck and big
house. trailer. But not this one. Sometimes
other cars would cut between, and the old
man would disappear. Then he’d pass again,
ver
onitentiary.
le,” the mad ma
irlie,
of all.”’ traight ahead. He’d slow down, and they
‘Pwould have to pull around and pass him.
# Betty swallowed and instinctively pulled
#her son closer to her. “I don’t like this,’
She said. “Do you think he wants to rob
Vus?”.
7 “On Route 66 in broad daylight?” Allen
said. He laughed and patted her cheek.
@Don’t you worry, Betty. This is the main
highway between Chicago and L.A. A well
dressed man like him, in a car like.that
Wouldn’t .bother to, rob people like us
id, sitting close together Minyhow. He’s just some goofy old. guy.
uck, their thighs touchIN§But I don’t like this Teap-frogging. This
1e-eyed ten-months-old sOm@jn be dangerous.”
a her lap, the truck motQ§ They traveled through mountain coun-
ir 30-foot four-room housffy, into Gallup, and talked about the
aoothly behind them, hooke inch-style home they wanted to build
eir truck. Everything shi eday in California.
ure, rolling over the hig There would never be room enough in
-. the sun riding high in HP house trailer for the other three kids
\ started singing “Oklahomfe’re going to have,” Betty said. She, was
‘pretty... You'll see A b2 years old. Allen 25, was a machine tool
Vew Mexico . . . Get YOR@pairman. Their home town was Watts-
666 <2" burg, Pa.,.and Allen had quit his job there
reached Albuquerque, @ 4@ take the big gamble on their future on
a and slowed so they had fhe west coast.
iy. When they pulled arouf@They- talked about it, driving through the
looked down into the drivePRinted Cliff area west of Gallup. They
rossed the New Mexico border into Ari-
the old guy we saw back na and watched the sun go down in a
+. He must be dipping Bthnicolor blaze. Once after dark a pair
f headlights came up close behind their
through Albuquerque, and ck and trailer, pulled around, slowed,
them, then dropped back 4fopped behind. This time neither Allen nor
s him again. ; fetty said anything.
be going to California, to@They stopped for the night at Good
Several. hours later when Water Station, 14 miles east of Holbrook,
+ by them Allen said, “Tiifiz., and ate at a cafe. They parked their
iimost too friendly.” ‘Biiler several (Continued on page 87)
¥
)N
Phis pig eyes in his poker face looking.
albtinnconceasiciitlstcmiit
Ray and his wife had big plans for the future on wedding day.
Now he will have to carry those plans out alone with his son.
29
APPEALS: -~alcoholism co
-“—mentally 111 -—"psychotic®
--child abuse
--brain damaged
segervbird ah: SERVING A LIFE Bee FOR MURDER:
74a/ee/. 0 Pikes «0 e 8 6 90 ame . ( ), truek driver, Flagstaff Az [LJ
-sleeping in “his. truck, walked up to door "marked a X" on the
window and shot him
FEL i rs Gi Ves as Pog en ae went yp. Bene Osaver.in AR [t.p.]
~-hated albeit Se because they got him fired from a warehouse job in CO
~-tried to escape inte Mexico +~stopped by road blocks; when north into CO,
then back into AZ with the stolen van ~
--I talked to him 1993.
--Could have also been charged w/ the: deaths of the two TISON’s
for 1978
Greenawalt dies
__ ee,
&
crime spree
By Alexa Haussler
and Jim Erickson |
The Arizona Daily Star.
FLORENCE — Randy Greenawalt
died by lethal injection early today, nearly
20 years after he escaped from prison: Jf Hor!
and took part in a murder spree that 'left fs Pe
six innocent people dead. °°.
Greenawalt, 47, died three minutes: * 3080
after his execution began at 12:07 aim. at
'
the Arizona State Prison Complex-
Florence.
Before the drapes to the witness room
were drawn, Arizona | Department of
Corrections Director Terry Stewart asked
Greenawalt if he had any last. words.
Greenawalt said: “I have prayed for
you many times and :...;,,. ipo ys
the Lord is using
you well. Don’t
worry about me, I’ll
be fine,” said DOC
spokesman Michael
Arra. ».,
After the drapes
were opened,
Greenawalt, who
appeared calm,
turned to look at fim
the crowd. He JB¥s ‘
smiled at his sister,
astra Ann, oteenawalt
Greenawalt of
Washington state, who stood in the front
row and waved at him.
Greenawalt, who was wearing thick
glasses, wiggled his feet and closed his
eyes, turning his face upward.
His lips fluttered and his chest heaved
once. His chest heaved again, and he
turned to his sister and mouthed the
words, “I love you.”
His chest then heaved a third and
final time.
Darlene Greenawalt bowed her head
and sobbed quietly as her brother lay still,
the execution complete.
Stewart pronounced the execution
over at 12:10 a.m.
Twenty-eight witnesses watched as-
ty
the state administered a lethal series of |
three drugs.
Last-minute federal appeals stretched
until 11:15 p.m., but all were denied.
Convicted killers Greenawalt and
Gary Tison escaped from the Florence
prison in 1978 with the help of Tison’s
three sons. The gang went on a 12-day
killing rampage that paralyzed the state
with fear.
be atrest.”""2"""
Did ohyh tit Sonal ats pal we ve
veo! hiked
Bg tes he Nag
“Won't have to‘listen to. the. news
edia. again ab Ltt suid Pau Chadwick
of Omaha,- Nebiwhose; sister, Donnelda
Lyons,#as killed in Arizona. “I can let it
‘ Greenawalt’s sister visited with him
for: about six hours ’yésterday at the
prison. i! 38-1 sfgvet?
‘,Greenawalt finished eating his last
_meal of two cheeseburgers, french fries,
and coffee and milk at about 4 p.n., said
Arra. ’
“His mood is relaxed and composed,”
Arra said-at about 6 p.m.
The state invited four relatives of
Greenawalt's victims to witness the exe-
cution, but all declined to attend, Arra
said.
In addition to his sister, Greenawalt
invited two attorneys, an acquaintance
whom Arra refused to identify, and a cley-
gyman. +:
At about 10 p.m., death penalty oppo-
nents began setting up banners outside
the prison. “It doesn’t matter who does it.
It’s still premeditated murder,” read a sign’
in front of a prison outlet store where
Greenawalt’s knitted items were sold.
“It’s been suggested to us that
because of the particularly heinous
crimes committed by Mr. Greenawalt, that
we should make an exception in this case
and save our candles,” said Donna Hamm,
director of Middle Ground, a prisoners’
rights group.
“We find that suggestion disgusting
and insulting,” she said. “We have uncon»
ditional oppositidn to the death penalty.”
At about 8 p.m.,'a judge in U.S;
- District Court in Phoenix denied
Greenawalt’s request for a Stay, in which’
lawyers argued death by lethal injectio
would violate Greenawalt’s constitutional
protection against cruel and unusual pun
ishment. :
Defense attorneys took the issue to al
three-judge panel of the 9th U.S. Circuit
Court of Appeals in San Francisco, where
it was denied.
Before the execution, Chadwick,
Donnelda Lyons’ brother, said he didn’t
feel any pity for Greenawalt. '
“When the sentence is carried out, I'll
pray to God that God is forgiving him.
But I can’t.”
EY Rent ee
Che Arizona Daily Star
Tucson, Thursday, January 23, 1997
I oR oa Sr ly
The Arizona Republic Friday, January 24, 1997
This shouldn’t be easy
andy Greenawalt, 47, died early
Thursday morning at the hands of
the state of Arizona.
He perished just as did the other
condemned killers who preceded him to the
Jorence lethal injection chamber — in a
sublimely peaceful way.
..,¢1is death was antiseptic. It was quiet. It
~was almost, well, perfunctory.
‘It was a sterile tableau. Greenawalt was
tied to a table, about to breathe his last, as
somber witnesses looked on. Curiously
absent was any sense of anguish. Or fear — |
either Greenawalt’s or Arizona’s.
. Fear is certainly something that Randy
Greenawalt, a cold-blooded killer, easily
dispensed after his escape from the Arizona
‘State Prison annex in Florence on July 30,
1978.
Gary Tison, aided by his sons, Raymond,
‘Donald and Ricky, also fled with Greena-
walt, and began nearly two weeks of
bloodletting.
_. Marine Sgt. John F. Lyons, his wife,
Donnelda, their 22-month-old son, Christo-
pher, and 15-year-old niece, Teresa Tyson,
were slaughtered with 16 rounds from
‘shotguns, the baby still in his mother’s lap
-when they both died.
- Teresa didn’t die right away. Struck in the
hip and buttocks, she crawled away in
excruciating pain and bled to death.
Randy Greenawalt and the Tisons then
murdered newlyweds James and Margene
Judge, and stole their van.
.;,¢9ubsequently falling into the hands of
the authorities, Randy Greenawalt and the
surviving Tisons then began their long
litigious journey through the courts.
Prior to the 1978 escape, Greenawalt was
Serving a life sentence for a 1974 murder.
His subsequent legal maneuvers included
an execution delay based upon the argu-
ment that police obtained his confession
illegally and that his previous attorneys
were ineffective.
“It is absolutely absurd with the amount
of review this case has received, with no
protestation of innocence, with a proven
record of murder, that this guy would have
19 years of litigation,” said Tom McGov-
em, Arizona’s special assistant attorney
general.
Such sentiments about Randy Greenawalt
are nothing new.
At the time of the escape, then-Gov.
Bruce Babbitt offered a $10,000 reward and
said the Tison gang members were a
“classic illustration of why we must have
the death penalty and why we must apply
it.” =
“He deserves (the death penalty)” said
Bob Corbin, Arizona’s attorney general
from 1978-90. “If they executed him for
his crime the first time, those people might
still be alive today.”
That’s true. :
But not long ago, Arizona’s new Chief
Justice, Thomas A. Zlaket, brought a fresh
edge to the capital punishment debate when
he said, “I don’t think there is one reliable
study in this country or anywhere else that
shows that the death penalty deters any-
thing other than that person, other than that
one defendant, from committing another
crime.”
The chief justice went on, “Most people
don’t have the slightest clue how difficult it
is to administer the death penalty in a
consistent fashion ... We are charged with
applying a statute that lists certain aggrava-
tors and certain mitigators and trying to
apply them in each and every case in such
a way that we ... tip the balance either in
favor of or against the death penalty. Well,
it sounds so easy... ”
Randy Greenawalt was a monster. But
will the evil show through so clearly on all
rr ushered into Arizona’s death cham-
er? .
We wonder.
Somehow, there should be a _ nexus
between the difficult legal questions that
thread through capital punishment appeals,
and the act of execution itself. Today, there
is an unsettling void between the two,
bridged only by the sublimely peaceful,
antiseptic death by lethal injection.
aee~ wep --
State, U.S. courts reject app
By Alexa Haussler
The Arizona Dally Star
It appears that condemned killer
Randy Greenawalt's execution will go
by léthal injection just after midnight in
4
The board voted unanimously
Friday to deny recommending: that the
governor delay the execution or com-
mute Grcenawalt’s sentence to a life
term.
Greenawalt’s attorneys suggested
the board is influenced by the governor
and that the state’s clemency process is
unfair.
But the high court rejected that
argument yesterday, removing one more
legal hurdle to the scheduled execution,
said Tom McGovern, Arizona special
assistant attorney general.
Also yesterday, the 9th U.S. Circuit
- Court of Appeals in San Francisco
{ denied a request fora hearing regarding
} a séries of issues, included arguments
that Greenawalt’s attorney was ineffec-
i> tive at his trial and sentencing,
~
eals to halt Greenawalt execution
McGovern said.
Iwo more appeals were pending
yesterday before the state Supreme
Court and the U.S. Supreme Court, and
attorneys expect more will be filed
today, he said.
In both appeals, attorneys argue
Arizona’s method of execution violates
the inmate’s constitutional protection —
against cruel and unusual punishment.
The defense argues that the lethal
injection process is painful and that the
inmate is strapped to a gurney for 30°
minutes before the execution, causing
undue stress.
Lawyers will be in constant contact .
by telephone with the courts until mid-
night, trying to thwart the execution,
said Assistant Federal Public Defender
See GREENAWALT, Page GA_.
{he Arizona Daily Star
Tucson, Wednesday, January 22, 1997
racially biased and condones violence. "=:
Death penalty opponents;
plan vigils here, at prison
Death penalty opponents are planning
two vigils today to protest the execution. Z
The Coalition of Arizonans to Abolish the ~
Death Penalty will hold a vigil at 4:30 pin: at
East Speedway and North Euclid’ Avenue.
They also plan to hold a candlelight vigil out-
side the prison in Florence from 10 p.mzuntil
the execution occurs. * ee a: ae
“We believe strongly that the death penal-
ty contributes to the violence in-our society,” ~
said Pima Community College instructot /
The group argues, afnong othet tI
that the death penalty fails to de
Mark Homan. “It is certainly non-productive,-
mal
ee mes c
FPN Tee Oa PP,
= . = gst te ee
1 ah zi : ya C52 HOBOS
ei . LES
: an
the
1e.
terror
airport area.'in uniform. A television
crew also shows up. The gang spots:
the lawmen,and skips.
Aug. 7-10,
The Tisons and Greenawalt drive
to Colorado, where they come across
James and Margene Judge, who are
heading for Denver. They ‘kill the
Judges, burying their bodies in a
shallow grave; and steal their van.
Then they head south again. The gang
members ‘are ‘reportedly seen every-
‘where, but.'no concrete leads - aré
found. a
Aug. 9° 3.5 .
With the state: now enraged -about
the murder of: the’ Lyons family and
the disappearance “of: Teresa Tyson,
. then-Gov. Bruce Babbitt meets with |
_ Coconino County Sheriff Joe Richards
during the evening: to’ discuss the
manhunt and calls:'a. meeting of
county sheriffs, county..attorneys and
major police organizations for the
next morning in Phoenix. -
Law-enforcement agencies through-
out the state check reports’ the gang
has been sighted in Flagstaff, Phoenix, ©
Prescott, Payson, Kingman, Yuma
and Hawley Lake. No trace of. the
fugitives is found. Bahia :
Aug.10 - : vy ae
Babbitt presides over the meeting of
law-enforcement; officers, a command
center is formed, and the governor
offers a $10,000.:reward. The' T ison
gang returns to the Casa Grande area,
calling on at least‘one relative. A Casa -
Grande police officer Starts following
their stolen van down a local ‘street,
and the Tisons prepare to shoot ‘him.
But when the officer sees the .van'‘-has
Texas license platés,’ he loses ‘interest
and turns down aside street. - ~
Aug.11°: ah ae
' At 2 a.m,, the Tisons and Greena-
walt leave. Casa” Grande and ‘again
head for Mexico,»ayoiding Interstate
10 by a. back road; Coincidentally,
somebody .breaks"into a Gila’ Bend.
Border Patrol: station _ looking: for
Weapons,» Because .a silver sports’:car
was seen nearby:and Gary Tiso
jailbreak, authoriti
: Suspect the Tison:
once broken into,an‘armory during’a:
Sy cute my
Mer yatta ie i
rr 4
that followed | ,
-7-§£ AR(ZWA RE&FUBLIK em
ee
gang, and the Border Patrol sounds’
the alert.
Law-enforcement officers swarm
into the area. The DPS sends in a
helicopter and SWAT team. All
available officers converge on Casa
Grande. Pinal County sheriff's officers
set up roadblocks at intersections of
every road leading from. Gila Bend
and going toward Casa Grande and
I-10. The Tison gang turns-south onto
» Chuichu Road.
At 2:45 a.m., the gang approaches
the first roadblock, 17 miles south of
Casa Grande. Donald Tison is driv-
ing, steps on the gas and the gang
Starts shooting. as he runs between
cars at the roadblock, doing about 95
mph. ‘Four deputies climb into cars
and give chase.
At 2:58 a.m., the van approaches a
second roadblock, 23 miles south of
Casa Grande, doing about 90 mph.
Four deputies standing off the ‘side of
road open fire, and nine of their 51
bullets hit the van. One hits Donald
Tison in the forehead, killing him
instantly. The van veers off the road
and comes to a stop in a ditch. Gary
Tison, his two surviving sons and’
Greenawalt make a break, running
into the: darkened desert. Deputies
begin shooting. Three fugitives drop
to the ground, and Ricky and
Raymond Tison and Greenawalt are
captured.
As the DPS helicopter hovers
overhead, shining light on the fugi-
tives, Gary Tison escapes. Officers
find a veritable arsenal in the van: two
-45-caliber pistols, a .357-caliber Mag-
num pistol, a .38-caliber pistol, a
silencer, a .264-caliber Magnum rifle,
two 12-gauge shotguns, a 16-gauge
shotgun, a 20-gauge shotgun, a
. .22-caliber Magnum pistol, a -380-cali-.
ber automatic pistol and 100 rounds ._
of ammunition. - Fes J
1
Aug.22 \ ie
A chemical-plant worker’ finds
Gary Tison’s body. about a mile from).
the roadblock shootout. Tison..appars,
ently burrowed: into ‘ithe: soft®. soil. :
beneath a: paloverde:trée ‘ina’ wash?’
He met a'lingering and painful'déath
Of exposures ni BEng
ae - .
ek cit “iaye Tee
Near Cortez, Colo., the gang killed
James and Margene Judge of Ama-
rillo, Texas, and took their van. They
then headed for Casa Grande, where
Gary Tison once lived.
Authorities still were looking for
the silver Mazda early the morning of
Aug. 11 when the Border Patrol at
Gila Bend reported a break-in. Bur-
glars were looking for guns, they
suspected, and the sighting of a silver
sports car made authorities think of
the Tisons.
At that point, the law converged on
central Arizona and, in particular, on
the Gila Bend and Casa Grande areas,
where authorities had expected the
gang to return. Gary Tison once broke
into a National Guard armory to steal
guns, so authorities thought he might
have broken into a building again.
He hadn’t. But the coincidence cost
hifi and Donald Tison their lives,
Gary Tison later of exposure in the
desert, and Donald on the spot,
during a roadblock shootout in which
the other Tison boys and Greenawalt
were captured.
“The roadblock was set up to stop
northbound traffic and they were
going south,” Avenenti recalled last
week. “It was really a fluke.”
ee e e
So the questions persist: Could it
happen again? What has been learned?
Goldsmith, Avenenti and Correc-
A law-
enforcement
Official escorts
(from right)
Randy —
Greenawalt,
Ricky Tison and
his brother,
Raymond, after
their capture.
tions Department spokesman Michael
Arra doubt such a scenario could be
played out again.
Each prisoner who is eligible is
limited to a list of 10 visitors. They
are screened in advance, and those
with criminal backgrounds are turned
away, except in very unusual circum-
stances, Arra said.
Avenenti said there now is a gun
tower with a metal detector above the
gate. There is a roving patrol around
the prison.
Visitors’ vehicles are randomly
searched for contraband, mcluding
weapons, ammunition, alcohol - and
drugs. Visitors also must present
identification with a picture before
receiving an entry pass, and they must
show it again before they: can leave,
Arra said. Food brought by visitors
cannot be taken beyond minimum ~-
security. #.,
There is a classification system in ~
effect that dictates where a prisoner is
housed and what level of custody he
must have, based on an escape-risk
factor. X
Corrections officials said that Gary 4
Tison never would have been in a \
position to escape under this system. N
Greenawalt never would have been in {
the control room, either. y
Tips on breakouts now get more
than the casual treatment that Tu-.
zon’s did, too. The Inspection and
Investigation Division, which has
teams in each prison, checks rumors
and funnels the information to the “~
warden, who usually tightens security ov
on those suspected of trying to escape.
Greenawalt and the surviving Tison | ©
brothers today are sitting on death :
row at the Florence prison, more than -
nine years after they were sentenced
to die for killing the Lyons family.
They are not model prisoners, officials | °
say, but they generally are behaving.
Acting under an earlier U.S. ~
Supreme Court ruling, the Arizona
Supreme Court set aside the Tisons’ g)
death sentences June 30, 1987, and by
ordered they be resentenced in Yuma q
County Superior Court under new ly)
guidelines.
On Nov. 20, Judge Douglas Yeddie v
reimposed the death penalty for both;
saying they acted with reckless disre-
gard for human life even if they did
not pull the trigger, as they contend.
The new sentence is on automatic
appeal to the state Supreme Court and
is awaiting oral arguments.
Greenawalt’s conviction was set
aside Feb. 17 by U.S. District Judge
Charles Hardy on grounds the killer’s
constitutional rights were violated
during interrogation shortly after his
arrest.
Hardy ordered a new trial, and the
State appealed his order to the 9th
Circuit Court of Appeals on Feb. 29.
It, too, is pending.
fA Ri ZONA
.c The Associated Press
By WALTER BERRY
Associated Press Writer
PHOENIX (AP) -- The urgent call reached Shenff Frank Reyes in the middle of a steamy August night in 1978.
Pinal County deputies were involved in a shootout south of Casa Grande with unknown assailants who had tried to run two roadblocks.
Reyes was there within 15 minutes. It was hours before he realized the enormity of what he found.
Deputies had stopped the Tison Gang, two convicted murderers and the three sons who'd broken them out of prison 12 days earlier.
Between escape and capture, they'd killed six people in two states and paralyzed Arizonans with fear.
Now, almost 20 years after the murder spree that spawned a television movie and subsequent book, one of three surviving gang
members is set for execution. Randy Greenawalt, now 47, is to die by injection Thursday.
“He deserves it. I hope the hell they carry it out this time," said Bob Corbin, Arizona's attomey general from 1978-90. ‘If they executed
him for his crime the first time, those people might still be alive today."
Those people" were a young Arizona family of four and a Texas couple on their honeymoon when they crossed paths with the
escapees. The Tison brothers -- Donald, 20, Ricky, 19, and Raymond, 18 -- had helped their father Gary Tison and Greenawalt break out
of the state pnson in Florence.
Greenawalt was serving a life sentence for murdering a truck driver in Flagstaff in 1974. Tison was doing life for killing a Phoenixjail
guard in 1967.
Greenawalt was in on an escape plan hatched by Tison. As an office clerk at the prison's trusty annex, he had access to the facility's
control room and was there July 30, 1978, when the Tison boys arrived for their usual visit.
Weekend visits to the medium-secunity prison offered an informal picnic setting in much laxer times, and the sons apparently had little
trouble smuggling in an ice chest packed with revolvers and sawed-off shotguns.
The five men fled in Donald Tison's 1969 Lincoln Continental, setting the stage for a manhunt still fresh in many minds.
“| remember how scared people were," said Michael Arma, now a state Corrections Department spokesman and then a Phoenix TV
reporter. ‘There were two killers on the loose and nobody knew where they were."
The next day, the Lincoln had a flat tire on a barren stretch of road near the Califomia border, just south of Quartzsite. Marine Sgt. John
Lyons, 24, of Yuma and his family stopped to help. Their bodies were found five days later.
Lyons was lying near the abandoned getaway car, close-range gunshot wounds in his head, shoulders, chest and wrists.
His 23-year-old wife, Donnelda, was in the back seat, cradling 22-month-old Christopher. She'd been shot in the chest and neck; the
toddler took a shotgun blast to the head.
The body of the couple's niece, Teresa Tyson, 15, was found a quarter-mile away. She had crawled off, mortally wounded when a bullet
shattered her thigh bone, fragments of which pierced her abdomen. She bled to death and was found with a leather dog collar buckled
around her ankle, apparently in a misguided attempt to staunch the bleeding.
The Tison gang stole Lyons' orange Mazda and headed northeast. Police believe it was Aug. 8 when they ran across James and
Margene Judge at a construction roadblock in southwestem Colorado. But the date's a guess at best.
The bodies of the Amarillo, Texas, couple, weren't found until November. They'd been shot to death and dumped at a remote campsite
near Pagosa Springs, Colo.
No one ever was prosecuted in the Judges' murders, but Colorado authorities closed the case after the Arizona convictions.
The gang retumed to Anzona. Police get their first break from a convenience store clerk in Flagstaff. Suspicious of a group of men who
Monday January 20, 1887 America Online: Galba33 Page: 1
‘" Limetable of Tison breako
July 30, 1978 ee
: At 9:20 a.m., Ricky, Raymond and
Donald Tison smuggle guns into the OS ie 1 COLORADO
Arizona State Prison at Florence and Ne
hélp their’ father, Gary, and Randy F HM any i. i
Gctanarele both murderers, escape. 3. Flagstaff: After ditching the B. Contes, iseets ts td ie
Ten minutes later, after calmly . ind ey |. steals thelr van sometime dus
walking past tower guards who do not frock auenetion si jas “Bs. [> between Aug. 7 and 10,'1978.
récognize them, they climb into a Aug, 2 and 3, 1978, are we i
green Ford LTD and drive away. . 7
Minutes later, they abandon the Ford* om ; NEW MEXICO
in the Pinal County Hospital parking —Sj
lot. and climb into a black Lincoln hen q7) ” 40
they :had stashed there and drive — - Ne
away. 2. Arizona'95,'25 miles south f by
__ of Quartzsite: kills
‘Lyons family the night of
July 30, 1978.
-At 9:30 a.m.; :three guards and
eight visitors locked in a ‘closet of the
visitor center in a prison annex break
down the door and sound an alarm.
Roadblocks are set up to look for the.
green LTD, which already has been
abandoned. The. gang : heads for
Mexico but is’ slowed by. a:flat tire
between Florence and Yuma. At.
Yuma, for unknown’ reasons, they, .
head north on Arizona 95 and are
halted 25 miles south of Quartzsite by
(4, Clovis, NM: Overzealous -
RZ
out of. state prison -«.\.
duly 30, 1978... 02°
> ee 10) Se
2 Chuichu Road south of Casa. Ueson
' Grande; Gang runs one roadblock, ,
a second flat tire. >
ee
That night, Marine- Sgt. John F. |] gunfire. Donald Tison killed; Ricky
Lyons, 24, his wife, Donnelda, 24, | eee Tot end F 11, Pos
son, Christopher,'22 months, and | 1978 Body bs Bary Tear ate has oe he
niece, Teresa Tyson, 15, are bound for |’ escaped at roadblock, found one
x Las Vegas, Nev., on the first‘leg of a. mile away Aug. 22, 1978.::": : ap
xe} vacation. They see a ‘disabled Lincoln 5 sassy van Fg
pe and stop to help. ‘The gang pulls: out Rh 3
} shotguns and orders’ the’ family. into Authorities suspect the Tisons. might
the Lincoln, drives'it. back-into the be in the Flagstaff area after learning
desert and blasts Lyons, his wife and — of Ehrementrout’s prison visits, but an
son to death: with :shotguns.. Teresa, . initial report | to ’ Flagstaff police
mortally wounded, crawls away and incorrectly lists her syne ae, Kathy
hides. Her body is not discovered until Trout,” slowing downvinvestigation. .
Aug. 11. The” Tisons steal the hey SABA
Lyonses’ 1977 orange Mazda and Aug. 3 it
head toward Flagstaff. During the day, Coconi
PS Sheriff's Detective Bill Pribil’d
ug. iy ' Ehrementrout’s real namejand‘knocks _
; The gang stops at Wenden*and. on. her door. Ehrementrout;!Donald .
_ _ buys silver: spray paint to repaint the ‘Tison and Greenawalt are inside but
Mazda, camping alae near, keep silent until ‘the offic
4 Williams,.°°"""" + Pipi leaves, unaware of ‘their ¥
| Anes F “ ‘Greenawalt reportedly said’
i ug.2 * Veeon co © “T should ‘have killed him,
‘ In, Flagstaff, Donald ; Tiso and » ' deserve to die.” eis
. Greenawalt:go to Doney Park;east‘of: The gang decides to leave -F
town “to svisityKathy. Ehrementrout,':.and - Bhrementrout: buys.)-aii'pi
“fit Who met and betrlended, GreenaWvalt truck, ammunition and other
.e ° while. -yisitin
? in i prisot We
oe PAM Mestuaien:.
ing c. Lay Lia
he Ne n x Be 9 47 ot
‘County
iscovers
a
our before ! Aug. 7 ME Ph ois
evop Sf The gang arranges an escape flight
i" f to: 'Mexico from’ the +Clo\ s;~-N. MS)
ANG
yey
Mh,
sts
BS ey
She Arizona Daily Star
: jucson, Saturday, October 1, 1988
ly Chip Warren
’ Arizona Dally Star
# The Arizona Supreme Court was asked yesterday to
throw out the death sentences of Raymond and Ricky
son because their role in four 1978 murders did not
flect a “reckless indifference” for human life.
*3\Harvard University law professor Alan Dershowitz
nd, Phoenix attorney David Heller, who both represent
tayinond, argued that the case does not meet the stand-
arp set last year by the U.S. Supreme Court for imposi-
(ey
on'of the death penalty.
4" In April 1987, the federal justices struck down the
Hsons’ 1979 sentence, claiming that the state court’s
écision to uphold the penalty was based on the wrong
tandard of “intent to kill.” .
4: Last November, however, Judge Douglas Keddie of
fer County Superior Court resentenced the brothers
th’
die in the gas chamber for their roles in the August.
1978 slayings of four people near Quartzsite.
‘PesThe brothers have said that their father, Gary
ison, and a second man, Bandy Greenawalt, committed
thé murders. The brothers had helped break their fa-
fher and Greenawalt-out.of the Arizona State Prison in
Bhorence a few days earlier.
Lae *
Attorneys see
le tapping RE ——- SEEEEESEaeeee
. The gang’s flight ended about two weeks later at a
police roadblock near Casa Grande. A third brother,
Donald, was killed, and all but Gary Tison were ar-
rested.
k repeal of
Arizona College of Law, where the state Supreme Court
annually holds one meeting for the students’ benefit.
About 50 students packed the courtroom to observe
the appeals process, while an additional 100 or so
watched on television monitors in a nearby lecture hall.
For the sake of expediency, the five-member court
heard no oral arguments in the case of Ricky Tison,
which was instead presented Solely on the basis of writ-
ten documents.
“What affects Raymond affects Ricky,” explained
Tucson attorney Michael Piccarreta, who represents the
latter. ‘“‘They’re not going to kill one and let the other
live.”
Dershowitz, who has worked on the case for free for
almost eight years, contended during his 25-minute pre-
sentation that “the evidence just doesn’t show reckless
indifference” on the Tisons’ part.
“These are kids who desperately wanted people.to
live, but simply couldn’t control the situation,” he said.
Before the escape, Raymond, then 18, “refused to
participate until his father promised him that no one
was going to get shot,” Dershowitz said.
Raymond was aware his father was serving a life
See TISONS, Page 4B
BR Ow os
Tisons
ee
sentences _
Metro/State
Tisons
Continued from Page 1B
sentence for murder, but also had
heard that corrections officials “‘be-
lieved him not to be dangerous,” the
lawyer said.
The brothers knew little about
Greenawalt, except that he, too, had
Supposedly been a model inmate,
Dershowitz noted.
“There was nothing in their mind
to lead them to predict that a sense-
less killing would. occur,” he said,
referring to the shooting deaths of
John and Donnelda Lyons, their 2-
year-old son and their teen-age
niece,
At the moment the victims were
Slain, shortly after their car had
been commandeered by the fugitive
The father died in the desert from exposure before .
