Facing Rennell, Judge Warner repeated the question. To Mauriani's surprise, the big man gazed past Warner as if he were not there.
In the silence, the prosecutor looked toward Eula Price and then Thuy Sen's mother and father. Though Mrs. Price appeared fearful, and the victim's parents stern, neither seemed to comprehend the minidrama unfolding as they watched.
"Mr. Price?" Warner prompted sharply.
Mauriani felt the sudden tension of those watching focus on Rennell. Then, leaning toward his brother, Payton murmured something. With the same grudging inexpressiveness, Rennell echoed, "Yessir," and the moment passed.
Swiftly, the judge faced Payton. "Understanding the potential for conflict, Payton, do you consent to Mr. James's representation of both Rennell and you?"
Once more, Payton glanced at Yancey James. "Yeah," the witness answered dubiously, and then corrected himself. "I mean, yessir."
Turning to Rennell, Warner repeated his inquiry, this time slowly and emphatically. Fingers poised over the stenotype machine, the court reporter waited for his answer. It's your last chance, Mauriani silently implored Rennell. Dump him.
"Yessir," Rennell repeated and resumed his look of boredom.
Frowning, the judge faced Mauriani. "That's all this Court can do, Mr. Mauriani. I can't infringe on the defendants' right to their chosen counsel."
No indeed, Mauriani thought. All you can do is what you've done: lock them into their own folly, and hope that the cold, black letters of the transcript will read better than this looked.
"Thank you, Your Honor," Mauriani said.
* * *
"For sure no conflict at the prelim," Terri said astringently. "Even with all the pretrial publicity, James never mentioned a change of venue. Shafting both his clients equally."
Mauriani smiled into his wineglass. "Maybe San Diego felt like a long way from home."
"Maybe," Terri countered, "San Diego felt like a long way from James's supplier."
Mauriani moved his shoulders, suggesting fatalism mingled with indifference. "Maybe so. But the recreational preferences of Rennell Price's 'chosen counsel' were outside my jurisdiction. That one falls to the State Bar."
THIRTEEN
MAURIANI REFILLED HIS BOWL-SHAPED GLASS, THE WINE DEEP red beneath its sunlit surface. "Your other problem with Yancey James," Terri pointed out, "was that you couldn't use two lawyers to pit one brother against the other."
"True enough. James was a dead loss all around."
"Is that why you asked for the death penalty? To shake Rennell or Payton loose?"
Mauriani's genial expression became sober, almost severe. "That's not enough of a reason," he answered curtly. "Not for me."
"Then what was?"
Mauriani seemed to study the green bottle in front of him. "The tipping point," he said at length, "was the day the brothers Price resolved to kill again."
* * *
When Mauriani picked up the phone, Monk said abruptly, "I've got someone you should meet, Lou."
"Who's that?"
"Name's Jamal Harrison. He's a snitch in the Bayview—been shot three times already. Instead of feeling lucky, he's become a bitter man. Whole lot of anger in this boy, and a whole lot of cases for us. You might say he snitches out of spite."
Mauriani considered this. Snitches were notoriously self-interested and, therefore, of dubious reliability: the rule of thumb was that they had to help you make three cases stick before you'd forget whatever case you had against them. Which tended, at the least, to encourage a certain creativity.
"You can't be telling me you've found an honest man."
Monk chuckled. "Not saying that. I'm just saying you'd better hurry up. Jamal's got no sense of the future longer than fifteen minutes—including that his hobby is likely to get him killed. All he thinks about is that his homeboys treated him like a punk."
"So what's his deal?" Mauriani asked.
"The deal is that Jamal's been in the county jail, serving out his thirteen months for attempted rape." Monk's tone became serious. "Payton and Rennell wound up in the cell next door. Seems he knew them from the Bayview, and Payton started sharing his reminiscences. One of them concerns Eddie Fleet."
"I'm on my way," Mauriani said.
* * *
Jamal Harrison was a tubercular-looking runt so skinny that his collarbone stuck out. He wore a scraggly beard, and his darting eyes were filled with distrust.
Flanked by Monk and Ainsworth, Mauriani sat in the interrogation room across from the erstwhile prisoner. "Tell me what you've got," Mauriani said.
