This would not, unfortunately, be the High Court’s last word on the subject.  Chief Justice Berger, in his dissenting opinion, provided the states with a roadmap as to how to draft death penalty statutes that might pass constitutional muster with a majority of the justices.  What ensued was a constitutional ping pong match between proponents of capital punishment and abolitionists; the proponents would draft new statutes, and the abolitionist lawyers would challenge them in court.  Justice Goldberg, now in private practice, and I continued to play a role in this back-and-forth life and death conflict by writing joint articles for newspapers and law reviews.  Then I was given and opportunity to participate directly in the court battle, in a dramatic and controversial case called Tison v. Arizona, whose story I will now tell.  



Chapter 12:  The death penalty for those who don’t kill:  Ricky and Raymond Tison 

The story of the Tison case was the stuff of films and television dramas.  It involved two families.  The family of the killer consisted of the father, mother and three sons.  The family of the victims consisted of a father, mother, baby and niece.  They would meet, with horrendous consequences, on a dark, isolated road in Arizona.  

Beyond the tragic facts of the case was the important legal issue they presented, since neither Ricky nor his brother Raymond Tison actually killed anyone.  Nor did they intend anyone to die when they helped their father Gary and his cellmate Randy Greenawalt escape from prison.  But at least four innocent people—including a baby and a 15 year old girl—were brutally murdered by the prisoners whom the Tison brothers helped escape. 57   And for playing that role Ricky and Raymond Tison, who were teenagers, were sentenced to die in the Arizona gas chamber.  

As part of the overall challenge to the death penalty, abolitionists were focusing on the significant number of death row inmates who had neither killed nor intended to kill.  Most of these non-triggermen had been convicted of murder on the basis of two legal fictions.  The first was the law of conspiracy under which each member of a conspiracy is deemed to have committed every crime actually committed by any co-conspirator 58   (Remember Harry Reems.)  The second legal fiction was the law of felony-murder under which anyone who intentionally commits a serious felony, such as breaking someone out of prison, is deemed to have “intended” any death that results from the felony, even if he actually intended that no one should die.  The combined effect of these fictions was to deem Ricky and Raymond as guilty of intentional murder as Gary Tison and Randy Greenawalt who actually pulled the trigger and intended to kill the victims.  

The Tison case thus starkly presented an issue that had not clearly been resolved by the Supreme Court since the Furman case:  Can conspirators who helped murderers escape from prison be sentenced to death for intentional murders committed by their co-conspirators, if the conspirators themselves neither killed nor intended to kill.

I was first approached to help the Tison brothers by a journalist who was working on a book and film project about the case (eventually a film, called A Killer In the Family, was made starring Robert Mitchum as the father and James Spader—in his first cinemographic role—as one of the brothers.)  I was asked to appeal their death sentence.  Since they had no money, I agreed to prepare and argue the appeal without a fee.

I know the appeal would be tough because the facts of the murders were horrible and the personnel on the Supreme Court was changing in a rightward direction.  The strongest point in our favor were the facts of the case as they related directly to the brothers Tison.  Their story was compelling.

The brothers had never had a “home father.”  They referred to Gary as their “prison father,” since he had spent most of his adult life behind bars, having been convicted of armed robbery and other predatory crimes.

On the way back to prison from a court appearance, Gary had overpowered the guard, killed him, took his gun and escaped.  He was soon recaptured, sentenced to life imprisonment and soon began to plan his next escape—this time across the border to Mexico, which was only a two hour drive from the prison.


Before he could escape, Gary had to get himself removed from the “escape risk” list and maximum security—to establish a sense of trust in him by the prison officials.  When some young prisoners acted up, Gary worked with the prison officials and helped to control them.  He worked on the newspaper, television, and entertainment committee, earning him the right to have visits with his family in the outdoor recreation area.  Gary used his time with his family to persuade them to help him escape.  After much prodding, the boys agreed.

On a summer visiting day in July of 1978, the three Tison brothers arrived at the Florence State Prison with their perennial picnic basket.  Beneath the fried chicken were pistols and shotguns.

The boys had arranged for a car to be parked in the lot of the local hospital.  They knew there 
could be shooting.  But Gary promised them that nobody would get hurt.  “The more firepower you have,” he instructed them, “the less likely you’ll have to use it.”  

“We told Dad,” Raymond later said, “we’ll do this on one condition—that no one gets hurt.”

Gary assured the boys, “We’ll make it out without firing a shot or being fired at.  And once outside, it will be clear sailing.  I know how it works.  I’ve been there before.”  He had been there before, but it hadn’t worked.  He had killed a guard and been recaptured.
To the three boys, their father wasn’t a killer.  A guard had been accidentally shot in a scuffle.  It was not in cold blood.  Their father was incapable of that.  Gary told them that his criminal conduct had been a result of secret training he had received in the “Service.”  It was “top secret.”  They believed this fantasy like they believed everything else their father told them.  “Nobody was going to get shot,” their father assured them.

Gary’s prediction proved to be correct about the escape.  Raymond went to meet his father in the picnic area.  His brothers Ricky and Donny went into the waiting room with their picnic basket.  A friend of Gary’s, Randy Greenawalt—also a convicted murderer—was in an adjoining control room.  When the other visitors had left, the boys pulled out their shotguns and held the guards at bay.  Raymond and Gary joined them.

When additional guards appeared they were first ordered to lie down and then herded into a storage room.  The door was locked and the power turned off.  Then the five simply walked out the front door.  Not a shot had been fired.


Within minutes, the alarm was sounded and the manhunt was on.  But the escapees were keeping to back roads in the old white Lincoln supplied by their Uncle Joe, a marijuana dealer.  A tire went flat the next day and was replaced with a spare.  Later that night, another went flat.  There was no spare.

At about the same time, a young marine named John Lyons was driving his family on a vacation.  About an hour into their road trip, John saw a young man standing on the side of the road next to a white Lincoln waving his arms for assistance.  At first John passed; then he stopped, backed up, and pulled next to the Lincoln.  Four more men appeared out of the shadows with their guns drawn.  One of them ordered the Lyonses out of the car and motioned them into the back seat of the Lincoln.  Two of the men got in the car with them, and the others got into the Mazda.  

The Lincoln bumped along for several miles down the rocky dirt road, with the Mazda following behind.  Gary stopped and the Lyonses were ordered out of the Lincoln while the men cleaned out the Mazda, put their guns in it, and loaded the Lyones’ suitcases into the Lincoln.  

Then Gary and Randy got into the Lincoln and drove it seventy yards farther into the desert.  They shot some holes into the engine to disable it and told the boys to put the Lyones into the Lincoln.  After the Lyoneses were transferred, Gary turned to Ricky and said, “You boys go back into the Mazda and get the water jug.”  Raymond and Ricky were relieved that the Lyoneses would be left with enough water to survive until help arrived.  

Donny, Ricky and Ray retrieved the water jug from the Lyones’ Mazda and were on their way back when they heard the shotguns fire.  They could see flashes of fire through the darkness.  They stood transfixed.  It seemed to last forever.  Then it was quiet.

As the boys came closer they could see the carnage their father and Randy had left behind.

Their father had murdered an entire family—father, mother, baby and niece—for no apparent reason.  They sat immobilized by horror as Randy Greenawalt drove them away in the orange Mazda.

Soon thereafter the Arizona police found the Lyons family.  Mother, baby and John were in or near the white Lincoln, shot to death.  The niece was missing, raising the fear that she had been kidnapped by the Tisons.  Several days later she was found:  she had been shot once in the hip and had managed to drag herself toward the main road before bleeding to death.  The family dog lay dead from dehydration a few feet away from her.  

The disclosure of this mass murder shocked the public, which had followed the news of the manhunt with a mixture of fear and admiration for the daring prison escape.  Now revulsion replaced admiration.  The crimes were characterized by the media as a “mad-dog murder spree,” and a “death orgy,” and a “ritualistic execution.”  The killers were described as “crazed” and “desperate.”  Some people refused to drive at night until the Tisons and Greenawalt were caught.  Among the mothers who feared for their families was Sandra Day O’Connor, who was then serving as a Maricopa County Trial Judge.  

The largest manhunt in Arizona history was under way, involving patrol cars, helicopters, search dogs, roadblocks, and a sophisticated communications system.  

The Tisons were exhausted, and low on money.  Gary decided that they had to make a run for the Mexican border, risky as that was.

At 2:58 in the morning of August 11, a van approached a police roadblock.  Suddenly shots rang out, putting two holes in one of the police cars.  The van crashed through the roadblock.  The police chased the van, traveling at close to a hundred miles an hour. 

They called in helicopters.  They knew, but the Tison’s didn’t, that there was a second roadblock on the other side of the pass.  For a moment, Gary, who was manning the gun out the rear window, thought they had made it.  But Donny, the oldest brother who was driving, saw the second roadblock.  He crashed through it, but not before several shots from the waiting police cars struck him in the head.  The van swerved off the road and came to rest in the desert sand.  Gary yelled, “Every man for himself,” and ran.  Ricky, Ray and Randy threw themselves to the ground.  Gary kept going. 