Police found him. Greenawalt has since been given the
death penalty as well.
Yesterday’s proceedings were at the University of
gang, the two brothers were stand-
ing 50 to 75 yards away and were
‘death ©
“shocked” at what they saw, De
Showitz said.
Assistant Attorney General Wi
liam Schafer III urged the court 1
reject the brothers’ position th:
they were only peripherally respo:
sible for the slayings.
“These two individuals did every
.thing except pull the trigger,” he ar
gued.
. Schafer also disputed that th
brothers were as far as 75 yard
away when the shootings occurred
since Ricky Tison once testified tha
. he may have been much closer thar
that.
In response, Justice Stanley Feld
man suggested that perhaps an evi
dentiary hearing should be held tc
clarify exactly what happened.
After the arguments concluded
the court took the case under advise
ment. Piccarreta said he expected :
ruling to be issued in about three
months,
Death penalty OK’d for murder accessories:
By Richard Carelli
ASSOCIATED PRESS
WASHINGTON — People who
play a major part in a crime that
results in a murder may be sen-
tenced to death if they displayed a
“reckless indifference” for human
life, the Supreme Court ruled Tues-
day.
By a 5-4 vote, the justices said the
death penalty was a constitutional
4-2/7
punishment in such cases even if-
the condemned person had never
intended to kill anyone and had not
been the actual killer.
The ruling limits the effect of
the court's 1982 Supreme Court de-
cision that outlawed the death pen-
alty for “non-triggermen” who did
not intend to take part in a killing
but whose crimes led to a death.
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The justices sent back to the Ari-
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Ricky and Ray Tison, ruling that
the state court had used the wrong
standard in finding that the Tisons
properly were sentenced to death.
_ “Major participation in the felo-
ny committed, combined with reck-
less indifference to human life, is
sufficient” to justify a death penal-
ty, Justice Sandra Day O'Connor
wrote for the court.
But she said Arizona’s highest,
court wrongly upheld the Tisons’
death sentences after finding that
they “intended, contemplated or
anticipated that lethal force would
or might be used or that life would
or might be taken.”
O’Connor said the state court
should restudy the case and deter-
mine whether the Tisons, already
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found to have played a major role-
in 1978 crimes that ended in the
deaths of four people, exhibited
reckless indifference for life.
Her opinion was joined by Chief.
Justice William Rehnquist and Jus-
tices Byron White, Lewis Powell
and Antonin Scalia.
Justices William Brennan, Thur-
good Marshall, Harry Blackmun
and John Paul Stevens dissented. _
In a related action, the justices :
gave courts new guidelines to de- :
termine when an accomplice’s con- :
fession may be used against a co-de-
fendant. ;
By a 54 vote, the court said a:
defendant’s pretrial confession
may not be used if it also incrimi-
nated another defendant at their
joint trial — even if the second de-
fendant’s own confession was used
as evidence against him. ra
FRANCIS Ce
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| S 30 KAM IN
ASSOCIATED PRESS
- WASHINGTON — People who
play a major part in a crime that
results in a murder may be sen-
tenced to death if they displayed a
“reckless indifference” for human
os the Supreme Court ruled Tues-
ae
--* Bya5-4 vote, the justices said the
death penalty was a constitutional
punishment in such cases éven if:
the condemned person had never
‘intended to kill anyone and had not
‘been the actual killer. ,
The ruling limits the effect of
the court's 1982 Supreme Court de-
-ejsion that outlawed the death pen-
alty for “non-triggermen” who did
not intend to take part in a killing
but whose crimes led to a death.
f
—
San FrandsCo |.
The justices sent back to the Ari-
‘By Richard Carelli 4 2/- gf 7? zona Supreme Court the cases of
Ricky and Ray Tison, ruling that |
the state court had used the wrong
standard in finding that the Tisons
properly were sentenced to death.
“Major participation in the felo-
ny committed, combined with reck-
less indifference to human life, is
sufficient” to justify a death penal-
ty, Justice Sandra Day O’Connor
wrote for the court.
But she said Arizona's highest,
court wrongly upheld the Tisons'
death sentences after finding that
they “intended, contemplated or
anticipated that Iethal force would
or might be used or that life would
or might be taken.”
O'Connor said the state court
should restudy the case and deter-
mine whether the Tisons, already
Death penalty OK’d for murder accessories
Je A; Ex aAan(NeR_
found to have played a major role
in 1978 crimes that ended in the -
deaths of four people, exhibited
reckless indifference for life.
Her opinion was joined by Chief
Justice William Rehnquist and Jus-
tices Byron White, Lewis Powell
and Antonin Scalia.
Justices William Brennan, Thur-
good Marshall, Harry Blackmun
and John Paul Stevens dissented. ,
In a related action, the justices
gave courts new guidelines to de-
termine when an accomplice’s con-
fession may be used against a co-de- —
fendant.
By a 54 vote, the court said’a
defendant's pretrial confession
may not be used if it also incrimi-
nated another defendant at their
joint trial — even if the second de-
fendant's own confession was used
as evidence against him.
Further hearings needed in Greenawalt case,
WASHINGTON (AP) — Further hearings
will be required under a Supreme Court de-
cision yesterday against reinstating an Arir
zona man’s murder conviction and death sen-
tence in four killings following a 1978 prison
escape.
The court, without comment, let stand a
ruling that ordered the hearings to determine
whether police unlawfully elicited incriminat-
ing statements from Randy Greenawalt.
_Greenawalt and Gary Tison escaped from
Arizona State Prison in Florence on July 30,
1978, with the help of Tison’s three sons.
A week later police discovered the bodies
of John and Donnelda Lyons and their son
Christopher near Quartzsite, Ariz. The body
/O- IS- %
of the Lyonses’ niece, Theresa Tyson, was
discovered five days later.
All four victims had been shot. Police said
Greenawalt and the Tisons used the Lyonses’
car to help in the escape.
Greenawalt and two of the Tison sons were
captured on Aug. 11, 1978, attempting to drive
a van through a police roadblock.
One of Tison’s sons, Donald, was shot dur-
ing the chase, and Gary Tison died of expo-
sure in the desert.
Brothers Ricky and Ray Tison were con-
victed and sentenced to death, but the Su-
preme Court agreed in February to study their
case. A decision is expected by July.
Greenawalt was questioned by different po-
lice officers at various times during'the day of
his arrest.
At one point he told police, ‘We didn’t kid-
nap the girl (Theresa Tyson), nor was she sex-
ually molested.”
Asked by police if the girl had been shot,
Greenawalt said yes. © :
Greenawalt was convicted and sentenced
to death, but the 9th U.S. Circuit Court of
Appeals reversed the verdict and sentence
in March.
The appeals court ordered a federal judge to
determine whether police questioning of
Greenawalt violated his rights under a 1981
Supreme Court ruling.
In that ruling, the high court said once a
suspect has said he wants to deal with police
ARIZONA Dalty_S TAR Az
justices rule —
only through a lawyer, police may not ques-’
tion the suspect further unless the accused
initiates the conversation, ~*).0°"
The 9th Circuit court said the facts sur-
rounding Greenawalt’s questioning must be
examined in detail to determine whether po-
lice initiated the questioning that led to the
suspect’s incriminating statements.
The appeals court noted that before mak-
ing the statements, Greenawalt had a “10- ‘to
15-minute consultation with his lawyer, con-
ducted through a small hole in a door, with
a jailer standing next to the prisoner,”
In asking the Supreme Court to reinstate
Greenawalt’s conviction and sentence, Arizona
officials said Greenawalt’s incriminating state-
ments were “wholly voluntary.”
“TieSRECORDER.
~— CALIFORNIA DAILY OPINION SERVICE
Volume 1 No. 14 e
A DAILY PUBLICATION OF APPELLATE DECISIONS FOR SUBSCRIBERS TO THERECORDER = *
Table of Cases
Tuesday, April 28, 1987
CALIFORNIA SUPREME COURT
Bi FO MCCOHOUush 6. oo i ec even ct April 17 Page..372
CALIFORNIA COURTS OF APPEAL
MUO MPT Mo EAI Cece Ciuc Sibivaces chee ATH hice. sks, 372
U.S. SUPREME COURT
Richardson v. Marsh................ 11 Gs < Ae aang 377
RATE Vic PHEW VORK. hic sditcveecbacuss Aprib2t..u.icccc. 382
MAFOTIDOELY Vi CIPEOT Ss cose cee ceca ess Tey) g | L\'4) Ian aS 385
CTS Corp. v. Dynamics Corp. of
PAPOMEROR yh. irk Jodi inegvaebivsxeers POPU Bhi vss 387
— > [Tison Tg Ai pomeeemen Feee April 20.0250... 394
NINTH Circuit U.S. Court oF APPEALS
BEVNOIGE. Vs: BROCK dk i j0s cise POTD 2is che, sos 405
United: States v. Grant.......ocsoc.e PE edie secs 407
Only opinions certified for publication are included in the California
Daily Opinion Service. Before citing The California Daily Opinion
Service, counsel should verify the continuing publication status of a
case. Exhibits and appendices to opinions will be included with the
opinions whenever possible if they are capable of being reproduced
and are sufficiently relevant to justify inclusion.
Supplement to The Recorder, San Francisco, CA
SUMMARIES
CIVIL PROCEDURE :
RULING ON MOTION TO VACATE JUDGMENT
ESTOPS LATER FRAUD CLAIM
Barker v. Hull
Ist App.Dist.; April 21, 1987
The First Appellate District ruled that several fraud claims
brought on the basis of an earlier case are estopped because they
were fully litigated when the court in the first case held a hearing on
a motion to vacate the judgment.
William Hull sued William Barker in Barker’s role as president of
a corporation and individually. After winning a default judgment,
Hull filed an abstract of judgment against Barker as an individual.
Thereafter, Barker filed a motion to set aside the judgment, claim-
ing that Hull had told him that he would not hold him personally
liable. After a hearing, the trial court denied the motion. Subse-
quently, Barker filed several claims, all based on an allegation of
fraud by Hull. Hull successfully moved for a judgment on the
pleadings, arguing that Barker was barred by the doctrine of col-
lateral estoppel from relitigating the fraud issue.
The court of appeal affirmed, ruling that collateral estoppel is
available when a lititgant has had an opportunity to raise and fully
present the identical issue in a prior case. The court noted that those
criteria need not be met during a trial itself, concluding that a hear-
ing on a motion of entry of a judgment entered on a verdict is suffi-
cient.
J. Newsom; P.J. Racanelli, J. Elkington, concurring.
RECALCITRANT COTTON STALK NONCHOPPERS
NOT ENTITLED TO JURY TRIAL
People v. Anderson
Sth App.Dist.; April 20, 1987
The Fifth Appellate District concluded that farmers charged with
Food & Agricultural Code violations for failing to plow under cot-
ton stalks are not entitled to a jury trial.
Food & Ag. Code§ 5784 establishes penalties for those who do
not adhere to a campaign to eradicate the pink bollworm by shred-
ding and plowing under cotton stalks. Section 5784 calls for a base
fine of $500 with an additional five dollar fine for each acre not
plowed under. Several farmers charged under the section and facing
penalties of up to $23,375, each demanded jury trials on the
charges. The trial court dismissed the cases, finding the section un-
constitution because it did not provide for a jury trial. The appellate
department of the superior court ordered the charges reinstated, rul-
ing that the defendants were entitled to a jury trial.
On certification, the court of appeal, noting that jury trials are not
mandated for petty offenses, reversed and remanded the case for
trial without a jury. Citing Penal Code §654, prohibiting multiple
punishment for a single act, the appellate court ruled as unconstitu-
tional those portions of §5784 that provided for fines in addition to
the $500 base fine. The court concluded that a decision by a farmer
not to plow under represents only one infraction.
Acting P.J. Franson; J. Hamlin, J. Papadaker, concurring.
CORPORATIONS
WILLIAMS ACT DOES NOT PREEMPT STATE
ANTI-HOSTILE TAKEOVER LAW
CTS Corp. v. Dynamics Corporation of
America
U.S. Sup.Ct.; April 21, 1987
The United States Supreme Court held that \a state statute may
validly protect independent shareholders from the coercive aspects
of hostile tender offers.
The federal Williams Act [15 U.S.C. §§78m (d)-(e) and 78n (d)-
(f) (1982)], requires that hostile corporate stock tender offers remain
open for at least 20 business days. The Indiana Act (Act) [Ind.
TiS Ase (Greenawalf AZ “Perth Kow )
April 28, 1987
370
CALIFORNIA
Business Corp. Code §23-1-42-1 et seq. (Supp. 1986)] provides that
the acquisition of ‘‘control shares’’ excludes voting rights unless a
majority of all pre-existing distinterested shareholders agree at their
next regularly scheduled meeting. The Act applies to corporations
chartered in Indiana that have specified levels of shares or share-
holders within the state and that elect to be covered under the Act’s
protection. In March 1986, when Dynamics Corporation owned 9.6
percent of the common stock of CTS Corporation Dynamics an-
nounced a tender offer that would have raised its ownership interest
above the Indiana Act’s threshold. On the same day, Dynamics filed
suit alleging that CTS had violated federal securites laws. When
CTS elected to be governed by the Act, Dynamics successfully ob-
tained declaratory relief by alleging that the Williams Act preempts
the state Act, which violates the Commerce Clause. The court of
appeals affirmed.
The Supreme Court reversed, holding that because the Act is con-
sistent with the purpose of the Williams Act, it is not preempted.
Absent an explicit intent by Congress to preempt state law, a state
statute is preempted only when compliance with both federal and
state regulations is a physical impossibility [Florida Lime &
Avocado Growers Inc. v. Paul 373 U.S..132 (1963)]. The Act fur-
thers the basic purpose of the Williams Act by protecting indepen-
dent shareholders from the coercive aspects of tender offers by
allowing them to vote as a group, thereby placing investors on an
equal footing with takeover bidders. Furthermore, the possibility
that the Act will delay some tender offers does not mandate preemp-
tion. The Court also held that the Act does not violate the Com-
merce Clause. Nothing in the Act imposes a greater burden on out-
of-state offerors than similarly situated Indiana offerors.
J. Powell; C.J. Rehnquist, J. Brennan, J. Marshall, J. O’Connor,
concurring; J. Scalia, concurring separately; J. White, joined by J.
Blackmun, J. Stevens, dissenting.
CRIMINAL PROCEDURE
INCRIMINATING CONFESSION OF NON-TESTIFYING
CO-DEFENDANT DEFENDANT IS NOT ADMISSIBLE
Cruz v. New York
U.S. Sup.Ct:; April 21, 1987
The United States Supreme Court ruled that a confession of a
non-testifying co-defendant cannot be admitted at the trial of a
defendant if that confession facially incriminates the defendant even
though the defendant has confessed.
Benjamin Cruz and Eulogio Cruz faced charges of felony murder
after Benjamin provided a videotaped confession implicating both
himself and Eulogio. At a joint trial and over the objection of
Eulogio, the court allowed the prosecutor to introduce Benjamin’s
confession, warning the jury that the confession was not to be used
against Eulogio. In addition, a witness at the trial testified to state-
ments made by Eulogio that amounted to a confession. The New
York Court of Appeals affirmed Eulogio’s conviction, ruling that
Benjamin’s confession need not have been excluded because Eulogio
had himself confessed and the two confessions interlocked.
The Supreme Court reversed, concluding that it is irrelevant
whether or not the two confessions interlock in assessing the re-
quirements of the Confrontation Clause of the Sixth Amendment.
Even when a jury is admonished not to draw any inferences against
the defendant from the co-defendant’s confession, it is too much to
expect a jury to disregard a co-defendant’s confession that on its
face implicates the defendant.
J. Scalia; J. Brennan, J. Marshall, J. Blackmun, J. Stevens, con-
curring; J. White, , joined by C.J. Rehnquist, J. Powell, J. O’Con-
nor, dissenting.
CONFESSION OF NON-TESTIFYING CO-DEFENDANT
MAY BE USED AT JOINT TRIAL IF IT DOES NOT
DIRECTLY INCRIMINATE DEFENDANT
Richardson v. Marsh
U.S. Sup.Ct.; April 21, 1987
The United States Supreme Court ruled that a confession of a
non-testifying co-defendant may be introduced at a joint trial if all
references implicating the defendant are excised and the trial court
instructs the jury not to draw any inferences against the defendant
from the confession itself.
Clarissa Marsh and Benjamin Williams faced a joint trial on
charges of assault and murder. At the trial, prosecutors introduced;
over Marsh’s objections, a confession given by Williams to the
police shortly after his arrest. Prosecutors had excised any refer-
ences to Marsh or any indication that she was involved. In addition,
the trial court repeatedly admonished the jury not to consider the
confession against Marsh. During closing arguments, however, the
prosecutor linked a portion of the confession to Marsh. The jury
convicted Marsh.
Although the Supreme Court reversed on the basis of the pro-
secutor’s closing statement linking the confession to Marsh, the
Court indicated that the use of the co-defendant’s confession linked
with the jury instruction was proper. Although generally the Con-
frontation Clause of the Sixth Amendment requires that confessions
of non-tesifying co-defendants tried jointly be excluded [Bruton v.
United States 391 U.S. 123 (1968)], the Court ruled that the danger
is not so great if the confession does not facially incriminate the
defendant. In those cases, the Court ruled, a court admonishing a
jury not to draw inferences against the defendant from the confes-
sion is likely to be obeyed. The Court remanded the case for further
determinations regarding the effect of the prosecutor’s closing
argument. k
J. Scalia; C.J. Rehnquist, J. White, J. Blackmun, J. Powell, J.
O’Connor, concurring; J. Stevens, joined by J. Brennan, J. Mar-
shall, dissenting.
FAIURE TO EXHAUST STATE REMEDIES DOES NOT
PRECLUDE REVIEW OF HABEAS CORPUS CLAIMS
Granberry v. Greer
U.S. Sup.Ct.; April 21, 1987
The United States Supreme Court ruled that courts of appeals
reviewing habeas corpus petitions must review on a case-by-case
basis whether or not a state may raise an exhaustion of remedies
defense for the first time on appeal, rather than hearing the merits of
the petition.
Waldo Granberry, an Illinois state prisoner, applied to the district
court for a writ of habeas corpus. Instead of filing an answer, the
State filed a motion to dismiss under F.R.C.P. Rule 12(b)(6),
contending that Granberry failed to state a claim on which relief
could be granted. After the district court dismissed on the merits,
Granberry appealed. On appeal, the State raised for the first time
the exhaustion of state remedies defense. Although Granberry
claimed that the state’s failure to raise the defense earlier in district
court amounted to a waiver, the appeals court rejected the waiver
argument and remanded the case with instructions to dismiss
without prejudice.
The Supreme Court reversed, concluding that the appeals court
erred in simply holding that the nonexhaustion defense could not be
waived. Instead, the Court ruled, the appeals court must first deter-
mine whether or not the interests of justice would be better served
by addressing the merits of the habeas petition or by requiring addi-
tional state proceedings before doing so.
J. Stevens, for a unanimous Court.
DAILY OPINION SERVICE ft.
Ca se 2Arew 371
CONVICTED MURDERER NEED NOT HAVE HAD INTENT
TO KILL TO FACE DEATH PENALTY
Tison v. Arizona
U.S. Sup.Ct.; April 21, 1987
The United States Supreme Court ruled that an Arizona man con-
victed of felony-murder could be sentenced to death even though the
man never intended to kill and it was an accomplice who pulled the
trigger.
Ricky Tison and Raymond Tison helped their father and anitiet
man escape from prison. After tire problems in the escape car, the
party flagged down another car occupied by a family of four. The
younger Tisons also helped their father and the other escaped con-
vict to abduct, detain, and rob. the family. They also stood by and
watched their father brutally shoot down the four captives, which
included a two-year old boy and a fifteen-year old girl. After a jury
convicted Ricky and Raymond of capital murder based on Arizona’s
felony-murder law, the trial court court sentenced Ricky and Ray-
mond to death. The Arizona Supreme Court, relying on Enmund v.
Florida [458 U.S. 782 (1982)], affirmed, concluding that the re-
quisite intent to kill could be infered from the fact that the defen-
dants placed themselves in a situation in which they could anticipate
the use of lethal force.
Although the Supreme Court rejected the Arizona Supreme
Court’s reasoning, the Court did agree that Ricky and Raymond’s
role may have met the culpability threshhold required by Enmund.
The Court ruled that the Arizona court’s definition of intent was too
broad and could cover almost any felony. Instead, the Court con-
cluded, the requirements of Enmund could be met if there is a show-
ing of a major participation in the felony committed, combined with
reckless indifference to human life. The Court remanded the case
fora further determination of the reckless indifference criterion.
J. O'Connor; C.J. Rehnquist, J. White, J. Powell, J. Scalia, con-
curring; J. Brennan, joined by J. Marshall, J. Blackmun, J. Stevens,
dissenting.
EMPLOYMENT
HANDICAP DISCRIMINATION, WORK QUALIFICATIONS:
MUST BE VIEWED SEPARATELY
Reynolds v. Brock
9th Cir.; April 22,1987
The Ninth Circuit ruled that a discharged worker charging dis-
crimination based on handicap is entitled to a trial on disputed issues
of both supervisor prejudice and unrealistic job expectations of a
handicapped person.
Barbara Reynolds worked at the United States Department of
Labor as a clerk-typist. A few months after beginning work,
Reynolds began to suffer epileptic seizures on the job. Supervisors
rating her job performance criticised, inter alia, her low productivi-
ty. After being terminated, Reynolds filed a claim under . the
Rehabilitation Act of 1973 (Act) [9 U.S.C. §701 et seq.], claiming
that she lost her job as a result of illegal discrimination. The district
court granted summary judgment to the Department after finding
that Reynolds was not handicapped for purposes of the Act because
she had not shown that her epilepsy interfered with her job perfor-
mance.
The Ninth Circuit reversed, ruling that the district court misinter-
preted the Act by concluding that her apparent ability to perform the
tasks means that she is not handicapped. The appeals court noted
that the Act applies when someone is both handicapped and is
otherwise qualified to perform a job. Moreover, these two criteria
_ must be examined separately. The court, noting that epilepsy has
been well established as a handicapping condition, ruled that
Reynolds was capable of doing her job. Accordingly, Reynolds
made a prima facie case of discrimination, thereby shifting the
burden to the Department to show that there was no discrimination
and that it made efforts to accomodate her condition.
J. Pregerson; J. Choy, J. Goodwin, concurring.
372 California Supreme Court
CALIFORNIA
FULL TEXT OPINIONS
California Supreme Court
Cite as 87 C.D.O.S. 372
In re BERNARD P. McCULLOUGH
A Judge of the Justice Court, On Censure
California Supreme Court
No. 25030
Filed April 17, 1987
BY THE COURT: \
The Commission On Judicial Performance has recommended
that we publicly censure Bernard P. McCullough, a Judge of the
Justice Court, San Benito Judicial District, San Benito County, for
“persistent failure . © perform the judge’s’ duties” and for
“conduct prejudicial to thé administration of justice that brings the
judicial office into disrepite.” (Cal. Const., art. VI, § 18, subd.
(c)(2).) Judge McCullough
findings or recommendation)
Following the appointment pf a special master, an agreed state-
ment was received in lieu of testimony; the commission subse-
quently took into consideration favorable documentary evidence.
Thereafter, the commission adopted the findings and conclusions
of the special master that between 1982 and 1985, despite three pri-
vate admonishments and inquiries from the commission and the
atterneys involved, Judge oe gh failed to nae decide_a
cas submitted to his co 8 ee Ve
In addition, he continued to execute sal
she protracted delay
ission inquiries
amounts toja persistent failure to perform judiciahduties and a vio-
lation of canon 3A(5) of the California Code of Judicial Conduct.
Moreover, Judge McCullough’s failure to promptly decide cases,
despite privaté admonishments and inquiries from thAcommission
and the parties,\and his disregard of California law in executing sal- -
ary affidavits and in receiving his Salary, was conduct prejudicial
that brings the judicial office into disrepute.
After reviewing \ \the record, we are satisfied that the conclusions
of the commission, are justified, and \that its recommendgtion
should be adopted. This order will serve ‘as the appropriate sa
tion. , x
u
Cite as 87 C.D.O.S. 372 a
WILLIAM G. BARKER, Plaintiff an
Vv.
WILLIAM C. HULL e
Respondents.
No. A033026
First Appellate District
Division One
Super.Ct.No. 268203
County of San Mateo; VEAL, Judge
Filed April 21, 1987
NEWSOM, J.:
This appeal presents the question of when a tal order denying
a motion to vacate a default judgment based upon fraud prevents
a party from relitigating the issue of fraud in a collateral proceed-
ing.
ppellant,
l., Defendants ah
has not challenged the commission’s -
, tion of a general demurrer.
A default judgment was entered against appellant Barker on
December 26, 1975, in an action filed by respondent Hull against
Barker and a corporation of which Barker was president. In June
1982, Hull filed an abstract of judgment against Barker as an indi-
vidual.
In July 1Q82, Barker filed a motion to set aside the judgment sup-
ported by hig declaration stating that Barker was told by Hull that
not being filed against Barker individually, but in
n officer of the corporation, in order to allow Hull
ent against the corporation so that Hull’s losses
as a Shareholder\would qualify for a tax deduction. Points and
authorities in support of the motion stated that the motion was
based on oral and documentary evidence and argued that extrinsic
fraud and mistake pre\ented Barker from asserting his defenses as
a corporate officer. The parties appeared before the court on August
6, 1982, when the matter was continued to August 30. A subsequent
declaration of Barker’s coumsel stated that one purpose of the con-
tinuance was to allow the \parties to obtain a transcript of the
default hearing, at which Barker claimed to have told the court that
he consekted to the judgment because no personal liability would
attach to him. No transcript or reporter’s notes existed. On October
10, 1982, thésuperior court denied the motion to set aside the judg-
ment, reciting in the order that bath oral and documentary evi-
dence was considered\and that the mation, based on extrinsic fraud
or mistake, was ‘denied.
On October 6, 1982) Barker filed the instant action against Hull
and his attorney, Brans n, for breach of ntract, fraud and deceit,
acy. Each cause of act
tion that no judgment
On June i 1985, respo
e matter was heard
and motion calendar; that no oral testimony was taken at the hear-
ing; that the = were given an opportunity to locate the yeport-
to, and did, depose
The court decided
promises to Barker tegarding nen-liability |
s the func-
admits all material and:
“The motion for judg
issuable facts pleaded.” ’ [Ci
Water & Power (1977) 69 Cal: |
facts alleged in the complain may consider matters
court records. (Stencel
Aero Engineering Corp v. Superter Court\(1976) 56 Cal.App.3d
978, 987, and fn. 6.) The standard of appellate review of a judgment
on the pleadings is, therefore, identical to that on a judgment fol-
lowing the sustaining of a demurrer. (Baillargeon, supra, at p. 675.)
We discuss the complaint in light of these principles.
The instant complaint is not a direct attack on the former judg-
ment, but a collateral attempt to obtain damages for actions taken
\ connection with entry of that judgment. Each of Barker’s five
auses of,action is based upon the alleged representations of Hull
AN
1The trial court stated, “I have had my researchers and myself search the
records to see if there is some reasoning given and simply [sic] is a statement that
it is denied on the grounds of no showing of extrinsic fraud.” It is appropriate
to consider the whole file and although no one requested this, no one objected.
Accordingly, pursuant to Evidence Code section 459 we also take judicial notice
of the file in the earlier case.
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» continued from page 29
hundred yards away, unhooking it from the
car. After their meal they went back to the
trailer house. Betty fed her baby, undressed
him and tucked him in his crib. Then she and
Allen undressed and went to bed. She was
nude and Allen had on his shorts and: under-
shirt, ready if necessary to get up with the:
baby during the night.
The crisp Arizona winter night was silent
except for the occasional whir of motors and
tires whistling against the pavement on Route
66. The Allens lay in each other’s arms for.
a while. By 10:30 that night of Tuesday,
+December 1, they were asleep in their trailer
by the side of Route 66.
They’d been in bed about an hour. It was
sometime between 11 and midnight when the
unlocked door of their trailer squeaked open.
Allen blinked and saw the shadowy bulk of a
man creeping to his bed. He stiffened. His
wife whispered, “What is that noise, Ray?
What’s the matter?”
A flashlight snapped on, blinding them. Then
a hoarse, desperate voice said, “This is a
holdup .. . You hear, this is a holdup.” The
man kept saying it two or three times. He
waved something in his hand. They couldn’t
tell in the darkness whether it was a gun or
not.
“T want your truck,” the voice said. “Give
me your truck.”
Suddenly they recognized the voice. The
urging, carnival barker voice, the- friendly old
man who had followed them. They held their
breaths.
“Roll over on your stomachs,” he ordered.
“Roll over.” The man towered over them,
waving his arm. Mrs. Allen lay frozen on her
back, staring into the blinding flashlight, too
frightened to close her eyes.
“Roll over on your stomachs,” the voice
snarled.
Allen wanted to spring up and fight. But
he thought of Betty and his son, Larry.
If Allen fought back the man might shoot
them all. If he wanted only the truck or
money, he could have it. Just so he didn’t
harm Betty or Larry.
“Tf you don’t roll over, you'll get it,” the
man shouted.
The Allens rolled over in their bed. The
man’s weight squeaked the bed. He was on
his knees astraddle them, tying their hands
behind their backs.
“KEEP quiet. All I want is the truck. That’s
all. Where’s your money?”
“We’ve got no money. We’ve got nothing
you want,” Allen said. “You must have the
wrong people.”
The man grabbed Allen’s trousers, and found
$20 in the pockets.
“You liar,” he said, counting the money.
“You told me you had none.” He gagged them
with scraps of clothing, Mrs. Allen’s slip
knotted tightly in her husbands’ mouth. He
tied a ‘blanket over their heads, blindfolding
them, then tied their feet, jerking the ropes
tight until they cut off circulation and bruised
their flesh.
He left the trailer, and started the motor of
Allen’s pickup truck. But he didn’t drive off
yet. The Allens heard the clank as he hooked
their trailer to the truck. Then he pulled out,
the trailer moving behind him.
Where ‘was he taking them? What about
their baby, still sleeping in his crib? Allen tried
to kick loose, but his bonds were like a strait-
jacket. He kicked and rolled off his bed, frantic.
The truck stopped moving. Allen figured.
they’d gone about a mile from their parking
place. The truck motor stopped. The door
slammed. Heavy. feet crunched lodse gravel.
He was coming back to the trailer. Maybe to
unhook the trailer and leave them alone. But
the footsteps didn’t pause at the trailer hitch.
They kept crunching. The Allens heard the
door squeak. The steps crossed the house
trailer floor. The man grabbed Allen, cursing
him in the same carnival singsong he’d used
when he welcomed them to the southwest.
“You lied about the money. You're a liar,”
he said, dragging Allen to the front room of
the trailer. There he left him. Allen tried to
wrench his feet and hands free of the ropes,
but it was no use. He gnawed at the gag, his
wife’s slip. The man was going back to Mrs.
Allen, *
Allen. heard ‘the bed springs squeaking under
the mans’ weight, then his wife being dragged
to the back room in the opposite end of the
trailer. The man must have ripped the gag out
of her mouth because she began to scream.
