Pell folded his arms, a portrait of frustration. "As I comprehend it," Lane continued, "the purpose of this proceeding is to determine whether we can—or should—execute Rennell Price on the basis of the legal system's understanding of him fifteen years ago." Turning to Pell, he finished softly, "Our obligation is to understand him now. You're correct, Mr. Pell, that I wasn't present at the murder of Thuy Sen. But based on my understanding of him, neither was Rennell. And even if he were 'present,' in a more profound sense he wasn't. To execute him would be a crime."
"Thank you," Terri said and sat, satisfied that she and Anthony Lane had accomplished everything they could.
TEN
WHEN THE HEARING RESUMED THE NEXT MORNING, THUY SEN'S father, mother, and sister—at the request, Terri was certain, of Larry Pell—were seated in the front row with Ellen Sutter, a prominent advocate of victims' rights whose four-year-old son had been murdered by a pedophile. Bond's persistent glances toward Sutter and the Sens made Terri uneasy.
She forced herself to concentrate on Pell. Standing a respectful distance from Anthony Lane, Pell inquired, "How many times, Dr. Lane, have you testified with respect to the mental condition of a man charged with—or convicted of—a crime which carried the penalty of death?"
Lane squinted at the ceiling, seeming to conduct a mental count. "Upwards of thirty."
"In how many of those cases did you testify for the prosecution?"
"None."
"Is there a reason?"
Lane regarded him with a neutral look, neither hostile nor ingratiating. "Too many prosecutors view the mental condition of a defendant simply as an impediment to execution. That's not my orientation."
"How would you define your orientation?"
"To form my opinions as objectively as possible."
In the front row, Terri saw Meng Sen fold his arms, signaling his disapproval. Sitting between her husband and her daughter, Chou Sen clasped Kim's hand. But Thuy Sen's sister looked waxen and far away. "Is it objective," Pell demanded, "never to testify for the State?"
"That's not the issue, Mr. Pell. It's objective to refuse to testify for a defendant whose mental condition—in my professional opinion—does not support his claims. Which I've done."
"In how many cases?"
"Ten, at least."
Pell paused, seeming to make his own mathematical calculation. "In other words, Dr. Lane, in roughly three-quarters of the cases brought to you by defense lawyers, you believed that the defendant was mentally unfit to execute."
Lane curled one hand in the fingers of another. "That sounds about right," he answered. "But the death row population is far more troubled than the average run of citizens. And the lawyers I've worked with know better than to bring me a bogus claim."
"But what makes a bogus claim," Pell countered, "is subjective. Do you have a moral position on the death penalty?"
Bond glanced at Terri, expecting an objection. But she did not move or change expression. "Yes," Lane answered. "I'm opposed to it."
"In all cases?"
"Yes."
"Even with respect to serial killers?"
"Yes."
Pell skipped a beat. "Or child molesters?"
"Yes." Lane leaned forward. "I don't believe that we, as humans, are equipped to understand, or to judge, why people commit crimes that society rightly considers despicable. Or, in any given case, if they did. Therefore, I'm uneasy with capital punishment, especially when one alternative is life without parole in a maximum-security prison. But these are my personal beliefs.
"What you're asking by insinuation is whether those beliefs affect my testimony in this case." Pausing, Lane said emphatically. "They do not. Capital punishment is the law. I have an obligation to this Court—and every court—to testify within the legal standards which govern whether we execute a chosen individual. When I took the oath yesterday, I left my personal opinions behind."
"Good answer," Carlo murmured. But in Terri's judgment, Larry Pell had done precisely what he intended—to drain Lane's depiction of Rennell of its force, and to bring its credibility into question. She found Bond's silence worrisome.
"All right," Pell said to Lane abruptly, "you assert that Rennell Price has an IQ of seventy-two, while admitting that the accepted professional measure of retardation is seventy—at the high end. Is it also true that Rennell's IQ could actually be seventy-seven?"
"Or sixty-seven. The standard range of error is plus or minus five." Lane glanced at the judge. "As I said, IQ is a social measure rather than merely a numerical one. You have to look at Rennell's adaptive skills and state of functioning."
"What level of adaptive skills does it take to force a child into oral copulation?"