The police found Donny, slumped in the driver’s seat, unconscious from his head wounds.  They handcuffed him, called an ambulance, and left him there after removing the guns from the back of the van.  At 3:40, the ambulance arrived at the scene of the roadblock with lights flashing and sirens blaring.  But the driver and medics were made to wait at the roadblock for over five hours.  When they were finally allowed to go to Donny at 9:10, he was dead.


The police then shoved a shotgun against the back of Ricky’s head and pistol barrel into his mouth.  They cut his clothes off his body.  He was pulled by his hair into a police car surrounded by three officers and interrogated—naked and shivering—for five hours.  When he expressed reluctance to talk, he was asked, “Do you want to see your dying brother?”  He believed he would be shot and left to die if he did not confess.  

“I don’t want to make a statement,” he said.  The police continued the interrogation.  Donny, bleeding and unconscious, would receive no medical attention until his brothers confessed.  Finally, the two brothers confessed to their roles in the events following the breakout.  

For over a week no trace was found of Gary.  Armed vigilantes combed every inch of desert near the scene of the shootout.  A SWAT team was lowered into abandoned mines and caves.  Police dogs were used.  Rumors circulated about Gary’s whereabouts.  He was reported in dozens of locations ranging from the Grand Canyon to southern Mexico.  

Several days later, a Papago Indian smelled something foul in the underbrush.  It was a decomposing body.  The remains were identified as Gary Tison.  He had been hiding out in the desert, just a mile north of the roadblock.  The August heat proved too much for him.  His end came in the Papago Indian Reservation, lying amongst the brush with a sock full of cactus berries squeezed dry near his head.  Underneath him, half buried in the sand, was John Lyons’ gun.

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

The two surviving brothers were tried and convicted of the murders, based on the account they had given the authorities.  Under the laws of felony murder and conspiracy, they were as guilty of murdering the Lyons’ family as were the men who pulled the triggers.  The judge employed the same legal fictions in sentencing them both to die in Arizona’s gas chamber.  My job was to try to save their lives, since the evidence of their guilt—under the long established felony murder and conspiracy theories—could not reasonably be contested.

After several unsuccessful appeals in the Arizona state courts, we decided to seek review in the Supreme Court.  This decision was itself controversial within the anti-capital punishment legal community.  The legal landscape had changed since the Supreme Court decided Furman and several other cases imposing restrictions on the use of the death penalty.  In 1982, the justices had decided the case of Enmund v. Florida, reversing the death penalty of a defendant who drove the “getaway” car in an armed robbery of a home in which Enmund’s accomplices killed the elderly couple they had robbed.  The vote was 5 to 4. The majority reasoned that:

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

It then went on to say that:  


     “It would be very different if the likelihood of a killing in the course of a robbery were so substantial that one should share the blame for the killing if he somehow participated in the felony. But competent observers have concluded that there is no basis in experience for the notion that death so frequently occurs in the course of a felony for which killing is not an essential ingredient that the death penalty should be considered as a justifiable deterrent to the felony itself.”




The Enmund decision seemed to apply to the facts of the Tison case.  The problem was that there had been an important change of personnel in the High Court between the time Enmund was decided and the filing of our petition for review.  Justice Antonin Scalia had joined the court and soon became its most outspoken critic of the campaign to abolish the death penalty.  William Rehnquist, also a strong supporter of capital punishment and an Arizona resident who was aware of the Tison rampage was now the court’s Chief Justice.  Finally, Justice Byron White, who had written the majority opinion in Enmund, seemed to be backtracking a bit in subsequent cases.  

Before we filed our petition, I had received several phone calls from anti-capital punishment lawyers imploring me not to file a petition for certiorari in the Tison case.  “Count the noses,” one of them warned.  “You may not have five any more.”  He urged me to leave well enough alone:  “We have Enmund.  Most courts will follow Enmund and reverse felony-murder death sentences.  But if the Supremes take your case and reverse or limit Enmund, people will die because of you.  You have to go by the numbers.”  

I understood his reference to “the numbers” as meaning two different things:  First the numbers on the Supreme Court, which now might be 5-4 against us.  And the large number of condemned inmates who faced execution on a theory similar to that which had lead the sentencing judge in Arizona to sentence the Tison brothers to die even though they had not killed the Lyons family or intended their death.  

I respected the insights and judgments of the callers, but I had two clients on death row.  I was their lawyer, not the lawyer for the many other death row inmates whose fates could be adversely determined by a negative ruling in our case.  I cared deeply about the other inmates. I cared deeply about every inmate facing the death penalty.  I cared deeply about the issue itself.  But I could not allow these strong feelings to influence my decision regarding my clients.  I was the only person between them and the canisters of death that stood ready to end their young lives.  At that moment in time, I was not a “capital punishment lawyer” or a “cause” lawyer of any kind.  I was Ricky and Raymond Tison’s lawyer.  I had to put case before cause, client before campaign, the Tison brothers before the others on death row.  It was an excruciating conflict, but not a difficult legal or ethical decision.  

I decided to file a petition for certiorari to the Supreme Court.  Our hope was that the justices would not want to hear full argument on an issue they had so recently considered:  namely the constitutionality of the death penalty for defendants—like Enmund—who had not been the actual triggerman in a crime that had resulted in the death of the victim.  We hoped the justices would simply “remand the case for reconsideration in light of Enmund.”  In other words, that they would send the case back to the Arizona courts so that those judges could apply the Enmund precedent to the facts of the Tison case.  That would have been the best of all possible worlds.  The Court would have reaffirmed Enmund as the binding precedent and sent a strong message to the state courts to be sure to follow that precedent.  And it would have saved the lives of Ricky and Raymond.  But it was not to be.  To our disappointment and worry, the justices granted review and set the case down for full briefing and argument.  

Generally, lawyers are ecstatic when the High Court grants review of one of their cases.  It means that they will have the privilege of arguing before the Supreme Court—a rare honor that few lawyers ever experience.  It also means they will have an opportunity to influence the development of constitutional law—a knife that cuts both ways, since the influence may be positive or negative.  

In this case, I was far from ecstatic, since the granting of review so soon after the divided decision in Enmund signaled a desire on the part of at least some of the justices to reconsider and perhaps reverse or limit Enmund.  The last thing I wanted to be was the vehicle by which the justices would shift the existing trend in favor of contracting the death penalty to a trend in favor of expanding it.  I know that the stakes were enormous, both for the Tison brothers and for the many other death row inmates who had not been triggermen—as well as for the campaign against capital punishment, as I prepared my brief and argument for the case that was scheduled to be heard on November 3, 1986.  

I began my argument with a simple statement that I thought would be beyond any dispute:


     “The State of Arizona seeks to execute two young men who it acknowledges lacked the specific intent to kill, and did not, in fact, kill.”



I was immediately interrupted by Justice White, the author of the Enmund majority opinion on which I was relying:

     “Did you say the state concedes what?”


I repeated my point:


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


Justice White pressed me:


     “What do you mean by that?”




I explained that no one has ever suggested that the brother specifically intended to kill the Lyons’ family.  Indeed, it was clear from the record that they specifically intended not to kill and that Gary and Randy had to trick the brothers into going for water before opening fire.  I also pointed to a finding by the Arizona Supreme Court that the murder of the Lyons’ family was not part of the original plan and was utterly “unnecessary” to the escape.  I told the court that, “There is no evidence to support a finding for specific intent.”  

The justices immediately shot back, “Well, if that’s true, of course, that’s the end of the case.”


I agreed with that assessment and was pleased by it:


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




But it was far from the end of the case, at least in the minds of some of the justices.  The recently appointed Antonin Scalia came after me with a hypothetical case, an exercise I was thoroughly familiar with, since it is the weapon of choice for law professors, of which Scalia had been one before ascending the bench.  

Scalia asked me what my position would be if one bank robber had a gun and the other one doesn’t and the one with the gun “throw[s] the gun to the trigger man, as the policeman’s approaching him, he says, ‘I need a gun,’ and I throw the gun to him…I don’t care whether he kills the policeman or not.”


I had prepared for every likely question I might be asked by the justices, but the idea of a gun being throw by one robber to another had never occurred to me.  I had to think quickly.  In the classroom, a poor answer to a professor’s bizarre “hypo” might reduce a grade, but in the courtroom it could be a matter of life or death.  I quickly recalled the facts of the Enmund case and reminded the justices that Enmund too had provided a gun to his co-conspirators who then killed the couple, and that there was no difference between “throwing” a gun, as in Scalia’s hypothetical, and “providing” the gun, as in the real facts of Enmund:  “There is no difference between this case and Enmund, except that this case is far more compelling.”


Scalia repeated his hypothetical:


     “Please, please.


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


     Never mind the trigger man.


     The person who tosses the gun to the trigger man.


     There is no way in which he has an intent to kill within the Constitutional rule; is that right?...he doesn’t care whether the policeman lives or dies.  


Scalia persisted:


     But the triggerman asks for a gun.


     “Toss me a gun.”


     He tosses him the gun.


He says:


     “There is a policeman coming.”


     “Throw me a gun quick.”


     That wouldn’t be enough?


I was reminded of Chief Justice Berger’s bear baiting hypothetical in the I Am Curious Yellow case, but this time the stakes were much higher.  I answered the Justice’s question:


     No.  That wouldn't be enough.


     And that is not this case in any event.


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


     In Enmund the guns were provided.