“No, no, please don’t do that, you’re hurting
’ Her screams were ‘smothered out for a
moment, then burst through ‘the trailer again.
“Don’t touch me, don’t, my husband will kill
you.” .
Allen chewed at the gag until he felt a few
threads break. He banged his face against the
floor, grinding his teeth into the flimsy cloth.
Given time, he might tear himself free. The
attacker laughed and howled like a wild ani-
mal, screaming at Mrs. Allen. “You lied about
the money, I'll show you what happens to
liars.”
QHE yelled. “He’s setting fire to newspapers,
Ray, he’s going to burn me!” There was
the odor of kerosene. The man was yelling
and laughing madly. “Now we put the fire
. deep under the nice legs and warm up the
girlie.”
Allen tossed and rolled on the floor, trying
to wriggle one foot out of the rope, his wife’s
anguished screams ringing in his ears. The
man was running up and. down the length of
the trailer now, and you could hear the whip-
ping of flames as he waved the burning wad
of newspapers. He was screaming, too, Pick
ing like a hyena.
If Allen could get loose somehow, get out the
trailer door, he could get to his gun in the
glove compartment of his truck. It was about
midnight when he doubled up his knees,
wrenched his body and pulled the knot so
tight that the loop around his ankle was big
enough to let one foot squeeze out. The maniac
was between him and the door. With his hands
tied it would be hard to open it. He could hear
his wife’s sobs in the other end of the trailer.
He staggered up and ran head-on, like a mad
bull, into his wife’s attacker. He would tear his
head off with his bare hands. But his hands
were still tied behind his back. The maniac
knocked him down and tied him up again,
then ran back to the wife. ;
Allen heard the maniac’s wild animal grunts
and his wife crying. He bit the nylon gag
frantically. Then the trailer door slammed, the
pickup started up again and the trailer was
moving. Mrs. Allen. sobbed, “I’m still tied up.
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I can’t get loose. Oh, he’s hurt me, Ray.
Please help me if you can, honey. He hasn’t
found the baby yet. If only the baby stays
asleep, maybe he won’t find him. . .”
Allen was helpless. He couldn’t .even speak.
His wife’s slip was tied around his head and
he couldn’t see. He almost lost consciousness.
But he kept awake, struggling.
The trailer stopped with a jolt. The madman
ran back to the trailer, raving, “Now I’m
stuck-in a mudhole and can’t get out.” He
went back to the woman and her husband
listened to her screaming. He smelled the rag-
burning odor of newspapers on fire, the sick-
ening odor of singed hair rushing through the
darkened trailer, and her “screams chilled his
insides.
“He’s burning my eyes,” she gasped. “Oh
help, Jesus God .. . it hurts.” His hand whip-
cracked against her face.”
She moaned and furniture clattered and the
floor thudded as her body fell under the
maniac’s fists.
“Have mercy,” she cried, begging that he
leave her alone. Allen didn’t know how’ long
the beating went on. He lost track of time
in an endless nightmare. He gnawed the gag
with his teeth, sawed at the ropes binding his
ankles and arms on a table leg.
“"YHE police will get you,” his wife sobbed
at her attacker. “There’s a law.”
The madman howled, “I laugh at law. You
think you’re the first one? There was one tied
to a pinion tree raped till she went out of her
mind. I laugh at law. I never spent a day in
the penitentiary. Everybody knows me, Carl
J. Folk. And, girlie, you’re going to know me
best_of all.” y
Mrs. Allen yelled. He muffled her yells and
cried out, “Now. we play matches.”
“No, please don’t burn me any more. I can’t
stand it,” she shrieked: But the man was in
a frenzy, yelling and burning her nude bady.
Every time he shouted she answered with’ an
agonized scream.
Allen’s only chance to save her lay in’ his
getting to the gun he kept in the glove com-
partment of his truck. But he couldn't get
loose.
The madman left the trailer and in a
minute he was back with the sound of a
metal can banging against the trailer walls and
the strong greasy odor of kerosene everywhere,
“T'll burn you alive,” he shouted above Mrs.
Allen’s screams.
Allen worked to get loose, fighting panic, his
body dripping cold sweat, his only thought to
get loose and save his wife and baby. The orgy
had gone on for hours. It must be almost day-
light, and his wife had been screaming all night.
She was still‘crying in pain and terror and
begging him to break loose and help her if
he could.
The maniac’s hairy hands strangled her
screams, She gurgled and sobbed, “Oh God,
help me, save my baby.” Then the screams
were choked down and the trailer was quiet
for the first’ time all night. There was no
sound except the exhausted maniac’s wheezing
breath.; ? i
Now, Allen knew, he was going to set fire
to the kerosene-soaked trailer. He had to get
-loose now or never.
His teeth tore into the gag and he finally
ripped it off. He doubled up and tore with his
. teeth at the rope binding his ankles. He felt
like the ropes were cutting to the bone. He
gnawed and clenched his teeth until he snapped
the knot loose and his legs were free.’
He staggered to his feet and eased quietly to
the front door of the trailer house, turning his
back against it so his tied hands could fumble
with the doorknob. He rattled it and held his
breath for fear the man had heard it.’ Then
he got it open and plunged out and stumbled
towards the .pavement of Route 66, his hands
still tied behind his back, the rope dragging.
He. tried to stop ‘two automobiles but they
whistled past him going west. Then a truck
rumbled downhill and stopped.
“There’s awful trouble in my trailer,” Allen
mumbled over and over while C. J. Rice of
Wichita, Kans., the truck driver, jumped out
of the cab of his truck and sliced the bonds
with his pocket knife. Two other trucks
pulled up behind and Rice flagged them down.
Allen, his hands free, ran back to the trailer,
the truckers following. : .
The madman was still in. there with Allen’s
wife and baby. He held his breath, hoping the
man hadn’t found his gun in the dashboard of
the truck. He ran. The gun was there.
‘Allen grabbed it and saw the madman
come out one door of the trailer house.
Allen ran around the trailer and the madman
‘started after him, When he was near enough,
Allen fired six times, one after another, empty-
ing the gun at the madman’s shadow. Allen -
thought he hit .him all six times, but he didn’t
stop to find out. He ran into the trailer, and
found his wife lying between the bed anda
small chest. He bent over her ruined, tortured
body. He’ tried to give her artificial ‘respira-
tion but she was very limp and he knew she
waS dead and he broke down and cried.
Inside the trailer the truck drivers found the
Allen baby sound asleep in his crib. He hadn’t
stirred all night long. It was 6 A.M. now, and
the child had slept unharmed through the more
than six-hour orgy of terror, rape and murder.
The fact that he slept, soundly probably saved
his life. } ‘
The maniac had fallen 200 yards down the
road from the trailer, hit once, a bullet in his
belly. But he was still alive: Sheriff Ben Pear-
son sped the 14 miles from Holbrook, Ariz:, to
the scene of murder. He had the suspect, Carl
J. Folk, of Albuquerque and Clovis, N. M.,
taken to a hospital. '
Dr. Donald DeMarse of Holbrook reported
Mrs. Allen’s hair and eyebrows and eyelashes .
singed, hideous burns on her chin, neck, breasts
and abdomen. Her ankles, wrists and neck
were raw from the bonds that: held her. Cor-
oner A. .G; McCloskey empaneléd a jury and
they brought in a verdict of “Choked to death
by the hands of Carl J. Folk.” She had died
at about 5:45 a.m., about the time Allen tore
his leg bonds loose and left the trailer,
IN THE darkness'the Allens hadn’t been ‘able
to tell what kind of gun Folk had waved at
them when he broke into their trailer. Tron-
ically tragic, it was a toy. The day after the
murder they put the Allen baby to sleep in
the Holbrook hospital. Allen, shocked and
dazed, spurned a hospital bed and slept fitfully
in the trailer where’ his wife had died, now,
parked in front’ of the sheriff's affice.
a? sched: ; HE ‘sound
out who the suspect was—Carl J. Folk, carni-
val operator and former owner of Folk’s
Celebration Shows, a convicted rapist, a widely .
known sex maniac on “parole” or “convalescent
leave” from the New Mexico State Hospital
and on probation’ for a sex crime at the time
of the tragedy! °° je MAS
He had legally maneuvered through strange
loopholes iin the law, and had never even gone
é * Mien
to prison for the torture-rape of a 17-year-old
New Mexico girl in 1949, On July 19, 1949,
the girl had answered his newspaper ad for a
housekeeper, She telephoned him. He asked
her to meet him in front of the Albuquerque
post office. She did, and got into his car when
he said he would take her to meet his wife.
Instead he took her to a spot 18 miles north
of San Ysidro on State Road 45, tied her
hands and feet, to a pinion tree, raped her
three ‘times, pinched her, beat and scratched
her, cut her with a knife and left her tied to
the ‘tree beside a lonely mountain road.
Captain Nash Garcia of the State Police had
arrested Folk after tracing the automobile
described by the victim. Folk was charged with
rape a week’ after the attack. Then a big
carnival owner, he started legal delays. There
was a change of venue from Sandoval to Ber-
nalillo County. A sanity hearing . was held
on November 1, 1949 ‘by District Judge R. F.
Deacon Arledge of Albuquerque, who declared _
Folk insane and ordered him committed to the
State Insane Asylum. ;
BETWEEN his arrest and his trial Folk
spent four months in the asylum. Then he
’ was given a convalescent leave or parole from
the hospital, on $10,000 bond in custody of
his wife and attorneys, to stand trial for rape
and contributing to the delinquency of a minor.
The jury trial lasted three days. Folk re-
newed his insanity plea at the trial but the
jury ruled he was sane at the time of the
crime and convicted him on both counts.
Judge Arledge sentenced him to from ten to
15 years in prison on the rape charge, and five
years on the contributing charge, both terms
to run concurrently.
Folk immediately appealed to the State
Supreme Court, and was freed‘on bond, turned
Toose. Eight months later, in August, 1952,
the supreme court, on a technicality, set aside
‘the’ old trial and ordered a new one. The
judges argued that because Folk had once
been declared insane, a jury could not try
him until he had been declared sane again. The
jury had neglected to make a formal declara-
tion that he was sane at the time they tried
him.
There was no serious doubt about his guilt
in raping the girl. The victim had been on the
witness stand three hours at the first trial;
witnesses had testified they’d found her still
tied to the pinion tree and untied her. Her
bloody clothing had been introduced as evi-
dence. ~ t
But the court set aside the whole trial. The
courts and mental hospitals both loosed Folk
. on the innocent. He never went to the peni-
tentiary. After the conviction was thrown
out Judge Arledge ordered. another psychiatric
examination and Folk was declared sane, there-
' fore ready to stand another jury trial.
During the long months of delay his poor
17-year-old victim herself went insane and
was ‘committed to the state hospital. State
Police Captain Garcia had been ambushed and
murdered by two Indians. So ‘neither the girl
nor Garcia could have testified at a new trial.
—-Phe-district-attorney—decidedhe-had -no case
without the old witnesses, so he moved to
drop the rape charge. This charge was dropped
and never tried again. Folk, following the
criminal’s “tradeout” pattern, now pleaded
guilty to contributing to the delinquency of
a’ minor charge after the more serious charge
was dismissed. On November 10, 1952, Judge
Arledge gave him a five-year suspended sen-
‘tence. One of the conditions of the sentence
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In At The Finish
Drink Up—Harlow Fraden, 22, confessed
killer of his parents (Drink Up, Folks, I’m
Working, March INSIDE, 1954), ‘was com-
mitted to Matteawan State Hospital for
the Criminal Insane, Bronx, N. Y. County
Judge James M.- Barrett at the same time
suspended the first degree murder indict-
ment against the boy. Fraden’s pal and
co-defendant, Denis Wepman, was judged
sane, however, and he pleaded not guilty to
the murder charge. Wepman, who was
seized as a passive accomplice in the crime,
faces trial alone.
Crazy Carl—Former Carnival owner
Carl J. Folk was sentenced to die in the
Arizona gas chamber for the brutal torture-
slaying of Mrs. Betty Faye Allen (Every-
one Knows Crazy Carl, March INSIDE,
1954). Folk was found guilty of first’ de-
gree murder after the Holbrook, Ariz., jury
had debated for one hour and 22 minutes.
et's Play—James David Griffiths, 20,
of Pueblo, Colo., and Larry Ray Aldrich,
19, of Des Moines, Ia., were sentenced to
life imprisonment for the pop-bottle mur-
der of a crippled Claremore, Okla., service
station attendant (Let’s Play Kill, April
INSIDE, 1954). District Judge Josh J. Evans
warned the two boys not to return to his
court with an appeal, saying he had a “close
choice” between ordering life imprisonment
or execution. Mrs. Shirlie Hooks Abantha,
17, and Sylvester Collette, also 17, pleaded
innocent to the murder charge, but have yet
to stand trial.
Dead Women—In Denver, Colo.,
Judge Garold H. Davies directed a verdict
of innocent on the murder count of a three
count indictment against John H. Baney
(Dead Women Tell Tales, January INSIDE,
1954). The jury will consider counts of
rape and assault to rape only. Judge Davies,
in directing the verdict, granted a motion
by Attorney Robert B. Lee contending that
the defense had shown evidence that Mrs.
Dorothy Gall died, not as a result of being
raped, but as a result of the procaine anes-
thetic administered at a hospital before
surgery
Terror—A murder charge was filed
against 19-year-old Tommy Walker, who
has been accused in the rape-slaying of
Mrs. H. C. Parker which aroused Dallas,
Tex., last fall (Terror Feeds On Moonlight,
January INSIDE, 1954). The youthful sus-
pect has signed a confession, but captain
Will Fritz of the Dallas Police Department
said he could not be sure of the boy’s guilt
until all evidence had been checked.
Football—In Chicago, James Dodd,
who admitted kicking his two-year-old son
across the length of a room (Kicked Him
Like A Football, January INSIDE, 1954)
was sentenced to 25 years in prison on a
murder charge. Dodd pleaded guilty after
the state indicated that it would demand
a jury trial and the death penalty if he
didn’t
Still Not in Rome—lItalian globe-trot-
ter Pietro Mele is shown (hatless in center)
leaving a police launch at a New York pier
after he was taken off the Europe-bound
liner Constitution. It was halted in lower
I’m tired and I wanna go home—to Kome.
New York Bay at the request of police
after Mele’s $1000 bail on a simple assault
charge was revoked. Officers of the district
attorney’s force took Mele off the ship. The
assault charge resulted from a scuffle with
police outside the apartment of glamor girl
Brenda Frazier (When Not In Rome ...,
February INSIDE, 1954).
A Final Strike—tIn San Francisco, Cal.,
Mrs. Rowena Johnson and her paramour
partner in murder, H. Don Waller, drew a
total of three life sentences after they had
pleaded guilty to stabbing her estranged
husband to death in his Richmond, Cal.,
apartment (Strike Now—He’s Sleeping,
February InsIpE, 1954). Mrs. Johnson will
spend the rest of her life in the women’s
prison at Corona. Waller received two life
terms when it was learned that he had
seven prior convictions on charges of auto
theft and burglary. He was described by
Superior Judge Wakefield Taylor as ‘“‘a
os
Three life sentences for Rowena and Don.
habitual criminal.’ Photo shows Mrs.
Johnson (right) at a pre-trial coroner’s
hearing. She ,broke down several times
during questioning about the brutal stab-
bing of her husband. With her are Police-
woman Mary Lou Butler and Police Ser-
geant Fay Hawkins.
Hot-Lead —T went y- one-year-old
Charles Struhart was found guilty of the
murder of Jack Hendricks (The Hot-Lead
Kid From Maxwell Street, August INSIDE,
1953) and sentenced to 20 years in prison
by a criminal court jury in Chicago. Joseph
Sustak, 26, Struhart’s companion on the
shooting spree which cost Hendricks his
life was earlier sentenced to life imprison-
ment. Policeman Anthony Kasten, wounded
in the gun battle with the boys, has made a
successful recovery.
Kiss of Death—Evan Charles Thomas
the “Phantom Sniper” who prowled the
dark streets of Los Angeles, Cal., in 1951
shooting at women with a rifle (Bullets Are
Kisses, July inswe, 1952) was executed in
the lethal gas chamber at San Quentin.
Thomas was told only 15 minutes before
his death, that his personally handwritten
plea for a stay of execution had been denied
The 30-year-old killer, who shot at women
“because it sexually excited me,” took the
news calmly, saying, “I didn’t really expect
anything else.”
Flickering Out—Gunman Luther Car-
lyle Wheeler died in Mississippi's electric
chair at Hattiesburg, Miss., for the murder
of two policemen (The Blonde Has Flick-
ering Green Eyes, July INSIDE, 1952). He
was singing “Jesus, Hold My Hand” until
a jolt of electricity silenced him. As
Wheeler had been led from his cell block
he had spurned the shouted plea of Elaine
Foreman, his convicted girlfriend accom-
plice, that he confess his crime. ‘Baby,
don’t testify to people, testify to God,”
he shouted back to the woman who was in
another cell awaiting an appeal of her life
sentence.
Along the Highway—Bernard Prigan
who confessed to assaulting over 100 wom
en, was sentenced in Manheim, Germany,
to three terms for killing three of his vic-
tims (Highway Of Murdered Women, Au-
gust INSIDE, 1953). German law does not
permit the death penalty.
Tin Hero—John D. Mulqueen, 25, of
Cudahy, Wis., was sentenced to one to two
years in state prison for manslaughter and
one to eight years for theft of his victim’s
car. (Look For The Little Tin Hero, Feb-
ruary INSIDE, 1954). Mulqueen admitted
killing and robbing Korean war veteran
Captain Lloyd G.. Larson. Judge Kenneth
S. White ruled the sentences will run con-
currently, which means Mulqueen can serve
both at the same time.
Down Mexico Way—A federal judge in
the small town of Izucar De Matamoros.
Mexico, sentenced Hombono Lavarria
Alonso to 30 years in prison, Manue] San-
chez Ramirez to 28 years and Maurilio
Moctezuma Soriano to 26 years. The three
confessed to killing Dr. Ralph Swain of
Benton, Ill., in a highway robbery (Bad-
Will Ambassadors, January INSIDE, 1954)
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case
d to
ypect
the
eaded
ot
narge
Judge
i sen-
itence
was that he had to stay out of New Mexico.
Dr. C. J. Stillinger, superintendent of the
New Mexico State Hospital, said Folk was’
never officially released from the hospital. ;
“We couldn’t release him. He was on con-.
valescent leave. He is like hundreds of others
who never come back... .”
_ Carl Folk never went to New Mexico prison,
but even if he had, he would likely have been
released eventually to repeat his crime. Most
sex maniacs in New Mexico when captured
never even go to a psychiatric hospital for:
treatment. During the last two years 40 sex
criminals have been sent to New Mexico State
Prison. Most of them will serve their terms
behind bars, then be released on the public.
Many are repeaters, and will be again.
A-convict from Grant County, serving five
years for indecently handling a minor, has
been in jail for that same crime before in
Texas. Another, in for rape, has already been
in prison once for contributing to the de-
linquency of a minor, Another serving time
has a history of rape in Oklahoma and intent
to rape in New Mexico.
EX criminals follow a pattern. First it’s
window peeping. Then it’s molesting min-
ors. Later he exposes himself to others. Then
he caps his career with a violent sex crime,
rape or murder—as Folk did.
Folk’s FBI record showed that he had been
arrested 11 times in 26 years: for assault and
battery in Jackson, Mich., in 1928; for com-
mitting a crime while armed with a pistol in
1930 at Michigan City, Ind.; for removing
mortgaged property, aggravated assault, ob-
taining money by false pretenses . . .
Late in 1951 the federal government seized
Folk’s carnival and auctioned ‘it off to pay
$40,000 in back income taxes. Other carnival
¢
operators had pooled money and ‘bought back
for Folk’one carnival ride and ahouse trailer.
After the murder, Senator Clinton Anderson,
Governor .Edwin J. Mechem’ of New Mexico,
Attorney Gereral Richard Robinson and other
authorities called for better legislation in crim-
inal and ‘insanity cases, planned to tighten laws
and probation systenis to corral maniacs and
prevent other sex murders. ‘ine
State Penitentiary Warden Morris Abram
had urged such legislation for years, but was
ignored. Any legislation would be too late to
help Mrs. Allen. Her mutilated body was
shippéd back’ to Pennsylvania for burial. On
Friday, December 4, Folk was charged with
murder at Holbrook, Arizona. i “.
He was still in the hospital, but Dr. H. B.
Potthoff said, “The slug is lodged safely
against a rib—it is harmless.” The slug, prob-
ably would not even have to be removed. The
60-year-old suspect willingly talked to doctors
about his injury, but refused to talk to officers
about Mrs. Allen. —
He played coy and closed his eyes, feigning
unconsciousness every : time they. tried to
question him at the hospital. On December 9,
he was still coy, still refusing to talk about
the murder of Mrs: Allen.
Senator Clinton P. Anderson of New Mexico
said, “No one knows how many women he has
violated . . . Until we are ready to advertise
that criminals once caught will be kept behind
bars, then your wife, your daughter, or the
friend of your wife or daughter may be next on
the list : . . We have furnished legal loopholes
through which a’ criminal can squirm- his way
out of the hands of the law .... There was a
lot to be said for early justice on the western
plains ... A few generations ago this man when
first caught and his crime established, would
have been strung up to the nearest tre¢:”
5
The Cat Woman’s Last Furlough
continued from page 55
signature and handwriting. The samples bore
little resemblance to the handwriting on the
checks.
They were crude forgeries. Judging by the
hand, they had been written by a woman. All
the checks had been cashed within the past
week in Salinas stores. Most of them had been
turned in bv the Purity market near Jonassen’s
apartment house.
At the market, detectives quickly learned
that the checks had been cashed by a short,
dark-haired, middle-aged woman. She had told
the grocery clerks, in a southern accent, that
she was cashing the checks at the request of Mr.
Jonassen, as a favor to the old man.
It didn’t take much work to establish that
the lady with the southern accent was the
Arkansas belle, otherwise known as the Cat
Woman.
Captain Crocker thought it was time now
to find out what the folks down home knew
about Winona Ola Freeman. He placed a tele-
phone call to the police in Little Rock.
An inspector listened to Crocker’s request and
promised to call back. When he did, he told
Crocker: “Get yourself a pencil and lots of
paper. I got a lot to tell you. I'll tell you first
off, you probably got a murder on your hands
instead of a missing person.”
Winona Ola Freeman’s story began in August,
1924, when her name was Winona Green. This
much of what she had said was true: she was
a beauty then, 24 years old, with skin like -
cream, a soft sensuous mouth, and a supple body
that made men stare.
She was a new bride then. She had married
a young man who wasn’t fond of work. This set
pretty Winona to thinking about her father-
‘in-law, J. R. Green, a middle-aged railroad
switchman who had made a small fortune in
the stock market. :
N AUGUST 17, 1924, J. R.. Green was
found shot to/ death in his home in Little
Rock, At first it seemed like.a suicide or an
accidental shooting. But as a police investiga-
tion got underway, Green’s widow and his
daughter-in-law, Winona, dropped out of sight.
It took the police two months to catch up.
with Winona, When they found her, she was
in Pueblo, Colo., with her husband, whom she
had sweet-talked into believing in her inno-
cence. | a
With Wisiona back in Little Rock, the ques-
tioning got underway. At first she didn’t have
any idea who could. have shot “poor daddy,”
as she called her father-in-law. Finally, she
admitted that she. herself had done in “poor
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7 Aug. 22, 1978: A worker at a nearby plant notices a foul odor and discovers the badly |
decomposed body of Gary Tison, 42, beneath an ironwood tree in a wash south of Casa Grande.
* Nov. 15, 1978: The Judges' decomposed bodies are found buried near Pagosa Springs, Colo.
* Feb. 16, 1979: A Yuma County Superior Court jury finds Greenawalt guilty in the Lyons'
slayings after an eight-day trial.
* March 26, 1979: Judge Douglas Keddie sentences Greenawalt to death for the slayings near
Quartzsite.
* March 29, 1979: Keddie sentences Raymond and Ricky Tison to death.
* Feb. 17, 1988: A federal judge sets aside Greenawalt's murder conviction and grants him a new
trial because police questioned Greenawalt after he asked for a lawyer.
* Aug. 22, 1991: A federal appellate court reinstates Greenawalt's death sentence, citing new
U.S. Supreme Court restrictions on appeals.
* April 10, 1992: The U.S. Supreme Court overturns the Tison brothers' death sentence and they
are resentenced to life terms in prison.
* Jan. 23, 1997: After years of state and federal court appeals, and two stays of execution,
Greenawalt is scheduled to die by lethal injection at the Arizona State Prison Complex-Florence at
12:05 a.m.
Suey /-(7F-F7
Back Next Today's News Home A KI Z oN, a DA! Ly STAR
(Tucson AZ)
‘\ nV i a —
ge
‘| had three grandchildren to protect and that was all. That was what I was doing. I was doing
what they told me to do," she said. *’They had a gun at my chest and another gun at my head."
Ehrmentraut later was convicted of helping the escapees, by buying them a truck, and received
probation. :
From Flagstaff, the men made their way to Clovis, N.M., to meet Gary Tison's brother, who they
thought would fly them to Mexico.
Tison's brother tipped off authorities in exchange for leniency on drug charges pending against
him, Holmes said.
But the men never showed up.
Authorities suspect they saw cops or a television news crew at the airstrip and split.
The men then headed toward Colorado, where they apparently murdered their last victims.
When they came upon a Texas couple traveling near Pagosa Springs, Colo., in a blue van, they
reportedly shot newlyweds James and Margene Judge in the back of the head.
James, 23, and Margene, 26, had been married less than a week earlier in Texas, said James
‘Judge Sr., Judge's father. The couple headed to Colorado to camp.
James Judge, a carpenter, met the vibrant Margene at his brother's office, where she worked as a
legal secretary, the elder Judge said.
‘They were planning on great things together," he said.
Authorities didn't find the Judges, who were buried in a shallow grave, until months after the
fugitives were captured while driving the couple's van.
Meanwhile, fear gripped the state as word spread of the fugitives' bloody rampage.
Armed guards manned roadblocks across the state and frenzied news reports of possible sightings
dominated the airwaves. Detectives on their trail missed them by just hours several times after
sightings.
‘People were terrified," Reyes said.
Then the gang took the van and headed right where Reyes suspected they would: home to Pinal
County.
‘‘We just had the feeling they were going to come here," Reyes said.
Reyes got word that a nearby National Guard Armory had been broken into, and he knew it was
Tison's work. Gary Tison grew up in Casa Grande, where he had returned after two previous
prison escapes.
So Reyes set up two roadblocks, seven miles apart, on a two-lane, paved road that winds through
the rocky hills south of Casa Grande.
At about 3 a.m., on Aug. 11, 1978, they showed up.
8The men smashed through the first roadblock, shooting at deputies, Holmes said.
ARIZONA Dilly STAR
Sivdag /-/7-F7
A 3
On July. 30, 1978, the three young men smuggled shotguns in an ice chest into a control room of a -
medium-security unit of the State Prison Complex-Florence.
They forced a handful of guards at gunpoint into an office and took off in a truck. They fled to a
fully stocked, white Lincoln Continental stashed at the nearby county hospital.
Free at last, the fugitives headed west.
The men hoped Gary Tison's wife and the boys' mother, Dorothy Tison, would be able to arrange
for a plane to meet them near Gila Bend and fly them to Mexico, Clarke said.
But the plane didn't arrive and they embarked upon what would soon become a bloody journey
through three states.
The day after the escape, two tires on the men's getaway car went flat at night, stranding them on
a dark, isolated stretch of U.S. 95, about 25 miles south of Quartzsite.
They flagged down Marine Set. John Lyons, who was driving his wife, 22-month-old son and
15-year-old niece to Omaha, Neb.
Tison's sons later told authorities that Tison forced the family into the disabled getaway car.
Gary Tison and Greenawalt shot them at least 16 times through the rear window with shotguns,
Ricky Tison told police.
‘John Lyons begged Gary Tison and Randy Greenawalt for the lives of him and his family, and in
fact his last words were: ‘Jesus. Don't kill me,'" said Mark Hessinger, a deputy Yuma County
attorney at Greenawalt's clemency hearing Friday.
A state Game and Fish Department worker discovered the Lyonses' bodies six days after the
shooting, said Pinal County Sheriff's Cpl. Perry Holmes.
RIZNA DAlLy STAR
On Aug. 11, 1978, searchers found the body of the couple's niece, Theresa Tyson, 15, in the
desert about a half-mile from the car.
She was shot in the hip while in the car, crawled away and bled to death.
‘They stopped to help them, and that's what they got - killed," Holmes said.
/-1%-%/7
The men took off in Lyons' Mazda and headed for Flagstaff, where they camped in the woods.
On Aug. 2, 1978, they showed up at the mobile home of Kathleen Ehrmentraut, then 53, who lived
about eight miles east of Flagstaff.
Ehrmentraut had met Greenawalt several years before when she wrote a letter to the prison.
Cr ha Aer F
She said they started corresponding and became friends.
‘I tried to be a mother to Greenawalt because his mother would have nothing to do with him,"
Ehrmentraut said in a recent telephone interview. ‘He said he didn't have anybody to help him,
and I tried to help him."
She said Greenawalt and his gun-wielding partners showed up at her mobile home and demanded
she fix them some food and keep her young grandchildren quiet. _
gee
Murderer's execution will end long saga
David Sanders,
The Arizona Daily Star
UA Professor James W. Clarke, author of ‘‘Last Rampage," will be a witness at the
execution
By Alexa Haussler Se nd 7 /~ / 7- 17
The Arizona Daily Star (Tu C Son AZ)
Pinal County Sheriff Frank Reyes was invited to several executions during his 20-year career, but
he never went. He never saw the need.
But when the invitation arrived for Randy Greenawalt's, he readily accepted.
‘This one is different," Reyes said.
The sheriff was serving his first term when Greenawalt escaped from prison in F lOTenice and
ultimately was captured in Pinal County after a 12-day murder spree.
It was a heck of a welcome.
‘They helped me grow up," he now says wryly, adding that he coordinated efforts of cops and
federal investigators from across the Southwest.
Now, at 58, he's ready to turn the job over to someone else when his current term ends in four
years.
And he feels that with Greenawalt's execution, his time as sheriff has come full circle.
‘‘A chapter has closed," he said.
It was a chapter that began in the summer of 1978.
Donald, Ricky and Raymond Tison plotted for months to spring their father, whom they idolized
and fiercely believed to be wrongly imprisoned, said James W. Clarke, a University of Arizona
political science professor who researched the Tison family for five years.
Stnday /- /9-97
By Pamela Manson
The Arizona Republic
Ricky Tison, described as the
manipulated son of “one of the biggest
sociopaths in. Arizona history,” on
Friday won a final reprieve from the
gas chamber when he was given life
sentences for his part in the slaying of
four people.
Judge Robert Gottsfield of Mari-
copa County Superior Court. imposed
four life sentences, making two of
them consecutive and two concurrent.
Tison, who has been on and off
death row since 1979, will be required
to serve 50 years before he theoreti-
cally could be paroled.
