On the slimmest of grounds, a splintered federal appeals court Thursday ordered a new hearing that could reverse the Arizona death sentence for the driver of a getaway car in the 1991 highway rest stop double murder.
The 9th U.S. Circuit Court of Appeals sent the case of Gregory Dickens back to a federal judge in Arizona to determine whether Dickens may pursue claims that his defense lawyer was ineffective for failing to investigate whether Dickens suffered fetal alcohol syndrome, which might mitigate against the death penalty.
The 8-3 majority ordered the district court to consider whether a recent U.S. Supreme Court decision would allow Dickens to raise the claim of ineffective assistance, or whether it was too late because he failed to raise the issue in his state court appeals.
But on a separate question of whether a getaway driver who does not participate in the killing may be sentenced to death, the 11-judge en banc panel split 5-5-1. That left Dickens just one vote shy of a vote to overturn his death sentence completely, based on his role as the getaway driver.
Dickens was a counselor at a placement center for violent teenagers when he met 14-year-old Travis Amaral there. Amaral was “high risk” and violent, had battered a nurse and bragged about carrying guns.
Dickens kept in touch with Amaral even after he left the counseling job to move to Yuma, Arizona. In 1991, Amaral ran away from home and joined Dickens in Arizona.
The two planned robberies to gain money and picked a highway rest stop near Yuma to start. Dickens gave Amaral his .38-caliber revolver to go after a couple parked at the rest stop while Dickens waited in the car across the road.
Amaral robbed, then shot, Bryan and Laura Bernstein, both 22 years old and CornellUniversity graduates headed to UCLA to pursue graduate work.
Based largely on Amaral’s testimony, a jury convicted Dickens of felony murder and armed robbery, but acquitted of first-degree murder and conspiracy to commit murder. Amaral testified against him to avoid the death penalty.
The majority held that while Dickens may not have raised the specific fetal alcohol syndrome argument during his state appeal, a recent U.S. Supreme Court decision opened the door to for consideration of the ineffectiveness of counsel claim. A six-judge majority ordered the case back to U.S. District Judge Neil Wake to determine if Dickens may raise the claim.
The panel also splintered on how to handle a death sentence imposed on a getaway driver who does not participate in the killing.
The legal challenge centered on two U.S. Supreme Court decisions on death sentences for getaway drivers. In a Florida case, the high court reversed the death sentence because the defendant’s participation was insufficient to warrant a death sentence, in a case called Enmund.
In a second case, the high court affirmed a death sentence for two men in Arizona because they were major participants in the felony that led to murder and showed a reckless indifference to human life, in a case called Tison.
The court split 5-5-1 to say the Arizona Supreme Court reasonably found Dickens’ case more like Tison and would allow the death sentence in that instance. They included court conservatives: Smith, Chief Judge Alex Kozinski, Sandra Ikuta, Consuello Callahan and Jay Bybee. While five argued that he could not be put to death because his participation was more like Enmund and did not warrant execution. They were among the liberal wing of the court: Judges Morgan Christen, Harry Pregerson, Kim Wardlaw, Marsha Berzon and Mary Murguia.
Judge Paul Watford, a recent Obama appointee, wrote separately to say he found either Enmund and Tison, could be applied. Dickens’ case “falls in the gap between those two precedents” and either could apply but he would hold that an independent evaluation would conclude “the Eighth Amendment bars Dickens’ execution.”
Kozinski wrote separately to make a plea to the U.S. Supreme Court to clean up the mess.
He wrote on the Tison question to say Dickens’ case “easily satisfies Tison’s culpability requirements.” But he added, “Nonetheless eleven thoughtful, conscientious judges came to (at least) three disparate conclusions on this issue. The fact that decades after Tison we still have such sharp disagreement about what it means suggest that Enmund is a hazard to navigation and should be overruled. We can’t do this, but the Supreme Court can and should.”
Case: Dickens v. Ryan, No. 08-99017