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


Justice Scalia didn’t seem satisfied with my answer, so I threw a hypothetical back to him—law professor to law professor:


     And to throw a hypothetical back, which I'm not entitled to do, but I'll throw it back to myself…what if there were a statute saying, anyone who provides guns to an armed robber in the course of an armed robbery, whereby death results, is guilty of first-degree capital murder?


     That would be clearly within Enmund.


     That's what Enmund decided.


     Because the facts of Enmund were exactly that.


The dialogue continued:


Justice:


     In Enmund, had he provided the gun?


Mr. Dershowitz: 


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


     The gun had belonged to his common law wife.


     He then disposed of the gun.


     Certainly, a reasonable judge and jury could conclude that he had provided the gun.


     It was an armed robbery.


     He was the one who planned the robbery.


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


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


     Their father directed what went on thereafter.


     There was never a time when they could have left their father's side, when the father left any of them alone, the three of them, so that they could leave.


     These are young kids under the control of their father.


I concluded my opening argument by acknowledging the responsibility of the brothers for the prison escape, but insisting that they could not be executed for the unanticipated murders:


     Nobody is denying their responsibility for these serious crimes of kidnapping, breakout of prison.


     But then after the crime was completed, after the car was taken, the father then, without any necessity... as the courts found; no necessity at all; could have easily have left them there... the father and the other defendant, on their own, after sending the boys away, made a shocking and surprising decision to kill this family in cold blood.


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


     This is just like Enmund.


     In Enmund there was spontaneity.


     It was not part of the original plan.


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


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


     In the other case it was the gunman.


     A family was tragically killed in both cases.


     This Arizona case is an attempt to relitigate Enmund.


     And we will hear relitigation after relitigation in every state if this Court allows every state to redefine intent the way it chooses to redefine it.


I sat down, satisfied that I had made the best possible argument for my clients.  Now it was the State of Arizona’s time to argue.  The Attorney General was hardly interrupted as he delivered his argument.  After a while, he too was asked a hypothetical, but one much closer to the facts of this case:


     …supposing right after they stopped the car with the family in it, the two boys instead of following along as they did, had just gone on a hike, walked away half a mile, and then the father…killed the family?


The Attorney General acknowledged that this “would be different,” and that the brothers “presence at the scene” is “essential,” but he insisted that they were “present,” even if not right next to the car in which the shootings occurred.  He also conceded that “I can’t stand here today and tell you that [the brothers] knew…that at that time that the trigger would be pulled.”


I had just a few minutes for my rebuttal.  In light of the Attorney General’s concessions, I decided to point the Court to the record evidence that the brothers were not at the scene of the crime and did not foresee that their father and Randy would kill the Lyons’ family:  


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


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


                         …


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


     Why is presence essential?


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


I then pointed out that the evidence in this case led overwhelmingly to the conclusion that they were not present and that they had deliberately been sent away to get water—been tricked into believing they would be kept alive—precisely because their father knew that they did not want anyone to die.  


I was satisfied that I had done the best I could with the facts and the law.  If the court were to reaffirm the principles of Enmund, we would win.  The justices seemed to acknowledge that if there was no evidence that Ricky and Raymond had the “specific intent” to kill the Lyons’ family “that’s the end of the case.”  I was confident that when the justices reviewed the entire record of the case, they would find that there was no such evidence.  


And I was right—at least about that!


The majority opinion began its analysis with the following acknowledgment:


     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 consequences when he desires that his acts cause those consequences or knows that those consequences are substantially certain to result from his acts."... 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. 59  


When I read these words, I thought that we had surely won.  That was precisely what I had argued.  The Court had accepted my argument in full.  It should have followed from this acceptance that, in the words of one of the justices, “that’s the end of the case.” But it was only the beginning.  


Justice Sandra Day O’Connor, who had dissented in Enmund but was now writing the majority opinion in the Tison case, then expressed dissatisfaction with the rule that had been established in Enmund:  


     A narrow focus on the question of whether or not a given defendant "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 liable 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 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. This reckless indifference to the value of human life may be every bit as shocking to the moral sense as an "intent to kill." 


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 rule 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.” 60   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 reimposed 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.  




Eventually, after a long and torturous road through the Arizona courts, the death penalties against Ricky, and Raymond Tison were reversed.  They would not be executed, despite the Supreme Courts green light.  Once again, as with the issue of obscenity, the Highest Court did not get the last word.  We refused to give up, and in the end we prevailed.  Ricky and Raymond are now eligible for parole and may soon be free.  Greenwalt, who was represented by other lawyers, was executed.  

Following the reversal of their death penalties, one of the brothers wrote me a letter saying that his minister had told him that Jews can’t go to heaven.  My client pleaded with me to convert to Christianity so that we could spend eternity in the same place.  I wrote him a nice letter back saying that Jews believe that they can go to heaven.  He wrote back telling me that he had decided to become a Jew, because he wanted to be sure he would be in the same heaven that I was in.  I replied assuring him that I had checked, and that Jews and Christians go to the same heaven, so that he didn’t have to convert. 61 







Chapter 13:  Using Science, Law, Logic and Experience to Disprove Murder

                    Introduction

In 18__, Oliver Wendell Holmes, Jr. taught us that the life of the law has not been logic—it has been experience. 62   Recent experience has dramatically changed the way murders are prosecuted and defended.  I have been part of that change, having been involved in some of the most significant homicide cases over the past half-century.  

The crime of murder is as old as human nature.  Virtually every important work of fiction and non-fiction includes accounts of murder, or murder trials and of unsolved homicides.  The Bible recounts the murder of Abel by Cain.  That crime was solved by God questioning Cain: “Where is your brother Abel?”  Cain’s evasive answer—“Am I my brother’s keeper?”—convinced God, and the reader, of Cain’s guilt.  Shakespeare’s “perfect” murder is committed by Hamlet’s uncle pouring poison into the ear of the king.  That crime too is solved by provoking the killer into demonstrating his guilty conscience.  Both the Bible and Shakespeare also recount cases in which innocent people are framed by planted evidence:  Potaphor’s wife frames Joseph; and Iago frames Desdemona.  Dostoevsky creates an interrogator so subtle that Raskolnikov needs to confess.  Sherlock Holmes solves murders through observation, deduction and primitive science.  In 19th Century America, sheriffs would tell uneducated suspects that if the corpse bled in their presence, it proved their guilt. 63   Then came the lie detector, ballistics testing, fingerprint matching, and other techniques that purported to be based on science.  Throughout history, there has been extensive reliance on eyewitnesses, informers and accessories.  Now we have DNA.  

DNA and other recent scientific developments have cast doubt upon all the previous techniques of solving homicide cases.  Defendants who had been convicted on the basis of confessions, eye witness testimony, ballistics, fiber, hair, fingerprint, voice analysis, accomplice testimony and other “reliable” indicia of guilt have been exonerated by DNA and other recent scientific breakthroughs.  Some who were not even suspected have now been convicted on the basis of this new science.

The pervasive presence of surveillance cameras and other means of recording events has also contributed to the increasing accuracy of detecting homicides and other serious crimes, as has more sophisticated forensic testing and better crime laboratories, though problems with the latter persist.

Every technique for solving homicides can also be used to defend against false charges of homicide.  Every prosecutorial sword can become a shield in the hands of an astute criminal defense lawyer.  

This chapter tells the story of some of the many murder and attempted murder cases I have litigated over the past 50 years.  In many of them, I use science not only as a shield to protect my client, but also as a sword to prove misconduct on the part of the prosecution, police or laboratory technicians.  Some of the cases are well known.  Many are not.  All of them are intriguing.  

Most of my cases have been appeals from convictions.  I’ve done a few trials and I wish I could have done more, since I love developing evidence and arguing to juries, but my teaching commitments are far more conducive to arguing hour-long appeals than month-long trials.  

My emphasis on evidence, particularly scientific evidence, led me, early in my career to realize the traditional way of arguing appeals did not maximize the chances of success.  The rules for an appeal provide that only errors made at trial and preserved as part of the trial record may be raised and argued on appeal.  All other issues, such as newly discovered evidence, ineffective assistance of counsel, prosecutorial misconduct discovered after trial, must be raised on what is called “collateral attack”—by a writ of habeus corpus or other such procedures.  I quickly came to realize that appellate judges, like all human beings, care more about whether a defendant is guilty or innocent than whether there was a technical mistake at the trial.  This perception was solidified by the approach many judges, such as the well respected Henry Friendly, espoused:  namely that innocence or guilt should play a greater role in reviewing convictions than what they called “technicalities.”  

Accordingly, I developed a technique, which has now been adopted by some other lawyers, under which I tried to combine the appeal and habeus corpus aspects of the case into one challenge to the conviction.  As soon as I was retained to do an appeal, I gathered together a legal team that included investigators, law students and experts in other disciplines, such as medicine and forensics.  I asked them to investigate the case from scratch.  If the investigation then turned up new information suggestive of innocence, I would quickly file a habeus corpus petition and not wait for the outcome of the appeal.  If the petition were denied, as they often were by the trial judge, I would then try to combine them into the appeal so that the appellate court would have a fuller view of the actual situation.  I did this quite successfully in the Claus Von Bulow case.  The court reversed that conviction not only because of errors made at trial, but because of new evidence of innocence that we had discovered after the trial.  I have used this approach, often quite successfully, in many of my appeals, especially those involving homicides, where new evidence frequently emerges.    


