Conviction

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Conviction Page 25

by Richard North Patterson


  He looked down, composing himself. Then the guards escorted him to the center of the execution chamber. Terri could hear his shackles clink through the sound system linking him to those who watched.

  Payton seemed to reach within himself. When at last he faced the Sens, Kim raised a black-and-white photograph of the solemn Asian child she had left to walk home alone.

  Briefly, Payton shut his eyes. When he spoke it was to Kim. "I'm sorry—not 'cause I'm gonna die, but for what I done to all of you. If watching me die makes any difference to you, then maybe there's some good in this. But they got no reason to kill Rennell." His voice quavered. "Rennell's innocent. It was Eddie Fleet that choked her. I know, 'cause I was part of it." His gaze moved from Thuy Sen's sister to her mother, and finally to her father. "Killin' my brother," he finished softly, "be one more murder. No good can come to you from that."

  Meng Sen stiffened, a posture of anger and rejection. Kim raised Thuy Sen's photograph between Payton and her own face.

  Payton's eyes dulled. Slowly, he faced Terri. "Tell my brother I didn't feel no pain." His voice was tired and husky, a near-whisper. "Tell him I'm sorry for leavin', and for what I done to put him here."

  Turning to one of the guards, he nodded toward the table.

  In silence, they moved him there. Payton sat, then lay on his side, rolling himself onto the table. The guards strapped him in, face upward. He no longer looked around him.

  Slowly, the warden nodded.

  A prison technician entered the chamber. He approached Payton, face as devoid of expression as was the warden's, and connected two IVs into the tubes already inserted in the flesh of his left forearm. Terri forced herself to watch.

  "You may carry out the death warrant," the warden intoned.

  Through the plastic tubes, Terri knew, would flow fifty cc's of potassium chloride. As the doctor stood beside him, Payton closed his eyes.

  Minutes seemed to pass. Neither Payton nor those who watched him made a sound. Please, Terri thought, let it be done.

  Abruptly, Payton's mouth opened, expelling a deep, guttural exhalation which preceded a final gasp for air. His body convulsed, as though from an electric shock, followed by shudders. Terri felt Rennell's drawing crumple in her fist.

  At last the shuddering subsided. As Terri turned to her, Kim Sen, tears streaming from her eyes, held out Thuy Sen's photograph as if Payton still could see.

  PART THREE

  THE CIRCUIT

  ONE

  ON THE DAY AFTER THE EXECUTION OF PAYTON PRICE, CAROLINE Clark Masters, Chief Justice of the United States Supreme Court, and her onetime mentor, Judge Blair Montgomery of the United States Court of Appeals for the Ninth Circuit, decided to follow their leisurely and discursive lunch at the Old Angler's Inn outside Washington with a walk along the shallow river which ran beside it.

  It was a crisp day in early November, suitable for a stroll along the well-worn path which meandered amidst the rocks and gravel, and the echo of water rushing blended with the bright orange woods around them to make Caroline feel, for a blessed afternoon, far removed from the cloistered intensity of the ideologically riven Court over which—however uneasily—she presided. But her slow pace reflected less a desire to escape than her knowledge that Blair Montgomery, while still spare and bright-eyed, was frailer and more halting than the last time she had seen him.

  At fifty-three, Caroline was a fitness fanatic, and her height and leanness accented the attributes which made other hikers notice her at once: an erect posture, a casual grace of movement, and striking features—a long, aquiline nose; wide-set brown eyes; a high forehead; and still-glossy black hair, which began with a widow's peak. She looked and sounded like what she was, the daughter of a patrician New England family, save for a touch of the exotic—emphatic gestures, olive skin, a somewhat sardonic smile—which suggested her mother, a French Jewish beauty whose parents had died in the Holocaust.