The odds are overwhelming that he
will die in prison. Under the state’s
old criminal code, he is serving life
sentences without possibility of parole
— meaning to the end of his natural
life — for kidnapping.
Tison, 33, apologized for his
crimes, which his lawyer said he
committed because he was manipu-
lated by his father.
“I wish I had the insight back
then,” he said. “It wouldn't have
happened if I did.”
His brother, Raymond, who also
had been on death row, will be
resentenced Friday.
The Tisons, their brother and their
father were part of one of the most
notorious crime sprees in the state.
The Arizona Republic
Saturday, July 11, 1992
Ricky. Tison
appears in
Maricopa County
Superior Court
for resentencing.
Tison, who was
19 when he was
involved in one
of the state’s
most notorious
‘crime sprees,
apologized for
‘his involvement.
“| wish | had the
insight back
then,” he said.
Pool pheto by Tem Tingle/The Phoenix Gazette
Raymond, then 18, Ricky, then 19,
and Donald, then 20, smuggled guns
into the Arizona State Prison at
Florence in July 1978 and forced
guards to release their father, Gary
Tison, and fellow inmate Randy
Greenawalt. The two were serving life
sentences for murder. After the
escape, members of the gang gunned
down a family near Quartzsite.
‘Donald Tison was killed at a police
roadblock near Casa Grande in
August 1978. Gary Tison escaped into
the desert, where he died of exposure.
The other Tison, brothers and
Greenawalt were convicted of murder
and were sentenced to death in 1979.
The Tisons’ sentences were set
aside in 1989 by the Arizona Supreme
Court, which said that a hearing must
be held on whether the brothers either
intended to kill or displayed “‘reckless
indifference” toward human life. The
brothers always have-contended that
they were unaware theif ‘father and
Greenawalt would kill the family.
PHOENIX, AZ
ky Tison taken off death row
Crane McClennen, an _ assistant
attorney general, argued Friday for
four consecutive life terms for Ricky.
“There are four people you have
not heard from,” he told Gottsfield.
“John Lyons. Donnelda Lyons, Chris-
topher Lyons. Theresa Tyson. They’re
dead. Those four people are dead
because of what he did. He owes this
state four lives.”
McClennen said later that he did
not ask for the death penalty because
statements the Tisons made to author-
ities were thrown out. Prosecutors
said those statements were needed to
show that the brothers were major
participants in the slaying, a standard
that must be met for a death sentence.
He sought consecutive sentences
because of the possibility that the
other prison terms could be com-
muted someday, McClennen said.
A psychiatrist who testified at
Friday’s hearing said Gary Tison was
“one of the biggest sociopaths in
Arizona history.”
The father was ‘“‘profoundly”’
skilled at manipulation and convinced
his sons that he was a victim, Dr
Thomas N. Thomas said.
“That’s the only way you can
understand this insane tragedy,”
Thomas said.
By Pamela Manson Phoen x
The Arizona Republic :
The U.S. Supreme Court on Mon-
‘day refused to hear the appeals of five
Arizona death-row inmates, possibly
setting the stage for the execution of
three of them early next year.
Shortly after the high court's
action, the state Attorney General's
Office filed motions ‘with the Arizona
Supreme Court asking that execution
dates be set for James Dean Clark,
John Brewer and Randy Greenawalt.
“This is a giant step toward their
executions,” Attorney General Grant
Woods said Monday.
The three “don’t have anything left,
except what they can dream up” in
the way of appeals, Woods said, and
could face the gas chamber as early as
January.
Lawyers with the Arizona Capital
Representation Project, which helps
with death-sentence appeals, could not
be reached for comment.
Greenawalt and Clark “have been
in front of every court” and have
exhausted their appeals, Woods said.
Brewer has asked to be executed,
Woods said, putting him in the same
position as the other two unless he
changes his mind.
The other two Arizona death-row
inmates, David Cook and Ramon
Joye Brewer / The Randy Greenawalt / James Dean
26-year-old insists that | Escaped from prison in Clark / The 34-year- old
he wants to dle for his 1978 while serving is under four death
crime. sentence for murder. sentences.
‘Fie tla, OOF Le fT
High court turns away
5 death-row inmates
whet tare still can appeal to
lower federal courts, a proccss that
likely will take years.
Greenawalt, 43, was serving a
sentence for murder when he escaped
from the Arizona State. Prison in
Florence in 1978 with another
murderer, Gary Tison, whose threc
sons aided in the breakout. After the
escape, the gang gunned down a
family of four near Quartzsite.
One Tison son, Donald, was killed
«at a police roadblock. Gary Tison
escaped-but died of exposure. Greena-
walt and the two surviving Tison sons,
Raymond and Ricky, were convicted
and sentenced to death.
The Tisons’ sentences later were
overturned, and they were resentenced
to life in prison.
Clark, 34, is under four death
sentences for the murder of the
owners and two ranch hands at a
guest ranch near Elfrida in 1977.
Brewer, 26, was convicted of killing
his pregnant girlfriend at their Flag-
staff apartment in 1987. He insists
that he wants to die for his crime.
Arizona’s first execution since 1963
took place April 6, when triple-
murderer Don Eugene Harding was
put to death in the gas chamber.
There are 102 men and one woman
on Arizona’s death row.
REE Lie <7
Wher ; LAME é-
;
Greenawalt death sentence
% ij ‘ : Vay eig 22 Y # § < 4
Associated Press - . _ Donnelda Lyons and their son Chris a t itwhen =~. |
_ found near the escapees’ abandoned car in Yuma ) etewalte ne i Set |
SAN FRANCISCO County; the body of the Lyonses’ niece, Theresa ©. ui wyer, called >
A federal appeals court on Thursday revived a Tyson; was found nearby five dave latecon ae a
challenge to an Arizona death sentence by ““mucive days after the feissbipe (tect evidence ... one of the few things that ev
nr eigen Crone cicor inrdering four the Tisons tried to drive a stolen van through him in the right county,” 9)
people after escap 8. hbk est ive art eaid sDonald tile ounty, > ‘-
The 9th U.S. Circuit Court of Appeals told a < iSyo police ‘roadblocks, the court said. Do Grpe sacri Cony Ioan
federal judge to reconsider the issue of whether
Greenawalt’s rights were violated when police ’
ible
The U.S. Supreme Court recently” ot Ov. ae as K iit KS for a lawyer, .
neces by two Over. the next nine hours, diff *rs resume questioning unless a~
hearings on appeals from death sentences by tw (0 approached Greenawalt six times and asked tS fade ehlabis sesthot sel enitlen
re. or.
¥
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fos aud Pied a SRS 1S
ee Paris waa y i
ba A =] ¥
$ ’ 5 ~
Sivizers oh *
% or * H rd. Bc ]
killed after the group tried to 312 ne, a ¢ knew i
roadblock more than a week after the escape. Greenawalt woke him in his cell'and questioned Statement to the'de
later, the court said, the bodies of John and with him for 10 or 15 minutes through a slit in. the court said. is.
y
$ . vi * :
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<> SNOSId “PHS. L www VNGS UO
Friday, January 15, 1993 The Arizona Republic Bli
reg ey ee ee
Tison Gang killer gets execution stay
By Pamela Manson‘
The Arizona Republic :
Death-row inmate Randy Green-
awalt, who was to “die. next month
for his part“in one of the: state’s
most<infamous crime sprees, has,
been ‘granted a stay of execution by
the Arizona Supreme Court.
Greenawalt, a member of the
so-called Tison Gang, which killed a
family of four in 1978, had -been
scheduled to die Feb. 17.
In granting the stay, the Supreme
Court. said inmates are given 120 .
days after getting a new lawyer to
file new requests to overturn their
sentences. Greenawalt,.43, who was
assigned a new lawyer in November,
claims previous attorneys in his trial
and appeals were ineffective.
The stay was granted Tuesday
and made public. Wednesday.
In ‘other dedth?row rulings this
week, the .high. court Thursday
unanimously upheld the death sen-
tence of Clarence David Hill, 44,
- who killed his landlord in 1989 by
setting him on fire:
Tuesday, it told its clerks to pre-
pare an execution warrant for James
Dean Clark, 35, who is under four
death sentences in the 1977 murders
of the owners and two ranch hands
at a guest ranch near Elfrida.
Also Tuesday, the court denied a
“request: to reconsider a warrant of
execution issued for John George
Brewer, 27, who‘is to die March 3
for the 1987: murder of his pregnant
girlfriend, in-Flagstaff.
Brewer, who says he wants to die
for his crime, had filed a motion
asking the court to restrict “un-
wanted and unrequested access” to
his case by third parties. The court
said it treated. the motion as a
request. by Brewer to continue’
representing himself and granted it.
~
C4 The Arizona Republic Friday, April 10, 1992
~ Woods argues
_. for killers’ words
| in resentencing
By Pamela Manson
The Arizona Republic.
urt. .
But defense attorn i
F ¢y David Hell
Said the Statements, which concatned
the statements were not
sepevitiog factors, Heller ee ™
ow, in 1992,
| uae thom” heey the state wants to
The arguments technically j
| only Raymond Tison’s onl
| Woods said that any ruling will affect
; Se Tisons and that the brothers
| ikely will end up with the same
j .
Sentence,
Raymond, then 18, Ricky, th
and their brother Donald, ther 9°
smuggled guns into the Arizona State
Prison at Florence in July 1978 and
forced guards to release their father,
bisa = fellow inmate Randy
Ww: ¢ two were serving |i
nar ey for murder, ay
er the escape, members of the
gang gunned down a famil
near Quartzsite. edie
Donald Tison was killed at a police
Greenawalt’s trial about what h
pened after the breakout. The Sinthery
Were to get life terms,
But they dropped out of the
convicted of murder in ate trials
and Sentenced to death in 1979,
DAILY OPINION SERVICE
3
Ninth Circuit Court of Appeals 6691
sirability of avoiding frequent appellate review of what essentially
are factual matters.” Jd.
The class next contends that the district court incorrectly found
that the work involved in prosecuting the contempt motion was not
complex litigation. Based on its finding that the work was not com-
plex, the district court applied lower hourly rate figures than those
requested by the class counsel and proposed by the magistrate.
The district court acknowledged that attorneys’ fee awards in
civil rights cases are “governed by the same standards which pre-
vail in other types of equally complex federal litigation..,.” Hens-
ley, 461 U.S. at 430 n.4. The district court found, however, that the
contempt motion was a single motion that did not involve the fac-
tors associated with complex federal litigation such as extensive
discovery, statistical analysis and expert testimony. The court fur-
ther found that the contempt motion was primarily prosecuted on
paper and required no more than the synthesizing of five years of
reports that had been issued by the consent decree monitor.
The district court was familiar with the underlying litigation, the
contents of the consent decree, the process established for monitor-
ing compliance with the consent decree, and the documents filed in
connection with the motion for contempt. Although civil rights cas-
es may be characterized as complex litigation, it was not an abuse
of discretion for the district court to find that the prosecution of a
single motion for contempt that was a part of a civil rights case did
not involve complex work.
The class also contends that the district court erred by rejecting
the class’ proposed figures for billing rates and hours billed. The
class’ position that its higher rates were justified is based on its con-
tention that the work performed was complex. As discussed above,
the district court did not abuse its discretion by refusing to charac-
terize the work as complex. Therefore, the district court’s decision
to apply rates similar to that charged by two local plaintiff’s attor-
neys for civil rights work was also not an abuse of discretion.
The district court’s decision to reduce the class’ total hours
billed by one half was also not an abuse of discretion. The district
court found that class’ request for compensation for over 1400 at-
torney and 800 law clerk and paralegal hours was excessive and
represented unnecessary duplication of effort, repetitious fact gath-
ering, and simply an excessive amount of time spent on a contempt
motion. The court also found that the class counsel had claimed
hours that were not supported by sufficiently detailed records. Fi-
nally, the court found that the class counsel could have and should
have relied on the reports of the consent decree monitor rather than
engaging in needless fact gathering. As a result of these findings,
the court found that half of the number of hours reported was suf-
ficient to achieve the results obtained by the class.
This court has stated that “[t]he district court is in the best posi-
tion to determine in the first instance the number of hours reason-
ably expended in furtherance of the successful aspects of a
litigation and the amount which would reasonably compensate the
attorney.” Chalmers, 796 F.2d at 1211. We require the district court
to provide “some explanation as to how [it] arrived at its figures...”
Domingo v. New England Fish Co., 727 F.2d 1429, 1447 (9th Cir.),
modified, 742 F.2d 520 (9th Cir. 1984). This explanation should
provide clear reasons for the fee award. Hensley, 461 U.S. at 437.
The explanations offered by the district court are sufficient to al-
low us to exercise our review function. See D’Emanuele v. Mont-
gomery Ward & Co., Inc., 904 F.2d 1379, 1385 (9th Cir. 1990). The
district court specifically stated that the much of the work per-
formed resulted in duplication of effort because the class counsel
could have relied on the work performed by the consent decree
monitor. The district court did not abuse its discretion in finding
that the results obtained by counsel for the class could have been
achieved in half the time spent.
The class also contends that the district court erred by failing to
apply a multiplier of 2.0 to compensate for contingent risk. The
class has the burden of overcoming the “strong presumption” that
the loadstar figure represents a “reasonable” amount. See D’Eman-
uele, 904 F.2d at 1384. We have held that a multiplier may be ap-
plied in certain “rare, exceptional cases.” Jd.
One exceptional circumstance we have identified as justifying a
multiplier is where “payment for attorney’s services is contingent
upon success and the attorney bears the risk of nonpayment in case
of failure.” Jd. Enhancing a fee award for contingent risk is permis-
sible if two prerequisites are met:
First, the fee applicant must establish that “without an ad-
_justment for risk the prevailing party ‘would have faced '
substantial difficulties in finding counsel in the local or
other relevant market.’” Second, any enhancement for
contingency must reflect “the difference in market treat-
ment of contingent fee cases as a class, rather than...the
‘riskiness’ of any particular cases.”
Fadhl v. City and County of San Francisco, 859 F.2d 649, 650 (9th
Cir. 1988) (citations omitted).
In Fadhl, we held that the fee petitioner had demonstrated that
the application of a 2.0 multiplier was required in the San Francisco
market to ensure that counsel will accept civil rights contingency
fee cases. Id. at 651. We concluded that there was a “need in San
Francisco for fee enhancement in civil rights cases.” Id.
The district court concluded that Fadhl did not control the out-
come of this case because the class failed to present evidence of dif-
ficulty in retaining legal representation, and because the
government had presented the testimony of a plaintiff’s attorney
experienced in civil rights litigation who stated that contingency
enhancement was unnecessary to attract plaintiff’s counsel to civil
rights work in San Francisco.
Although, the plaintiff in Fadhi demonstrated a difficulty in re-
taining counsel, our holding was not limited to that specific show-
ing. We held that there was independent evidence that established
a need in San Francisco for enhancements in civil rights cases. The
testimony of a single plaintiff attorney contradicting that indepen-
dent evidence is an insufficient basis for distinguishing Fadhl in
this case.
The district court did not address whether sufficient indepen-
dent evidence had been presented that demonstrated that San Fran-
cisco no longer has a “manifest need...for fee enhancements in civil
rights cases.” Fadhl, 859 F.2d at 651. Nor did the district court find
that the fee arrangement between the class and the class counsel
was not the type of risky contingent fee arrangement identified in
D’Emanuele.
In D’Emanuele, we held that the presence of a risky contingent
fee combined with a finding that enhancement is necessary to en-
sure that attorneys in the relevant market will accept civil rights
cases, creates an exceptional circumstance requiring enhancement.
D’ Emanuele, 904 F.2d at 1384. The district court, therefore, should
have applied a multiplier of 2.0 to the loadstar figure. Accordingly,
we increase the district court’s attorneys’ fee award of $112,765.80
to $225,531.60.
The class also contends that the district court erred in the
amount it awarded for costs. The district court denied costs for all
expenditures other than copying and then only allowed half of the
copies claimed at a rate of $.05 per copy. The class claimed 14,021
copies at a rate of $.20 per copy and reported additional expendi-
tures for items such as mileage, parking, postage, delivery, and
transcripts. The total cost request was $6,591.02. The district court
awarded $352.52.
As discussed above, the district court found that the counsel for
the class duplicated much of the work of the consent decree moni-
tor. Thus, it was not an abuse of discretion for the district court to
limit the cost award to $352.52.
The class also objects to the district court’s denial of all fees and
costs for work performed on the fee petition. The district court
found the class abused the fee request process and thus denied all
fees and costs for work on the fee petition. The district court’s de- *
nial of all fees and costs for work on the fee petition on the ground
that the fee petition amounted to a second major litigation was an
abuse of discretion. A review of the record indicates that the request
for fees and costs for work on the fee petition is reasonable. We
therefore award $65,641.50 for fees incurred in litigating the fee
etition: $9,370.50 for work performed by class counsel and
$56,271 for legal services rendered by counsel employed by class
ea
¢F
| AZ Neath fow
6692 Ninth Circuit Court of Appeals
CALIFORNIA
counsel. We alsp award $8,785.97 for costs incurred in litigating
the fee petition.
The final objection raised by the class is directed at
court’s denial of the\magistrate’s future fees procedure.
trate recommended a\future fees schedule that would have allowed
the class counsel to apply for fees every six months fof work asso-
ciated with reviewing the Secretary’s conpliance wi
decree. The district coyrt concluded that the class/had failed to
If a district court has discretion to Aetermine thé amount of fees
to be awarded\\it clearly has discretion to determine whether a fu-
ture fee schedule should be established. The class has failed to
show that the distkict court abused ifs discretion in denying the pro-
posed future fee schedule. /
La
In its cross appeal the ‘Secretpry contend ‘that the district court
erred by awarding interest ‘gn the jJudgment,/pursuant to 28 U.S.C.
§ 1961, from the date of its Ordér. The Secretary asserts that § 1961
does not constitute a waiver gf sovereign Ammunity from interest
awards and thus the award was\an error of law. See Liberty of Con-
gress v. Shaw, 478 U.S. 310/323 (1986)/ The class concedes that
the Secretary’s position représents\the current state of the law. Ac-
cordingly, we reverse the district cquft’s award of interest against
the government.
nm
IV
The remaining issue i$ whether the; task entitled to fees for its
work on this appeal. Th¢ class has requested fees and costs as is re-
quired by this court’s Rule 28-2.3. Fees may be awarded for work
performed ‘in successfully defending or challenging a district
court’s fee award. Se¢ Southeast Ldgal Defense Group v. Adams,
657 F.2d 1118, 1126 (th Cir. 1981). \
The class has suc¢eeded on a two of the major issues in its ap-
peal, and thus it is ehtitled to fees/for work performed on this ap-
peal. See Hensley vj Eckerhart, 46] U.S. 424, 433,(1983) (plaintiff
is a prevailing party if it succeeds on any significant issue and ob-
tains some of the benefits sought)} Because the issues the class pre-
vailed on are related to the issues it did not prevail on, it is entitled
to fees for all hours reasonably expended on this appeal. See id. at
434-435. The class is instructed tb file its request for attorneys’ fees
as provided by this court’s Rule 39-1.6. Each party Shall bear its
own costs. \
/ \
The district court’s rulings on the issues of whether the work
performed was complex, the number of hours reasonably expended
on litigating the contempt motion, the reasonable billing rates for
the class attorneys, the reasonabl¢ amount of costs incurred inh liti-
gating the contempt motion, and) whether a future fees schedule
should be established are AFFIRMED. The district court’s rulings
on the issues of whether to apply a contingency enhancement mul-
tiplier and whether to award fees fe costs incurred in litigating the.
fees petition are REVERSED. Accordingly, the class is awarded a
torneys’ fees for work on the contempt motion in the amount o
$225,531.60 and attorneys’ fees for work on the fee petition in th
amount of $65,641.50. The class is also awarded $8,785.97 fo
costs incurred in litigating the fees petition. The district court’s |
award of interest on the judgment is REVERSED. The class is en-
titled to fees for this appeal which will be fixed by separate order,
but each party shall bear its own costs.
AFFIRMED IN PART, REVERSED IN PART.
Cite as 91 C.D.O.S. 6692
RANDY GREENAWALT, Petitioner-Appellee,
v
JAMES R. RICKETTS, Director, Arizona DOC;
DONALD WAWRZASZEK, Superintendent,
ASP; ROBERT K. CORBIN, Attorney
General, State of Arizona, Respondents-
Appellants. |
Nos. 88-1828, 88-1910
D.C. No. CV-83-2478-CLH
Appeal from the United States District Court for the District of Ar-
izona, Charles L. Hardy, District Judge, Presiding
Argued and Submitted March 8, 1991
Before: WALLACE, Chief Judge, ALARCON and WIGGINS, Cir-
cuit Judges
Counsel: Bruce M. Ferg, Assistant Attorney General, Tucson, Ari-
zona, for respondents-appellants. Cameron C. Artigue, Gammage
& Burnham, Phoenix, Arizona, for petitioner-appellee.
Filed August 22, 1991
WALLACE, Chief Judge:
During a brief period of freedom following his escape from an
Arizona state prison, Greenawalt kidnapped three people, mur-
dered four, committed two armed robberies, and stole a motor ve-
hicle. After confessing to some of these crimes, he was convicted
and sentenced to death, and his conviction and sentence were af-
firmed on direct appeal, more than a decade ago. See State v.
Greenawalt, 128 Ariz. 150, 624 P.2d 828 (en banc) (Greenawalt I),
cert. denied, 454 U.S. 882 (1981); see also State v. Greenawalt, 128
Ariz. 388, 626 P.2d 118 (en banc) (affirming conviction including
assault and unlawful flight), cert. denied, 454 U.S. 848 (1981).
Greenawalt then petitioned for writ of habeas corpus. The dis-
trict court denied this petition, but Greenawalt appealed and we or-
dered a limited remand in light of Edwards v. Arizona, 451 U.S. 477
(1981) (holding that once accused requests counsel, police-initiat-
ed interrogation must cease until counsel is made available). See
Greenawalt v. Ricketts, 784 F.2d 1453, 1456 (9th Cir.) (Greenawalt
Ill), cert. denied, 479 U.S. 890 (1986). The district court granted
the petition on remand, and the state then appealed.
In their second appearance before this court, the parties initially
confined their briefing to the Edwards issue. We ordered full brief-
ing, however, since the issues not remanded remain before us from
the first appeal. See id. We now consider the entire petition. The
district court had jurisdiction pursuant to 28 U.S.C. § 2254. We
have jurisdiction over this timely. appeal pursuant to 28 U.S.C. §
2253. We affirm in part and reverse in part.
I
Our prior opinion describes the facts in great detail. See
Greenawalt III, 784 F.2d at 1454-56; see also Greenawalt I, 128
Ariz. at 154-55, 624 P.2d at 832-33. Our description here will be
brief.
Greenawalt was already serving a life sentence for murder when
he escaped from prison with Tison, a fellow prisoner, aided by Ti-
son’s three sons. The entire group. left the prison after the Tison
sons, while ostensibly visiting their father, carried an ice chest full
of firearms into the prison visitation area. They remained at large
for almost two weeks. They kidnapped and then killed John and
Donnelda Lyons, and the couple’s niece, Theresa Tyson. They also
killed the Lyonses’ two- year-old son, Christopher. Gun shells and
fingerprints later linked the escapees and their companions to the
murders of all four victims.
Greenawalt and two of Tison’s sons were captured after a high
speed chase during which Tison’s third son was shot dead. Tison
himself, who eluded capture, was subsequently found in the desert
dead of exposure.
Ogee, SR RE
DAILY OPINION SERVICE
6685
has since been ratified by the Supreme Court in Minnick v. Missis-
sippi.
The court noted that in Teague v. Lane, a plurality of the Su-
preme Court stated that new rules generally would not be retroac-
tively applied to cases on collateral review. Teague also observed
that new rules generally would not be announced in cases on col-
lateral review. These views have been adopted by the Ninth Circuit.
Here, the district court’s Edwards analysis directly paralleled the
Supreme Court’s ruling in Minnick. Therefore, if Minnick an-
nounced a new rule, so did the district court as well. A new rule
may not be announced on collateral review any more than it can be
applied on it. However, there are two exceptions. The first excep-
tion allows a new rule to apply retroactively in collateral proceed-
ings when it places certain kinds of primary, private individual
conduct beyond the power of the criminal lawmaking authority to
proscribe. This exception was inapplicable here, because Min-
nick’s procedural requirements did not alter the state’s authority to
prosecute Greenawalt for murder, kidnapping, armed robbery, and
theft. The second exception is for new rules that are watershed rules
of criminal procedure; without which the likelihood of an accurate
conviction is seriously diminished. This exception was also inap-
plicable here because the Supreme Court’s holding in Minnick, and
the district court’s similar holding extended a prophylactic rule that
results in the exclusion of probative trial evidence. As neither ex-
ception applied, the court held that the new rule announced by Min-
nick and the district court could not be applied in this case on
collateral review. Here, the state court’s rulings concerning the con-
fessions were reasonable in light of the precedent controlling on di-
rect review, so they had to be upheld on collateral review.
Therefore, the court reversed the district court’s holding on the Ed-
wards issue.
The court’s holding also required that it reject Greenawalt’s
closely related sixth amendment contention. Although the parties _
disagreed about whether Greenawalt was charged before he was in-
terrogated, the court did not need to decide this question;
Greenawalt’s sixth amendment claim added nothing to his fifth
amendment claim regardless of whether the court focused on the
fifth or sixth amendment as the ultimate source of the Edwards
claim.
The court also held that a voluntary confession, inadmissible on
the ground of Edwards, does not taint a subsequent voluntary con-
fession. The court also held that Greenawalt’s initial confessions,
though obtained in violation of Edwards, were nevertheless volun-
tary. The court reached the same conclusion about the admitted
confession. No indicia’ of coercion were present at the time
Greenawalt made his final confession. Therefore, the court held
that Greenawalt’s final confession was both voluntary and untaint-
ed by his prior confessions, and could be admitted at trial.
Greenawalt’s contentions that his death sentence was unconsti-
tutional were foreclosed by Walton v. Arizona.
Greenawalt’s argument that the trial court erred in not giving a
jury instruction on second degree murder or any lesser included of-
fense failed. Greenawalt was tried solely for felony murder, a crime
for which Arizona law recognizes no lesser included offense. In ad-
dition, a state court determination that the jury was impartial is a
finding of historical fact treated as presumptively correct on collat-
eral review.
Wallace, C.J.; Alarcon, Wiggins, JJ., concurring.
Bederentt
Criminal Sentencing
10-YEAR STATUTORY MINIMUM PROPERLY
APPLIED FOR POSSESSION OF
METHAMPHETAMINE NOT “PURE” j
United States v. Alfeche /
9th Cir.; August 22/ 1991 Full text: Pg. 6698
Affinning a di Mrict court judgment gf senté bnce, the court of ap-
peals held that ppellants properly regeived th e statutory ten-year
minimum senténce\even though theydid not possess “pute” meth-
amphetamine,
Appellants Mary is Brigo t Alfeche and William Bautista
4ion of mefiamphetamine with the jntent to
distribute/ Chemical akalysis révealed that the) methamphetamine
possessed contained 212.9 grAms of sample, of whieh 119.6 was
methamphetamine and t eX t unknown impuritjés. The district
court imposed the statutgsyy ten-year minim entence. Appel-
lants afgued that because/f reir methamphe we ine was not “pure,”
they possessed a mixtuye\or substance cgnpfaining methamphet-
aming and should hav as sentenced to if e five-year minimum
sentence for offensesAAvolving between {00 and 1000 grams ofa
methamphetamine myxture. /
The court found/fothing ih th¢e language of 21 .C. section
841 to suggest tha Vy ongress intended possession of 4 4 methamp t-
amine mixture to fe treated so diffeyently than possession of “pire
pled guilty/to posse
methamphetamiye. Interpreting \séction 841 to require a \0-year
minimum for cymes involving eyther/a net apfount of 100 grams of
methamphetamine or 1000 g fs of a methamphe
ge Of the statute and avoids absurd
As ‘appr pved by the Senjéncing Guide-
was consistent with the lang
results. Suchfan approach ¥
lines. This Anterpretation/ gf section &41 also reljéves the courts
from deciding how “pu 7 methamphetamine must be to trigger the
“methamphetamine” prong of theAtatute, insted of the “metham-
phetamine mixture’/pfong. Thefourt ¥ also rejected appellants’ ar-
gumenf that sectioh 841 is ambiguous,\andAhat a “rule of lenity”
shouldbe applied to give they a lesser senfence.
Pet Curiamy Browning, Parris, Leavy /JJ.
— :
Employment Digcrimination
METHOD OF CALCULA Wy ‘ING EMPLOYEE SERVICE
TIME NOT CREDITIN \G/ PRE- 1979 PREGNANCY
LEAVES BUT CREDIFING OTHER DISABILITY
LEAVES IN SAME PERIOD DISCRIMINATORY
Pallas v. Pagific\Bell
Oth Cir.; August/12, 1991 Full text/Pg. 6696
Reversing afd remanding a\district gourt judgment; the court of
appeals held that Pacific Bell discrimjhated against a/woman in de-
nying her eafly retiremenf benefitsAn 1987 based/on a method of
calculating employee service tin& that did not Aredit pregnancy
leaves takgn prior to 1979, but cyédited temporafy disability leaves
taken durjng the same period.,AppeNant Lan? Pallas brought suit
against Pacific Bell for employment discrimigation under Title VII.
In 1987{ Pacific Bell adopyéed a new @arly/retirement benefit for
manag¢ment employees. Yo qualify, arhefigible employee had to
have dccrued 20 years Sf service. Thé/company measured the
length of service by a yf€t credited serviée system under which an
emplpyee receives crgdlit for time takeh for temporary disability,
but not for time spepf on personal leaye. Prior to enactment of the
Pregnancy Discrinfination Act, Pacific Bell required employees
disabled by pregnancy to take personal leaves. After 1979, it
6686
3
CALIFORNIA
changed its policy to allow employees with pregnancy-related dis-
abilities to take disability leaves. Under the current system, em-
ployees disabled by pregnancy prior to 1979 do not receive service
credit for their pregnancy-related leaves. On the basis of a pregnan-
cy-related leave taken by Pallas in 1972, Pacific Bell denied her
early retirement.
The Pregnancy Discrimination Act amended Title VII to prohib-
it discrimination based on a woman’s pregnancy. The Act requires
employers to treat pregnancy disabilities in the same manner as
other temporary medical disabilities for all employment-related
purposes, including receipt of benefits. Here, the district court erred
in dismissing Pallas’ case in reliance on Evans and its progeny.
Rather, the controlling Supreme Court precedent is Bazemore v.
Friday. There, although an employer was not liable for acts of dis-
crimination occurring prior to the enactment of Title VII, the em-
ployer could be held liable for discrimination perpetuated after the
Act took effect. Here, while the act of discriminating against Pallas
in 1972 was not, itself, actionable, Pacific Bell was liable for its de-
cision to discriminate against Pallas in 1987 on the basis of preg-
nancy. Therefore, Pallas’ complaint states a valid claim under Title
VII. Because Pallas stated a Title VII claim, she also stated a claim
under the California Fair Employment and Housing Acct.