I suspect that some of my clients, including some whose cases I have won, have been guilty.  I believe that some have been innocent.  As to the majority, I am not certain.  There is a myth that criminal defense lawyers always know whether their clients are guilty or not guilty, because guilty clients confess their guilt in confidence.  This has certainly not been my experience.  Of all the homicide cases in which I have been involved, only one client has confessed his guilt to me.  I won that case on the basis of constitutional issues.  I have never had a case in which I have helped to free a guilty client who then killed again.  I tell my clients that under no circumstances will I ever represent them a second time. 64 



                    OJ Simpson and Claus Von Bulow

My two most famous—infamous?—cases involved homicide:  the OJ Simpson double murder prosecution; and the Claus Von Bulow assault with intent to kill (or attempted murder) prosecution.  I have written books about both the Von Bulow and Simpson case, detailing how science was used to challenge the prosecution’s case. 65   I will not repeat what I wrote in those books, except to highlight how important it is for lawyers, especially those involved in complex homicide cases, to master the science, to be able to question the other side’s scientific conclusions, and to accept nothing on face value.

I agreed to join the OJ Simpson defense team, despite my earlier public statements that the evidence pointed to him as the killer.  Among the reasons I took the case was that Simpson was facing the death penalty, and I have a policy of generally accepting capital cases.

Eventually the District Attorney decided not to seek the death penalty.  This was surprising, because if Simpson did, in fact, murder his wife and the man she was with, the death penalty would seem appropriate under the usual criteria for imposing it.  The killings seemed to be in cold blood, especially brutal and there were two victims.  The fact that the District Attorney opted against it, demonstrated, once again, the entirely arbitrary nature of decision-making as it relates to who is and who is not subjected to capital punishment. 66   

In any event, having agreed to join the team, I couldn’t abandon my client even though the death penalty was now off the table.  Simpson still faced two sentences of life imprisonment without the possibility of parole—for some a fate worse than death.

My special role in the case would be to prepare and argue complex legal motions and to help formulate the scientific, or forensic, defense.  I would also argue the appeal in the event of a conviction.  I recommended that Barry Scheck and Peter Neufeld, who were experts in the relatively new science of DNA, be added to the team.

After extensive investigation, we were able to demonstrate, by means of sophisticated scientific evidence, that the police had planted O.J. Simpson’s blood, along with the blood of his alleged victims, on a sock found in Simpson’s bedroom after the crime.  The blood on the sock had high levels of a chemical that are not found in human blood, but that are added to vials of blood to prevent it from coagulating.  The bloodstains on the sock also proved that the blood had been dripped on it while it was lying flat, rather than splattered on it while it was being worn.  There were mirror image round stains on all four surfaces, which means that the blood flowed through the flattened sock while it was not being worn.  Had it been splattered while being worn, there would have been mirror image stains only on two surfaces—the outside and the inside of the part that was splattered, but not on the two other surfaces which would have been blocked by the wearer’s leg.  The jurors were convinced by this and other evidence that the police had dripped the blood from vials onto the sock to make it appear that the sock Simpson was wearing during the murders had been splattered with blood at the crime scene.  This led the jurors to believe that the police were trying to frame Simpson for a murder they honestly believed he had committed, and that the veracity of their testimony and other evidence could not be trusted.  They acquitted Simpson of killings for which a subsequent civil jury (with different lawyers) found him financially liable.


My expertise in the science of disproving murder had been at the center of my earlier famous case involving Claus Von Bulow.  Von Bulow’s original trial lawyers were not able effectively to challenge the prosecution’s evidence that Sonny Von Bulow’s coma was caused by an injection of insulin, that high levels of insulin were found in Sonny’s blood, that traces of insulin were found on a needle in a bag that belonged to her husband Claus, and that a vial of injectable insulin had been found in Claus’ bag by Sonny’s maid.  On appeal, and in a motion for new trial based on newly discovered evidence, we disproved each of these pillars of the prosecution case.  We demonstrated through our own experts that Sonny’s coma was caused by the oral ingestion of barbiturates, rather than by an injection of insulin; that there were no high levels of insulin in Sonny’s blood; that the alleged traces of insulin on the needle was the result of a false positive reading; and that the maid could not have seen a vial of insulin in Claus’ bag.  The Rhode Island Supreme Court reversed the conviction and ordered a new trial at which the jury, after hearing the new scientific evidence, quickly acquitted Claus Von Bulow. 

The book and film Reversal of Fortune had brought the issue of scientific defenses to a wide public audience, and I had become the “go to” lawyer in such cases.  This reputation brought me several new cases, one of which bore an eerie resemblance to the Von Bulow case.  



                    “My father didn’t kill my mother”: the case of Dr. William Sybers

The call came from a young woman pleading with me to take her father’s appeal.  Her father had been convicted of killing her mother by injecting her with a drug that stops the heart from working.  He was sentenced to life imprisonment.  “It’s just like the Von Bulow case,” the daughter insisted.  “My father didn’t kill my mother.  He didn’t inject anything into her.  She died of natural causes.”  (No one seeking my help ever tells me their case is “just like” O.J. Simpson’s!)

When the daughter of an alleged murder victim is so certain the defendant is innocent, even when the defendant is her father, the case is certainly worthy of a hard second look.  I agreed to provide that look and to argue the appeal—and a possible new trial motion—if I concluded there had been a possible injustice.

My initial review of the evidence was not encouraging.  There were needle marks on the victim’s arm that were consistent with an injection.  Moreover, a subsequent lab test had revealed traces of the metabolite of a drug called succinylcholine—a paralytic agent capable of stopping the heart.  Finally, the defendant was having an affair, and he was a medical doctor—indeed the medical examiner of his Florida county—and thus had the motive and knowledge necessary to stop his wife’s heart.  All the classic components for homicide—motive, opportunity, means and scientific evidence—were present, and they pointed in the direction of guilt.  I could easily understand why a jury could convict.  In these respects, it was like the Von Bulow and Simpson cases, but in the Von Bulow case, the evidence, upon reexamination, pointed to innocence, and in the Simpson case, a major item of evidence—the bloody sock—had been planted by the police.  There seemed to be no such elements of doubt here.  At least not yet.  

The Sybers case had begun more than a decade before I was called.  Kay Sybers had died suddenly in her sleep—or so it appeared—on May 30, 1991.  She was 52 years old and in generally good health, though she had suffered from allergies for which she took medication.  An autopsy was performed but no cause of death could be determined.  One of the investigators did, however, think she saw a needle mark.  The original death certificate read:  “sudden unexpected death due to undetermined natural causes.”

Rumors immediately began to circulate that Dr. Sybers was having an affair with a  lab technician, and an investigation was begun.  An investigator was dispatched to the Sybers home and the grieving husband was asked to describe his wife’s last night.  Dr. Sybers told the investigator that at about 4AM his wife awoke with chest pains.  She had taken some medication, so Dr. Sybers decided to draw some blood to give to her doctor the next day.  He did not succeed in drawing the blood and he threw the syringe into the garbage.  The syringe could not be found because the trash had already been collected.  This all seemed very suspicious and so the investigation continued.  After more than a year-long investigation, the State Attorney reported that he had found “no prosecutable case,” and that there was no physical evidence that Dr. Sybers had killed his wife.  The case was closed—or so it seemed.

But nearly two years after Kay’s death, and a year after the case against Bill was closed, their 27 year old son Tim killed himself on his mother’s birthday.  Shortly before he shot himself, Tim was apparently talking on the phone with a friend about his mother’s death and the suspicions that his father may have killed her.  Tim’s suicide resulted in a reopening of the investigation.  The case was now on “the front burner.”  It was also on the front pages of local newspapers.

Investigators began to focus on the drug potassium, which in large enough doses can kill and which is difficult to detect in the dead body.  It was a perfect murder weapon, especially for a sophisticated medical examiner with extensive experience in causes of death.  

Boning to pressure from the media, the Governor of Florida appointed a lawyer named Harry Shorstein—who was then the State Attorney in Jacksonville—to be a special prosecutor.  He had only one job: to prove that Dr. William Sybers had murdered his wife.  With the single-minded determination of an inspector Javert, Shorstein set out to get Dr. Sybers.  

On February 18, 1997, Shorstein had Sybers indicted for capital murder.  The indictment alleged that he had murdered her with an “unknown substance.”  There was no hard evidence of any such substance, but Shorstein was confident he could find it.  It was an example of “indict first—and then search for the evidence.”

Shorstein was convinced that Dr. Sybers had injected his wife with potassium and that a thorough analysis of her tissues, preserved from the autopsy, would prove that theory.  The problem was Shorstein’s theory was based on “junk” science, not real evidence.  A “test” that purported to show high concentrations of potassium in the tissues preserved from Kay’s autopsy was not scientifically valid.  It could not be replicated by other scientists and the methodology had never been peer-approved.  Accordingly, one court denied Shorstein’s petition for exhumation of Kay’s body, and another court ruled that the potassium evidence could not be presented to the jury.  The theory that Dr. Sybers had used potassium as the murder weapon was now dead.  

