4.2.12 WC: 191694
She then went on to create a new category of crime that warranted execution even in the absence of a specific intent to kill:
We hold that the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result.
This new category—killings by a triggerman that reflected a “reckless disregard” for life by the non triggerman—had not been the basis for the Arizona Courts’ decision. Nor had it been argued by the Arizona Attorney General. Neither had we been given an opportunity to argue against it, because the justices seemed to agree that if there was no intent to kill—which they now ruled there was not—that would be “the end of the case.” The majority had simply concocted a new tule out of whole cloth. They seemed determined to overrule Enmund, without appearing to be doing so. It was “judicial activism” to the extreme.
But the court could not simply apply this new rule to the old facts of the Tison case, since the Arizona courts had not found that the condemned brothers had shown a “reckless disregard for human life.”® The majority therefore, “vacated” the death penalty against my clients and remanded the case back to the Arizona courts “for determination” whether the Tison brothers met this new criteria. Had they “affirmed” the judgment—the death sentence—the case would have been over. But by “vacating” it, the justices gave us a new beginning.
We were still alive, as so were Ricky and Raymond. Their fates would now be in the hands of the Arizona courts, which would have to make a finding that these boys had shown “reckless indifference” or “disregard” for human life. It was a bad day for the campaign against capital punishment, but a hopeful one for my clients Ricky and Raymond, who were no longer under sentence of death—at least for the moment.
The state of Arizona continued to seek the death penalty and asked the trial court to find that the Tison brothers possessed a “reckless indifference to human life.” Without even conducting an evidentiary hearing, the trial court retmposed death sentences, concluding that the trial record itself demonstrated reckless indifference. He refused to allow us to introduce any evidence that might contradict this finding.
We immediately appealed to the Arizona Supreme Court, which had affirmed the original death sentence. This time the court unanimously reversed the trial judge, vacated the death sentences and remanded it back to the trial judge, ordering him to give us an opportunity to introduce “additional evidence” relating to whether the boys were recklessly indifferent to human life. We relished the opportunity, confident that a full exploration of the facts would lead to the inescapable conclusion that Ricky and Raymond were anything but indifferent to the fate of the Lyons’ family. They wanted them to live.
® The majority sloppily used two different formulations: “reckless disregard” and “reckless indifference.”
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