  Beside her, Blair Montgomery was shorter and smaller, a white-haired miniature of his younger self. The casual observer would not have seen him as did the judicial conservatives: a liberal bomb thrower whose passion for civil liberties, reproductive choice, and the separation of church and state was as unrelenting as his loathing of the death penalty, and whose closeness to the new Chief Justice was yet more proof—if any was needed—that her appointment by President Kerry Kilcannon was a triumph for secular humanism over the forces of faith and judicial restraint. It was a suspicion shared, to Caroline's regret, by several members of her own Court. This was deepened by their hostility to the intermediate court on which both Caroline and Montgomery once had served, the Ninth Circuit, which heard appeals from federal district courts in nine western states, most notably California: twenty-eight active judges, a combustible mixture of conservatives, moderates, and liberals, combined in random three-judge panels to issue rulings which—depending on the panel—were considered by conservatives to enshrine a lawless disregard for precedent and common sense.

  "The work of the Supreme Court," Caroline's conservative predecessor, Roger Bannon, had once remarked, "is to interpret what the law is, and explain to the Ninth Circuit what the law is not." Fortunately for Caroline, this aphorism had found much wider currency than her own prior remark to Judge Montgomery that the transition from her contentious Senate confirmation hearing to the cloistered quiet of the Supreme Court had been like "going from a circus to a monastery—except that some of the monks are vicious."

  "Is your working environment any better these days?" Montgomery asked now.

  Caroline paused to afford him a rest, hands shoved in the pockets of her slacks, surveying the swift rush of water over rocks as she contemplated her answer. "Superficially," she said. "This last term didn't have quite as many contentious cases—except from your circuit, of course." She turned to him. "I see you had an execution yesterday."

  "Yes. But there was nothing for our Court to do—this man Price told his lawyers to take him off life support. What he left us is more problematic: a last-minute confession claiming that the next one scheduled to die, his brother, is innocent. The evidence is ambiguous."

  "Spare me ambiguity," Caroline said dryly. "In the death penalty, even the cut-and-dried can turn into a morass. At least in our Court."

  Montgomery began walking again, eyes on the path before them. "A morass?" His tone became bitter. "More like an abattoir. In his nearly twenty-five years as Chief Justice, Roger Bannon never once voted to overturn a death sentence. But what truly distinguished him was a driving lack of curiosity as to whether any of these defendants were, in fact, innocent."

  Caroline smiled. "Oh, Roger Bannon may have been 'curious,' in the abstract," she answered. "He just didn't think guilt or innocence was any of his business. Or yours."

  Montgomery gave her a keen look. "After the first decade or two of executions, I ceased to believe that Bannon cared about anything I recognize as justice. No defense counsel was too incompetent, no racial disparity too glaring, no condemned too young or too retarded, no judge or jury too biased. As for the small matter of innocence, Bannon labored mightily to erect a Byzantine morass of arbitrary legal barriers between federal judges and deciding what, to me, is the most basic question we should address: whether we kill some people for no reason but their misfortune and our own ineradicable imperfections."

  What she was hearing, Caroline knew, was a lifetime of frustration and moral passion, based on a single, diamond-hard belief: that the death penalty was tainted by human failings too profound to cure, and that imposing it was an act of arrogance which diminished our humanity. For Blair Montgomery, no Ted Bundy or Timothy McVeigh would ever compensate for the execution of the innocent.

  "Blair," she said gently, "you've earned the right to feel as you do. But the death penalty is the law, and I promised Congress to uphold it. All I can do is try to make it fairer."

  "Impossible." Her old friend's tone brooked no doubt. "Your problem is about far more than AEDPA. It's about Justice
Anthony Fini, and his desire to control the Court."

  "Don't be condescending, Blair. I fully appreciate that Tony Fini and I occupy different moral universes, and that he sees himself as Chief Justice Bannon's heir. But I put together the majority which barred executing the retarded—"

  "Provoking the nastiest dissent from Fini I've read in years." Montgomery's tone mixed admonition with concern. "You haven't had a death penalty case which directly confronts what AEDPA does to narrow death penalty appeals, and sanction executions, no matter what the facts. You can bet Fini is looking for one. Knowing how his mind works, he'll use it to try to place his stamp on death penalty jurisprudence, and stake his claim to leadership of the Court."

  "And how might he do that?"

