"This is nothing new," Pell answered. "All the evidence cited by Ms. Paget was available in 1987. Even if Mr. James failed to present it, Kenyon and Walker presented some of it and could have presented more. AEDPA says enough is enough."
"And so it is," Montgomery said brusquely. "We can rely on the papers before us on that issue, and on the other claims raised by Mr. Price. Before we conclude, is there anything else anyone cares to say?"
For all Terri could tell, Judge Sanders had slept through the entire hearing. Nonetheless, she framed her final words for him. "Simply this. If this panel denies permission to file, Rennell Price will die on Friday.
"He'll die even though we've made a substantial showing that he's retarded.
"He'll die even though there's substantial new evidence that he's innocent.
"He'll die without any court ever giving him a hearing on those claims." Terri drew herself up. "That, Your Honors, is the nearest thing to a summary execution I can imagine. It substitutes finality for justice. Its only 'virtue' is to remove one more human being from the system which, at bottom, exists to protect him, not to erase him."
"Mr. Pell?" Montgomery asked.
Pell glanced at his notes. "According to the United States Supreme Court, in the words of Justice Fini, granting a stay of execution on a second habeas corpus petition is 'particularly egregious' unless there are 'substantial grounds' on which such relief should be granted. The California Supreme Court has already found that this petition fails.
"AEDPA exists to keep federal courts from being bogged down in endless death penalty litigation—however heartfelt." He leaned forward. "This case is no different. Fifteen years ago, a nine-year-old girl was murdered. Fifteen years is time enough for justice. For her, and for her family."
"The application is submitted," Judge Montgomery pronounced. "We expect to rule within the hour, by telephone."
The squawk box went dead.
An awkward silence descended on the room. "Well," Terri said at length, "we've got an hour to kill."
The others shifted, discomfited. "How're your kids?" Pell asked of Terri and Chris, flashing a brief smile at Carlo. "I mean the ones who haven't gone bad yet."
Let's start with Elena, Terri thought to herself, who hates me for what I've been doing here. "Oh, they're fine," she said. "And yours?"
"Good. Julie's seven and in ballet school, and so serious I can't smile at her recitals, even when the kids make me want to laugh out loud." Amiably, he turned to Carlo. "How do you like the practice of law?"
"Depends on the day." Carlo glanced at his watch, then at the squawk box. "Can't say I've laughed in a while."
Janice Terrell raised her eyebrows, as though noting a display of bad manners. Silently, Terri blessed her stepson for casting a pall on the chitchat through which lawyers pretended to rise above their differences.
The telephone rang.
Terri hit the button on the speakerphone. "Teresa Paget."
"This is Judge Montgomery. Are both sides there?"
"Yes," Terri answered in a tight voice. "We are."
"Very well." Montgomery paused, his tone soft and grave. "We've reached our decision."
Briefly, Terri closed her eyes. "By a vote of two to one," Montgomery continued, "Judge Viet Nhu dissenting, this Court stays the execution of Rennell Price and grants his counsel permission to file a petition for habeas corpus—on all issues—before United States District Judge Gardner Bond."
Carlo bent forward, hands covering his face. But Terri kept herself from showing any emotion. Pell, too, remained impassive, making notations on his legal pad.
"A written order will follow," Montgomery finished. "Thank you, all."
The phone clicked off.
"The Ninth Circuit's done it again," Terri heard Janice Terrell murmur in disgust.
Scraping up his papers, Pell mustered a fatalistic smile. "Congratulations, 'all,' " he said across the table. "See you in court, as they say."
* * *
It was not until the next morning—two days before what would have been his date of execution—that Terri was able to see Rennell.
She gazed into his eyes, encouraging him to take heart. "Your execution's been put off," she told him. "At least for now. The judges heard what Payton said. Payton saved you, Rennell, just like he wanted to."
Rennell's eyes widened. With painful slowness, he struggled to comprehend. In a tentative voice, he asked, "You mean I can leave here?"
Heartsick, Terri shook her head. "Not yet. What it means is that you should take care of yourself, do what Payton asked." She took his hand, speaking softly. "The important thing is that no one's going to take you from here on Friday. You're safe from that, okay?"