Shorstein was left with a capital indictment, but no theory, no evidence and no weapon.  So he set out to find a new murder weapon.  He turned his attention to the drug “succinylcholine.”  The paralytic drug itself quickly disappears from the human body, but a scientist assured him that a by-product of the drug—succinylmonocholine; or “SMC,” could be detected in tissues even years later by a sophisticated test.  That test purportedly found traces of SMC.  This time the test results could be replicated by the famous FBI lab, although with slight variations.  Shorstein had his smoking gun—his murder weapon.  And it had been certified by no less an authority than the Federal Bureau of Investigation.

The same judge who had excluded the potassium theory as “junk science,” now concluded, after an extensive hearing, that the succinylcholine theory was based on real science and could be presented to the jury.  

Shorstein not only now had science on his side, he also had a sex motive that would surely grab the jury’s attention, even if it were to become bored by the highly technical scientific evidence.  

The state’s scientific case gave rise to the usual clash of experts.  The two primary witnesses for the prosecution were Dr. Kevin Ballard, the scientist who had conducted the test, and Dr. Marc LeBeau, the FBI chemist who had replicated the test.  The defense introduced experts who opined that since the body had been embalmed before autopsy, any chemical analysis could be contaminated by the embalming fluid.  They also criticized Dr. Ballard for “sloppy” practices in his lab that could add to the contamination.

The jury, after only a few minutes of deliberation, unanimously convicted Dr. Sybers of first degree murder.  He could have been condemned to die, but instead he was sentenced to life imprisonment.  His only hope of ever experiencing freedom was an appeal, or a new trial motion, which my brother and I were retained to prepare and argue.

My brother Nathan, three and half years my junior, has long been my secret weapon.  After graduating from NYU law school, he served as an appeals lawyer in the New York Legal Aid Society where he argued hundreds of criminal appeals.  Then he worked in a large law firm and at the American Jewish Congress before starting his own boutique appellate law firm.  His firm includes two other excellent appellate lawyers who are his partners, as well as several associates.  I work on many of my most difficult cases with the firm—Dershowitz, Eiger and Adelson.  Their work proved invaluable in the Sybers case, as it did in many others.  

We began by reviewing the scientific evidence, as we had in the Von Bulow and Simpson cases.  Although appellate lawyers are supposed to focus only on the trial record, I have never followed that practice.  I start over from scratch and revisit all the scientific and other evidence.  The result is not only an appellate brief focusing on errors committed at the trial, but a motion for a new trial based on newly discovered evidence, which we almost always find.  In this case we discovered massive incompetence and sloppiness on the part of the private lab that had “found” traces of SMC, and serious problems in the FBI lab as well.  

We were fortunate that among the three judges assigned to hear our appeal, one had had a degree in chemistry.  He understood the principle, articulated by the courts over the years, that “novel scientific evidence” can be admitted at a criminal trial only if it is “sufficiently established to have gained general acceptance” by the scientific community.  As he later put it:  “a courtroom is not a laboratory, and as such is not the place to conduct scientific experiments,” and that “doubts as to admissibility” of such evidence should be resolved “in a manner that reduces the chance of a wrongful conviction.”  

With these salutary principles in mind, we set out to convince the appellate court that the “science” on which Sybers was convicted was not science at all, but was the result of an unscientific effort by an overzealous prosecutor to discover, or if necessary manufacture, “evidence” that would confirm his vendetta against Dr. Sybers.  We were convinced, based on our research, that the “finding” of SMC in Kay’s tissues was the result of a classic false positive, based on contamination.  We produced our new evidence of massive contamination in Dr. Ballard’s lab and of problems in the FBI lab.  We presented this new evidence, along with the old evidence from the trial, to the appellate court. 

I argued the appeal.  It turned into a seminar on the scientific method.  I began as the “teacher” but soon became the “student” when I realized that the presiding judge knew at least as much about the science as I did.  A few months later, the court published the decision reversing Sybers conviction, on the ground that the prosecution had failed to prove the scientific validity of its theory.

We later learned that Harry Shorstein—who argued that appeal—had information that should have led him to know or at least suspect that the test results he had presented to the jury were at best highly questionable and at worst flat out false.  Yet he never disclosed this information to the court or to the defense.  We filed a complaint with the appropriate authorities, since such conduct on the part of the prosecutor raises grave ethical issues.  Shorstein then filed a counter-complaint alleging—quite absurdly—that the very act of filing a complaint against him constituted misconduct.  Shorstein’s tactic is only one of the ways overly aggressive prosecutors discourage lawyers from complaining about their ethical violations. 67   Nothing came of either complaint, but when President Obama was considering appointing Shorstein to become a United States Attorney in Florida, we notified the White House and the Senate Judiciary Committee of Shorstein’s ethical lapses and he was passed over for the job. 

Dr. Sybers and his wife of __ years now live in ____. 


                    The Binion case:  murder or drug overdose?

The classic “thriller” case is a “whodunit.”  The fact of a murder is clear, as it was in the OJ Simpson case.  The only question is who committed it.  (Remember the “one armed killer” in The Fugitive!)

Many of my homicide cases have not been who-dunits, but rather, was anything criminal done at all.  Was the dead (or comatose) body the result of a criminal act, or the result of natural causes, self-induced harm, or accident?  

That was the issue in the Von Bulow and Sybers cases.  It was also the question presented when Ted Binion, the owner of the famous Binion Casino in Las Vegas—the home of the World Series of Poker—was found dead in his home on September 17, 1998.

Binion’s live-in fiancé, Sandra Murphy—a young, sometimes exotic dancer—and her equally young lover, Richard Tabish, were accused of murdering him, by an unusual means harking back to the days of Sherlock Holmes.  Dr. Michael Baden, one of the world’s leading forensic pathologists (and a friend of mine) had concluded that Binion had been “burked” to death.

The term “burke” derives from two notorious 19th Century Scottish murderers, who killed their victims in order to provide fresh cadavers to doctors and medical students for research.  The case was so notorious that it became the subject of a short story, “The Body Snatchers” by Robert Louis Stevenson, and of several films including one by the same name that starred Borris Karloff and Bela Lugosi.  Burke and colleague Hare, compressed the chest of their victims, thereby smothering them to death, without leaving any bruises on the body.

Dr. Baden surmised that Sandra Murphy and her lover had done the same thing to Binion, so as to leave no trace of murder.  And her diabolical plan—if there was such a plan—worked—at least for a while.  Since it was well known that the high-living Ted Binion was a heroin addict, and since there was evidence that his regular drug supplier had delivered a large quantity of black tar heroin just before his body was found, the police concluded that this was just another Las Vegas drug overdose, albeit by one of the city’s most famous celebrities.  Since no crime (other than those relating to the drugs) was suspected, the home was not declared a “crime scene,” but an autopsy the next day noted various marks on the body and the examiner photographed them.  It was these marks that led Dr. Baden to conclude that Binion had been murdered—burked to death—and had not died of an overdose.  Other medical experts also concluded that Binion had been murdered, but not by “burking.”  Their theory was that he had been forced to swallow a deadly mixture of heroin, xanax and valium—a cocktail of death.

In addition to the scientific evidence, there was testimony by Binion’s estate lawyer that on the day before his death, Binion had said to him:  “Take Sandy [Sandra Murphy] out of the will if she doesn’t kill me tonight.  If I’m dead, you’ll know what happened.”

The prosecution thus had evidence of motive, means and opportunity and they charged Murphy and her lover with “murder by suffocation and/or poisoning.”  At trial, they presented what I later characterized as a “multiple choice” prosecution:  the jury could choose either suffocation or poisoning; they did not have to agree on the means used to murder Binion, as long as they all agreed that “his death was caused by a criminal agency,” that is by a murderous act attributable to the defendants.

The jury deliberated for 8 days and found the defendants guilty.  My brother and I were retained to prepare and argue the appeal and to file a motion for a new trial based on newly discovered evidence.

We began our investigation by focusing on the burking theory.  Since the jury could have convicted based on that theory alone, if we could undercut it, Murphy would have to be given a new trial. 68   We would turn the prosecution’s “multiple choice” offense into an appellate defense.  

One important pillar of the burking theory was a “bruise” on Binion’s chest that had been photographed.  Since Dr. Baden hadn’t examined Binion’s body, he had to rely on the photograph alone.  He concluded that the bruise—which appeared consistent with the shape and size of Binion’s shirt button—had been caused by Binion being burked.  We had the photograph enlarged and enhanced by the most sophisticated technology.  We then showed it to one of the world’s most distinguished dermatologists who examined it, using every more sophisticated technology.  His conclusion dealt a powerful blow to the burking theory: the mark on Binion’s body was not a bruise he could have gotten from being burked; instead, the structure of the blood vessels in the “bruise” proved that it was a benign skin tumor he had for years before his death.

Additional field research further discredited both the burking and cocktail theories.  We were now confident that if Murphy were to receive a new trial, a jury would acquit her.  The prosecution’s “multiple choice” theory had become a “no choice” near certainty.

Now all we needed was an opportunity to obtain a new trial.  Our best chance of securing a second trial was to win the appeal, and the best issue on appeal—the safest and neatest—was the judge’s decision to allow Binion’s lawyer to testify that Binion had told him the day before his death that if he were found dead, Murphy would be his killer.  This was a smoking gun that must have influenced the jury, since it was, in effect, testimony from the grave.  The ghost of the dead man, as in Shakespeare’s Hamlet, was pointing to his killer.