  "He'll fight for an unequivocal ruling that, under AEDPA, guilt or innocence no longer matters as long as—by Fini's extremely elastic standards—the defendant's trial was 'fair.' " Montgomery stood, as though made restless by his own words. "That it's the role of the state courts to determine guilt, and the role of the Supreme Court to assure finality—that a state court sentence of death, if 'fairly' imposed, is carried out. You may have no illusions, Caroline. But unlike you or me, state court judges are elected. In a number of states, the right wing has defeated state supreme court judges who reverse death sentences, no matter how justified. So state supreme courts don't reverse them anymore. Look at California—"

  "California," Caroline objected, "makes my point about judges who follow their own beliefs, and not the law. Until the mid-1980s, Rose Bird and her colleagues on the Court practiced abolition by judicial fiat, reversing death sentence after death sentence on grounds so flimsy that they gave death penalty proponents all they needed to defeat them at the polls. It was worse than stupid—it was intellectually dishonest—"

  "Perhaps so. But what replaced them was a California Supreme Court afraid to reverse death sentences no matter how egregious the case. Which means my Court has to review with extreme care everything they do—"

  "Setting off a vicious cycle," Caroline interposed. "Your Court began reversing the California Supreme Court, and then the Bannon Court began reversing your reversals. That's where Tony Fini cut his teeth on death penalty cases—on you."

  They started walking again, though Montgomery's gaze, while nominally directed at the meandering path before them, was distant and troubled. "You missed the worst one," he said at length. "An execution that happened while you were tied up in your confirmation hearings. It was my most terrible experience as a judge, and one which undermined any notion that the death penalty isn't poison for us all."

  Side by side, he and Caroline picked their way across a rock-strewn stretch of growth, the spill of water serving as background to his narrative. "The victim," he continued, "was stabbed to death in her apartment. There was substantial reason to believe that she was killed by her ex-husband, the roommate of the man about to be executed for the murder. But the District Attorney chose to prosecute both men, in separate trials, based on two conflicting theories.

  "The first theory was that the ex-husband had recruited the condemned to help murder the ex-wife. That culminated in the ex-husband's imprisonment for life. The prosecution's second theory, based on jailhouse snitches of dubious honesty, was that the condemned was the sole murderer and that his motive was to cover up his rape of the victim. This time the defendant was sentenced to death." Montgomery's tone, though quiet, was laden with anger. "Both theories could not be true. Indeed, the two conflicting prosecutions were so blatantly unethical that seven former prosecutors spoke out on behalf of the condemned man. None of which prevented the California Supreme Court from upholding both convictions, and affirming the man's sentence of death."

  "What was their reasoning?"

  "They gave none." Montgomery shook his head in remembered disbelief. "Both opinions were one-pagers.

  "But that was only the beginning. A federal district judge reversed the condemned man's conviction, ruling that his spectacularly inept lawyer had, by failing to contest the prosecution's dubious evidence, denied him effective assistance of counsel. Three of my conservative colleagues reversed that. So the man's new lawyers filed a petition for rehearing to be ruled upon by the Ninth Circuit as a whole."

  "Which, I assume, was granted."

  "Not quite. As you know, a vote for a rehearing requires, as a first step, that one of us suggest it be reheard in such a fashion." Montgomery's speech became weary, drained of all vigor. "Through an administrative error by a law clerk, none of us—including me—did so in the time required by our circuit's rules.

  "I requested my three conservative colleagues to grant an extension. Shockingly, they refused. But our Chief Judge ordered the extension granted. A week before the defendant was to die, eleven judges voted seven to four to reverse the conviction and set aside the condemned man's execution.

  "The California Attorney General petitioned the Bannon Court for review." Montgomery paused, breathing more heavily. "The sole ground for review, the United States Supreme Court decided, was not whether the man had received a fair trial but whether our Court had the authority to act—"

  "Just because you'd violated your own internal rules?"