Pallas also stated a claim cognizable under ERISA. Discrimina-
tion is a fiduciary breach for purposes of ERISA.
Dissenting, Judge Dumbauld, Senior District Judge for the
Western District of Pennsylvania, stated that Pallas’ grievance was
one that belongs to history; it is not a current law violation. The au-
thoritative case law requires current unlawful discrimination to
support a Title VII violation. All that Pacific Bell was doing was
currently applying a bona fide seniority system, not discriminatory
on its face, and specifically authorized by Congress.
Schroeder, J.; Farris, J., concurring; Dumbauld, Sr.D.J., sitting
by designation, dissenting.
Environmental Law
AIRPORT AUTHORITY’S EMINENT DOMAIN
COMPLAINT DISMISSED FOR FAILURE TO COMPLY
WITH ENVIRONMENTAL QUALITY LAWS
Burbank-Glendale-Pasadena Airport
Authority v. Hensler
2d App. Dist.; August 20, 1991 Full text: Pg. 6709
The Second Appellate District affirmed a judgment. The court
held that an airport authority could not proceed in an eminent do-
main action to acquire private property for an airport improvement
project without first complying with state environmental quality
laws.
The Burbank-Glendale-Pasadena Airport Authority filed a com-
plaint in eminent domain against Robert Hensler, seeking the total
taking of his property for the “safe and efficient operation” of the
Burbank Airport. Hensler affirmatively defended, arguing that the
Authority failed to comply with the provisions of California’s En-
vironmental Quality Act (Pub. Resources Code section 21000) by
not making any findings relating to the environmental impacts that
might result from the condemnation of his real property nor ad-
dressing the feasibility of mitigation measures or environmental su-
perior project alternatives. The trial court granted Hensler’s motion
for peremptory writ of mandate, dismissed the eminent domain ac-
tion and declared the Authority’s eminent domain of Hensler’s
property resolution null and void.
The appellate court affirmed, holding that the trial court did not
abuse its discretion in dismissing the eminent domain action since
the Authority failed to conduct any environmental review of its
project which formed the basis of its eminent domain resolution.
The court noted that a project under CEQA is the whole of an action
which has a potential for resulting in a physical change in the envi-
ronment and includes the activity which is being approved and
which may be subject to several discretionary approvals by govern-
mental agencies. The court also found the Authority’s airport im-
provement projects were subject to CEQA compliance under state
government regulations. Rather than permitting this case to go to
trial on this issue, the court determined that the Authority should
first conduct a study under CEQA, or consider the issue of whether
an additional environmental document needed to be prepared due
to subsequent changes in the original airport improvement project,
before granting any approval of this project. The court noted that
CEQA requires compliance prior to acquisition of a site for a public
project and that the public had not yet had an opportunity to review
the project.
Lillie, P.J.; Johnson, Woods (Fred), JJ., concurring.
Evidence
IMPEACHMENT TESTIMONY TO DISCREDIT
WITNESS’ INCONSISTENT STATEMENTS
EXCLUDED AS REFERRING TO WITNESS’ CONDUCT
United States v. Monroe
9th Cir.; August 21, 1991 Full text: Pg. 6699
Affirming a district court judgment of conviction, the court of
appeals held that although a government witness’ inconsistent
statements were improperly disallowed as impeachment evidence
as not having been given under oath, the error was nevertheless
harmless because witnesses appellant wished to call could not offer
admissible impeachment testimony about the prior inconsistent
statements but only about the declarant’s conduct.
Appellant Walker Bennett Monroe was convicted of conspiracy
to import marijuana into the United States. Bender, a co-conspira-
tor was arrested on unrelated drug charges and agreed to cooperate
with the government. Much of the evidence at Monroe’s trial came
from Bender’s direct testimony. The government provided Monroe
with investigative reports involving illegal activities Bender had
engaged in and for which he had been granted immunity from pros-
ecution. However, the government withheld the names of certain
confidential informants identified in the reports. Monroe sought to
impeach Bender with these reports. Monroe moved to compel the
government to disclose the names of the confidential informants so
that they could be called during his case-in-chief as prior inconsis-
tent statements to impeach, evidence of bias, and negative charac-
ter witnesses on the issue of Bender’s character for truthfulness and
veracity. The district court denied the motion, finding the testimony
cumulative and inadmissible.
The district court ruling that Bender’s prior inconsistent state-
ments could not be introduced for impeachment purposes since
they had not been given under oath was clearly erroneous. Howev-
er, the error was harmless since the trial court ruled in the alterna-
tive that the witnesses Monroe wished to call could not offer
admissible testimony about Bender’s prior inconsistent statements;
rather their testimony involved Bender’s conduct. This was inad-
missible impeachment evidence. Neither could the testimony es-
tablish Bender’s bias. The district court properly concluded that
because Bender had been granted immunity from prosecution for
his prior criminal conduct he had no incentive to minimize his pre-
vious criminal acts; if anything, he had an incentive to exaggerate
them. This finding was clearly supported in the record. To the ex-
tent that Monroe sought testimony about specific incidents, such
testimony was properly barred as an impermissible attack on Bend-
er’s credibility under Fed. R. Evid. 608(b).
The government may not vouch for the credibility of its witness-
es by presenting the jury with personal assurances of the witnesses’
veracity. However, references to requirements of truthfulness in
plea bargains do not constitute vouching when the references are in
ERNANDEZ, Manuel, hanged Yuma, Arizona, May 3, 1873.
TER SEVENTEEN
Ua CHAP
JHE FIRST HANGING IN YUMA
There is absolutely no doubt in my mind that revolution is inevitable
latin America... only the form it takes is uncertain.
Milton S. Eisenhower
Yuma County can claim the dubious honor of having held within its borders’ the
post judicial hanging in the Arizona Territory.
On December 1, 1872, Michael McCartney, better known up and down the Colorado
by the familiar sobriquet of “Rawhide,” was found literally chopped to pieces in his
sore on Gila Street in Arizona City (Yuma). He was a widely known resident of
Yuma County and had many friends in Arizona City where he was established in business,
@ the unfortunate man drank at times to excess, but during such periods he never trans-
ated any business and shut himself up in his store until he had fully recovered from his
pout with John Barleycorn. Therefore, it had ceased to Cause any great surprise among
Bus ocighbors whenever his store remained closed for several days,
Ac the time of his murder, however, he had been absent from his boarding place —
she Colorado Hotel — for a couple of days, when some of his acquaintances decided to
piavestigate and find out the reason for his continued absence.
Lying on the counter with his head resting on some bolts of calico, lay the dead
body of McCartney in a horribly mutilated condition. There were no signs of a struggle
Wind the storekeeper had evidently been murdered with an ax—he never knew what
ay stuck him —and died instantly. A blow from the ax had split open the left side of his
bait bead. Robbery had apparently been the motive for the terrible crime but the murderer
aG@) hiled in his effort to open the store safe and left Practically empty-handed, taking only a
few coins from the change drawer.
Was joke. To the sheriff he remarked: “What an idea!
| ai suspended by the neck! What a beautiful pi
fm . For the purpose of having the sentence carried out, Judge De Forrest Porter
Fit designated the Yuma County Jail as the Territorial Penitentia |
.
ig = When the day arrived for the hanging of Fernandez -~ May 3, 1873 -—it was dis-
Migs Closed that all preparations had been completed by Sheriff F. H. Goodwin for his execu-
a rsag on. A stout gallows had been erected in the jail yard and when Fernandez was let out to
Pa ama Play his parc in the tense and tragic drama, a company of seventy citizens -—~ armed with
Raat fe shotguns and a miscellaneous assortment of other weapons-— was drawn up around the
HYG gat place of the execution. The condemned man descended the gallows and although under
Mh a heavy strain, spoke as follows:
fate “Long live Mary, the Most Holy. I greet you all. ‘To my Mexican’ friends present |
Wan wae Give the advise — May you never occupy the place that I do today. I would prefer to be
aie: shot. Ie is an honor for a man to die in battle, God gives life—-God takes it away.
\ Ae | God ° . . . ee
my gave me life and now it is for me to die. We are all born to die,
Ry f once he Tonslonal (sem ‘fl
hig CF Kole fe he (16k oe y
4
ts.
t
A
4
Pe ws
ae en fe ntti as
238 = Ariz.
"7. Homicide €=347, 354
Where defendant pleaded guilty © to
murder in first degree and trial court at
time of imposing sentence considered all
testimony of expert witnesses as to defend-
ant’s sanity, written statements of defend-
ant, report of probation officer as well as
defendant’s past offenses, health, habits,
mental and moral propensities, together
with the fact that defendant, in entering his
plea of guilty, admitted all elements consti-
tuting murder in first degree, defendant had
committed an atrocious crime and there was
a total lack of any mitigating circum-
stances, imposition of death penalty was not
an abuse of discretion, and statement made
by trial judge at time of sentencing that if
he thought there was a cure for defendant
he wouldn’t sentence him to death did not
require Supreme Court to reduce sentence:
17 A.R.S.. Rules of Criminal Procedure,
tules 187, 192, 336; A.R.S. § 13-453.
8. Criminal Law €=1147
Individual views of members of Su-
preme Court on issues of capital punish-
ment were irrelevant in determining
whether trial court had abused its discretion
in imposing death sentence, and Supreme
Court’ was limited to judicial function of
interpreting and applying the. law as it
found it. 17 A.R.S. Rules of Criminal Pro-
cedure, rules 187, 192, 336; A.R.S. § 13-
453.
a
Robert O. Lesher and A. Alan Hanshaw,.
Tucson, for appellant.
Wade Church, Atty. Gen. Leslie C..
Hardy, Chief Asst. Atty. Gen., and Frank-
lin K. Gibson, Asst. Atty. Gen., for appellee.
JOHNSON, Justice.
Robert Dwight Fenton was informed
against on the charge of murder, first de-
gree. The information alleged that the
defendant, on or about the 23d day of Feb-
ruary, 1958, deliberately, premeditatedly and
with malice aforethought, murdered Opal
Keller Coward.
Two prominent members of the Pima
County bar were appointed to represent the
341 PACIFIC REPORTER, 2d SERIES
defendant, and a motion was made under
Rule 250, Rules of Criminal Procedure, 17
A.R.S., for an examination to determine
whether the defendant was insane or
mentally defective to the extent that he was
unable to understand the proceedings
against him or to assist in his defense. The
court granted the motion and appointed two
qualified experts to examine the defendant
with regard to his then mental condition.
Thereafter Dr. Charles Neumann; M. D.
and Dr. J. K. Bennett, M. D., qualified
psychiatrists, at a hearing, reported their
findings after examining the defendant;
the court found that the defendant was
able to understand the proceedings against
him and assist in his defense, and ordered
that the matter proceed to trial.
‘The defendant was arraigned before the
trial court on April 8, 1958, and entered a
plea of not: guilty. The defendant filed a
Notice, as required by Rule 192, Rules ‘of
Criminal Procedure, of his intention to in-
troduce evidence at the time of trial that
he was insane or mentally defective at the
time of the alleged commission of the of-
fense charged.: ©
The defendant, before trial, withdrew his
plea of not guilty, and entered a plea of
guilty to the charge of murder in the first
degree, and such plea of guilty was ac-
cepted by the court.
It is the duty of the trial court, under the
provisions of A.R.S. § 13-453, in case of a
plea of guilty to murder in the first degree,
to determine whether the punishment shall
be life imprisonment or death; Rule 187,
Rules of Criminal Procedure, provides that
where the court accepts the plea and has
discretion as to the punishment for the of-
fense, it may hear. witnesses to determine
what punishment shall be imposed; and
Rule 336, Rules of Criminal Procedure,
which provides for an inquiry into mitigat-
ing or aggravating circumstances of the
offense, reads as follows:
“Inquiry into mitigating or aggra-
vating circumstances.
“When the court has discretion as to
the penalty to be inflicted on the de-
- STATE v. FENTON
Cite as 341 P.2d 237
fendant, it shall, upon suggestion of
either party that there are circum-
stances which may properly be taken .
into consideration, hear evidence as to
the circumstances summarily in open
court, either immediately or at a special -
time and upon such notice to the ad-
verse party as the court directs, or the
court may inquire into such circum-
stances of its own motion.”
The trial court thereafter received evi-
éence, both oral and documentary, for the
purpose of ascertaining what the punish- .
ment should be. A sentence of death was
imposed and the defendant has appealed
from the judgment entered.
We deem it advisable to set forth a sum-
mary of the matters presented to the trial
court. There were no eyewitnesses to the
murder, and the following facts are taken
from statements made by the defendant to
the officers, which were admitted in evi-
dence at the pre-sentence hearing.
The defendant, a young man 24 years of
age, arrived in Tucson, Arizona, on Jan-
uary 22, 1958, and shortly thereafter met
the decedent and her husband, who were the
owners of a drug store. He was unable to
find employment and was invited by the
decedent to move into their house and per-
form odd jobs on the properties owned by
them. He lived with the decedent and her
husband until the 14th day of February,
1938, when he secured a full-time job, and
was asked to vacate the guest room because
out-of-town guests were. shortly to visit
them. The decedent gave the defendant
$20 at the time he left, and informed him
that if he needed more or wanted to pay
back what he had borrowed, that he could
do odd jobs around the house on_ his day
off from his regular job.
On the afternoon of Sunday, February
23, 1958, the defendant went to decedent’s
home to wo1k in the yard, and when she °
was leaving for work he asked her for the
sum of $200 but she refused to give him
more than $40. The defendant related that
he planned to steal everything of value
Ariz, 239
in the-house because decedent had refused
to give him money, stating that he entered
the house and filled suitcases with personal
Property and intended to hit decedent over
the head when she returned and to then
steal her car. He further stated that when
decedent returned home about six in the
evening he hid behind a door, and as she
entered struck her on the head with the
barrel of a .22-caliber pistol. In the words
of the defendant:
“I struck her four times and the gun
went off. I became panicky after I
accidently fired the shot and in my
panic 'I fired more shots into her until
she quit moving, I went through her
pocketbook and took her wallet and
what loose change there was. I went
out to the car and started to drive away
but there was no key in the ignition.
I tried to open the back door but it.
locked behind me. I went to the bath-
room window, smashed the window to
gain entrance again. I turned her
pocketbook upside down on the bed
’ and found the keys to the car and went
back outside and drove away in the
car.”
‘He further stated:
“When I struck Mrs. Coward as she
came into the room she turned and
said to me ‘Bobby, please don’t hit me.’
She tried to talk after the bullet, the
first bullet, was accidentally’ fired.
After the shot, which was accidental,
I continued pulling the trigger, either
in a state of panic or to put her out of
her misery, suffered by the first bullet
and the gun whipping. I liked Mrs.
Coward very much. At times she
seemed more like a mother or aunt to
me rather than just a friend.”
An autopsy of the body of decedent re-
vealed she had been shot eight times and
had sustained a laceration of the scalp on
top of the head.
The defendant, after taking the car be-
longing to decedent and her husband, re-
turned to his room and packed his clothes
UNIVERSITY OF ALABAMA
SCHOOL OF Law
re.
rei
POEL
23
+ < at Xe
240 = Ariz.
with the intention of going to California
with a friend. However, apparently the
friend had left and the defendant stopped
at a drive-in theater, and as he stated,
“I did this thinking that if I stayed out of
sight until midnight the police might think
I had escaped and had stopped looking for
me.” Defendant later started driving
towards Nogales, Arizona, and when about
25 miles from that city noticed a highway
patrol car following with the red light
flashing. Defendant did not stop but in-
stead fired three shots at the patrolman.
The defendant finally stopped his car and
got out, holding the pistol, and after
threatening to shoot the officers and re-
fusing to surrender or drop the gun, the
defendant was shot in the leg by one of the
officers and was captured.
The trial court, prior to the imposition of
the sentence, had the benefit of a mental
examination of the defendant by a qualified
psychiatrist and a clinical psychologist. It
was their finding that the defendant fitted
into the category of psychopathic per-
sonality. These experts defined the condi-
tion of a person having a psychopathic
personality as one usually of average in-
telligence, with a livable, pleasant ‘and
rather ingratiating personality. One of
these experts testified: “They are people
who are able to recognize right from
wrong; who seem to know right from
wrong, yet they seem to repeat anti-social
acts and they seem not to profit or learn by
experience, and they seem at times to be
best classified not as immoral but amoral.”
These experts also reported to the court
that as a result of their examination of the
defendant it was their opinion that he was
dangerous to society and that a person of
his mental condition did not often profit by
incarceration; that at the present time the
only treatment is a “protective environ-
ment such as institutional care.”
The only information presented to the
trial court concerning the defendant’s
earlier years is disclosed in a written re-
port of the mental examination made by the
psychiatrist mentioned above, which was
341 PACIFIC REPORTER, 2d SERIES
introduced in evidence without objection.
It is therein disclosed that the defendant
was a member of the Air Force for two
years but saw no overseas service. He re-
ceived a dishonorable discharge for AWOL
because he “slugged a lieutenant and a
non-com, escaped and went AWOL again.”
He served a sentence of ten months. De-
fendant then returned to his home in Ohio
and went from one menial job to another,
usually being discharged because of dis-
agreements with his superiors. During
this time he became involved with a 17-
year-old girl, and was sentenced by the
juvenile court to nine months imprisonment.
The defendant admitted his previous
juvenile record, dating back to the age of
ten years, indicating frequent hostile, ag-
gressive anti-social behavior, After the
sentence by the juvenile court it was dis-
covered that the 17-year-old girl was preg-
nant, and the defendant was released after
serving five months and later married the
girl involved. This marriage was not a
happy one, particularly after the birth of
the child. During this period of time the
defendant had various jobs, some of which
he lost because of shortage in receipts.
He was arrested for the theft of a car be-
longing to a friend and was sentenced to
two months in jail and placed on probation
for. three years. Finally in October, 1957,
he left his family and job, and in December
of that year was arrested as a fugitive, re-
leased on bail, and after spending Christmas
with his family left with a’ friend for
Tucson, Arizona.
The trial court, in accepting defendant's
plea of guilty to murder in the first degree,
found that all the elements necessary to
constitute that offense were present; de-
fense counsel do not contend otherwise.
The statutes of this state, A.R.S. § 13-452,
define the degrees of murder in the follow-
ing language:
“A murder which is perpetrated by
means of poison or lying in wait, tor-
ture or by any other kind of wilful,
deliberate and premeditated killing,
or which is committed in the perpetra-
A ee
STATE v, FENTON
Ariz, 241
Cite as 341 P.2d 237
tion of, or attempt to perpetrate, arson,
rape, robbery, burglary or mayhem, is
murder of the first degree. All other
kinds of murder are of the second
degree.”
It is clear beyond a shadow of doubt that
the death of decedent resulted directly from
violence wilfully and deliberately inflicted
upon her by the defendant while engaged in
the perpetration of robbery and burglary.
It is difficult to imagine a more diabolical
scheme than that outlined by the defendant
in his statement to the officers. The de-
fendant, having been befriended by dece-
dent, given money, a job, a place to live and
and taken in the household as a member of
the family, to then lie in wait and brutally
‘ beat her on the head with a pistol and fire
tight shots into her body, can only depict
a depraved, cruel, ruthless and brutal in-
dividual.
The trial court, after hearing all the tes-
timony at the pre-sentence proceedings, and
having carefully read the statements given
by the defendant to the officers, the report
of the Psychiatrist, the transcript of testi-
mony from the preliminary hearing on the
criminal complaint, the F.B.I. report of the
defendant, and the pre-sentence report filed
by the adult probation officer, made the fol=
lowing comments before imposing the death
sentence:
“I have gone over Dr. Neumann’s
statement and his study of this man and
I have been influenced by his life his-
tory. I find that from what Dr. Neu-
mann has found that he has spread
misery wherever he has been. His
life has been a sordid one, full of
misery. He has injured the people
who have been kind to him. He has
Stolen cars from his friends. I am go-
ing to file Dr. Neumann’s report in the
Tecord.
“I have talked to Dr. Bennet who
also examined this man, and his opinion
is the same as Dr, Neumann’s, that he
is 4 psycopath or sociopath; that he
18 dangerous and that he is amoral and
341 P.2a—16
has no conscience whatsover, and that
at the present time they have no cure
for him; that Prison will not help the
man and if he were to be released—and
I confess, I have taken that into account
as a possibility, and if it is wrong, I
hope that it is reviewed by the Supreme
Court, he would perhaps and probably,
at least in the present state of medical
science, be a danger to the community.
He ingratiates himself to people and
then injures them. If example will do
any good at all,.a man’s life might be
saved in the future and if it were
saved, I know it would be a better life
than this man’s,
“If there were a cure for him, if I
thought there was a cure, I wouldn’t
Sentence him to death, but for the rea-
son I have stated I am choosing the
death penalty.”
On appeal to this court the defendant con-
tends that he should have been given a life
sentence instead of the extreme penalty im-
posed by the trial court. The defendant
makes two assignments of error: (1) the
court erred in improperly considering the
possibility of parole as affecting a sentence
to life imprisonment; and (2) that the
court abused its discretion in imposing the
death sentence under the facts and circum-
stances, as shown by the record of this case,
[1] We find no merit to the first assign-
ment of error. This court has repeatedly
held, beginning with Sullivan vy. State, 47
Ariz. 224, 55 P.2d 312: State v. Macias, 60
Ariz. 93, 131 P.2d 810; State v. Jordan,
80 Ariz. 193, 294 P24 677; and more re-
cently in State v. Coey, 82 Ariz. 133, 309
P.2d 260, that the county attorney, in his
argument to the jury, may call their atten-
tion to the effect that if their verdict were
life imprisonment rather than death, the
defendant would be imprisoned for only a
few years, and we said in the Coey case,
supra, 309 P.2d at page 262:
“* * * where the jury has discre-
tion to fix the penalty at either death
or life imprisonment, it is Proper for
iy
tees
SCHOOL OF Law
3
ctve ws
i
B25, aN A FAMED Av SRA RO MRE
i et lh LS leita Bc
242 = Ariz.
the jury to consider the probability that
the defendant will actually serve the
penalty. should they determine. the
sentence to be life imprisonment,
x ok KM
Certainly if a jury has the right, where
they have the'discretion to decide whether
to impose life imprisonment or death in a
first degree murder case, to consider the
Possibility of parole if their verdict were
life imprisonment, then a court with a like
discretion on a plea of guilty may properly
take into consideration such possibility.
[2] The trial court at a pre-sentence
hearing is not bound by the strict rules of
evidence applying in trials, State v. Levice,
59 Ariz. 472, 130 P.2d 53, and in determin-
ing the penalty to be imposed may properly
consider the probability that the defendant
who had been found to be a dangerous
menace to society might be released or pa-
roled if given a sentence of life imprison-
ment.
[3] The defendant also contends the
trial court improperly considered the pos-
sibility that defendant might some day be
paroled if the court were to impose a life
imprisonment, for the reason that under
Rule 336 of the Rules of Criminal Proce-
dure, permitting the court to inquire into
mitigating or aggravating circumstances,
the court was limited to aggravating or
mitigating circumstances of the offense
charged.
We cannot agree with this contention.
In James v. State, 53 Ariz. 42, 84 P.2d 1081,
we held that where a discretion is vested in
the trial judge as to the limits of the sen-
tence, it is not only permissible but almost
essential, in order that he may properly
carry out the obvious intent of the law to
grade the punishment in accordance with
the general character of both the offense
and of the parties convicted, that he should
have all the information possible as to their
past conduct; in Chee v. State, 65 Ariz.
147, 176 P.2d 366, we upheld the trial court
who considered the entire past criminal rec-
ord of defendant at the time of Passing sen-
341 PACIFIC REPORTER, 2d SERIES
tence; and in State v. Smith, 66 Ariz. 376,
189 P.2d 205, we said that the trial court be-
fore sentence shotild inquire in defendant’s
moral character, antecedents and associa-
tions, to the end that the court may be in-
formed as to the previous good character
of defendant or his inclination to engage in
criminal or antisocial conduct and activities,
[4] We are of the opinion that Rule 336
should be given a broad interpretation, and
that the “circumstances” mentioned there-
in do not limit the trial court to only a con-
sideration of the mitigating or aggravating
circumstances of the offense charged.
State v. Owen, 73 Idaho 394, 253 P.2d 203.
The second assignment of error is based
on the proposition that the lower court
abused its discretion in imposing the death
sentence, and that this court should reduce
the sentence to life imprisonment.
[5] It is true that under the provisions
of A.R.S. § 13-1717 this court may reduce
the sentence imposed, if the conviction is
Proper, but the punishment imposed is
greater than under the circumstances of
the case ought to be inflicted. However,
we said in State v. Guerrero, 58 Ariz. 421,
120 P.2d 798, that the power given this
court to revise and reduce sentences im-
posed by the trial courts should be used
with great caution and exercised only when
it clearly appears a sentence is too severe.
Counsel for the defendant strenuously
contends the trial court abused its judicial
discretion in imposing the death sentence
when it remarked
“If there were a cure for him, if I
thought there was a cure, I wouldn't
sentence him to death, but for the rea-
son I have stated I am choosing the
death penalty.”
In this connection it must be remembered
that the mental condition of the defendant
as to sanity or insanity both at the time he
pleaded guilty and when later sentenced is
not presented by this appeal. The trial
court amply protected the rights of the de-
fendant by appointing medical experts. to
examine him prior to trial under Rule 250,
STATE v, FENTON Ariz. 243
Cite as 341 P.2d 237
supra, holding a hearing and determining
that the defendant was able to understand
the proceedings against him and assist in
his defense. One of the same medical ex-
perts testified at the pre-sentence hearing
that while the defendant was diagnosed as
a “psychopathic personality” he did know
nght from wrong at the time of the com-
mussion of the crime.
[6] As we have heretofore stated the
‘ral court, upon a plea of guilty to murder
f the first degree, shall at its discretion
mpose a sentence of death or a sentence of
‘fe imprisonment. It could, therefore, be
mly for a manifest abuse of discretion that
this court would be warranted in interven-
ng on appeal to change the sentence in
such a case from death to life imprison-
ment.
We are, of course, conscious of the im-
portance of this appeal, and because of the
cravity of the punishment inflicted have
very carefully scrutinized the entire record
f the proceedings before the sentencing
ourt.
[7] We do not believe that the remarks
made by the trial judge at the time of sen-
tencing, which are relied upon by the de-
fendant as constituting an abuse of discre-
‘son, were such as to cause this court to re-
fuce the sentence. People v. Walker, 33
Cal.2d 250, 201 P.2d 6. Regardless of such
remarks the record also shows that at the
time of imposing sentence the trial court,
in exercising its discretion, weighed and
considered all the testimony of the expert
witnesses, written statements of the de-
fendant, the report of the probation officer
as well as the defendant's past offenses,
health, habits, mental and moral propensi-
ties, together with the fact that the defend-
ant, in entering his plea of guilty, admitted
all the elements constituting murder in the
first degree. The record shows the com-
mission of an atrocious crime and a total
lack of any mitigating circumstances. We
hold that the trial court did not abuse its
discretion in giving the extreme penalty.
[8] The public policy of this state is de-
clared by legislature and not this court.
That body has provided penaltics of life
imprisonment or death as punishment for
murder in the first degree, and the duty of
fixing that punishment is upon the trial
court when the defendant pleads guilty.
Shaughnessy v. State, 43 Ariz. 445, 32 P.2d
337. The individual views of the members
of this court on the issue of capital punish-
ment are irrelevant. We are limited to the
judicial function of faithfully interpreting
and applying the law as we find it. We
find nothing in the record that would justi-
fy this court in interfering with the death
sentence.
Judgment affirmed.
PHELPS, C. J., and STRUCKMEYER,
UDALL and BERNSTEIN, JjJ., concur.
UintVERSITY oF ALASAMA
SCHOM. OF Laws
Gunfire was his respo
By Alexa Haussler
The Arizona Daily Star
‘ Tt was one of the worst crime sprees in
modern Arizona history.
On July 30, 1978, Gary Tison’s three
sons, Ricky, Raymond and Donald, helped
Randy Greenawalt and their father escape
by smuggling guns into the Florence
prison during a visit.
The next night, two tires on the fugi-
tives’ getaway car went fla#on a dark, iso-
lated stretch of U.S. 95, about 25 miles
south of Quartzsite.
They flagged down Marine Sgt. John
Lyons, who was. driving his wife, 22-
month-old son, and 15-year-old niece to
Omaha, Neb.
Two of Tison’s sons later told authori-
ties that their father forced the family into
the disabled getaway car and he and
Randy Greenawalt shot the family through
the rear window.
Six days later, a state worker found the
bodies of Donnelda Lyons, 23, and her
toddler son Christopher in the car, with
John Lyons’ body just outside.
Searchers found their niece, Theresa
nse to kindness
Tyson, about a half-mile from the car,
where she crawled and bled to death.
Paul Chadwick, Donnelda Lyons’
brother, said the gang killed a beloved,
innocent family for a car and a little extra
time.
“I don’t know a soul that disliked
them,” said Chadwick, 43. “Their nature
was to be helpful and that’s why they got
killed.”
After journeying through Northern
Arizona and New Mexico, the gang went to
Colorado, where they came upon a Texas °
See GANG, Page 11A
YON no greg COPEL.
SAP
e hak rec CVE
Execution
From 1B
- “She was certainly the type of
person that anyone would consid-
er themselves lucky to be with,”
Carroll said Wednesday after-
hoon. “I was her confidant, and
she could tell me everything.”
~ Tyson and Carroll had been
dating for about eight months
when in July 1978 Tyson told
him she was going to visit family
in Yuma, Ariz.
- Tyson left a short time later,
and Carroll never saw her again.
- Greenawalt was serving a life
sentence for a 1974 murder when
he and fellow convicted murderer
Gary Tison escaped from the
state prison in Florence, Ariz., on
July 30, 1978, with the help of
Tison’s three sons.
: The next night, the men kid-
napped and killed Tyson and
three relatives: her uncle, Marine
Sgt. John Lyons, 24; his wife,
Donnelda, 23; and their 22-
month-old son, Christopher. The
Victims were shot to death. The
Lyons’ were found near the es-
capees’ abandoned car 25 miles
South of Quartzsite. Theresa
Tyson’s body was located later, a
quarter-mile away.
- On Aug. 11, 1978, the Tisons
and Greenawalt were back in Ar-
izona, driving a stolen van. They
van one roadblock in Pinal Coun-
ty but were stopped by officers’
gunfire at a second one south of
Casa Grande.
- One of Tison’s sons was killed
by police gunfire, and Tison fled
into the desert, where he died of
exposure. Greenawalt and the
Surviving sons, Raymond and
Ricky Tison, were captured, tried
and sentenced to death. The Ti-
sons’ death sentences were over-
turned by the Arizona Supreme
Court in 1992, and they were re-
sentenced to life in prison.
- Greenawalt was executed by
injection in Florence, Ariz., after
the Arizona Supreme Court, the
Supreme Court and a U.S.
District judge denied him a stay
Wednesday, Greenawalt’s law-
’ j RR | as 1 i) 1
Tenn aw hl he
pnelFecHve_
counsel, that a judge gave im-
proper jury instructions and that
the state’s use of lethal injection
was cruel and unusual
punishment.
Carroll said he vividly remem-
bers the torturous two weeks
while his girlfriend was missing.