With the same air of equanimity, Lane answered, "Performance skills are irrelevant to sex crimes. A retarded man may be as capable of pedophilia as Eddie Fleet. I don't quite grasp the import of your question."
Pell crossed his arms. "Then let me try this, Doctor. You say that Rennell's IQ is a 'social measure.' Isn't it quite possible that Rennell's allegedly low adaptive skills are a result of the substandard schooling, chaotic family life, abuse, truancy, and all the other social barriers you described for Ms. Paget?"
"They all contribute."
"And all of these factors also affect thousands of environmentally challenged criminals with IQs well over seventy, correct?"
Lane hesitated. "Of course. But—"
"So can't we set these factors aside?" Pell interrupted. "At least as a gauge of retardation—or, for that matter, moral responsibility. Let's return to Rennell's IQ. Would it surprise you to learn that our expert psychologist scored it at seventy-eight?"
"Not at all," Lane answered with unruffled authority. "To me, that says three important things. First, that Rennell was as cooperative as I found him to be. Second, that he was not malingering for the sake of scoring low. And third, that like anyone with any capacity to learn, practice made him better." Lane's tone became sardonic. "Six points better, to be precise. But those defendants who are 'mongoloids,' or who visibly drool, don't end up on death row. That's reserved for the more gifted of our retarded population."
Unfazed, Pell stepped closer. "You also believe that Rennell suffered from fetal alcohol syndrome. Isn't that difficult to diagnose?"
"It can be."
"Is it also difficult to measure its impact on intelligence?"
"With precision, yes—"
"So we keep returning to that damnable number," Pell cut in with a fleeting smile. "But let's change the subject to Rennell's role in the crime for which the jury found him guilty."
Terri stood at once. "Objection," she called out. "Mr. Pell is asking Dr. Lane to assume the truth of facts which are very much in doubt—asserted fifteen years ago by a self-serving witness, Eddie Fleet. Who now refuses to repeat them."
"Facts," Pell corrected for Bond's benefit, "found true by a jury, confirmed three times by the California Supreme Court, and therefore entitled to a presumption of correctness under AEDPA. We can't pretend these facts don't exist, Your Honor. And even if we could, I'm entitled to ask an expert witness to assume certain facts for the purpose of eliciting his professional opinion."
Bond folded his hands. "Mr. Pell is well within his rights," he told Terri. "The witness may assume, for the purposes of answering, that the facts to which Mr. Fleet testified at trial are true."
Terri searched for a retort. "Then I hope Mr. Pell will give Mr. Fleet limited immunity, and allow this court to hear his testimony. That way we won't have to 'assume' his dubious credibility."
"You'll have time to argue that," Bond answered with a wave of the hand. "Go ahead, Mr. Pell."
Pell turned on Lane. "Are you familiar with Mr. Fleet's trial testimony?"
"Of course."
"Assume for the moment all that's true." Pell placed his hands on his hips, projecting an attitude of skepticism. "Would you still contend, Dr. Lane, that this series of deliberate actions by Rennell Price
—starting with fetching Fleet and ending with Mr. Price disposing of Thuy Sen's body—betrays a 'failure of adaptive skills'?"
"That's difficult to say," Lane responded after a moment. "Even assuming that any of that happened, a great deal would depend on whether Rennell was acting under Payton's directions—"
"According to Fleet," Pell interrupted, "they were acting as coequals."
"Then it would be the only time." Lane rested both arms on the witness chair. "That's one of many reasons I don't believe it."
"You can't make the rules here," Pell said sharply. "Assuming the truth of these facts—as did the jury—do they undermine the assertion that Rennell Price is retarded?"
Caught in Pell's construct, Lane paused. "Taken out of their context, and taken as gospel, they might. If the larger context weren't Rennell's lifetime incapacities."
"Let's look at that," Pell persisted. "At the trial, Rennell listened to Tasha Bramwell lie to exculpate him and Payton. You suggest that it's another sign of retardation. Couldn't it also be the behavior of a man who knew perfectly well that he was guilty, and that Bramwell was his last chance of getting off?"
"If Rennell weren't retarded."