Jamal fixed his narrow-eyed gaze on Mauriani, a man determined to look power in the face. Portentously, he answered, "A death sentence, maybe."
* * *
They stuck the brothers by themselves in the cell next to the one Jamal shared with some losers whose crimes weren't worth more than his—a petty burglar, a small-time dope dealer, some moron who'd been fencing cell phones. Though prisoners awaiting trial for murder got much more respect, the first appearance of the Price brothers drew hoots from the motley orange-clad gallery. "Oh, suck me," a jailhouse satirist called out in imagined ecstasy. "Can't quite fit it in your tiny little pussy."
"Pussy?" someone else chimed in. "Can't find no such thing on a baby that small."
"Small," the first voice countered, "is why they were hoping they could please her. But there's nothin' that small."
As the sheriff's deputies pushed them into the empty cell, Payton kept staring straight ahead. Jamal could see him taking in what their lives would be like in a hard-core prison. Even murderers had no use for child sex killers—they were friendless, and they often wound up dead.
Jamal had no plans to talk to either one of them. At least he'd tried to fuck a woman, as he reminded Charles Monk.
* * *
For days, Payton gave Jamal no sign of recognition.
He sat there, stone-faced, the only clue that he acknowledged his surroundings the utter stillness of his eyes when fresh insults issued from the cages all around them. Then Jamal could see him imagining his future, or its end. This two-hundred-foot corridor with cells smelling of urine and packed with restless, stinking prisoners, divided by race—or by sanity from the babbling crazies or those gripped by catatonia—was merely the devil's waiting room; the final step for Payton Price would be hell itself. But his brother, a torpid mass, seemed not to care. Now and then Payton would murmur stuff to Rennell, too soft for Jamal to hear. Sometimes the big man nodded.
It was only on their fourth day in jail that Payton walked over to the bars dividing the brothers from Jamal.
Softly, Payton said, "I know you, Jamal."
Even through iron bars, there was something scary about Payton Price—a deadly quiet in his speech, a stone coldness in his eyes. From the next few words, Jamal knew that Payton had a purpose.
"When you getting out?" Payton asked.
Briefly, Jamal hesitated. "Seven days," he answered.
He imagined Payton smiling.
* * *
After that, Payton turned to small talk: who they knew in common, who was dead or in prison, whether Jamal had bumped into someone lately that Payton used to know, who maybe had killed someone and gotten by with it. It struck Jamal that Payton was reconstructing the Bayview in his head, like some fucking scientist studying tribes in Africa. Or maybe just some prison psychologist trying to look into Jamal's own head. But the weirdest thing was how soft he talked, so Jamal's cell mates could not hear.
"Could Rennell hear?" Mauriani asked.
"Don't know," Jamal answered. "Didn't seem like he much cared."
* * *
Three days before Jamal got out, Payton motioned him to the bars. Jamal stopped three feet away. "Come on over here," Payton demanded.
Apprehensive, Jamal did. Payton stuck his face through the bars until it was inches from Jamal's. "You know Eddie Fleet?" he asked.
Something in his tone made Jamal fear to answer. "Yeah," he
acknowledged. "I know him."
For once, Payton's cold black eyes seemed to give off light. "You know why we're in this shithole?"
"Sure. That girl."
Payton grabbed the bars, eyes locking Jamal's. "We're here," he almost whispered, "because Eddie Fleet lied to that dude Monk."
Though Payton's voice was soft, Jamal could feel the intensity of his hatred. "Lied about what?" he asked.
Payton did not answer. When he spoke again, his voice was softer yet. "No Fleet, no case. You understand what I'm sayin'?"
Silent, Jamal nodded.
"So I want 'no Fleet,' Jamal. Who you know that could make that happen?"
Reflexively Jamal felt his mind begin to work. "For what?"
"A cut of my business," Payton answered calmly. "Maybe five hundred every week. But only if Rennell and me get out."
Beneath Payton's steel veneer, Jamal could hear the depth of his despair. He glanced over his shoulder at his cell mates, idling or trying to sleep. "All that," he murmured. "Just to kill a man."