“I had a real difficult time with
this,” Carroll said. “In a smal]
way, when we found out she was
dead, it was sort of a relief to
know exactly what was going on.”
Carroll said he believes the
murders helped play a role in his
career choice. Carroll, a police of.
ficer for six years, said he chose
to become a police officer in
hopes he could alleviate some of
the pain and suffering in the
world.
“It never ceases to amaze me
how brutal one person can be to
another,” said arroll, who pa-
trols the streets of southwest Las
Vegas. “And this situation was
the first time in my life I had to
confront that, and it was the first
time I also realized that I wasn’t
immortal.” ;
‘Carroll, who is married, said
that although he has to separate
his feelings about Theresa
Tyson’s fate from his daily duties
in the law enforcement profes-
sion, he still feels no mercy for
Greenawalt.
“When you take something
away from somebody like he did
and then leave them hanging for
20 years, you are essentially kill-
ing a part of their Spirit,” Carroll
said. “She had a lot of hopes and
dreams. We thought we had a
future.”
The Associated
this report.
Press contributed to
——
{7
Arizona Inmate Is Executed for 4 Slayings
ELORENCE, Ariz, Jan, 23 (AP) —
A man who killed at least four peo-
ple, including a 22-month-old boy, af-
ter breaking out of prison almost .20
years ago was executed by injection
early today.
The prisoner, Randy Greenawalt,
47, had spent 18 years on death row.
He had been serving a life sen-
tence for a 1974 murder when he and
a fellow inmate, Gary Tison, escaped
from the state prison in Florence on
July 30, 1978, with the help of Mr.
Tison’s three sons.
The next night, the men kidnapped
and killed a Yuma couple, their in-
fant son and niece and stole their car.
The bodies of Sgt. John Lyons, 24,
his wife, Donnelda, 23, and their son,
Christopher, were found near the
abandoned car. The body of the
Lyonses’ niece, Theresa Tyson, 15,
pAlt
was found a quarter-mile away.
The police believe that the men
then killed a couple from Texas,
James and Margene Judge, near Pa-
gosa Springs, Colo., but the case was
never prosecuted.
The Tisons and Mr. Greenawalt
were stopped at a roadblock in Ari-
zona on Aug. 11, 1978.
Law-enforcement officials killed
one of Mr. Tison’s sons, and Mr.
Tison fled into the desert, where he.
died of exposure.
Mr. Greenawalt and the surviving
sons, Raymond and Ricky Tison,
were captured, tried and sentenced
to death.
The Tisons’ death sentences were
overturned by the state Supreme
Court in 1992, and they were resen-
tenced to life in prison.
THE NEW YORK TIMES NATIONAL Fripay, JANUARY 24, 1997
Greenawalt loses bid for stay of execution
Soc tae ae killer Randy Greenawalt got bad news on two fronts Friday:
eg state Board of Executive Clemency refused to recommend a stay of
ecution, and a federal court turned down his appeal.
purer a two-hour hearing marked by the walkout of Greenawalt’s attorney
hs gaia’ board also voted unanimously against recommending that
ei ife ig a commute Greenawalt’s death sentence to life in prison.
‘nication case Ng balay ty hearing. He is scheduled to die by
npn ‘amie bea aca id oh shotgun slayings of a Marine sergeant
ey,
Pd
B2 The Arizona Republic Saturday, January 18, 1997
:___LAW & ORDER
- Condemned killer loses appeals on 2 fronts
Convicted killer Randy Greenawalt, scheduled to be executed early
Thursday for murdering four people after he broke out of prison in 1978,
lost appeals on the federal and state levels Tuesday.
The 9th U.S. Circuit Court of Appeals in San Francisco said Greenawalt’s
bid for a new hearing did not gain a majority vote among the court’s 20
active judges. No vote total was announced. Also Tuesday, the Arizona
Supreme Court rejected Greenawalt’s contentions that the state Board of
Executive Clemency acted improperly in his case.
'B2 The Arizona Republic Wednesday, January 22, 1997
___ LAW & ORDER
2661. ‘Q| J8qWaAON '
W
Mesa Tri bun ce.
en vette, atte aie ant elie. cemee e l ed
/1esa, ARI Zor A
- sneer eet
Execute
From page B1
chemicals and injection equipment.
DOC staff also will need to be trained
to carry out the execution.
“We don’t know things yet like
exactly who will be sticking that nee-
dle into the arm,” he said.
He noted that-DOC workers must
make costly test runs several times a
year on the gas chamber, which is
about 60 years old. “It’s a very old
and complicated contraption,” he
said.
Proposition 103 passed overwhelm-
ingly by about 76 percent to 23 per-
cent, a greater margin than any other
proposition on the general election
ballot. .
The outcome may have been
influenced by dramatic reports ear-
lier this year of Harding’s execution
_ in the gas chamber, the first in Ari-
zona in 29 years. Media witnesses
reported the sight of Harding writh-
ing in the chamber-for 10'2 minutes
before finally succumbing.
Assistant Attorney General Paul
McMurdie, chief of the criminal
appeals division, said the state Legis-
lature still must enact a statute to
correspond to the constitutional
change before the lethal injection
option becomes effective. Because
Greenawalt’s date is Feb. 13, law-
makers will be asked to take action
quickly, he said.
“Tt’s going to be interesting to see
what happens. Right now, the statute
says they have to do it by lethal gas,
and. the constitution says Randy
Greenawalt has the right to lethal
injection,” he said.
McMurdie said a draft of the bill
already has been forwarded to Rep.
Lela Steffey, R-Mesa, a member of
the House Judiciary Committee and a
driving force behind the referendum,
which was referred to voters by the
Legislature.
“TJ would think that since it was
such a popular vote, we could move it
along very rapidly,” Steffey said, spe-
culating on the chances of quick -
approval by lawmakers. She said
there is “urgency” because of Green-
awalt’s situation, but noted that politi-
cal haggling could stall the bill.
Greenawalt will be asked to make
his decision 20 days before the execu-
tion date, McMurdie said.
Greenawalt’s case has gone to the
U.S. Supreme Court and his death
sentence upheld, and therefore is at .
the same point Harding’s was before
his April 6 death. The 9th U.S. Circuit
Court of Appeals and the Supreme
Court both denied attempts by
defense lawyers to raise new issues in
Harding’s case, a departure from pre-
vious years in which cases in the 9th
Circuit seemed to make endless
rounds. Greenawalt’s case could be
delayed if a court agrees there is a
new issue not raised before, which
McMurdie said appears unlikely.
Greenawalt was convicted for the
1978 murders of John and Donnelda
Lyons, their 2-year-old son and teen-
age niece in Yuma County. Green-
‘ awalt had escaped from the Florence
prison with fellow inmate Gary Tison
with the help of Tison’s sons, Ricky,
Raymond and Donnie.
The group went on a violent spree
across several states for several days
attempting to elude authorities before
being captured at a roadblock shoo-
tout in Pinal County.
Ricky and Raymond Tison also are
on death row for the killings. Donnie
was killed in the shootout. Gary Tison
escaped but died in the desert of expo-
sure.
Two other inmates, Donald Beatty
and Alberto Ignacio Ortiz, have exe
cution dates set for late this year, but
they are likely to be stayed because
both have early avenues of appeal
remaining, McMurdie said.
aaa
= .
wwe Stews wwsees sere 1VCrU,
Prisoner will
_ tually” all
“appeals, prepa-
By Chris Coppola
Tribune writer
Sometime in late January, con-
. victed killer pean codiaealtianal
will have some
decisions to
make.
- Faced with
the death pen-
alty and having
exhausted vir-
oe
rations will be :
being put into the gas chamber, as
made to carry &
out his execu- Greanawalt
tion on Feb. 13. As defense law-
yers feverishly scramble to find a
‘ last-ditch grounds to stop his
death, Greenawalt will be asked to
order a last meal and invite wir
nesses to his death. . ‘
He also will be asked how he
wants to die.
State officials say it appears
Greenawalt will be the first of Ari-
zona’s death row inmates affected
by Proposition 103, which will
change the method of execution in
Arizona from gas chamber to
lethal injection.
Since Greenawalt was convicted
before the proposition passed, he’
e -”z -_— =a
choose form
of execution
will be given a choice between
Don Harding was in April, or
injected with the lethal poison.
Killers convicted after passage of
the proposition, which amends the
state constitution and was
approved Nov. 3, will be subject
only to injection.
The state Department of Cor-
rections has started preparing fo:
the change, said Mike Arr
department spokesman. a
“We're proceeding with a rede-
sign of the death house that would
make an additional room there for
a gurney and the lethal injection
equipment adjacent to the viewing
room,” he said, noting that by law,
witnesses must be able to view the
actual execution. The death cham-
ber is at the state prison in
_ Florence.
' . Several agency officials plan to
consult with other states that have
used the method, he said. The
method is used exclusively or
optionally in 19 other states.
Arra said the initial cost for
lethal injection is expected to be
only several thousand dollars,
limited primarily to a gurney,
Please see Execute / B6
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DS imd
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RRP Zon A
7
«(Gyo
“Me eS a- Fribun e mes
Tucson, Sunday, August 25, 1991
Ghe Arizona Daily Star = 29 - B//
“J UCSON,
ARI ZoNA- :
By Bob Egelko
The Associated Press
SAN FRANCISCO — An Arizona
man’s death sentence in the killings
of four people after a 1978 prison
escape was reinstated Thursday by a
federal appeals court, which relied
on. new U.S. Supreme Court restric-
tions on appeals.
Randy Greenawait’s confession to
Police, who resumed questioning
him after he asked for a lawyer,
would be inadmissible under pres-
ent constitutional standards, requir-
ing reversal of his conviction and
sentence, said the 9th U.S. Circuit
Court of Appeals.
But the court said those standards
do not apply to Greenawait.
“In a 3-0 decision, the court said
the rule barring evidence of confess-
ions in such cases was new, taken
from a 1990 Supreme Court ruling in
a virtually identical case. A 1989 Su-
preme Court decision says state pris-
oners normally cannot base their
federal appeals on new legal rules.
’ Under that standard, the appeals
court said, Greenawalt’s confession
was properly allowed into evidence
because it was voluntary, even if po-
Court reinstates Randy Greenawalt’
Randy Greenawailt
lice conduct did not meet current
legal standards. The ruling by Chief
Judge J. Clifford Wallace reversed a
decision by U.S. District Judge
Charles Hardy that granted Green-
awalt a new trial.
Defense lawyer Cameron Artigue
said the ruling was a “miscarriage of
justice” and would be appealed.
Artigue said Hardy threw out
Greenawalt’s confession under the
standard ofa 1981 Supreme Court
decision, which the appeals court
had told him in 1986 to apply to the
case, The Supreme Court’s 1990 de-
cision on confessions did not create
a new rule, but merely showed that
Hardy was right in his interpretation
of the 1981 rule, said Artigue. He
said it-made no. sense to prevent
Greenawalt from taking advantage
of a correct decision.
Assistant Attorney General Bruce
Ferg said he was pleased with the
- ruling. He described the 1981 deci-
sion on confessions as a “general
principle”-and the 1990 ruling as an
extension covering the precise issue
involved in Greenawalt’s case. The
Standard that would ban the use of
the confession is therefore a new
rule that Greenawalt cannot invoke,
Ferg said.
The court agreed with Ferg’s as-
sessment of the cases. Wallace said
the 1990 ruling was not “dictated”
by the 1981 decision on confessions,
but was “an extension of it, about
which reasonable courts might dif-
fer.”
In allowing Greenawalt’s confes-
sion into evidence, a Yuma County
Superior Court judge made a rea-
sonable application of the law in
effect at the time of the trial, Wal-
lace said.
- Ferg said Greenawalt was serving
a life. sentence for murdering a
truck driver in Flagstaff when Ricky
and Raymond Tison smuggied guns
to their father Gary, another life
prisoner, and Greenawalt during a
visit to the Arizona State Prison at
Florence in July 1978. The court
said they escaped to a car driven by
Donald Tison, another brother.
A week after the escape, the
bodies of John and Donnelda Lyons
and their son Christopher were
found near the escapees’ abandoned
car in Yuma County. The body of the
Lyonses’ niece, Theresa Tyson, was
found nearby five days later.
Twelve days after the escape, the
court said, Greenawalt and the
Tisons iried to drive a stolen van
through two police roadblocks. Don-
ald Tison was shot to death, and
Gary Tison was later found dead of
exposure. The other three were cap-
S death sentence -
tured, tried and sentenced to death.!
The Tisons’ sentences have been set!
aside and their resentencing -. is
pending in state court. ote
Questioned after his “arrest,
Greenawalt refused to answer ques-
tions and asked for a lawyer, Offis -
cers returned six separate - timeg
over the next-nine hours to question.
him, advising him of his rights most’
of those times. ae
A lawyer was allowed to speak
with him briefly after the fifth inter?
rogation, but was not present when a!
detective returned to his cell to ask|
. further questions. His statement oni
that occasion was allowed into evi-/
dence at his trial. i
A jury convicted Greenawalt. of|
the four-maurders: without having to
decide whether he had taken part inj
the shootings. : u
Though the police questioning;
violated Greenawalt’s rights under:
current standards, “Greenawalt was j
never threatened or subjected to
any kind of rough handling or hae;
rassment,” or to any type of coer-:
cion, Wallace said. He said the con-.
fession was voluntary and was:
properly allowed into evidence. ©
I'riday, January 15, 1993
The Arizona Republic BAL
Hison Gang killer gets execution Stay
By Pamela Manson
The Arizona Republic
Death-row-inmate Randy Grcen-
awalt, who was to die next month
for his part in one of the state's
most infamous crime sprees, has
been granted a stay of execution by
the Arizona Supreme Court.
Greenawalt, a member of the
so-called Tison Gang, which killed a
family of four in 1978, had been
scheduled to dic Feb. 17.
In granting the stay, the Supreme
Court said inmates are given 120
days after getting a new lawyer to
file new requests to overturn their
sentences. Grecnawalt, 43, who was
assigned a new lawyer in November,
claims previous attorneys in his trial
and appeals were ineffective.
The stay was granted Tucsday
and made public Wednesday. |
In other death-row rulings this
week, the high court Thursday
unanimously upheld the death sen-
tence of Clarence David Hill, 44,
who killed his landlord in 1989 by
sefting him on fire.
Tuesday, it told its clerks to pre-
pare an execution warrant for James
Dean Clark, 35, who is under four
death sentences in the 1977 murders
of thé een two ranch hands
at a guest ranch near Elfrida.
Also Tuesday, the court denied a
request to reconsider a warrant of.
execution issued for Johri George -
Brewer, 27, who is to-die March 3
for the 1987 murder of his pregnant
girlfriend in Flagstaff: ~‘
Brewer, who says he’ wants to die
for his crime, had filed a’ motion —
asking the court to restrict “un-
wanted and unrequested access” to
his case by third parties. The court
said it treated the motion as a
request by Brewer to continue
representing himself and granted it.
6684
Grecrawelf— AZ Det h crssrorsas
reasonable. The court also awarded costs incurred 1 in tigeting the
fee petition.
If a district court has disc?etion to determine the amount of fees
to be awarded, it clearly has dixcretion to dgtermine whether a fu-
ture fee schedule should be established. THe class failed to show
that the district court abused its diXcretion if denying the proposed
future fee schedule.
The court agreed with the Secretaky that the district court erred
in awarding interest on the judgment s there was no waiver of
sovereign immunity. Therefore, the awafd of interest was reversed.
Because the class succeeded on two of the major issues in its ap-
peal, it was entitled to fees for work performed on this appeal.
Beezer, J.; Noonan, Schroeder, JJ., concurN
Constitutional Law
CITY’S DENIAL OK IMPARTIAL DECISION MAKER
AT EMPLOYEE’S POST-TERMINATION HEARING
DENIAL OF DUE PROCESS
Walker v. Berkeley
9th Cir.; August 22, 1991 Full text: Pg. 6705
Reversing and. remanding a district court grant of summary
judgment, the court of appeal
appellant due process when it did not provide
decisionmaker at her post-termination hearing.
Appellant Jaki Walker was tetminated from her employment po-
sition with the City of Berkeley. Walker broy¥ght a section 1983 ac-
tion, alleging that the City deprivdd her of due process because the
decisionmakers at her pretermination and post-termination hear-
ings were biased against her. The districf court granted summary
judgment for the City.
Because Walker was a civil servant who, under City regulations,
could be terminated only for cause, she had a property interest in
her employment that entitled her to @ue process protection. The
court then determined the degree of protéction to which she was en-
titled. The court agreed that the failure to, provide an impartial de-
cisionmaker at the pretermination Stage, \of itself, did not create
liability, so long as the decisionmaker at thg post-termination hear-
ing was impartial. Because the Cjty denied\Walker due process at
her post-termination hearing, the/City could hot escape liability by
relying on the summary judgm¢nt that eliminated the pretermina-
tion claim.
The allegedly defective prétermination prodeeding could have
been cured by a due procesg post-termination hearing. However,
the court agreed that the Cify denied Walker dua process when it
caused an individual to funttion both as the City’§ attorney in the
federal court case and as thé decisionmaker in Walker’s post-termi-
nation hearing. The specigl verdict form correctly asked the jury to
decide whether the City Manager, the nominal decistonmaker, had
made an independent d¢cision on Walker’s termination. The jury
decided that he had not/This finding necessarily pointed to the as-
sociate City Attorney a§ the actual decisionmaker. In addition, the
court should not have asked the jury to decide the legal question of
the adequacy of the pgst-termination proceedings. Juries do not de-
cide whether or not a procedure satisfies due process. In this case,
once the jury had detided the disputed fact that the associate City
Attorney was the decisionmaker, the court, not the jury, Should
"have decided that the circumstances created an intolerable risk of
unfairness.
The fatal defect in this case was in allowing the same person to
serve both as decisionmaker and as advocate for the party that ben-
efited from the decision. Because the City denied Walker an impar-
tial decisionmaker at her post-termination hearing, the verdict was
set aside and the case remanded for a determination of the appro-
priate remedy.
er with an impartial
eld that the City/of Berkeley denied |
Goodwin, J.; Canby, J., concurring; Chambers, Sr.J., concurring
separately.
Courts and Procedure
JURY SELECTION BY MAGISTRATE REQUIRED
NEW TRIAL
United States. Gamble
9th Cir.; August 22, 1991
Full text: Pg. 6699
judgment of convic-
Strict court committed re-
tion, the court of appeals held that the
allowing a magistrate to
versible error requiring a \new trial
impanel the jury.
Appellant Ronald Gamble was/convicted of being a felon in
possession of a firearm. The Vistryct court referred selection of the
jury to a magistrate. Gamble rais€d no objection to this referral and
the jury was subsequently swoxn in by the district judge.
In Gomez v. United States Supreme Court held that the Fed-
eral Magistrates Act does ngt authorize magistrates to conduct voir
dire in felony trials over/a defépdant’s objection. However, in
Peretz, the Supreme Coug ruled that a defendant can consent to the
conduct of voir dire byAhe magistrate. The government’s conten-
tion that Gamble waivéd his objection to the magistrate’s selection
of the jury by failingAo raise the objection at trial was inconsistent
to delegation, even though that objection can be waived by consent.
Here, Gamblos trial began before the decision in Gomez, and he
did not consght to the magistrate’s conduct of voir dire. On that ba-
sis, the couft reversed Gamble’s conviction and remanded to the
district couft for a new trial.
Per Curiam; Fletcher, Pregerson, Trott, JJ.
Criminal Procedure
NO NEW RULE MAY BE ANNOUNCED ON
COLLATERAL REVIEW EXCLUDING CONFESSION
MADE OUTSIDE PRESENCE OF COUNSEL ONCE
ONE REQUESTED
Greenawalt v. Ricketts
9th Cir.; August 22, 1991 Full text: Pg. 6692
Affirming in part and reversing in part a district court grant of
habeas relief, the court of appeals held that the district court could
not, on collateral review, announce a new rule requiring the exclu-
sion of any confession given in response to police interrogation
outside the presence of counsel once counsel had been requested.
Appellant Randy Greenawalt escaped from state prison and
committed various crimes, including felony murders of several in-
dividuals. Once captured, Greenawalt was requested by police to
make a statement. Greenawalt refused and asked for counsel. The
interrogation immediately ceased, but Greenawalt was later ap-
proached by other law enforcement and corrections officers.
Greenawalt confessed to some of these officers but not others. After
being taken to jail, Greenawalt spoke with his counsel. Some time
later, after another Miranda warning, Greenawalt again confessed.
The state trial court excluded the earlier confessions but admitted
the last one. The district court granted his petition for habeas relief,
holding that any confession given in response to police interroga-
tion outside the presence of counsel once counsel had been request-
ed, had to be excluded. The holding of the district court in this case
DAILY OPINION SERVICE
Ninth Circuit Court of Appeals 405
society become rationally defensible. Cf. Trop v. Dulles, 356 U.S.
86, 101 (1958).
The Framers provided in the Eighth Amendment the limiting
principles otherwise absent in the prevailing theories of punish-
ment. One such principle is that the States may not impose punish-
ment that is disproportionate to the severity of the offense or to the
individual’s own conduct and cuplability. Because the proportion-
ality inquiry in this case overlooked evidence and considerations
essential to such an inquiry, it is not surprising that the result
appears incongruous. Ricky and Raymond Tison are similarily sit-
uated with Earl Enmund in every respect that mattered to the deci-
sion in Enmund. Like Enmund, the Tisons neither killed nor
attempted or intended to kill anyone. Like Enmund, the Tisons
have been sentenced to death for the intentional acts of others
which the Tisons did not expect, which were not essential to the
felony, and over which they had no control. Unlike Enmund, how-
ever, the Tisons will be the first individuals in over 30 years to be
executed for such behavior.
I conclude that the proportionality analysis and result in this case
cannot be reconciled with the analyses and results of previous
cases. On this ground alone, I would dissent. But the fact that this
Court’s death penalty jurisprudence can validate different results
in analytically indistinguishable cases suggests that something
more profoundly disturbing than faithlessness to precedent is at
work in capital sentencing.
IV
In 1922, “five negroes who were convicted of murder in the first
degree and sentenced to death by the Court of the State of
Arkansas” appealed to this Court from an order of the District
Court dismissing their writ of habeas corpus. Moore v. Dempsey,
261 U.S. 86, 87 (1923). The crux of their appeal was that they “were
hurried to conviction under the pressure of a mob without any
regard for their rights and without according them to due process
of law.” /bid. In reversing the order, Justice Holmes stated the fol-
‘lowing for the Court:
“It certainly is true that mere mistakes of law in the course of
a trial are not to be corrected [by habeas corpus]. But if the
case is that the whole proceeding is a mask—that counsel, jury,
and judge were swept to the fatal end by an irresistable wave
of public passion, and that the State Courts failed to correct
the wrong, neither perfection in the machinery for correction
nor the possibility that the trial court and counsel saw no other
way of avoiding an immediate outbreak of the mob can pre-
vent this Court from securing to the petitioners their constitu-
tional rights.” Jd., at 91. ‘
A
In Furman v. Georgia, 408 U.S. 238 (1972), this Court concluded
that the State’s procedural machinery was so imperfect that imposi-
tion of the death penalty had become arbitrary and therefore
unconstitutional. A scant four years later, however, the Court vali-
dated Georgia’s new machinery, and in 1977 executions resumed.
In this case, the State appears to have afforded petitioners all of the
procedures that this Court has deemed sufficient to produce consi-
tutional sentencing decisions. Yet in this case, as in Moore,
“perfection in the [State’s] machinery for correction” has not
secured to petitioners their constitutional rights. So rarely does any
State (let alone any Western country other than our own) ever exe-
cute a person who neither killed nor intended to kill that “these
death sentences are cruel and unusual in the same way that being
struck by lightning is cruel and unusual.” Furman v. Georgia, supra,
at 309 (Stewart, J., concurring). This case thus demonstrates, as
Furman also did, that we have yet to achieve a system capable of
“distinguishing the few cases in which the [death penalty] is
imposed from the many cases in which it is not.” Jd., at 313
(WHITE, J., concurring).
What makes this a difficult case is the challenge of giving substan-
tive content to the concept of criminal culpability. Our Constitu-
tion demands that the sentencing decision itself, and not merely
the procedures that produce it, respond to the reasonable goals of
punishment. But the decision to execute these petitioners, like the
state courts’ decisions in Moore, and like other decisions to kill,
appears responsive less to reason than to other, more visceral,
demands. The urge to employ the felony-murder doctrine against
accomplices is undoubtedly strong when the killings stir public pas-
sion and the actual murderer is beyond human grasp. And an intu-
ition that sons and daughters must sometimes be punished for the
sins of the father may be deeply rooted in our consciousness.?° Yet
punishment that conforms more closely to such retributive
instincts than to the Eighth Amendment is tragically anachronistic
in a society governed by our Constitution.
B
This case thus illustrates the enduring truth of Justice Harlan’s
observation that the tasks of identifying “those characteristics of
criminal homicides and their perpetrators which call for the death
penalty, and [of] express[ing] these characteristics in language
which can be fairly understood and applied by the sentencing
authority appear to be ... beyond present human ability.” Mc-
Gautha v. California, 402 U.S. 183, 204 (1971) (emphasis added).
The persistence of doctrines (such as felony murder) that allow
excessive discretion in apportioning criminal culpability, and of
decisions (such as today’s) that do not even attempt “precisely [to]
delineate the particular types of conduct and states of mind war-
ranting imposition of the death penalty,” ante, at 20, demonstrate
that this Court has still not articulated rules that will ensure that
capital sentencing decisions conform to the substantive principles
of the Eighth Amendment. Arbitrariness continues so to infect both
the procedure and substance of capital sentencing that any decision
to impose the death penalty remains cruel and unusual. For this
reason, as well as for the reasons expressed in Gregg v. Georgia, 428
U.S. at 227, I adhere to my view that the death penalty is in all cir-
cumstances cruel and unusual punishment prohibited by the Eighth
and Fourteenth Amendments, and dissent.
20The prophets warned Israel tht theirs was “a jealous God, visiting the iniq-
uity of the fathers upon the children unto the third and fourth generation of them
that hate [Him].” Exodus, 20:5 (King James version). See, e.g., Horace, Odes III,
6:1 (C. Bennett trans. 1939) (“Thy fathers’ sins, O Roman, thou, though guiltless,
shall expiate”); w. Shakespeare, The Merchant of Venice, Act III, scene 5, line
1 (“Yes, truly, for look you, the sins of the father are to be laid upon the children”);
H. Ibsen, Ghosts (1881).
Ninth Circuit Court of Appeals
Cite as 87 C.D.O.S. 405
BARBARA L. REYNOLDS, ESQ., Plaintiff-
Appellant, v.
WILLIAM E. BROCK, SECRETARY OF
LABOR, et al., Defendant-Appellees.
No. 86-1571
D.C. No. CV-84-7012-WWS
Northern District of California, SCHWARZER, District Judge.
Filed April 22, 1987
Before: CHOY, GOODWIN and PREGERSON, Circuit Judges
PREGERSON, J.:
Barbara Reynolds appeals from the district court’s summary
judgment dismissing her claim that she had been discharged from
her job at the Department of Labor as a result of her physical handi-
cap in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701
et seq. The district court rendered summary judgment in favor of
the Department of Labor on the grounds that Reynolds was not a
handicapped individual for purposes of the Rehabilitation Act and
that she failed to raise a genuine question of material fact regarding
her employment discrimination claim. We reverse the district
court’s order granting summary judgment and remand.
BACKGROUND
In July 1979, the Department of Labor Wage-Hour Division in
San Francisco hired Reynolds as a clerk-typist (GS-5) in the Farm
406 ~ Ninth Circuit Court of Appeals
fod ° ‘
CALIFORNIA
Labor Contractor Registration Unit. Her primary duty was to pro-
cess applications for certificates of registration submitted on farm
labor contractors and their employees. In addition to processing
applications, the position required Reynolds to type, distribute
mail, and complete periodic reports.
A few months after taking the job, Reynolds suffered an epileptic
seizure at work. She had not told anyone at work about her epilepsy
for fear of being denied the job. Reynolds subsequently suffered
two more seizures at work.
After her first seizure, Reynolds made several job-related
requests to her supervisor. She did not attribute her requests to her
epilepsy. She requested additional training, the assistance of a GS-
3 clerk-typist, and a change in her working hours from 8:30 a.m.-
5:00 p.m. to 7:30 a.m.-4: :00 p.m. The Department denied each of
these requests.
Guy Guerrero, Reynolds’s Supervisor, evaluated her job perfor-
mance ninety days after Reynolds began working for the Depart-
ment of Labor. He found her accurate, but less productive than
average. Reynolds told Guerrero that the evaluation was unfair and
that she needed more training. Guerrero destroyed the evaluation.
In November 1979, Reynolds applied for and was denied a position
aS a wage analyst. Guerrero prepared an evaluation of Reynolds’s
work as part of the selection process for her requested promotion.
He noted her good public relations skills and lagging productivity.
In April 1980, Guerrero again evaluated Reynolds. He rated her
work satisfactory but told. her she must improve. On April 23,
Guerrero gave Reynolds a ninety-day notice of unacceptable work
performance. He told her that to retain her job she had to process
at least ten applications and issue at least five certificates in each
eight-hour day. The parties dispute the reasonableness of these
requirements. During the following ninety-day period, Guerrero
evaluated Reynolds three times, each time rating her performance
unsatisfactory. On August 21, the Department of Labor issued a
notice of proposed adverse action informing Reynolds that she
would be discharged after thirty days. The Regional Administrator
offered Reynolds a position as a receptionist. Although the position
was Classified as a GS-4, below Reynolds’s GS-5 clerk-typist classi-
fication, Reynolds would have received a slight increase in pay.
Reynolds refused the receptionist position. The Department of
Labor discharged her on September 26, 1980.
Reynolds filed a petition with the Merit System Protection Board
(MSPB) on October 6, 1980. She alleged that the Department of
- Labor had discriminated against her because of her epilepsy and
had failed to train her adequately. The presiding officer denied her
claim. The MSPB affirmed the decision. Reynolds then filed a
charge of handicap discrimination with the Equal Employment
Opportunity (EEO) counselor of the Department of Labor. The
EEO office rejected her charge. She appealed the EEO decision to
the district court. The district court granted summary judgment for
defendants.
STANDARD OF REVIEW
We review the trial court’s grant of summary judgment de novo.
Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). We apply
the same standard applied by the district court under Fed. R. Civ.
P. 56(c): whether there is no genuine issue as to any material fact
and whether the moving party is entitled to judgment as a matter
of law. In applying this standard, we must consider the evidence
in the light most favorable to the nonmoving party. Ashton v. Cory,
780 F.2d 816, 818 (9th Cir. 1986); Lojek v. Thomas, 716 F.2d 675,
677 (9th Cir. 1983).
ANALYSIS
I. Epilepsy as a Handicap Under the Rehabilitation Act of 1973
The Rehabilitation Act of 1973 provides:
No otherwise qualified handicapped individual in the United
States ... shall, solely by reason of his handicap, be excluded
from the participation in, be denied the benefits of, or be sub-
jected to discrimination under any program or activity receiv-
ing Federal financial assistance or under any program or
activity conducted by an Executive agency...