The first light seemed to seep through his depression and with it, Terri hoped, renewed appreciation of the chance to live. "What they gonna do to me?"
"Keep you here, for now." Terri forced herself to sound confident. "I'm going to see another judge, tomorrow morning. I'll do my best to make him understand who you really are."
FIVE
GARDNER BOND SAT AT THE HEAD OF HIS CONFERENCE TABLE, for once in shirtsleeves, as though prepared to grapple with a distasteful task. On one side of him, Terri and Carlo sat, facing Larry Pell and Janice Terrell on the other. "The Ninth Circuit has permitted you to file," he told Terri. "But how we resolve your petition remains a matter for this Court.
"You've moved for discovery, and to be allowed to present evidence at a hearing with live witnesses. Let's talk about discovery first. Tell me what you want."
"To be able to put the circumstances of Rennell Price's life, and of his conviction, before this Court." Terri nodded toward Pell. "In terms of documents, we request the D.A.'s files regarding Eddie Fleet—"
"That's fine," Bond said in a clipped manner. "Who do you wish to depose?"
"The players in Rennell's conviction." Terri ticked them off on her fingers. "Charles Monk, Lou Mauriani, Dr. Elizabeth Shelton, and—critically—Eddie Fleet."
Bond turned to Pell. "Mr. Pell?"
"We'll scrape up whatever we have on Eddie Fleet. But there's no automatic right to any depositions, and no need to depose Monk, Mauriani, or Shelton. As for Fleet, he's beyond our control . . ."
"Not quite," Terri snapped. "You told him about Payton's accusation, which prevented me from talking to him any further. That's a de facto cover-up, with you protecting Fleet at Rennell's expense."
"That's nonsense," Pell told Bond briskly. "Payton Price made certain accusations. On behalf of the State, I was required to ask Fleet if they were true. He denied them. Whether he kept talking to Ms. Paget was wholly up to him." Turning to Terri, he added, "You have the transcript of Fleet's original testimony. That should be enough."
"For what?" Terri said to Bond. "Fleet's the only key witness against Rennell who's still alive. We're convinced that he's the murderer, which also makes him a flight risk. There's no way to resolve this petition fairly without his testimony."
Bond considered her and also, Terri guessed, the publicity which would ensue if he were perceived to shelter a man guilty of Thuy Sen's murder. "I'll give you Fleet," he said curtly. "As to the others, your motion for discovery is denied—this proceeding is supposed to be fair, not endless.
"This is beginning to sound like a second trial. Instead of a proceeding to determine whether Mr. Price deserves a second trial."
"We agree," Pell put in hastily. "The original prosecution team knows nothing about guilt or innocence beyond what Inspector Monk and Dr. Shelton testified to at trial. Nor does Mr. James, who can testify by affidavit." Briefly, Pell glanced at a note passed to him by Janice Terrell. "That leaves Mr. Fleet. Where the Court has already ordered his deposition, there's no need to call him live . . ."
"No live witnesses?" Carlo whispered in Terri's ear. "What kind of kangaroo court would that be?"
"Your Honor," she protested, "the Attorney General is trying to reduce any hearing to an argument between lawyers over f
ifteen-year-old evidence, rather than the live testimony of witnesses regarding new evidence—"
"Which comes down," Bond admonished, "to the deposition of Payton Price, already granted you by order of this Court. With respect to the man he accuses, Eddie Fleet, I'll reserve my ruling until after you depose him."
Terri felt a rising desperation. "As to that, Your Honor, we continue to search for evidence that Mr. Fleet—in addition to being physically abusive—has a sexual interest in children. Which would suggest that he, not Rennell, was involved in the murder of Thuy Sen—"
"Do you have any such witness?"
"Not at this time—"
"Then that's all speculation, isn't it?" Examining his cuff links, Bond asked, "Do you have anything to offer which is real?"
"Yes, Your Honor. The testimony of three of the jurors who sentenced Rennell Price to death. They would not have voted for the death sentence if Payton had testified against Eddie Fleet—"
"Based on what?" Pell interjected with what seemed to be genuine scorn. "We can't replicate the trial, or assess the state of mind of jurors who—fifteen years later—may be moved by a murderer's imminent death to forget why he deserves it."