We did not believe that the conversation had ever occurred.  Murphy told us that the lawyer, who hated her, had simply made it up after the fact to assure her conviction.  But the jury had believed the lawyer, and we could not challenge his credibility on appeal, since credibility issues—who is telling the truth and who is lying—are for the jury to decide.  But we could try to raise doubts about the credibility of the dead man—the man whose words were quoted by the lawyer.  How could the jurors assess Binion’s credibility, since he was not in court to be cross-examined.  His “testimony” from the grave was classic hearsay, and his unavailability denied Murphy the constitutional right to confront her accuser.  

The prosecution responded that the only reason he wasn’t in court was because my client had murdered him.  Our argument, they claimed, paralleled the classic definition of “Chutzpah”: the young man who murders his parents and then demands mercy from the court on the ground that he is an orphan.  But the conclusions that Murphy had, in fact, murdered Binion, of course, begged the question to be decided by the jury:  did Murphy, in fact, murder him?  

Although hearsay statements—that is, in-court testimony by one person as to out-of-court statements made by another person—are generally not admitted at trial, there are numerous exceptions to this rule of exclusion.  One of them is the “chutzpah” exception:  a defendant can’t kill a witness and then seek to exclude testimony about what he would have said if he were alive.  This exception has been created by the courts to discourage defendants from murdering witnesses.  But to invoke that exception, it has to be clear that the defendant did, in fact, kill the witness.  The prosecution could not meet that burden in this case without a full trial in which it relied on the very statement at issue.

Another exception relates to “deathbed” confessions—statements made by a man who knows he’s dying and speaks in anticipation of his imminent death.  The “science” behind this exception is the empirical assumption that no person will lie if he knows he is about to meet his maker.  But this too is junk science, since there is no real evidence to support the assumption.  Moreover, there was no evidence (aside from the challenged statement itself) that Binion actually anticipated death or that he was a religious man who feared meeting his maker with a recent lie on his lips.

The final relevant exception is that an otherwise hearsay statement is admissible if it is relevant to the “then existing state of mind” of the dead person.  For example, if Binion had told his lawyer that he was feeling depressed and was considering suicide, that statement could be heard by the jurors to help then decide whether his subsequent death was caused by suicide or some other means, such as murder.  The prosecution argued that Binion’s “fear” of being murdered was evidence of his state of mind.  It was also evidence that his death was not caused by suicide.  The problem with this argument is that Binion’s statement was also evidence of Murphy’s allegedly murderous state of mind, and the jurors would not be able to limit its consideration of this explosive statement only to Binion’s state of mind.  This was especially true since the judge had failed to give the jury what is called “limiting instruction,” namely that “you can consider the statement only to prove what Binion was thinking and not what Murphy was thinking.”

Because of this serious and prejudicial error (as well as others), the Nevada Supreme Court reversed the murder convictions and ordered a new trial. 69 

The jury at the second trial, having heard our new scientific evidence, acquitted Murphy of murder.  They believed neither the burking nor the cocktail theory.  The more like cause of death, they concluded, was a self-administered overdose of heroin.  Murphy now lives in California, where she runs an art gallery. 



                    Assisting Mercy Suicide

Another highly emotional case in which science was used to establish the immediate cause of death involved the mercy killing by a doctor of his cancer-ridden wife.  

Although the media characterized Patricia Rosier’s death as a “mercy killing,” it is more aptly described as a “mercy suicide,” because she alone made the decision to end her life.  A mercy suicide, when committed by an adult of sound mind, is not a crime.  

Mercy killing—the taking of the life of another person who is suffering and usually no longer sentient—is different from mercy suicide in the eyes of the law.  The letter of the law simply does not recognize mercy as a defense to murder: it regards all deliberate killings as murder, whether done in the name of love or hate.  But suicide is not a crime, though in some religions, it is regarded as a sin.    

The line between mercy suicide and mercy killing is not always clear.  Sometimes it is simply a function of timing or happenstance.  When what was originally intended as an unassisted mercy suicide cannot be completed without the help of others, it becomes, in the eyes of a prosecutor, a criminal mercy killing. 70   

What began as a clear case of mercy suicide by Patricia Rosier ended up with the trial of her husband, Peter, for first-degree murder, conspiracy to murder, and attempted murder.  The prosecutor sought the death penalty, analogizing the crime to “a serialized gang murder.”

The basic facts were not in dispute, but the legal consequences of those facts gave rise to one of the most contentious and emotional cases in Florida legal history. 

After being told she had incurable cancer and had only weeks to live in excruciating pain, Patricia made the fateful decision to pick the time and circumstances of her death, not wanting to leave it to the unpredictable clock of the cancer.  When she told her husband of her decision, Peter said that he would end his life with her.  When the children learned of this, they pleaded with their father not to take his life.  Peter relented.  No one tried to talk Patricia out of her decision to commit suicide, for two reasons:  first, she had made up her mind; second, it wasn’t really suicide, since her act would only hasten her imminent and painful demise by a few weeks.  

Patricia selected the day and time of her death and planned a formal farewell dinner for her family.  Among those in attendance, in addition to her husband and children, were her stepfather and her two half brothers.  

There was wine and toasts.  Patricia wore an elegant dress and had her nails polished.  After dinner they watched the movie Harold and Maude, about an elderly woman who commits suicide to prevent herself from “growing old.”  When it was over, Peter Rosier and his wife retired to the bedroom and made love.  After bidding farewell to family members, Patricia Rosier took twenty pills that she had selected for her suicide.  She quickly fell into a coma, from which she expected never to wake.  Had her suicide succeeded, there would have been no case.  

But soon the coma began to lighten.  Peter didn’t know what to do or what to think.  Would she awaken or remain comatose?  Would there be brain damage?  Pain?  Emotional turmoil?  All Peter knew was that his wife did not want to awaken.  What was his obligation to his comatose wife?  Would he be breaking his final promise to her if he did not assist her in achieving her goal: a painless and dignified death?  He could not ask her advice.  The decision was his to make, but it was her decision—she had already made it and acted on it, albeit incompletely.  
Peter administered morphine, but it was not enough.  While Peter was outside the house, pacing and crying, Patricia’s stepfather decided to end her life by suffocating her.  He placed his hands over her nose and mouth.  She died in her sleep.

The stepfather and brothers simply informed Peter that Patricia had died, without providing any further details.  For nearly a year, the circumstances surrounding Patricia’s death remained a family secret.  Then Peter decided to do something foolhardy: he wrote a book about his late wife’s courage and gave an interview to a local television reporter in which he related what he believed were the circumstances of his wife’s death, still unaware that her stepfather had administered the coup de grace.
As soon as the interview was aired, the local prosecutor began a murder investigation.  They wanted to interview Patricia’s stepfather, but he demanded total immunity from prosecution for himself and his sons as a condition of being interviewed.  That should have tipped off the authorities that he might have something to hide.  But instead of asking for a “proffer”—a truthful outline of the facts—before deciding whether to grant immunity, the prosecutor simple agreed to his condition.

The stepfather then disclosed for the first time that it was he who had caused Patricia’s death.  The prosecutors had committed a blunder feared by every law-enforcement official: they gave the wrong person immunity.  But they could not back out of their deal.  Now the only possible target was Peter Rosier.

Despite the certainty that Peter had not actually killed his wife, and that she wanted to take her own life, the prosecutor treated the loving husband as if he were indeed the triggerman in a serialized gang murder.  Peter Rosier was indicted on charges of first-degree murder and conspiracy to murder.  The prosecution’s theory was that the stepfather’s ultimate act was merely the final stage in a family conspiracy of which Peter was the architect and participant.  

Suddenly Peter Rosier found himself in jail, facing a possible death sentence in a state that has one of the highest execution rates in the country.  Right wing commentators, such as Patrick Buchanan, compared what Peter did to what the Nazis had done under Hitler. 71   Rosier called me from prison on the day of his arrest and asked me to help him.  I worked with his local lawyer to get him out on bail and to formulate a trial strategy.  In the event of his conviction, I was to be his appellate lawyer.  

First we had to establish through scientific evidence that suffocation, rather than morphine, was the immediate cause of death, since Rosier did not suffocate Patricia.  (Cancer was, of course, the “but for” cause of death.)  Second, we had to make the jurors wonder what they would have done under such excruciating circumstances and to conclude that the criminal law should not sit in judgment over loving family members who had to make a tragic choice between keeping a promise to a comatose loved one or abandoning her in a moment of crisis. 

Peter’s trial lawyer, Stanley Rosenblatt of Miami, did an excellent job persuading the jury that the murder statutes were put on the books not for loving husbands like Peter Rosier but for brutal killers like Charles Manson and Ted Bundy.  He tried the case with emotion and empathy, inviting the jurors to put themselves in the unenviable situation Peter faced on that terrible night.  The prosecutor, on the defensive for having given Patricia’s stepfather immunity before he knew the facts, played the avenging angel.  He demanded that the jurors simply apply the law to the facts and not distinguish among murders on the basis of motive.