29 U.S.C. § 794 (emphasis added).
The district court held that Reynolds was not handicapped for
purposes of the Rehabilitation Act, because she “has never shown
that her epilepsy prevented her from performing the physical tasks
involved in her job, i.e., sitting at a desk, preparing forms, typing,
and answering the telephone.” In so holding, the district court con-
fused the definition of “handicapped individual” with the defini-
tion of “otherwise qualified” individual. To fall within the
protection of 29 U.S.C. §794, an individual must be both
“handicapped” and “otherwise qualified.” The Supreme Court has
defined “an otherwise qualified” individual as “one who is able to
meet all of a program’s requirements in spite of his handicap.”
Southeastern Community College v. Davis, 442 U.S. 397, 406
(1979) (hearing impaired applicant not qualified to enter nurse
training program). 29 U.S.C. § 706(7) defines a “handicapped
individual.” Section 706(7)(B) provides: ;
[T]he term “handicapped individual” means ... any person
who (i) has a physical or mental impairment which substan-
tially limits one or more of such person’s major life activities,
(ii) has a record of such an impairment, or (iii) is regarded as
having such an impairment.
The district court’s approach would preclude any “otherwise quali-
fied individual” from being classified as handicapped because,
under its analysis, anyone who could meet all of a job’s require-
ments, and therefore was “otherwise qualified,” would not be hand-
icapped. Reynolds is “otherwise qualified.” She may also be
handicapped. A plaintiff need not prove that she is incapable of
doing her job to prove that she is handicapped.
Contrary to the district court’s holding, epileptics are handi-
capped individuals. In Mantolete v. Bolger, 767 F.2d 1416, 1421-:
23 (9th Cir. 1985), this court determined that epileptics are handi-
capped individuals for purposes of the Rehabilitation Act of 1973.
Although Mantolete involved an epileptic who was denied employ-
ment, its rationale applies with equal force to an epileptic who is
discharged from employment.
Other courts that have faced this issue have also held that epi-
lepsy is a handicap for purposes of the Rehabilitation Act. E.g.,
Akers v. Bolton, 531 F. Supp. 300, 315 (D. Kan. 1981); Drennon
v. Philadelphia Gen. Hosp., 428 F. Supp. 809, 815 (E.D. Pa. 1977);
Smith v. Adm’r. of Veterans Affairs, 32 Fair Employment Practice
Cases (BNA) 986, 989 (C.D. Cal. 1983); Office of Federal Contract
Compliance Programs, U.S. Department of Labor v. Ford Motor
Co., 3, Recommended Decision and Order, Case No. 80-OFCCP-
32, 3 (Oct. 4, 1985).
The Rehabilitation Act defines a handicapped individual as one
who “(i) has a physical or mental impairment which substantially
limits one or more of such person’s major life activities. ...” 29
U.S.C. § 706(7)(B). The regulations promulgated under the Act
define major life activities as “functions, such as caring for one’s
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.” 29 C.F.R. § 1613.702(c).
Reynolds’s epilepsy substantially limits her ability to work. Even
though medication controls her seizures, federal and state regula-
tions and policies restrict the types of jobs available to her. People
with any history of epilepsy are ineligible to drive trucks in inter-
state commerce. 49 C.F.R. § 391.41(b)(8). Epileptics are ineligible
for “hazardous” jobs in the federal civil service unless they have
been seizure-free without medication for two years. Office of Per-
sonnel Management, Handbook of Selective Placement of Persons
with Physical and Mental Handicaps in Federal Civil Service
Employment, OPM Doc. 125-11-3, 63:(1981). The military will not
consider applications from epileptics until they have been seizure-
free without medication for five years. Many states render epilep-
tics ineligible for driver’s licenses unless they have been seizure-free
for a specified period. Epilepsy Foundation of America, Legal
Rights of Persons with Epilepy 7 (1985). Unable to drive to work,
many epileptics have severely limited job opportunities. The
unemployment rate among fully employable epileptics is more than
two times the national average. The underemployment rate for epi-
leptics is perhaps higher still. Commission for the Control of Epi-
lepsy and Its Consequences, United States Department of Health,
Education and Welfare, 1 Plan for Nationwide Action.on Epilepsy,
85 (1977).
Both the Rehabilitation Act of 1973 and the decisions of the
courts that have interpreted it lead to the inescapable conclusion
DAILY OPINION SERVICE
SUMMARIES Pg:
Adminiftrative Lia
THE COURT’S OPINIO Hox FuLED fy 24, 1991, WA
AMENDED /TO CORK oN A DOLLAR FIGURE
State ofv daha) v. Interstate Commefce
Commis\ ion/
9th Cir.; July /o91 Vi
Affirming 2 edision of the Jaferstate Co
aiereane & a sailrgad Sabane iy ent of its tra
Fulltext: Pg. he
Commerce Commissia
cific Railfoad to abanda
the Comni\ission’s voting
(the Commission) ehoridd UnionPa-
track in that state. Idaho claimed that
Hrocedure was, invalid because it gountéd
issiong#, and that it improperly re-
on Ia dd dition, Idaho chaMengg¢d the
procedural validity ofAhe de-
bf the railroad track and/denying
eCision.
that Idaho gid not challenge the
ommission’s
arting Co ésigher’s notational
vote. Specifically, Idaho contended, that the departing Commission-
nted becauge she had’been re-
Commission when the last negegsary voté was cast—
ing to Idaho, the\case vas “decided.” Without
that vote, Ahe other Commissioners werefvenly ‘split, and would
have left the Commission\s earlier deci$/on denying abandonment
of the track intact. Howevey, counting fie vote of a departing Com-
siesliie does not affect the time in hid a decision is final. The,
court found no statutory prohivitionAgainst the Commisison’s pr
ceduré of counting the vote of 9% departing Commissioner.
Comsnission was empowered toprescribe regulations and prpce-
dures to carry out the Interstat¢% Commerce Act. The Co
had/set forth a rationahbasis for its notation vote counting policy.
In fact, it had e stove procedure consistently, and v/as well
within its bund discretion 6 adopt that policy.
)
in reopening its re gs decision ra Union Pacific’s petition
to abandon the track /That decision was within the Go
discretion and was garried out it identified a materi
Commission’s dg
branch. The wey ti to be accorded various items of evidence as
well as the infefe
to reweigh. Thtrefore, the court affirmed the Commission's abap\-
donment decifio
The court held that although it lacked jurisdiction to review tb
Commission’s detision affirming the procedural validity of the
track abandonmenMlecision and denying Idaho’s petition to reopen
that decision. The co
ed that where a party petitions an agency for reconsideration on the
ground of material error, atrerder that merely denies rehearing of
the prior order is not itself reviewable. Accordingly, the court dis-
missed the petition for review of this decision.
Canby, J.; Browning, Trott, JJ., concurring.
Bernardi v.
9, but rather argued that the Com-”
noted that the Supreme Court has conclud- _
ttorney’s Fees
ULTIPLIER TO LODESTAR FIGURE MUST BE
APPLIED TO ENSURE ACCEPTANCE OF CIVIL
RIGHTS CONTINGEN€Y CASES BY COUNSEL
eutter
Oth Gir; August 22, 1991 Full text: Pg. 6690
Affirmiyg in part and reversing sh part/a district court judgment,
the court Of appealsheld that thedistrict £ourt erred in not applying
a multiplier tothe lodestar figtire awarded for attorneys’ fees to en-
sure tha{counsel will accept civil righfs contingency fee cases.
AppeNant Gene C. Betnardi, on bghalf of herself and her class,
obtained an order holding the Secretary of Agriculture in contempt
Jof court fok failure ta comply with the terms of a consent decree be-
tween the class and the Secretary. The district court awarded attor-
neys’ fees fo the counsel for the class for work performed in
obtaining thé/contempt order. galed the amount of
fees award gty challenged the dis-
trict court's award of interest on/the judgmefit. The discrepancy be-
tween the igs : ae 99 ass and recommended by
a magis ard granted by the district
because the district court was in
in determining the appropriate fee
no better position p
dy refer motions, such as the one here, to
amount. A district co
heen for proposed findings of fact and recommendations.
_¥Ynhe district court’s understanding of the litigation is superior to the
~ appeals court’s andl
abuse of dgscretion was ap-
propriate. Here, the distgict court-was familiar with the underlying
litigatign, the cgntents Of the°consent decree/the process estab-
lishe for moniforing pliance with the cphsent decree, and the
docwiments filed“ corinection with the métion for contempt. Al-
ugh civil rights cages may be charaoferized as complex litiga-
on, it was not an abuse of discretion’for the district court to find
that the prosecution of a single motién for contempt that was a part
of a civil rights case did not frvolve complex work.
The district court did not abuSe its discretion by refusing to char-
acterize the work as/complex.\Therefore, the district court’s deci-
sion to apply rates similarAo that charged by two local plaintiff’s
attorneysfor civil rights Work was also not an abuse of discretion.
The district coyirt’s decision to reduce the class’ total hours billed
by one half was also not an abuse of discretion. As a result of fac-
tual findings, that court found that-half of the namber of hours re-
ported wag sufficient to actiéve the results obtained by the class.
The expJénations offered by the district court wére sufficient to al-
low the’appeals coprt to exercise its review fuyiction.
Ae court noted that one exceptic ynal circymstance it has identi-
fiedas justifying aj multiplier is where a payment for attorneys’ ser-
vices is contingent upor-success and\theAttorney bears the risk of
onpayment in casé ailure. Here, \th€ district court did not ad-
dress whetherSu independent ¢vidence had been presented
that demonstrated an Francisco/no longer has a manifest need
for feeénhancements in civil rights Cases. Nor did the district court
find’ that the fee arrangement between the class and the class coun-
el was not the ype of risky contingent fee arrangement identified
in D’Emanuele’ Therefore, the district court shoutthhave applied a
multiplier of 2.0 jto the lodestar figure. Accordingly ,jthe attorneys’
fee award was increased. In addition, the district gourt found that
the counsgf for the class duplicated much of the wérk of the consent
decree monitor. Thus, it was not an abuse of discretion for the dis-
trict coyft to limjt the cost award to $352.52
The/district court’s denial of all fees apd costs for work on the
fee petition on the ground that it amounted to a second major liti-
gation was an abuse of discretion. A reView of the record indicated
that the request for fees and costs fet work on the fee petition was
eview for ar
/
5
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‘eluded con-
“
date of the
; announced
od to plead
nd other in-
ses in which
ews calmly.
chief. “He’s
hat is tight-
s no part of
raise even a
elf-defense.”
» jail to the
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carcely two
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id J. Bruce
quiet tones,
his guilt in
Then he
idge Cotton
e imprison-
eriffs to the
» afternoon.
vegan to re-
ecame pop-
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pionship of
ng man of
lz began to
night enlist
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he was
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transfer to
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ystem. At
tudying of
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ified by the
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sht up with
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nickname
Corporal |
gned as an
protested,
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smmando—
thought of
35, or even
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ntin. From
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presa, Cal-
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Edith
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ero
PLATINUM BLONDE IN
THE KING'S TEMPLE
(TD July, 1952)
The body was found on February 23rd,
1952, under a covering of leaves near
the Temple of Love where, 200 years ago,
Louis XV of France wooed Madame Du-
Barry. It was identified as that of Jac-
queline Richardson, 26, who had been
missing since August, 1951. Jackie had
been a receptionist at a smart London
hotel, but in the spring of that year she
had gone to France and had fallen in
love with a young Frenchman her friends
knew only as Jean.
Jean Liger, an artist and interior dec-
orator, was questioned when some bags
of Jackie’s were found in his rooms. He
had been in love with her, he admitted.
Had wanted to marry her. But she was
jealous, too possessive. On August 5th,
they had taken a picnic lunch to the
Temple of Love. They had quarreled.
She slapped him. He hit her, and she
fell, striking her head on a stone. Then,
in panic, he had strangled her and buried
her body in a shallow grave.
On February 28th, 1952, Jean Liger, 27,
was jailed at Versailles, charged with
murder. But it was not until February
7th, 1955, that he was found guilty by
a panel of judges and sentenced to 7
years in prison. The three years he has
spent in prison will be counted as part
of that sentence.
Jacqueline Richardson
7 HOURS OF TORTURE
(TD April, 1954)
At 11 o’clock on the night of December
lst, 1953, Carl J. Folk, a former New
Mexico carnival operator, invaded a
two-room trailer parked near Holbrook,
Arizona. He knocked out and bound the
owner, Raymond Bruce Allen, who was
traveling west with his wife, Betty, 22,
and their 10-month-old son.
Allen recovered consciousness and had
to watch helplessly, bound hand and foot,
while Folk tortured, raped and strangled
his young wife. Finally Allen managed
to free his feet. He ran to the highway,
where a passing truckdriver freed his
hands. Then he raced back to the trailer
and shot Folk, but not fatally.
Folk was brought to trial and found
guilty of the torture murder of Betty
Allen. And on February 18th, 1954, Su-
perior Judge Don T. Udall sentenced him
to die in the Arizona prison gas chamber
on April 30th.
However, Folk had still another year
of life before he paid the final penalty.
On March 4th, 1955, at 7 a.m., he entered
the state prison gas chamber and was
strapped in the lethal chair. He was pro-
nounced dead several minutes later by
the prison physician, Dr. E. L. Heap. The
execution was witnessed by 26 person
including officers and newsmen.
TEEN-AGE LOVERS'
On January 20th,
jury in New ¥6rk General Sessions Court
found_YAtTliam Byers, 18, guilty of first-
deeree murder, and Theresa Gresh, 16,
guilty of second-degree murder, in
the slaying of Theresa’s hard-working
mother, Mrs. Anna Gresh, 43, on March
4th, 1954.
Interrupted in a torrid love scene by.
the unexpected return of Mrs. Gresh, the
two teenagers hit the mother on the head
with a hammer, then stabbed her 20
times with a kitchen knife. Each accused
the other of the killing. But, after plac-
ing the woman’s body in a kitchen tub
and covering it with plaster, the two con-
tinued their lovemaking.
The murder was not discovered until
March 24th, when neighbors in the
apartment house complained of an odor.
Two days earlier Theresa had told a
truant officer, looking for her, that her
mother had run away with a man. But
now detectives began to check on The-
resa and the romance, with its shocking
climax, was revealed.
The trial of Theresa and Billy began
on January 4th and lasted 16 days. The
jury deliberated seven and a half hours
before reaching its verdict.
On February 11th, 1955, Judge Jonah
J. Goldstein sentenced William Byers to
die in the electric chair during the week
of March 21st. He is now in the death
house at Sing Sing.
Report of latest legal developments
on cases published -by TD
On February 18th, Theresa Gresh was
sentenced to 20 years to life. Theresa, the
youngest girl ever tried for first-degree
murder in New York County, is now in
the Women’s State Prison at Bedford
Hills, New York.
oe,
Theresa Gresh
CASE HISTORY OF
TERRY NIENSTEDT
(TD December, 1954)
On September 12th, 1945, John E. Wag-
ner, 70-year-old tailor, was bludgeoned
to death with an axe in his shop in
Whitestone, New York.
On October 25th Helena Theresa Nein-
stedt, 16, released the week before from
2% years’ probation by the Children’s
Court, was questioned by detectives. In
her home they found Wagner’s wallet,
containing a Government check made
out to him. Terry confessed she had slain
Wagner after he had made advances to
her.
Terry was committed to the Mattea-
wan State Hospital for the Criminally
Insane. She was brought to court in
June, 1954, pleaded guilty to second-de-
gree manslaughter, was paroled in cus-
tody of her laywer, pending sentence.
On February 28th, Terry appeared be-
fore Judge Peter T. Farrell in Queens
County Court for sentencing. Judge
Farrell suspended sentence on the
second-degree murder charge, with the
proviso that she remain on indefinite
probation and receive continuing psy-
chiatric treatment, with reports to be
forwarded to the court.
61
Allen was shouting insane imprecations at the attacker
of his wife. He struggled frantically with his bonds. His
face was contorted and he summoned every ounce of
strength in his body.
Betty moaned. Allen cursed. Then Folk stood up. ‘With
a kind of crazy delicacy, he picked up Raymond Allen and
carried him into the other compartment of the trailer
where he would not witness the iniquitous violation of
his wife.
Raymond Allen writhed on the floor. He suffered physical
pain, but that was as nothing compared with ae emotion-
al torture he underwent.
From the other room he heard his wife’s screams, the
baby’s cries. Then a faint whimpering came from his wife’s
lips as again she was choked into silence. And when the
mother was silent, so was the child.
Hate, rage, and utter frustration welled up inside Ray-
mond Allen to a point which brought him almost to black,
unreasoning insanity. He had to get free. He had to get
into the other room. He had to protect Betty. eS
The screams, the cries, the thuds continued, drumming on
Allen’s ears like sledge-hammers. He twisted on the floor, 4)
fought to pull his hands free. Hé kicked desperately with Fi
his feet.
He got an ankle free first. One strand of the rope broke,
then another. His hands seemed tied as tightly as ever,
but his legs were unbound.
It ‘was impossible to fight Folk without the usé of his
Allen managed to let himself out the door of the
hands.
Carnival owner who spotted Betty Allen at gas station
“Well,” Folk said heartily, “that’s a coincidence. I’m
headed for San Jose, too. And incidentally, I need a pickup
truck.”
Allen, worried by the theft of his money, became even
more disturbed. “What’s that got to do with us?”
“You got a pickup truck.”
“You’ve taken our money,” Allen said. “For the love of
heaven, don’t take the truck, too. We’ll be stranded here
in the trailer.”
“Don’t worry,” Folk said. “I’ll hitch the trailer onto
the pickup and take you all to San Jose with me. If you
behave yourself, you ain’t got a thing to worry. about.”
With that he walked from the trailer into the night.
Allen struggled with his bonds. He said bitferly, “I’m going
to see that guy in jail if it’s the last thing I ever do.”
Betty Allen said, “He must be crazy,” thereby agreeing
with the first sanity board Carl Folk had faced. And in that
instant the lights went out.
“He’s disconnected the electricity!” Allen said. A few
minutes later he heard the sound of the trailer being coupled
to the pickup truck. The motor turned over. There was
a backfire. The trailer moved slowly ahead. . ibis
“He’s kidnaping us,” Betty Alleh cried. Her husband .
didn’t answer. He was trying desperately to free himself Bride was returned thousands of miles home for burial
from the rope that bound him. ' .
He had managed to rid his wrists of the rope when the : $i.
Mies
———
trailer lurched badly, came to a bumping halt, then settled
at a 30-degree angle. “Allen was desperately untying the
cord about his ankles when Folk came in.
The switchblade knife was in Folk’s hand and he held its
point an inch from Allen’s throat. Then he slugged Allen
on the point of the jaw. While the younger man was groggy,
Folk retied his hands and feet, more tightly this time.
Folk threw off his coat. He stared at Betty Allen, clad
only in her flimsy nightgown. The expression in his eyes
was pure, undiluted evil.
A moment later he bent down and ripped off the fragile
garment. Betty screamed and a cry from the baby came as
trailer. He looked around wildly. Where could he get help?
He saw that Folk had tipped the trailer into a drainage
ditch about 400 ‘yards from the trailer camp.
Allen jumped the ditch, climbed up the road beyond. A
pair of headlights flung a noose of ‘yellow illumination
about him. Allen took a position in the center of the high-
way and waved his bound hands. :
The truck, driven by C. J. Rice of Wichita, Kansas,.
braked to a halt. Allen raced to the cab, holding up his
hands.
“Cut me loose,” he yelled. “Cut me loose and I’ll kill him.”
As the bewildered Rice cut Allen’s bonds, the distraught
husband babbled his confused story. The instant his hands
eee
VR Aen aceite
an echo. Folk put his hands around her throat and choked
her into silence. The baby quieted, too.
were free, he ran down the road. (Continued on page 90)
51
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ge
of burglar tools.
one member of t
pockets, detectiv
rubber gloves,
“We got nothin
d
A punch was found on
he gang. From Quatro’s
es drew forth a Pair of
too, amassin
enough to hire a
Kappa mouthpiec
Quatro’s gang, it
& more than $10,000,
whole string of Phi Beta
§ on you, huh?” Duhig
Quatro just sneer
companions, howeve
stuff. When detectiv
every move they ha
cracked and confesse
brunette Playmate
knew about hi
Even Quatro’s
told police what she
m and testified against him
“The motive for
according to what th
Betty Allen’s bo
brook funeral par
was begun by Dr. Donald
An examination of
dy was sent to a Hol-
ere an autopsy
Seven Hours
of Torture
(Continued from page 51)
nick of time,
On the afternoon
oroner A. G. Mc
coroner’s jury. Dr,
As he. went he
Rice, “Get the
going to kill hi
Allen, clad o
to his pickup t
ber revolver. He
for the door of th
strong odor ‘of g
1
yelled over his shoulder to
ps! Get help! I swear I’m of the following day,
; Closkey empaneled a
nly in his Pajamas, raced
Side was a .32 cali-
grabbed it and headed
e trailer. As he did so a
asoline assailed his nos-
“fairly good.”
ravaged his wife,
In spite of the sho
Folk would be charged with first-degree
8, because we
which a crim
of the hands o
By December
of danger by th
on a first-deg:
and held withou
While it is tru
with rape in Ne
he is not going
15th, Folk was adjudged out
e doctors. He was arraigned
murder charge on the 16th
t bond for early trial.
e that Carl Folk
it is a certainty
ay with murder
S patrol car and
kk Municipal Hos-
ymond Allen were
Holbrook school-
care and shelter,
awrence and Ra
the home of a
or temporary
Anot
Grave
him. And sh:
At the tra
the horses,
lars that woi
pocket. The
round of gin
“This place
here with th
town. Say, \
running wit!
“Bad eggs,
stayed away
would have
steady hand
her another, |
“How'd yo.
asked.
“They dro
wanted some
Then the w
The three r-
Widemeyer 2
Bracken Cou:
couples had d:
in the early :
bottles and ti
tween drinkin
at taverns for
Cincinnati late
“Louise and
place and the:
gether. The d:
home; I found
gone away. Sh
me for everyth
went or anyth
finished,
“Why didn’t .
asked you abo:
“Because I’d
and I wanted tc
Delighted th
results, Jett nc
the girl. Impres
a little frighten
the penalties f
quickly gave h
girl who had b:
and agreed to h:
Both girls ag:
Jett drove them
nor, Widemeye;
- Younded up and
Questioned se;
stories. All adm
three girls, but
ered them safe]:
quate alibi, ho:
_ Murder had tak:
On Septembe
after their arr:
Widemeyer an
brought before ¢
Brooksville for
and released on
And then in
apart. Mild-man:
Brady turned up
Sober-faced, he
marked Alliance
“Louise.” :
The astonishe.
“Honey, mother
you all very mu:
@ man and his wi
mas. I am sorry
“The handwriti
demanded.
“It sure looks |
The envelope |
Jett got the polic
Phone.
Half an hour la
ANGE BLOSSOMS FOR THE DEAD
Janie Hinkle had stopped to think
Russell Stackhouse told her the .
’ he was making, and if she hadn’t -~
im the size of her own income, she ~%'
| be alive today. Look before you
Leslie Phillips :
Gainesville, Florida
THE PASSING PARADE
. in the pages of TRUE DETECTIVE
appeared the world’s best detective
“ame
William E. Hemrick,
Terra Alta, West Virginia
CASE FILE
articularly like your Case File. It |
y shows the need for more and bet-"
id « e investigators, as lack of |:
ice 18M idoubtedly the main reason .:
Oo Many murderers receive light
ces. Criminals don’t mind sticking -°
eads in the mouth of the law when *
now that there aren’t enough teeth ©
o draw any blood. rat
elieve that crime doesn’t pay, but
very evident that the price isn’t
high enough to stop murder.”
S. P. Wimmer, 3
Fond du Lac, Wisconsin »
MALAYA SPEAKS
vould like to support those read- --
ho protest publishing criminals’
; up front. I always cover the
2s while I am reading and only
t them when I have finished.
congratulations to all those who ::’
1elped make TD so successful.” :
, C. V. Syama Krishnan, ae
| Port Swettenham, Malaya. :
“READER'S VERDICT
is issue of TRUE DETEcTIVE I liked [*
features best:
e” \ding current cases ....
€ ses of the past ........
2 Oe months (or.
)
Ce ee ee a ee ee eer ev
Report of latest legal developments
on cases published by TD
7 HOURS OF TORTURE
(TD April, 1954)
Justice followed swiftly in the wake
of brutal, wanton murder committed on
December Ist, 1953. At 11 o’clock that
night a former carnival owner, Carl J.
Folk, invaded a two-room trailer parked
near Holbrook, Arizona. Its occupants
were Raymond Bruce Allen, his wife,
Betty, 22, and their 10-month-old son,
Lawrence. Folk knocked out Allen,
bound him hand and foot. Then he
raped, tortured and strangled Betty.
Allen finally got his feet free and ran
to the highway where a passing truck-
man freed his hands. Allen raced back
and shot Folk, but not fatally.
Folk was brought to trial and on Feb-
ruary 13th the jury found him guilty
of the torture murder of Betty Allen and
recommended the death penalty.
Superior Judge Don T. Udall, on Feb-
ruary 18th, sentenced Folk to die in the
Arizona prison gas chamber April 30th.
HER MISSING HEAD
(TD February, 1954)
The murder of Florence Pearl Gibbons
came to light at 2:30 a.m. October 11th,
1953, when parts of her dismembered
body were found in a suitcase on Clare-
mont Avenue, New York.:
The crime was traced to James Lew,
a suitor of the woman. Questioned at
headquarters, Lew finally confessed
slaying Florence after a quarrel. He
pleaded guilty to first-degree man-
slaughter and on December 22nd was
sentenced by Judge Jacob Gould Sher-
man to 7% to 20 years in Sing Sing.
MANHUNT AND MURDER
(TD December, 1952)
On February 9th, 1954, Francis H.
Blair died in the electric chair at Wind-
sor, Vermont, for the murder of Mrs.
Elizabeth Weatherup.
On July 30th, 1952, Blair, then 31,
serving 12 to 15 years for robbery, and
Donald Demag, 29, under a life sentence
for the murder of a Burlington harness
maker, escaped from the state prison.
Three days later the home of Mr. and
Mrs. Donald Weatherup of Gould’s Mills,
near Springfield, Vermont, was broken
into by two men who savagely beat the
couple. Mrs. Weatherup, 54, a former
schoolteacher, died shortly afterward.
Police captured Blair and Demag, ina
wooded area nearby. On August 21st
both were indicted for murder. At their
trial both received death sentences. De-
mag now awaits action on an appeal.
TRUE DETECTIVE MAGAZINE
May, 195.
WHAT SECRET P
DID THIS MAN P¢
BENJAMIN FRANKLIN
(A Rosicrucian)
Wuy was this man great? How
does anyone—man or woman—
achieve greatness? Is it not by
mastery of the powers within our-
selves ?
Know the mysterious world within
you! Attune yourself to the wis-
dom of the ages! Grasp the inner
power of your mind! Learn the
secrets of a full and peaceful life!
Benjamin Franklin — like many
other learned and great men and
women—was a Rosicrucian. The
Rosicrucians
ganization)
in 1694, Tc
the Rosicruc
million piec«
all parts of 1
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ae
The ROSICRUCIA
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ADDRESS
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[I
a
‘Supreme Court ruling”
affects two brothers
tied to bles of LV girl
By Andrea Neal PRLS a
United Press International ieveeeaee =
ae a
WASHINGTON — The Supreme Court ruled Tuesday that defen:
dants may be sentenced to die for murders they did not commit’ or
plan as long as they played a major role in the crime and showed
“reckless indifference to human life.”
In a 5-4 decision by Justice Sandra Day O’Connor, the court set a
new standard for imposing the death penalty against accomplices in
a felony murder who do not actually pull the trigger.
The ruling requires the’Arizona Supreme Court to apply the new
standard i in reviewing the death sentences of two brothers, Ricky and.
Raymond Tison, convicted of a killing spree — including the slaying:
of a Las Vegas girl — following their father’s 1978 escape from prison.
Under recent court rulings, the death penalty has been reserved for
defendants in felony murder cases who kill or intend that killing take
place.
Tuesday’s decision allows the death penalty against people who ‘did
See a Page 5A
ee
sO U pr
y
trom Page 1A
Continued
but who took part
not intend for a murder to occur
t
\
+
>
a
€
4
%
et
displayed indifference to rogers at whether or not a given
. is a highly unsatisfactory means of
“a narrow focus on the
defendant ‘intended to kil ,
definitively distinguishing
~ murderers,” O’Connor
“Qn the,other, hand, Some
ne most dangerous an
spot ; whether.
iT
\ ~~ shocking
Henry of tt
the ruling was “extraordinarily
to anew category
murders.
' “Pm not suggesting for a moment the Tison brothers are not guilty
of very serious offenses,” he said. “But the notion that they should be
hung for homicides which they did not commit and had no intention
to commit is quite extraordinary.”
The death penalty case stemmed from a sensational jailbreak at
the Arizona State Prison on July 30, 1978. On that day, Ricky and
Raymond Tison and an older brother smuggled guns into the prison
during a visit with their father, Gary, and another inmate, Randy
Greenawalt.
The escape of the two convicted killers set off a nationwide
manhunt.
By the time the manhunt ended, Gary Tison and Greenawalt had
kidnapped and killed Marine Sgt. John Lyons, his wife, Donnelda, their
2-year-old son, Christopher, and a 15-year-old niece, Theresa Tyson of
Las Vegas.
Donnie Tison, the eldest son, was killed by police gunfire when the’
ca
reme Court —
in the crime and
- sent to death row.
looking for water when the Lyons family was killed.
\
ties Union said
penalty
eS
«Wednesday; April 22, 1987 (WV) Las VEGAS SUN® 5A‘
nalty in murders
“
ae ee
group was stopped at a roadblock. Gary Tison escaped and was later:
found dead in the desert. Aa ey :
The younger Tisons and Greenawalt were convicted of murdefand ;
: one a |
Evidence at their sentencing hearing indicated the teenage Tisons:
agreed to take part in the escape only when their father promised”
them no one would be hurt. The Tisons also testified.they-wel é‘off :
Arizona Attorney General Bob Corbin said the ruling essentially
was a.victory for the state, which will try to show the Tisons‘had. -
disregard for human life. Ses
“Evidence at the’trial showed the Tison brothers basically. knew =
that they — their father and Greenawalt — were going to kill these
victi ms,” Corbin said. a
- Justices William Brennan, Thurgood Marshall, Harry Blackm
and John Paul Stevens dissented from the ruling. 7 ee
4
|
|
7 WASHINGTON: —£': ee
oe
<yAssociated Press -
ae
preme Court on Monday agreed to
hear the appeal of two brothers
sentenced to die in Arizona’s gas
chamber for their role in four 1978 -
murders.
The justices said they will review
the death sentences of Ricky and
Raymond Tison on the basis of
Arizona court findings that neither
brother committed any of the
killings.
Ricky Tison was 19 and Ray-
mond Tison 18 when, on July 30,
1978, they smuggled guns into the
Arizona State Prison in Florence on -
ea visit to their father, Gary, who
was serving a life sentence for
murder.