"Go no further," Bond cut in. "Their testimony is inadmissible, and Ms. Paget knows it. Or should."
With great effort, Terri maintained her surface equanimity. "Your Honor," she said in a respectful tone, "the question is whether, on the evidence we now have, a reasonable juror would have voted to convict—"
"Which determination," Bond interrupted, "will be made by this Court. We've told you what evidence we'll hear on the matter of guilt or innocence. Give us your wish list with respect to presenting the state of Mr. Price's mental functioning."
To her side, Terri saw Carlo staring at the table in an effort to conceal his frustration. Across the table, Janice Terrell watched him, the first hint of a smile surfacing in her cornflower blue eyes. But Terri spoke as though Bond's adverse ruling had never occurred. "We have at least two key witnesses, Your Honor. The first is a social historian, Dr. Tammy Mattox, who will reconstruct Rennell's life history."
"Is that necessary, counselor? You have the records."
"We agree," Pell said promptly. "We'll stipulate to the admission of all records concerning Mr. Price, whether from school, doctors, or his incarceration in juvenile hall. We're also amenable to affidavits from Rennell's third-grade teacher, and even from Dr. Mattox herself." His tone became dismissive, that of someone granting a favor. "Even though what she has to say is hearsay, entirely derived from other people and sources."
Bond nodded. "That seems fair enough."
"It's wholly insufficient," Terri countered. "Dr. Mattox interviewed Rennell Price's mother, who is paranoid schizophrenic, and his grandmother, who's bedridden—"
"Concerning what?" Bond asked with muted incredulity. "What exactly does the resident of a mental institution—or, for that matter, a sick and elderly woman who never testified at trial—have to offer us?"
"Evidence regarding Rennell Price's childhood and adolescence," Terri answered. "Including his mental capacity—"
"According to a lunatic?" Bond shot back. "Let's hope you have someone more edifying than that."
"To see Rennell's mother," Terri said firmly, "is to be edified. Including, if she's willing to share it, the true identity of Rennell's father."
Bond raised his eyebrows. "Who might he be?"
"A boy from the neighborhood who she describes as 'slow.' But she won't give his name, and we haven't been able to track him down."
"Ms. Paget," Bond remonstrated, "I cannot imagine listening to an insane woman testify regarding her liaison with a nameless, and perhaps apocryphal, boyfriend. Spare me, please—except by affidavit."
Leaning forward, Terri tried to keep the anger she felt from showing in her eyes. "Rennell Price," she said, "grew up in the Bayview, the presumed son of a psychotic and abusive father and a deeply troubled mother. His environment was brutal and chaotic. The witnesses to his life will be found not among the friends and acquaintances of those sitting at this table but among people who are—and whom we like to keep—invisible to us. Either we can bring them here or we can have an expert like Dr. Mattox integrate what they told her.
"What Mr. Pell wants is to reduce this case to a jumble of paper, a dry record to which he can apply the 'presumptions' of AEDPA and the presumptive wisdom of the California Supreme Court. It's a way of sanitizing Rennell's death without ever looking at his life. We believe that the most critical evidence of Rennell Price's retardation can be found not in tests but in his life. Which can be knit together only through the narrative of an expert . . ."
"Is your Dr. Mattox a psychiatrist or psychologist?"
"No. She's a Ph.D. in anthropology, which enables her to interpret the impact of Rennell's family and environment—"
"But not his mental condition, I would think."
"What she has to say," Terri parried, "bears on his mental condition. We also have Dr. Anthony Lane, both a psychiatrist and a neuropsychologist, who examined Rennell extensively and whom we wish to call as an expert witness."
"Then isn't he enough?" Turning to Pell, Bond inquired wryly, "What say you, Mr. Pell?"
"That the Court's reservations about Dr. Mattox are well taken, and that it can hear Dr. Lane by means of affidavit. And that the Court is correct in observing that this hearing is not a second trial." Briefly, Pell paused, listening as Janice Terrell murmured a few brief words. "We do, however, request leave to conduct our own mental examination of Rennell Price, so that Dr. Lane's affidavit is not the only evidence before the Court. In particular, we'd like to administer a second IQ test."