The jury understood—even if the prosecutors and Pat Buchanan did not—the differences between love and hate, between a self-willed voluntary death and a death involuntarily imposed by others.  After weeks of trial, it took the jury only a few hours to acquit Peter Rosier of all criminal liability.  The prosecution had lost all credibility by asking the jury to treat Dr. Rosier as if he were the functional equivalent of a gangland killer.  Had the prosecution charged Dr. Rosier with assisting the suicide of another—which is a crime under Florida law—it might have had a better shot at a conviction.  But by overcharging him with first-degree murder, it made it difficult for the jury to take its case as anything but a vendetta.  

One important role the jury plays in our system of justice is to serve as the moral conscience of the community and as the common sense moderator of harsh general statutes.  This Florida jury, which included several older people who themselves had living wills, decided that what Peter Rosier did, was not murder, even if the strict letter of the law did not authorize him to help his wife choose the time and manner of her imminent death.  


                    The Suppression of Science: The Case of Jeffrey MacDonald

A case in which science has not yet produced a victory—or, in my view, justice—is the 40 year old “whodunit” involving the murder of the family of Jeffrey MacDonald.  Science could perhaps provide a definitive answer to this highly publicized case, but so far the doors of the courtroom have been shut to newly discovered scientific and other evidence that was suppressed by the prosecution.  The courts in this case have placed the alleged need for “finality” above the search for truth.  But history and science knows no finality.  Nor should finality trump the desire for closure in a court of law, as long as a possibly innocent defendant remains convicted of a crime that science can prove he may not have committed.  

I had followed the Jeffrey MacDonald case in the media from its grisly inception on February 17, 1970, when the wounded Green Beret doctor told authorities that his pregnant wife, Colette, and his daughters, Kimberly, five, and Kristen, two, had been murdered by drug-crazed intruders. Like most Americans, I had my doubts about his story. It seemed so conveniently modeled on the notorious Manson murders that had occurred just __ years earlier.  I knew that the statistics showed that wives are more likely to be killed by husbands than by strangers. I wondered why there was no hard evidence—no fibers, hairs, or fingerprints—left by the alleged intruders.  My doubts were confirmed by reading Joe McGinniss's best-seller Fatal Vision, which concluded that MacDonald was indeed guilty, or by seeing the TV movie, which was even more persuasive of his guilt. 

Several times during the course of the lengthy legal proceedings, Jeffrey MacDonald had written and called me, pleading with me to help him. Each time I declined. But then, in 19__, I went to Terminal Island Federal Prison in California to visit another inmate, and as I left the room in which lawyers confer with prisoners, a graying man quietly introduced himself. He was Jeffrey MacDonald, and he asked if he could have five minutes of my time to show me some documents. I agreed. What I learned that day—and afterward—convinced me that I had to try to help him.

In one of the most dramatic scenes in the TV movie Fatal Vision, investigators dig up the graves of Colette, Kimberly, and Kristen MacDonald. The government's chief lawyer (played by Andy Griffith) explains to the grieving Freddie Kassab (played by Karl Maiden) why the bodies of his stepdaughter and grandchildren must be exhumed:

          We've got to know if the hair found in Colette's hand was her own, Jeff’s, the kids’ . . . 
          [Freddie Kassab interjects] . . . or someone with a floppy hat.

In the actual trial conducted in 1979, the prosecution's case against Jeffrey MacDonald relied heavily on this evidence: blonde hair found in the murdered Colette MacDonald's hand. It had already been found not to match Jeffrey MacDonald's hair. Thus, if it did not match Colette's own hair or the hair of the children, that finding would lend support to MacDonald's claim that there had been intruders - - including a woman with long, blonde hair who was wearing a floppy hat and boots - - in his home on the night of the attack. It would also indicate that at least one of these intruders had come in contact with Colette.

By the time the victims' bodies were exhumed, a woman named Helena Stoeckley had told police and others that she and three friends had been in the MacDonald house on the night of the murders and that her friends had committed the crimes. Though Stoeckley's word alone may not have been worth very much—she was known to be a drug addict—she provided some details, which tended to corroborate her story and the story Jeffrey MacDonald had told the police.

For example, she described a broken rocking horse like one found in Kristen's bedroom. At the time of the crime, she had owned a floppy hat, black clothing, boots, and a long blonde wig, all of which corresponded with MacDonald's description. And a woman fitting that description had been seen by a military policeman near the MacDonald home shortly after the crime.

But the single hair in Colette's hand turned out to have come from her own head. The government investigators reported that they had found no other physical evidence—no hairs, no fibers, no skin, no blood—that could not be traced to the inhabitants of the MacDonald house.

The prosecution could therefore argue to the jury that Jeffrey MacDonald was lying - - because if there had been intruders, they surely would have left some evidence behind: The absence of such evidence was evidence of the absence of intruders.

Moreover, at the trial Helena Stoeckley claimed to have amnesia as to her whereabouts on the night of the murders.  The defense was surprised by Stoeckley’s sudden inability to remember what she had previously described in such detail, but they could not effectively challenge her claim of amnesia, because they had no basis for suggesting that she had been pressured to forget what she actually remembered having done—namely participating in the murder of the MacDonald family.     

Now, however, in a shocking turn of events, Jeffrey MacDonald's legal team has discovered that, before the trial, the government had in its possession handwritten lab notes indicating that investigators had discovered long, blonde wig hairs at the scene of the crime that did not match anything in the MacDonald household. This evidence was already in the government's secret files before the graves of the victims were disturbed.

Nor was this all the prosecution had in its secret files. The handwritten lab notes confirmed the presence of black wool fibers on the murder weapon used against Colette, and around her mouth. These fibers did not match any clothing belonging to Jeffrey MacDonald or to anyone else in the MacDonald household. (Helena Stoeckley, however, had said she often wore black clothing.)

In addition, in the bedclothes of each victim—Colette, Kimberly, and Kristen—the government experts found other unmatched human hairs, which did not belong to any of the victims, or to Jeffrey MacDonald. But these hairs were never tested against Stoeckley or any members of her group.

These lab notes were powerful evidence that an intruder wearing a long, blonde wig and black wool clothing was at the murder scene on the night of February 17, 1970. But Jeffrey MacDonald's lawyers were not aware of the notes' contents. Had they been, the entire trial would undoubtedly have unfolded differently.

For example, Helena Stoeckley testified to the jury that she could not remember where she had been on the night of the murders. MacDonald's attorneys tried to introduce the testimony of six witnesses - - including a police officer - - to whom she had previously admitted that she was in the MacDonald house with her friends that night. Since testimony about Stoeckley's prior ad-missions would technically constitute "hearsay" - - that is, testimony by one witness about what another witness had said outside the courtroom - - the judge ruled that the jury could hear about Stoeckley's hearsay admissions only if [corroborating evidence showed] that they [were] 'trustworthy.' "

The judge—who was also unaware of the handwritten lab notes—ruled that there was no "physical evidence" that corroborated Stoeckley's admissions; therefore, her admissions were not trustworthy.  Had he been aware of this corroborating evidence, he would have been obligated to allow the hearsay admissions into evidence.  

Thus, the jury never learned that there was hard, scientific evidence of intruders in the house-or that a woman matching MacDonald's description of one of the intruders had actually admitted to six different people that she and her friends, not Jeffrey MacDonald, were the killers.
Moreover, in 2005, the former Deputy Marshall, Jim Britt, who was in charge of escorting Helena Stoeckley to the courtroom came forward and told MacDonald’s lawyer the following:  

    Jim Britt avers that he personally witnessed Helena Stoeckley state to James Blackburn [the prosecutor] that she and others were present in the MacDonald home on the night of the MacDonald murders and that they had gone there to acquire drugs; Jim Britt further avers that he witnessed and heard James Blackburn, upon hearing this, directly threaten Helena Stoeckley, telling her that if she so testified in court he would indict her for first degree murder. This threat caused her to change her testimony, as the next day, when called to the witness stand by the defense, Stoeckley claimed to have amnesia as to her whereabouts from midnight until 5 a.m. the night of the MacDonald murders -- the precise time-frame during which the crimes occurred. James Blackburn never disclosed to the court or defense counsel what Helena Stoeckley admitted to him in Jim Britt's presence. On the contrary, Blackburn, at a critical juncture in the trial, advised the court that Stoeckley, when he interviewed her, denied having any knowledge of the MacDonald family, the MacDonald home, or involvement in the MacDonald murders. Blackburn even went so far as to elicit from Stoeckley, through leading questions before the jury, testimony that was contrary to what she had told him during his interview of her the day before in the presence of Jim Britt.


Finally new DNA and forensic testing has revealed three specimens that did not match any of the people in the house, as well as unidentified hairs under the fingernails of the victims.  This new and suppressed evidence corroborates Stoeckley’s original account that she remembers being in the house and participating in the murders.  Had the trial judge known about this corroboration, he would surely have allowed Stoeckley’s earlier statements to be heard by the jury.

These dramatic revelations finally came to light because of Dr. Jeffrey MacDonald's search for evidence of his own innocence, which he has protested since the beginning of his case.  Over many years, he and his lawyers filed requests under the Freedom of Information Act, seeking access to the government documents on the case—the documents that contained the facts that were not revealed during the trial. Slowly, they pieced together the amazing scientific and evidentiary story that the jury never heard.