Using the guns to overcome
| guards, the Tisons and inmate
| Randy Greenawalt escaped.
The gang, which included an-
| other brother, Donald, who later
was killed at a police roadblock,
commandeered:a car near Quartz-
site, killing John and Donnella
‘their. 2-year-old; son,
Lyonggthe c 3
topher, arid teen-age niece ‘Theresa
The»
killings
father;
though they did not do the actual
killing. ES
In seeking help from the nation’s
highest court, the Tisons’ lawyer,
Harvard law Professor Alan Der-
showitz, argued that the brothers
could not lawfully be sentenced to
death because they never intended
any killing to take place.
The appeal relies heavily on a
1982 Supreme Court~decision that
struck down the death penalty for
“non-triggermen” who did not in-
tend to take part in a killing but
.
- whose crimes resulted:in death,
———ooOeOOO
aniiee iic ee
Randy Greenawalt
AP file photo —
eae : Sik “ES 3 ae
‘As officers walked out toward them, they gunned it and started shooting," Holmes said.
The deputies returned fire and chased them to the second roadblock, where Holmes and three
others were waiting.
‘When they got close enough, then we fired. It sounded like a war. I took one more shot as they '
went through, through the back window."
That shot killed Donald Tison, Holmes said publicly for the first time last week as he revisited the
desolate road where the shootout occurred. |
The van started to swerve and ran off the road, slamming into a palo verde tree, he said.
Donald Tison was slumped over dead. Greenawalt and the surviving Tison brothers surrendered.
Gary Tison, who fled into the desert, was nowhere to be found.
—_— TT 4 OS)
At that point, Greenawalt cooperated.
‘‘He did everything you told him. The kids kind of wanted to be tough guys,” he said.
The deputies stripped Greenawalt and the two Tison boys of their clothes - to prevent any chance
they'd survive the searing August heat if they escaped. The deputies hauled the men under heavy
guard to Florence, where they've been ever since.
~/7-77
A massive manhunt for Gary Tison ensued.
Hundreds of searchers from a variety of law enforcement agencies searched a 26-mile rocky,
desert area in the sweltering heat.
Holmes spent 10 straight days near the spot of the capture.
‘‘T went home once," he said.
S V Deg
On Aug. 22, 1978, a man headed to work at a nearby dynamite plant noticed a foul stench and
investigated.
He discovered Gary Tison's decomposed body, blackened by the August sun, yards away from
the dynamite plant. Beneath his body was a .45-caliber gun and a flashlight.
Investigators estimate he died after three or fours days of wandering without water or shelter. -
‘He lay there and he suffered," Holmes said. ‘‘He dug holes . . . in the sand where he lay there
and he suffered. Best thing that ever happened to him."
For many now, the Tison killings are a faint memory.
But for Sheriff Reyes, they are much more.
He keeps a thick binder, filled with police reports, photographs and news clippings, all on the Tison
case. Soon, he will file it away and move on.
‘There's a lot of victims of these crimes that are still suffering over this," he said, shaking his
head. ‘Finally, we all may have closure after so many years."
N
Court —
Continued from Al
part in-a crime that resulted in a
murder“and -that he displayed a
“recklessrindifference” toward hu-
man life.- —
What they said was, you don’t
néed intent, that something less will
suffice, and that’s wonderful,” said
William Schafer, head of the Ari-
zona attorney general’s criminal
division.
Schafer argued the Tison case
before the U.S. Supreme Court in
November.
“We're pleased,” Arizona Attor-
ney General Bob Corbin said. “Bill
Schafer did a beautiful job.”
Harvard University Prof. Alan
Dershowitz, who represented the
two brothers before the U.S. Su-
preme Court, criticized the deci- -
sion.
“T think,.in future cases, it will
clearly expand the application of
the death penalty,” he told The
Arizona Republic. “It’s a mixed
verdict. It’s certainly a defeat for
those who believe in judicial re-
straint. It’s something of a success
for those who believe in wider
application of the death penalty.”
Even so, Dershowitz said, the
impact of the ruling depends on
how it is construed by the courts.
“Tf it’s construed reasonably, it
(the impact) needn't be very large,”
he said.
Dershowitz said he would argue
to both the U.S. Supreme Court in
a rehearing petition and to the
Arizona’ Supreme Court that the
relaxed standard should not apply
in the Tisons’ case.
Paul Bender, dean of the Arizona
State University Law School, said:
he‘believes the court's ruling is not.
particularly far-reaching.
. -*Jt-sounds to me like it’s not a.
major change,” he said. “It's oper-
' ating in the shadow area in which
intent blends into recklessness. I
don’t think there is a very large
class of cases where this ruling is
going to apply where the intent rule
wouldn’t.”
The court’s ruling came on a 5-4
vote. Justice Sandra O’Connor,
writing for the court, noted that
some states have banned capital
punishment for people who did not
intend to kill.
But, she said, “We do not find
this minority position constitution-
ally required.”
A weaker test is appropriate in
such cases, she wrote.
“Major participation in the fel-
ony committed, combined with a
reckless indifference to human life,
is sufficient” to justify a death
penalty, O‘Connor said. |
“This reckless indifference to the
value of human life may be every
bit as shocking to the moral sense
as intent to kill,” she said.
The Arizona Supreme Court
must decide whether the Tison
brothers’ conduct during the mur-
ders meets the new standard, O’-|
Connor said.
It was incorrect in using the old
standard to measure their actions,
she said.
The Arizona court wrongly up-
held the brothers’ death sentences
after finding that they “intended,
contemplated or anticipated that
lethal force would or might be used
or that life would or might be
taken,” she said.
O’Cennor said that standard was
too broadifeecause any felony car-
ries the possibility of bloodshed.
- Joining O’Connor_in the opinion
were Chief Justice William Rehn-
quist and Justices Byron White,
“Lewis Powell and Antonin Scalia.
Justices William Brennan,.:Thur-
good Marshall, «Harry Blackmun
and John Paul Stevens dissented.
_ retrial, Schafersaid. =~
Schafer said he believes the
Tisons’ death sentences will be
approved under the new guidelines
because the Arizona Supreme Court
“found more than a reckless indif- |
ference to life’ in making its
original ruling. Pe oo
Ricky Tison was 19 and Ray-
mond Tison was 18 at the time of
the prison break July 30, 1978.
They and their brother Donald, 20,
smuggled guns into the prison
during a visit to their father, who
was serving a life sentence for
murder. Gary Tison and fellow
inmate Greenawalt used the guns to
overcome guards and escape.
The Tison Gang, consisting of
the three younger Tisons, their
father and Greenawalt, then roared
up and down the highways of
Arizona and into Colorado for 13
days
capture.
Gang members shot and killed
Marine Sgt. John Lyons; his wife,
Donnelda, 24; their son, Christo-
pher, 22 months; and niece, Theresa
Tyson, 15, near Quartzsite.
Raymond and Ricky Tison said
their father and Greenawalt carried
out the killings. The gang was later
suspected of killing a Texas couple
honeymooning in Colorado and of
stealing their van.
When the gang doubled back into
Arizona, driving the van, they ran
into trouble at a roadblock south of
Casa Grande on Aug. 11, 1978.
Donald Tison was killed by
police gunfire as he tried to run the
roadblock. Ricky and Raymond
Tison and Greenawalt were cap-
tured. Gary Tison fled into the
desert on foot and died of exposure.
_ Greenawalt and the'two Tison
brothers were convicted of first-de-
gree murder in the Quartzite kill-
ings and were sentenced to death.
Greenawalt’s conviction has since
been overturned. He* i&awaiting’
in their efforts to elude’
Ne
‘
es ee
-n22atena cl %
|| | than 14 years ago, has been granted
‘a stay. of execution by the Arizona
Supreme oes :
The ane Court sala Tuesdéy
in a Stay made |
_ Brewer, who wants to be exe-
fo Se as
". Greenawalt, 43, w who was vpn 1a
. a new lawyer in November, says
‘previous attorneys were ineffective.
' Also Tuesday, the court denied a
‘request to reconsider a warrant of
execution issued for John George
Brewer, 27, who is scheduled to die
March 3 for the 1987 murder of his
pregnant girlfriend in Flagstaff.
It’s execiton to permit new appeal
cuted, had filed a motion asking the
court to restrict “unwanted and
unrequested access” to his case by
third parties. The court said it
treated the motion as a ‘request by
Brewer to continue representing
himself and granted it.
Yesterday, the high court unan-
imously upheld the death sentence
of Clarence David Hill, 44, who
killed his landlord in 1989 by setting -
_him on fire.
lt er ett
Mme ee
C4 The Arizona Republic
Friday, April 10, 1992
Woods argues
for killers’ words
in resentencing
By Pamela Manson
The Arizona Republic -
Arizona Attorney General Grant
“Woods claims that Raymond and
Ricky Tison will end up with life
sentences instead of death penalty for
their part in a 1978 murder rampage if
‘certain statements they made to
authorities are thrown out of court.
Without the statements, prosecu- -
tors will be unable to show that the
Tisons were major participants in the
slaying of four people and showed
‘reckless indifference to human life, a
‘standard that must be met to get a
. death sentence, Woods argued Thurs-
‘day before the Arizona Supreme
Court.
But defense attorney David Heller
said the statements, which concerned
how the brothers obtained guns before
they helped break their father and
another inmate out of prison, were
taken in violation of a plea agreement
the Tisons had reached.
At the original sentencing in 1979,
‘which sent the brothers to death row,
the statements were not used as
aggravating factors, Heller said.
“Now, in 1992, the state wants to-
use them,” he said.
The arguments technically involved
only Raymond Tison’s case. But
Woods said that any ruling will affect
both Tisons and that the brothers
likely will end up with the same
sentence.
Raymond, then 18, Ricky, then 19,
and their brother Donald, then 20,
smuggled guns into the Arizona State
Prison at Florence in July 1978 and
forced guards to release their father,
Gary Tison, and fellow inmate Randy
Greenawalt. The two were serving life
sentences for murder.
After the escape, members of the
gang gunned down a family of four
near Quartzsite.
Donald Tison was killed at a police
roadblock near Casa Grande in
August 1978. Gary Tison escaped into
the desert, where he died of exposure.
The other Tison brothers and Greena-
walt were taken into custody. Ray-
mond and Ricky initially struck plea
deals that called for them to testify at
Greenawalt’s trial about what hap-
pened after the breakout. The brothers
were to get life terms.
But they dropped out of the
agreement after prosecutors ques-.
tioned them about how they got the
guns, Heller told the high court.
The Tisons and' Greenawalt were
convicted of murder in separate trials
and sentenced to death in 1979.
Their sentences were set aside in
1989 by the Arizona Supreme Court,
which said that a new hearing had be
held on whether the brothers either
intended to kill or displayed “reckless
indifference” toward human life.
35¢ _
Death-law
application
is widened
Pz. /
Grounds are expanded
by court in Tison case
By CHARLES KELLY 46 -~ 7 F 7.
The Arizona Republic
The U.S. Supreme Court, ruling Tuesday on an
appeal by two members of Arizona’s murderous “Tison
Gang,” expanded the grounds for the death penalty to
affect major participants in a crime who did not intend
_ that a victim be killed.
As a result of the ruling, gang oes
members Raymond and Ricky a
Tison will get a new hearing on
their death sentences, and prose-
cutors will need to meet a weaker
standard to have the sentences
stand.
The Tison brothers were con-
victed in the 1978 shooting deaths
of a family of four after they and
another brother, Donald, helped
their father, Gary Tison, and
inmate Randy Greenawalt break Tison will
: : geta
ih alam State Prison at new hearing on
oe their death
Arizona prosecutors were exul- seniéncas
tant over Tuesday’s decision, ;
which relaxes the standard that
must be met to support a death
sentence for a “non-triggerman”
— one who assists in a crime that
results in a murder but who does
not commit the killing.
While weakening the standard,
though, the court also said that
the Arizona Supreme Court was Bs
wrong in finding that Raymond ==
7
Ricky (above)
and Raymond
and Ricky Tison’s criminal actions met the old, tougher 3
standard. The high court sent their case back to*the
Arizona Supreme Court for another sentencing hearing.
‘The old standard was set by the U.S. Supreme Court
in 1982:’The court said the death sentenceicould be
imposed only if it could be «shown-;that the
“non-triggerman” had an “intent to kill.” : #4:)\""°
In Tuesday’s decision, the high court .said:prosecu-.. _
_ tors must show only that the defendant played'a major .’ .
— Court, AjO ~~
‘
i
+ te ees
|
He jeer
iSyatighye Giga dingint!
Curly Moore
Yovarsc foore He
Curly Moore has a reputation as one
of the state’s most popular sheriffs. That
was evidenced in the last election when
more than 70 percent of the voters in Yav-
apai County cast their ballots in his favor.
One paper noted that Curly outdrew
Ronald Reagan. That’s a strong testament
to the respect he has in the county. “When
you run the first time, you have no record,
so the voters have nothing to compare,”
Moore says. “But when you run for re-
election, you run on a record and they
have something to evaluate you with. If
you get re-elected, you can feel you’ve
done a good job. And I’m proud to have
been elected three times.”
And he’s not afraid to buck traditions.
“One of the first deputies I hired was
a woman,” he says. “The Verde Valley area
was feeling neglected, and the voters had
been promised more deputies; so I sta-
tioned her over there. However, some of
the citizens were skeptical about whether
she could handle a rough crowd. One
night in a saloon, these three guys got in-
to an argument and the bartender called
the Sheriff's Office. This female deputy
walks up to the three and says,
‘Gentlemen, have we got a problem?’ And
this one guy who was about 6 feet tall
says, ‘Lady, we can take care of this
ourselves,’ and he put a hand on her
Shoulder. Well, she knows karate and she
Slipped him and he hit the deck. She
jumped right in the middle of him with
her knee in his back and flipped his hands
up and handcuffed him, then stands him
up and says again — ‘Now, gentlemen, do
we have a problem?’ They said, ‘No,
ma’m.’ Afterward, a resident over in the
Verde Valley told me that if the sheriff's
department hired any more women like
her, he hoped I'd send them over there.”
Like most of the other county sheriffs,
Curly (whose formal and nearly forgot-
ten name is Harold and if you ever see
him without his hat you'll know why they
call him Curly), has been in law enforce-
ment nearly 40 years. He began in the
military police in 1946. After getting out
of the Army, he joined the Arizona
Highway Patrol. He left the patrol in the
late 1950’s for a three-year stint in Alaska
with the police force in Fairbanks. He
returned to the Arizona Highway Patrol
in 1960 and remained there until his retire-
ment in 1975. A year later, he ran for
sheriff of Yavapai County.
When I asked Curly what he considers
the toughest part of the job, he replied un-
hesitatingly, “The biggest thorns in my
side are motorcycles, barking dogs and
JSamily fights.” °
September 1985/83
“-
Frank Reyes *
Pinal Cou
Born in Pinal County at Picacho, where
he still lives, Frank Reyes is still “Frankie”
to the old folks. He is a competent pro-
fessional who runs his office in a low-key
manner. His long career as a peace officer
has given him a quiet confidence. He’s a
strong family man, courteous,
community-minded.
He even has organized youth programs
throughout his vast area of jurisdiction.
When the Eloy Little League needed
money for the summer baseball program,
he issued an edict: “I’ve got a volleyball
team over there at the sheriff's department
that will challenge anybody.” The response
was great, and the fund-raiser was a huge
SUCCESS.
The sheriff of Pinal County has a di-
verse population to serve. His constituents
include the mining towns of Kearny,
Winkelman, Hayden and San Manuel: the
retirement communities around the
Apache Junction area; and Casa Grande’s
agricultural/light industry communities.
Back in the 1950's, a major magazine en-
hanced the county’s reputation as a rough
place when it ran a story called “Eloy,
Toughest Little Town in America.” De-
served or not, that dubious dubbing has
been hard to live down. e
Rayburn Evans >&
La Paz County
Rayburn Evans’s first night on the job
turned out to be memorable. In 1983, citi-
zens in the northern part of Yuma County
voted to create their own county, La Paz.
Evans, who had been chief deputy for
Yuma County Sheriff John Phipps for
several years, ran and was elected sheriff.
At midnight on Dec. 31, he and Phipps
met at the new county line, where Evans
ceremoniously received the keys to all the
Sheriff's department facilities that were
now property of La Paz County.
Evans, a native of Alabama, is the in-
formal winner of the “good ol’ boy”
award. He is an amiable, easygoing coun-
try boy who fits in well with the small-
town folks. Before becoming sheriff, he
was a deputy in every burg in the county
and got to know all the locals first-hand.
I caught up with him early one Satur-
day morning in Salome, where he’d come
to sponsor a benefit barbecue. I asked him
if being sheriff in a rural area ever puts
him in an awkward position with local cit-
izens who might expect special favors.
“You still do your job,” he says. “You
stay friends with them. You help them any
way you can that’s within the law, but you
don’t put yourself in a position that you
might have to compromise some day.
Evans is one of Arizona’s only “seagoin’
sheriffs.” There are some 85 miles of
shoreline along the Colorado River under
his jurisdiction, and the Sheriff's Office
patrols every mile by boat. “They talk a
lot about D.W.I’s on the highway,” he says
with a grin, “but our biggest problem is
D.W.I’s on the river.” e
September 1985/85
GREENAWALT & TISON BROTHERS * DEATH SENTENCE * ARTZONA.
in =py/D onr/ Powx Ty | eT on Y/
ack in the latter part of the 19th century, while
| other parts of the West were becoming civi-
lized, lusty Arizona gained a pretty unsavory
reputation as a sanctuary for outlaws and cattle rus-
tlers and other shady characters. The proximity to
the Mexican border, a sparse population and a more
tolerant frontier society all contributed to the attrac-
tion. Here in these remote regions, the last of the
Old West’s desperados made their final stand against
iat ER 4 changing society.
7 To combat the outlawry during the 1860’s, ranchers
- like Pete Kitchen became judge, jury and executioner
| because they lived far from town and couldn’t call
the sheriff every time some rustler ran off with their
livestock. During the late 1880’s, ex-Iexas Ranger
by Marshall Trimble John Slaughter was drafted as sheriff of Cochise
County and was charged with ridding the county of
rustlers. The hard-bitten cattleman issued a terse
Pd edict: “Rustlers get out or get shot.” A few hard cases
thought the man with coal-black eyes and a twin-
‘ barreled shotgun was bluffing. But when the sheriff
4 began bringing in his prisoners strapped across the
back of a packhorse, the outlaws got the message
: and left the territory.
Photos by Jeff Kida Fertile-minded white-collar criminals also found
frontier Arizona pregnant with possibilities. There
was always some shyster ready to print up phony
stock certificates, and one real estate promotor forged
some old land grant documents and nearly swindled
Arizonans out of almost 12 million acres of prime
central Arizona real estate.
Back in those days, Arizona was still a territory
with as few as four counties. By the time statehood
was finally granted in 1912, 14 counties had been
carved out. The first order of business after creating a
county was the election of a sheriff. The rule of
thumb was the tougher the county, the tougher the
lawman. The sheriffs were typical of frontier society.
Some, like Yavapai County Sheriff George Ruffner,
were hard-riding legends. Others, like Cochise Coun-
ty’s Johnny Behan, were back-slapping politicians
who were more interested in personal and monetary
gain than enforcing the law. continued on page 143
ieee te
ey ee »
82 /PHOENIX Magazine SQ \ARS
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Ri ah ee nto peighirg> eas
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SHERIFFS continued from page 82
The role of the territorial sheriff was
twofold: to keep the peace and to collect
taxes. Because the sheriffs got to keep a
percentage of the taxes, many were pre-
occupied with tax collection and spent lit-
tle time worrying about law and order.
sing these historical perspectives as
background, photographer Jeff
Kida and I set out to interview 10
of the state’s 15 county sheriffs to see how
much the job has changed in the last 100
years.
About 85 percent of Arizona’s popula-
tion lives in the greater Phoenix and Tuc-
son areas and, naturally, running a sher-
iff’s office in a large metropolitan area is
quite different from, say, Navajo or Pinal
County. Still our sheriffs have much in
common. As politicians, all are aware that
in order to stay in office, they must try to
keep a majority of their constituents
happy, just as in the old days.
Today’s sheriffs, however, are faced with
far more challenges than their counter-
parts of old, especially because of Su-
preme Court decisions that have changed
the criminal justice system over the past
30 years. In addition, the sheriffs, who not
only are peace officers but also dabble in
social services, see their office as an inte-
gral part of the communities they serve.
All of the sheriffs I talked with also
have a strong sense of commitment to the
county they represent, a commitment per-
haps reflected in the number of years
they’ve lived in Arizona. Sheriffs Frank
Reyes, Jimmy Judd, Glen Flake, Joe Rod-
riquez, John Phipps and Dick Godbehere
are Arizona natives. Clarence Dupnik ar-
rived when he was a year old, Joe Rich-
ards when he was 6, and Curly Moore’s
been here since 1938. The most recent ar-
rival is Rayburn Evans, and he’s been a
resident since 1954.
istorically, communication and
JH cones between the county
sheriffs offices have left a lot to
be desired. Professional jealousy and
highways that were little more than cattle
trails limited pursuit. The maintenance of
the Old West’s image of self-reliance
caused sheriffs to be reluctant to ask for
help. But the statewide manhunt for the
notorious Tison Gang a few years ago
brought about a new era of cooperation
between county agencies.
In 1978, convicted murderer Gary Ti-
son’s three sons, Donald, Raymond and
Ricky, broke Tison and another killer,
Randy Greenawalt, out of the state prison.
The gang went on a killing spree and man-
aged to elude lawmen for several weeks.
Six people were murdered before the gang
was stopped near Casa Grande after try-
ing to crash a roadblock. The cooperation
between the county sheriffs was instru-
mental in the final capture. Reyes, Phipps,
Evans and Richards all considered the
case the most interesting of their careers.
“That event,” says Richards, “caused a
lot of changes in law enforcement in terms
of working together more effectively than
what we had done in the past.
“I think it was one of the major reasons
why more people were not killed.”
A recent movie made for television por-
trayed Raymond, Ricky and Donald as
not being involved with the brutal slay-
ings. The four county sheriffs see it differ-
ently.
“A lot of people think those kids didn’t
have anything to do with the murders,”
says Evans, who investigated four of the
murders near Quartzsite, “but you’ll never
convince me.”
Reyes escorted Ricky and Raymond
Tison from Yuma to Florence. “I asked,
‘Why’d you boys do it?,’” Reyes says.
“They were kind of cocky. They weren’t
as nice as the TV movie made them out
execute a murderer no matter what the cir-
cumstances of the crime are.
Dupnik tells why he has been a strong
critic of many Supreme Court decisions
over the past 30 years:
“They created a new trend that has
really worked against society as far as
crime is concerned, and that’s instead of
punishing police for what they see as bad
behavior, they let guilty people go free and
I just don’t see the relationship between
the two....
Dupnik, who is sheriff of Pima County
(where Vicki Lynn Hoskinson was mur-
dered), is particularly frustrated by deci-
sions affecting the interrogation of sus-
pects.
“Years ago, detectives were successful or
not on the basis of their ability to interro-
gate,” he says. “That’s how I used to make
cases. We go out with a little evidence, a
few circumstances, go out through a pro-
‘‘‘We haven’t executed anyone
in this state in over 21 years. The
endless appeals that go on —
the lack of finality. I think
everybody is entitled to their day
in court, but once they’ve had it,
it ought to be over.’’’
to be. ‘Well, Sheriff Reyes,’ one of them
said, ‘let me tell you; we’ve never had a
dad for such a long time that we wanted
to have a father and it was well worth it
and we’d do it again.”
ll of these sheriffs are firm be-
Aes in capital punishment as a
deterrent to crime, but feel the
criminal justice system is cumbersome and
inconsistent. “I favor the concept,” says
Dupnik. “But the implementation of cap-
ital punishment is the most unjust punish-
ment that we administer nationwide.
When a thousand people essentially do
the same thing and you only execute four
or five of them, that just doesn’t seem to
be justice to me. I blame the Supreme
Court for this.
“We haven’t executed anyone in this
state in over 21 years. The endless appeals
that go on — the lack of finality. I think
everybody is entitled to their day in court,
but once they’ve had it, it ought to be
over.”
Moore believes that once a person is
convicted of a crime “they ought to have
to pay for their appeals out of their own
pocket.” The appeals process for capital
punishment in Arizona fills a flow chart
14 feet long. It takes at least 52 years to
cess of pursuasion and convince a person
to tell the truth. Did we do anything to
cause an innocent person to confess? That
was our test, and I don’t see anything
wrong with that test today.
“Today, we make very few cases by in-
terrogation. It has become a lost art and
that’s unfortunate.
“In my heart, I believe we could have
brought the Hoskinson case to a success-
ful conclusion very quickly had we been
able to interrogate.”
few months ago, a major drug bust
Avett in a remote area on the
desert in western Arizona. Drug
running has been on the increase in this
area since law-enforcement agencies and
the Coast Guard stepped up their activi-
ties in Florida and the Gulf of Mexico.
One of the national television news report-
ers interviewed a Federal Drug Adminis-
tration official as to why the drug runners
were moving their operations to Arizona.
After a reflective pause, he replied, “It’s
because of the many remote areas in
which they can hide. Arizona is the best
place where they can run to when the heat
is on in other more settled places.”
That’s where we came in about a hun-
dred years ago. (Pm
September 1985/1435
|
3
N
7
}
Y
O
|
Tucson, Saturday, June 6, 1998
The Arizona Daily Star
Execution ‘during regular business hours’ is a success.
; PHOENIX (AP) - Arizona’s first day-
time execution went smoothly for the
prison and the courts, but state officials
sdid yesterday they still have not decid-
ed whether they will stick with the new
schedule.
Some officials predicted daytime exe-
cutions eventually will become the norm
in Arizona and other states, where they
have traditionally been held shortly after
midnight.
' “It was a big success to do it during
the day rather than in the middle of the
night,”’ said Assistant Attorney General
Paul McMurdie, who oversees death
penalty cases for the state. “It’s so
much easier to do it during regular busi-
ness hours.”’
' On Wednesday afternoon, Arizona ex-
ecuted confessed mass murderer Doug-
las Edward Gretzler for the 1973 slaying
of a Tucson couple. He and a partner
killed the couple during a 21-day ram-
page that ultimately left 17 people dead
in Arizona and California. Gretzler, 47,
was put to death at 3:11 p.m. by lethal
injection.
The state has executed four killers
this year and 12 overall since resuming
the death penalty in 1992. Three more
death row inmates could be executed
this year depending on how courts rule
on various appeals, officials said.
“Everything did go extremely well,
like clockwork,” said Michael Arra,
spokesman for the state Department of
Corrections. ‘‘Carrying out an execution
in the daylight hours was a success.”
Nebraska, Texas and Virginia have
_ abandoned midnight as the hour of
death, opting to hold executions in the
afternoon or the evening to reduce lost
sleep for judges, overtime for guards
and added strain on victims.
More importantly, daytime executions
allow federal appeals courts and the
U.S. Supreme Court to more thoughtful-
ly debate a last-minute appeal. Supreme
Court Justice Sandra Day O’Connor last
year began urging states to hold execu-
tions during daylight hours.
Traditionally, states have scheduled
executions for midnight so the prison
has a full 24 hours to carry out the
death sentence.
McMurdie said the feedback concern-
ing the Gretzler case from the nation’s
highest court and the 9th U.S. Circuit of
Appeals in San Francisco was “‘absolute-
ly positive.”
“It was so much easier to find a
judge during the day,” he said.
Toni House, a spokeswoman for the
Supreme Court, declined to comment on
Gretzler’s case but said a daytime exe-
cution ‘‘makes the process more ration-
al.”’
Mark Mendenhall, spokesman for the
appeals court, said he didn’t know how
the court handled Gretzler’s appeals late
Wednesday morning. However, he said
the court wants the states to use day-
time executions because “‘there isn’t
such a frenzy sense about it.”
One of Gretzler’s attorneys, Carla
Ryan, declined comment yesterday. His
other attorney, Cary Sandman, did not
immediately return a phone‘call.
Corrections Department Director Ter-
ry Stewart is the final authority on
whether the State Prison Complex in
Florence can hold daytime executions.
Midnight executions are helpful for pris-
on management because inmates are in
lock-down and less likely to get upset,
prison officials say.
“(Daytime executions) are not set in
stone,” Arra said. “It has to be done on
a case-by-case basis.”’
For example, Stewart might set a
daytime execution if there’s a very poor
chance the inmate can successfully win
a last-minute stay.
The state Supreme Court is consider-
ing a rule change that would require an
execution to take place during a 24-
hour period beginning at a time set by
the corrections director after the court
first sets a date. If the corrections direc-
tor set a time of 3 p.m., for instance,
that would allow the execution to take
place anytime until 3 p.m. the following”
day. ‘
people during @
California was exec e
murders. Douglas Edwar Gretz as P nounce
d at 5:11 p.m. alias time, minute aft
authorities the xecution by nin the State
prison \ex at Florence. Mr. G tzler, AT, was
Arizona’ S first In te put to death during the day — 2
move intended to keeP judges trom having to consider
appeal in the middie of the night. He had been on
death row since NOV. 45, 1976 longer than any other
Arizona mate. His eat ona’s fou h this
year. He mouth g ‘i loved * twice to his sister an
granddaugn'e o were g 35 witnesses. s th
drugs entered system, turned N's head and
closed his eye
June 3, 1998—
ARIZONA (Execution):
In Florence, a man who admitted killing 17 people in Califomia and
Arizona in 1973 apologized to the families of his victims moments before
he was executed by lethal injection at a Florence, Ariz., prison.
Just before his execution this afternoon, 47-year-old Douglas Gretzier
said, “From the bottom of my soul, | am so deeply sorry and have been for
years for murdering Patricia and Michael Sandberg. Though | am being
executed for that crime, | apologize to all 17 victims and their
families."
Gretzler’s sister and 4 members of the victims’ families were among
about 3-dozen witnesses to the 3:11 p.m. execution.
in a statement, the family of Lodi, Calif., murder victim Walter Parkin
said, "Hopefully this will bring some closure to a very sad chapter in
our lives.”
The execution was delayed about 5 minutes when the Attomey General's
Office notified prison officials that the U.S. Supreme Court was deciding
on Gretzler’s fate. The high court quickly denied an application to
stay the execution.
It was the 1st execution ever scheduled for daytime hours in Arizona.
Inmates are typically executed shortly after midnight.
Gretzler's victims were shot to death, with most bound and gagged before
they were killed.
Gretzler received a life prison sentence for the killings in California
because California didn't have the death penalty at the time, and was
extradited then to Arizona where he was sentenced to death.
His co-defendant, Willie Steelman, died while on death row.
Gretzler becomes the 4th condemned inmate to be executed in Arizona this
year, and the 12th overall since that state resumed capital punishment in
1990.
Gretzler also becomes the 30th condemned inmate to be put to death in the
USA this year, and the 462nd overall since America resumed capital
punishment on Jan. 17, 1977.
(sources: United Press Intemational and Rick Halperin)
>>
Monday June 3, 1996 America Online: Galba33 Page: 1