"Which won't be accurate," Terri protested. "It's called the 'practice effect.' Even the retarded do better with repeated testing."
Pell leaned forward, offering her a sardonic smile before he turned to Bond. "Which is no doubt why Ms. Paget seems to have given her client every test of mental functioning known to man. So that when our tests prove him not to be retarded, she can claim it's the result of her personal Head Start program."
Though Terri could not acknowledge it, the accusation was true. "Since when is thoroughness merely a ploy?" she objected. "The State's prison clinicians are hardly objective—they're notorious for cookiecutter findings."
This, as Pell well knew, was also true. " 'Sauce for the goose,' " he quoted easily to Bond.
"Agreed. You may have your examination of Mr. Price."
"May we be present?" Terri asked quickly.
"Why?" Pell shot back. "We weren't." Facing Bond, he said, "To make Ms. Paget more comfortable, we'll record our examination on videotape, and make it available to her and to the Court."
Larry Pell, Terri conceded, was even more clever than she had thought: in a videotape, Rennell Price would appear to be a dull but normal man, unremarkable in appearance, plodding through his tests—sullen, perhaps, but not retarded. "So ordered," Bond said quickly. "Anything else, Ms. Paget?"
"Yes. The Court should permit us to call Dr. Lane as a witness, and to cross-examine whomever Mr. Pell selects to administer the tests."
"Very well." The judge's tone became faintly arid. "Judge Montgomery has expressed his preference for a hearing, and we must take cognizance of that."
This gratuitous remark, with its intimation of distaste for Blair Montgomery, unsettled Terri further. "In that case," Pell interposed, "we'd like the chance to cross-examine Rennell Price himself. Nothing can be more pertinent to retardation than for this Court to see him."
Startled, Terri shot back, "He's retarded, Larry. That's the whole point."
With veiled amusement, Bond remonstrated. "There are also Fifth Amendment considerations, Mr. Pell. Retarded or not, the Court cannot force Mr. Price to incriminate himself." Once more he turned to Terri. "I'll leave it to your discretion, Ms. Paget, as to whether Mr. Price will testify. Either to confirm his innocence or to exemplify his mental retardation."
Bond's tone, insinuating and faintly accusatory, drove home to Terri that Pell had trapped her in a painful choice: to call Rennell Price, or to leave the implication in this judge's mind that her petition was a sham. "Thank you, Your Honor. We'll advise the Court of our decision."
"All right then." Folding his hands, Bond surveyed each lawyer. "Rennell Price was sentenced fifteen years ago, and this Court has no desire to attenuate that sorry record. Therefore, the parties will complete their discovery within five days, and the hearing will commence in seven. Anything else?"
Startled, Terri considered whether to protest, then decided that, in light of her next request, further straining Bond's patience was ill-advised. "Yes, Your Honor. It concerns the standard of proof under which this Court will determine whether Rennell Price is retarded and, therefore, quite possibly, whether he lives or dies.
"The Supreme Court did not bar executing the retarded until after the federal courts denied Mr. Price's first habeas corpus petition. The fact that we must raise it on a second petition, for the first time, should not facilitate his execution—"
"I don't understand your point."
Terri stared directly at Larry Pell. "At the Ninth Circuit hearing, Judge Nhu suggested that Atkins was not retroactive, and therefore that Rennell Price could not avoid execution by demonstrating mental retardation. Mr. Pell agreed, albeit tentatively." She softened her voice. "Executing Rennell Price because Atkins came down three days after the Supreme Court denied his first petition is something out of Kafka. Atkins is a new case. On the issue of retardation, Rennell Price deserves a fresh start, as he would have at a new trial."
"Mr. Pell?" the Court inquired.
Pell glanced at Janice Terrell. "We'll have to take it under advisement," Pell temporized.
"In that case," Terri said promptly, "we ask the Court to rule that Atkins applies, and that we are required only to prove retardation by the preponderance of the evidence." Facing Bond, she spoke firmly and emphatically. "Denying Rennell Price the benefit of Atkins cannot be called justice. This Court has choices."
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