Slowly, Payton nodded. "All that, Jamal. Maybe for once it could be you."
* * *
For the next two hours, Mauriani and the cops went at Jamal hard—exactly where Payton stood, who might have seen them, who else Payton might have approached. "Let's talk about Rennell," Mauriani prodded. "How do you know he knew?"
This made Jamal laugh out loud. " 'Cause after I told Payton I'd off Fleet for them, he sat back down beside Rennell and whispered in his ear. First time I ever saw Rennell Price smile."
* * *
"So where's Jamal now?" Terri asked.
"Dead." Mauriani smiled faintly. "Monk was right about him. He lasted three months past the trial."
FOURTEEN
BY THE TIME MAURIANI HAD KILLED THE BOTTLE OF WINE, THE sun of late afternoon cast a lengthening shadow across the table. Standing beside it, Mauriani pulled the cork from a second bottle as he continued his soliloquy, his power of articulation surprisingly unimpaired by his solitary consumption of the first. Then Terri remembered, from the news clips she had watched in law school, an alert and tensile man, charged with prosecuting the brothers who had killed Thuy Sen.
"And so," Mauriani went on, "Rennell Price had the distinction of being the last man sentenced to death in San Francisco County. After that, Texas went one way and San Francisco another—they believe executing the innocent still works as a deterrent, whereas we've become too precious to execute Ted Bundy. So I suppose your client was more than usually unlucky.
"But luck is a talent, as Somerset Maugham once said. Perhaps by accident, the Price brothers had committed one truly revolting crime, and then solicited another deliberate one from the soon to be late Jamal Harrison. When Thuy Sen's father and mother said they wanted us to seek the death penalty, there wasn't much to say against it."
Mauriani paused to taste the newly poured wine, rolling it on his tongue, then spoke more softly. "When they came to my office, they brought flowers—to get on my good side, I thought, and maybe to signal me they were too impoverished for me to extract a bribe. Flowers, to propitiate the Price brothers' deaths in exchange for their daughter's. It made me think of where they'd come from—a country so murderous and venal that executions occurred at the whim of the authorities and the only conceivable way to stop them was with money." Abruptly, Mauriani switched to a sardonic undertone. "Unfortunately for the brothers, Thuy Sen's parents were Catholic, not Buddhist—after all they'd seen, executing her murderer must have seemed completely unremarkable.
"The flowers were a cluster of bright colors from a grocery or a flower shop. Holding them, I wanted to tell this little girl's parents that the brothers would never be dead enough to bring them real solace, and that our 'system of justice' would make them wait for years before they found that out. But they might have taken it as a bureaucrat's indifference."
He stopped abruptly, turning to gaze out at his vista, softened by a mistlike fog backlit by rays of sun.
"So you don't believe in the death penalty?" Terri asked.
His eyes narrowed before he spoke again; in that moment, Terri realized that he looked more ponderous than the man she recalled. "Do I love it?" Mauriani asked rhetorically. "No—I'm not from the school of 'they're going to hell, and all I'm doing is speeding up the delivery.' But I do think there are at least some moral absolutes in the world, and that making a nine-year-old choke to death on semen affronts them.
"In this job, you learn all the horrible ways in which the truly guilty murder the truly innocent—like the two guys who robbed an old lady's home, kidnapped her, put her in the trunk, stopped at a corner store to buy gasoline, took her to the desert, and then burned her alive so she wouldn't be a witness. Or the handyman who raped, tortured, and sexually mutilated an eleven-year-old girl, before he decided just to watch her bleed to death to see how long it took." Pausing, Mauriani faced her. "To me, some criminals are so dangerous, and some crimes so terrible, that it's hard to envision anything short of execution as being sufficient punishment.
"That's how I wound up feeling about the murder of Thuy Sen. Perhaps I suspected that executing the Price brothers, years too late, wouldn't heal the hole in her parents' hearts." Mauriani's gaze at Terri grew pointed. "But, perhaps unlike you, I could allow myself to contemplate how Thuy had died, and still believe that I was doing good. So let me propose something which may offend your professional sensibilities—if someone forces sex on a little girl, that's not his tragedy. It's hers."