Pell shook his head in a theatrical show of wonder. "Assuming the truth of Mr. Fleet's account, was it 'retarded' for Rennell to insist to Inspector Monk that he didn't force Thuy Sen to give him oral sex? Or was it the rational response of a guilty man who knew that confession meant conviction and, perhaps, death?"
Terri saw Kim Sen, seated in the first row, staring fixedly at Tony Lane.
"Even assuming the 'truth' of Mr. Fleet's statements," Lane answered, "that's impossible to know."
"Really? I thought you suggested that Rennell's mother was too retarded to fabricate a lie about his parentage."
Lane hesitated. "I believe that, yes."
"And that a frequent hallmark of retardation is false confessions."
"That's also true."
"And yet you also implied that Rennell's insistence on his innocence was evidence of his innocence. Couldn't it—just as plausibly—be evidence of a man smart enough to lie?"
Bond scrutinized Lane's demeanor with a jeweler's eye. "This entire exercise," Lane protested, "has become untethered from reality. In my considered opinion, Rennell Price not only is too retarded to lie well but didn't truly comprehend the circumstances of his interrogation. Your questions wholly ignore the Rennell Price who exists in real life."
"And who, in your view, suffers from a 'failure of adaptive skills.' Yet you cited his record in prison as evidence of nonviolence."
"True."
Pell smiled. "But many death row inmates exhibit exemplary behavior. Isn't all this more evidence of Rennell's superior adaptive skills?"
"No. Although it does refute your argument that he's antisocial." Beneath the firmness of Lane's voice lay anger at Pell's studied incomprehension. "Outside of the exercise yard, death row was the first secure environment Rennell Price had ever known. You'd go mad there, Mr. Pell. So would I. But for Rennell, solitary confinement in a six-by-six cell became an opportunity to sleep without fear. That he was pathetically grateful for this refuge is a measure of his tragedy, and his impairment . . ."
"Yes," Terri whispered in approval. "It's true."
But her husband was watching Gardner Bond. "That's why you need Rennell to testify," he said.
ELEVEN
THE EXPERT PSYCHOLOGIST FOR THE STATE OF CALIFORNIA, DR. Davis Kuhl, was a slender, dark-haired man in his early forties, with watchful, dark eyes, a prominent nose, and a dispassionate manner which lent weight to his opinions. "My conclusion," he told Larry Pell from the witness stand, "is that the evidence does not support a finding that Rennell Price is mentally retarded."
Terri watched him, pen poised over her legal pad. "In reaching that conclusion," Pell asked, "what methods did you employ?"
Kuhl placed his hands together, fingertips touching. "Extensive testing, obviously. But the essence of my approach is what I call forensic behavioral analysis: to re-create the defendant's behavior in his normal life and—minute by minute—in the commitment of the crime."
"Assumes guilt," Terri scribbled. "Opinion depends on Fleet—"
"There's a somewhat tired joke," Kuhl continued, "about how to tell if defendants are lying. The punch line is 'Because their lips are moving.' " Absently, he began rubbing his fingertips together. "I don't accept that, of course. But their actions can be far more telling than anything they say—or, for this case, anything that Payton Price said when he had nothing more to lose."
"Or Fleet," Carlo whispered to Terri. "When he had everything to gain."
"Kuhl's very selective," she answered dryly.
With a satisfied expression, Pell inquired, "I'd like you to begin with your examination of Rennell Price. What conclusions did you reach with respect to fetal alcohol syndrome or organic brain damage?"
Kuhl shook his head. "Fetal alcohol syndrome tends to affect impulse control, and I found no sign of impulsivity in my dealings with Rennell. Or in his life history as set forth by his own lawyers." Kuhl faced the defense table, as though to underscore his evenhandedness. "Claims of fetal alcohol syndrome and organic brain damage have become commonplace among petitioners in habeas corpus cases. Chaotic and abusive backgrounds, such as those existing in Rennell's family of origin, lend a superficial plausibility to such a claim. But the clearest manifestations of fetal alcohol syndrome are physical features—like a high palate or abnormal eye placement—wholly absent in this man, whose appearance is quite normal. Nor do the MRI and CAT scans we administered reveal any trauma to the brain."