  Montgomery stopped walking. He stood, appearing stooped and old, looking not at Caroline but at the patch of earth beside her. "It never occurred to me that a procedural error, committed not by a defendant's lawyer but by our own Court, would condemn a man to death. And I'll never forget Justice Fini's opinion for the majority." Montgomery looked up at her. "I can give you the last two sentences verbatim. 'A mishandled law clerk transaction in one judge's chambers constitutes the slightest of grounds for setting aside the deep-rooted policy in favor of the finality of justice. And it would be the rarest of cases where the negligent delay of that single judge in expressing his views is sufficient grounds to frustrate the interests of a state of some thirty-four million persons in enforcing a final judgment in its favor.'

  "I was the judge, Caroline. The man died eight days later."

  In that moment, Caroline understood the weight Montgomery carried, and the passion of his warnings. "It's the world we live in," he continued. "Clemency's become a joke. State supreme court judges are frightened or indifferent. The Ninth Circuit is a target. And Tony Fini and his allies are armed with a law that safeguards unfair convictions, and guarantees that innocent people will be executed.

  "That's the world you preside over, Caroline. Counting his own, Tony Fini's got four votes out of nine for any interpretation of AEDPA he desires. All he needs is the right case, and a single vote, and the Masters Court will turn its back on judicial murder for at least another generation, and perhaps for good."

  Caroline faced him. "All I can tell you," she said finally, "is that I don't intend to preside over a Court which sanctions the execution of the innocent."

  Montgomery laughed softly. "You already do," he answered. "The only question is how many, and who they'll turn out to be."

  TWO

  TWO DAYS AFTER PAYTON'S DEATH, TERRI AND CARLO PREPARED a habeas corpus petition for the California Supreme Court, asking the Court to set aside Rennell's death sentence because he was retarded, and to order a new trial on the question of guilt.

  Sitting at the conference table, Terri reviewed their final draft. "They'll turn us down, of course. But we're required by AEDPA to 'exhaust' Rennell's state court remedies before we can go to federal court."

  "What's the point?" Carlo asked.

  "In Rennell's case? None. But Pell won't agree to let us skip that step, and the federal courts won't consider our petition until the California Supreme Court denies it."

  "Even this close to his date of execution?"

  Terri shrugged. "Maybe that's the point," she answered and resumed her review of Rennell's petition.

  To Carlo, her new flatness of affect and laconic manner had begun with her return from Payton's execution. Terri spoke little about that night, deflecting questions about what she
had seen or felt. She seemed to prefer—or, perhaps, need—to lose herself in their mission of saving Rennell Price.

  The thought spurred her stepson to ask a related but, he hoped, safer question. "Was Rennell any better this morning?"

  Terri remained silent, seeming to scrutinize the page before her, and Carlo was uncertain that she had heard him. At last she looked up from the petition. "He barely speaks. It's like his soul has left his body.

  "After they killed Payton, Rennell tore up his cell—his first violent behavior in fifteen years. Once they'd subdued him, it was as though he went into a coma—he won't shower, or eat. Just lies in his bed." She paused, adding softly, "For all his life, Payton was all he had, in the Bayview or prison. I think Rennell can't comprehend a life without his brother. He's in a depression too deep for me to imagine."

  "Doesn't the prison provide mental health care?"

  "Sometimes. But even that's a mess. As his lawyer, I have to worry about the State using a psychiatrist to undermine Rennell's claim of retardation. As far as Pell is concerned, treatment might raise whether Rennell's mentally competent to be executed. Although they can—and sometimes do—give an inmate psychotropic drugs to make him fully aware that he's being killed."

  The last comment, delivered factually and without the outrage Carlo would have expected, made him wonder if she, too, was depressed—both from what she had seen and from sheer exhaustion. After a moment, he asked bluntly, "Are you okay, Terri?"

  She mustered a faint smile. "I'm just not feeling very festive. But nothing like Rennell." Her smile vanished. "Even if Pell and I could work it out, Rennell refuses to talk with a prison psychologist. I think Payton's death feels too enormous to get over, or even put into words.

  "From his perspective, I understand. But it scares me. The next worst thing to being executed is being dead inside."

  With that, she returned to her work.

 

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