Can the death sentence be applied to the driver of a getaway car in an armed robbery if he did not participate in the resulting double murder? That’s the question the 9th U.S. Circuit Court of Appeal has voted to reconsider in an Arizona appeal granted rehearing by a full 11-judge panel Friday.
In August, a three-judge panel upheld the Arizona death sentence for Gregory Dickens and the question is whether imposition of the death penalty on one who does not kill or intend to kill, violates the 8th Amendment protection against excessive punishment.
In 1990, Dickens met 14-year-old Travis Amaral while Dickens was working in Temecula, California, at a center for violent juveniles and Amaral was a resident. Dickens befriended Amaral despite his violent record, even at the center. Dickens quit his job and left, but the pair met up again in Arizona after Amaral ran away from home and sought out Dickens.
In late 1991, they decided to commit a robbery at a highway rest stop using a handgun Amaral brought with him. Amaral shot two young graduate students on their way from Cornell University to begin studies at UCLA, Bryan and Laura Bernstein, both 22.
Dickens, who was waiting in a car across the highway, saw the shootings and drove to pick up Amaral, according to an August opinion by a divided three-judge panel.
There was no evidence that Dickens stopped to assist the couple or call for help.
In his dissent in the August decision, Judge Stephen Reinhardt said, “Dickens was the getaway driver to an armed robbery, did not play an ‘active’ and ‘substantial’ role in the commission of the underlying crime… and was not present at the scene when Amaral shot the Bernsteins.” He therefore was not one of the “most culpable and dangerous of murderers” such that he should be put to death by the state of Arizona, according to Reinhardt.
But in the majority ruling, Judge N. Randy Smith said the U.S. Supreme Court has created an exception to the bar on executing someone who was not an active participant in the murder. That exception is when the defendant is a major participant and shows “reckless indifference to human life.”
In Dickens case, Laura Bernstein died immediately from a gunshot to the head but Bryan, also shot in the head, survived long enough to be found by a passing police officer and to say the couple was attacked in a robbery. He then died.
Smith, joined by Judge Johnnie Rawlinson, found that Dickens was actively involved in planning the robbery, targeting the victims and handed Amaral the handgun, watching the murders and aiding Amaral’s escape.
The facts in the case support the Arizona Supreme Court’s determination that Dickens was a sufficiently major participant and did nothing to aid the victims.
A majority of the court’s 28 active judges voted to reconsider that decision.
Amaral, who was 16-years-old at the time of the Bernstein murders, avoided a possible death sentence by agreeing to testify against Dickens. Amaral pleaded guilty to two counts of first-degree murder and one of attempted robbery and was sentenced to 55 years in prison.
Case: Dickens v. Ryan, No. 08-99017