Once more, Terri envisioned with painful vividness what had happened to Elena. Softly, she answered, "But you don't really know what happened, do you. What you allowed yourself to contemplate was Thuy Sen's death as you imagined it."
"No. As Liz Shelton's autopsy showed it to be."
"That may have shown how she died," Terri retorted. "But not who killed her. Suppose Payton forced Thuy Sen into oral copulation but Rennell didn't. Under the law, to seek the death penalty for Rennell, you'd have to argue that he aided and abetted Payton with the intent to kill Thuy Sen. You didn't know that, and don't now."
Lazily, Mauriani shrugged. "If that were true, Rennell could have said so—or Payton could have. Neither testified. Their choice, not mine."
"Or Yancey James's choice."
"Then that was the tactical decision of their 'chosen counsel.' Tell me, would you have put Rennell Price on the stand?"
In truth, Terri could not be sure. "It's not just about testifying," she answered. "Like any competent lawyer in any other capital case, James could have tried to cut Rennell a deal."
"On what basis? They both pled innocent. Neither chose to share with us why we should believe that or, conversely, to tell us what really happened." With exaggerated care, Mauriani lowered himself into the seat across the table. "So let's examine all the ways in which their silence left them eligible for execution.
"Any death occurring in the commitment of a felony is chargeable as a capital crime. That leaves both brothers open to a charge of capital murder on at least five statutory grounds: kidnapping, rape, sodomy, oral copulation, and the performance of a lewd and lascivious act on a child under fourteen. In the absence of contrary evidence—like testimony from Payton or Rennell—we could let the jury pick whatever they liked." Mauriani settled back, regarding her with bleak amusement. "That," he enunciated with care, "is where your client's tragedy reaches its apotheosis. You know about the Carlos window?"
"A little. But I've never had to deal with it."
Mauriani nodded. "Back in 1983, our highly inventive California Supreme Court—Rose Bird and her cabal of death penalty abolitionists—ruled in the Carlos case that a felony murder charge required the prosecution to prove intent to kill. When Thuy Sen died, Carlos was still the law. Needless to say," Mauriani added dryly, "oral copulation with intent to kill would have been hard for me to prove. Odds are I wouldn't have asked for the death penalty, and maybe Rennell and you would be asking for parole, instead of trying to stave o
ff an all-too-certain execution."
As Mauriani paused to sip more wine, savoring the vagaries of fate, Terri felt him becoming more digressive; there was a flush to his forehead, and the veins in his face had begun dissecting his cheeks. "Sadly for Rennell," he pronounced, "the law, you might say, devolved. The voters sent Chief Justice Bird and her soul mates back to private practice—they were, it turned out, a bit too visionary. And two weeks before Thuy Sen was murdered, the new conservative majority reversed the Carlos rule. It was the final piece of ill luck for Payton and Rennell—they were the first defendants in a felony murder trial after Carlos was abolished, and they'll be the last to die at the hands of the City and County of San Francisco.
"If Rennell Price wanted to tell the jury why they shouldn't have sentenced him to death, that was up to him. But he chose not to."
"And you chose to seek the death penalty," Terri rejoined. "Would you have done that if Thuy Sen were the daughter of a black crack addict?"
Instantly alert, Mauriani sat straighter, regarding her with level blue eyes. "If so," he answered succinctly, "then I acted with exquisite fairness. If not, we're about to execute two men who are among the truly deserving. Either way I'll sleep tonight." He paused, as though hearing himself, then continued in a softer tone. "What you're complaining about is that, as a prosecutor, I had almost complete discretion over life and death decisions. Which was no joy to me at all.
"It's no pleasure to explain to some other victim's family the reasons—however good—that you're not seeking the death penalty for the murder of their wife or son or sister when you did so for the murder of Thuy Sen. It's not pleasant to consider what a miserable job we do of protecting children, or the fact that we're virtually guaranteeing that some of them will grow up to murder other children. Let alone to think you might be wrong—after all, you can't turn loose a dead man just because he's innocent.
"But I didn't worry about that here," Mauriani finished, "and neither did the jury." Draining his glass, he smiled without humor. "Even though the brothers came up with that sterling alibi."
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