It is a story that raises the following disturbing questions;

Why would the government suppress such critical evidence?  It is impossible to know the mind-set of the chief government lawyer in the case: Brian Murtagh, whose responsibility it was to see that the defense received any evidence in the government's file, which could help the defense. We do, however, know that he was aware of the contents of the lab notes. Since he wrote a memo to a legal assistant asking him whether "the detailed data of a lab report; as distinguished from the conclusions of the report, (must) be disclosed (to the defense)." This question is significant, because the "detailed data" refers to the blonde wig hair, the black wool, and the human hairs, which were described in the handwritten lab notes but somehow not mentioned in the lab's final typed report.

Murtagh has refused comment, except for a cryptic statement that "if there were fibers useful to the defense, MacDonald's original trial lawyers should have found them" among the crates of raw evidence to which they had access.  Talk about needles in haystacks!

How much more exculpatory evidence may be hidden in some government file—or may have been destroyed or lost—we will probably never know. For example, a fragment of human skin was found under one of Colette MacDonald's fingernails. Yet, unbelievable as it sounds, the government claims that it lost this singularly important item of evidence.  Prosecutors in several other cases in which I’ve been involved have mysteriously “lost” evidence that could prove innocence.  If that skin fragment were now available, it could prove conclusively—through DNA matching—whether or not Jeffrey MacDonald was the killer. Even without DNA testing (which was not available at the time of the original investigation) it could have cleared MacDonald.

Will the new evidence finally get Jeffrey MacDonald the new trial he has been seeking since he was convicted in 1979?  If the government suppressed the lab notes and other evidence--and if this evidence was material to the issue of MacDonald's guilt or innocence—a new trial should certainly be granted.

But several problems remain: First, most Americans who have read the book or seen the TV movie of Fatal Vision already "know" that Jeffrey MacDonald is guilty. They know it because the Jeffrey MacDonald portrayed in those one-sided presentations was guilty. On TV, the actor, Gary Cole, played him guilty.  The evidence shown to the audience—like the evidence presented to the real-life jury—did not include the physical evidence that corroborates the Stoeckley confessions. Nor did it include the evidence that the prosecutor pressured Stoeckly to lie about her memory.  

The second problem is that current law makes it nearly impossible to reopen a closed case on a second or third writ of habeus corpus.  The “great writ” has been severely restricted by Congress, and even compelling evidence of innocence does not guarantee a new trial.  In fact, when I argued an appeal from the denial of a second petition for habeus corpus—my only courtroom involvement to date in this long case—one of the judges warned me not to bring any further petitions.  I told him I would be obliged to bring a further petition, if the evidence warranted it.  

Such new evidence has now been found, and the Court of Appeals recently ordered the district court to consider all the new “evidence as a whole.”  So the case is far from over.  I continue to confer on the case with Harvey Silverglate, who was MacDonald’s classmate at Princeton and who was my co-counsel in the earlier Habeus Corpus appeal.  

Whatever happens, I believe that Jeffrey MacDonald has not yet received a fair trial. I believe he deserves one - - and the American people deserve to know the full story, not the abbreviated one presented at the trial or the biased on presented in the book and TV movie.  [update]



                    The science of eliciting false confessions:  the case of Jonathan Doody

Another murder case that never seems to end involves a man named Jonathan Doody, the son of a Thai mother and an American soldier, who was accused of the mass murder of nine Buddhist Monks and nuns in Arizona back in 1991.  They were placed on the floor in a circle and systematically shot in the head, apparently by a group of armed robbers.  Originally, a motorcycle gang was suspected of the crime.  After a lengthy interrogation, four of them confessed, but it soon became clear to the police that they had been pressured into making false confessions and they were freed.  

Doody, who was 1_ at the time, was then arrested and subjected to a similarly pressured 12 hour interrogation.  The police began by giving him his Miranda warnings: you have the right to counsel; you have the right to remain silent; and anything you say can and will be used against you in the court.  They then proceeded, gradually, to “demirandize” him, by taking back everything they had originally said!  You have a right to an attorney “if you were involved in [the murders]”; anything you “tell us” is “gonna stay right here” and not be used “in court;” and “you just have to open up”—that is confess—and we will keep you here until you do.  Finally, the exhausted __ year old confessed to being involved with the motorcycle gang—which the police knew was untrue—and to participating in the killings.  Based largely on this questionable confession, he was convicted and sentenced to life imprisonment.  

When I first became involved in the case, I decided to do my own investigation.  The murder scene was near a United States Airbase and I learned that Russia was selling some of the Soviet Union’s old satellite photographs of the United States.  I bought the photographs for the day and location of the murder in the hope that perhaps they might show evidence that people other than Doody were responsible for the crime.  Unfortunately, the sky was overcast that day and the photographs were useless.  We would have to limit ourselves to making arguments based on the record of the trial, with an emphasis on how the police had elicited the confession from Doody.  I did extensive research on the “science”—or “art”—of eliciting confessions from reluctant suspects.  I learned how the interrogators place objects from the crime scene in view of the suspect, how they suggest answers, how they create an atmosphere of intimidation and omniscience, and how they contrive to turn the Miranda warnings to their own advantage.  

I argued the initial appeal, along my brother Nathan’s office in 19__.  The Arizona Supreme Court affirmed the conviction.  My brother’s partner, Victoria Eiger, then took prime responsibility for preparing a federal writ of habeus corpus.  My brother and I worked closely with her.  The matter simply sat before the federal judge for ___ years, before she rendered a ___ page decision denying relief.  We then appealed the denial to a panel of the United States Court of Appeals for the 9th Circuit, which reversed Doody’s conviction in a 2-1 decision that ruled his confession involuntary and ordered him to be freed, unless the state granted him a new trial.  The state then appealed the reversal to the entire 9th Circuit, which set the case down for argument before 11 judges.  They also ruled in Doody’s favor by a vote of 9-3.  Still the case was not over.  The state sought a writ of certiorari from the Supreme Court which remanded the case back to the 9th Circuit for reconsideration in light of a recent Supreme Court decision.  The 9th Circuit reconsidered and once again threw out Doody’s conviction on the ground that the confession was involuntary.  Again the state sought review by the Supreme Court. This time their petition was denied, and Doody’s conviction was finally and definitively reversed.  

The state of Arizona is now planning to retry him without using his false confession.  Bail has been set at $5million, which his, of course, impossible for the Doody family, which has no money, to raise.  

If justice delayed is justice denied, then Jonathan Doody has surely been denied justice.  The thorough decisions of the United States Court of Appeals have all been in his favor, but he remains in jail for a crime of which he is now presumed innocent and which he may not have committed.  


                    Make believe murder:  the case of the falling helicopter

Another case that we won on the basis of science grew out of the making a major motion picture directed by Steven Spielberg and John Landis.  The film was The Twilight Zone, based on the television series by that name.  There were three segments to the film, each directed by a different person.  John Landis, already famous for directing Animal House,  _____ and other mega-hits, was directing a segment involving the Vietnam War. The star of that segment was the veteran actor Vic Morrow.  The scene at issue called for Morrow’s character to be running through a rice patty, in pitch darkness, carrying two children as helicopters fired at them.

Landis wanted to make the scene as realistic as possible, so he filmed it at night, with extensive pyrotechnics and a real helicopter flying low to the ground.  Tragically, the helicopter crashed into Morrow and the children, killing them instantly.  Landis was charged with involuntary manslaughter, and he retained me to consult with his trial lawyer and to prepare an appeal, if necessary.  He was the first film director in history to be criminally charged with causing the death of an actor.  

The major issue at the trial was whether the accident should have been foreseeable.  If it was foreseeable to a reasonably prudent director that a helicopter, placed in the circumstances in which this one had been placed, might crash, then the directorial decision to have the helicopter fly close to the pyrotechnics could satisfy the legal criteria for involuntary manslaughter.  But if the crash could not reasonably have been anticipated, then it would have to be regarded as an accident, giving rise, perhaps, to civil liability, but not to a criminal charge carrying the prospect of imprisonment.  

The prosecutor called 71 witnesses, many of whom offered scientific testimony about the cause of the crash and why it should have been anticipated.  The defense summoned scientific witnesses who testified that an accident of this kind—the heat from pyrotechnics causing the tail rotor of the helicopter to become delaminated—had never before occurred and could not therefore have been anticipated.  In fact, when the helicopter crashed it came very close to killing Landis.

The jury deliberated for nine days before finding Landis (and his co-defendants) not guilty.  

Several years later, it appeared as if another director might be in trouble for the death of an actor while filming a motion picture called “The Crow”.  The actor was Brandon Lee, the son of Bruce Lee, the famous Kung Fu actor, who himself died while filming “The Game of Death.”  Brandon Lee was killed by a metal projectile that was accidentally shot from a gun firing blanks during the filming.  

A criminal investigation was opened and I was asked to consult with the lawyers for the production team.  Eventually, the lawyers persuaded the authorities not to indict anyone for the tragic accident.  

The end result in both the Landis and Lee cases was that greater care is now being exercised during filming of sequences that pose significant risks to participants.  Sometimes it takes tragedies to improve safety.  

                    Attempted Murders:  Killing a Corpse and the “Abraham Defense”