Kuhl's mien of academic neutrality, Terri perceived, was well-chosen for an expert whose role was to preserve the State's right of execution. With a look of approval, Gardner Bond had taken out a fountain pen, making notes of his own.
Pell, too, seemed pleased. "As I understand it, you also find Rennell Price's numeric IQ to be well above the standard for retardation."
"Seventy-eight, to be precise." Giving Terri a deferential nod, he added, "But whether you believe his IQ is seventy-two or seventy-eight, neither score supports his claim to be retarded. Indeed, taken together, they contradict that claim." Cocking his head toward Bond, Kuhl adopted the manner of an expert clearing up confusion. "Dr. Lane himself noted that the improvement in IQ score evinces Rennell Price's ability to learn. Add the fact that he also says—correctly—that IQ is affected by deficits in education, and Rennell's actual intelligence may be higher than either score suggests."
"What about the relationship," Bond inquired, "between Mr. Price's alleged retardation and the reputed acts of abuse he suffered as a child, and in juvenile hall?"
"In my opinion there is no relationship. I also note that the specific assertions of abuse rest almost entirely on the deposition of Payton Price, whose credibility may be suspect . . ."
"What about the burn marks on Rennell's buttocks?" Chris murmured in disgust.
"Nonetheless," Kuhl continued, "let's take Payton's word as gospel. Abuse may affect a defendant's psychological makeup—even, perhaps, his sanity. But I find no evidence that the alleged abuse affected Rennell's IQ. And no one argues he's legally insane—Rennell Price clearly knows the difference between right and wrong." Kuhl's tone softened, evincing regret for his obligations as a truth teller. "Any abuse merits our sympathy as fellow humans, but it doesn't equate with mental retardation."
Bond nodded in agreement. As though emboldened, Kuhl added, "There's another thing I'd like to say, as a psychologist who studies the retarded. I accept that the Supreme Court ruled in Atkins that, in itself, retardation militates against the death penalty. But I have some qualms about that kind of generalization.
"In my experience, the majority of retarded people have too much empathy to contemplate a horrible crime against another person. Other retarded people may lack any empathy, or any ability to grasp the finality of murder. So I think we should be leery of making categori
cal judgments about the retarded, or of assuming that they're less responsible than you or me."
"Not the point," Terri scribbled angrily, adding, "Risk of wrongfully convicting the innocent," and then, hastily, "Doesn't understand legal system," before looking up at Kuhl with fresh intensity. Beneath his air of helpfulness, she thought, lurked the cynicism and coldness of a mercenary who had found his niche. As if to refute her, Kuhl concluded, "If I may venture an opinion, asking experts to testify that a defendant is retarded in order to spare him execution is damaging to both disciplines—psychology and law. It turns psychologists into judges, if not into God. It tempts experts to place defendants into simplistic boxes—retarded or not retarded—in order to determine their fates. Ultimately, it's corrupting."
Terri stood. "Your Honor," she told Judge Bond, "I move to strike that entire speech. With a touching air of melancholy, Dr. Kuhl has just informed us that the United States Supreme Court didn't know what it was doing in Atkins and invites this Court to nullify its ruling. It's Dr. Kuhl who has crossed the line, with a colossal arrogance dressed up as humility. All to ensure the execution of a man who is not like 'you or me.'
"I remind Dr. Kuhl that one purpose of Atkins—among many—is to keep us from executing the innocent. And that, far from being God, Dr. Kuhl's not even a judge." Pausing, she finished in a pointed tone, "Judges, after all, are sworn to uphold the law."
Bond's eyes narrowed in irritation. But while no doubt he, too, disliked the Atkins decision, Terri had invited the media to see him as he must not be seen—the judge who allowed a partisan expert to question the Supreme Court, and the law which governed whether Rennell Price might live. "This Court," he told her sternly, "is completely capable of defining the proper boundaries of expert testimony, and of setting aside any gratuitous remarks." Facing Kuhl, he added with more dispassion, "Nonetheless, any critique of Atkins risks blurring the question you're addressing—whether, under Atkins, Rennell Price is mentally retarded. Please confine yourself to that."
Conviction Page 30
