Turning, the witness summoned an expression which, Terri supposed, was meant to be long-suffering. "Not by me, counselor. But I was able to observe them."
"Did all of their eyes bug out?" Holding up a hand, she said, "Forgive me, Your Honor. I'll move on."
"Please do."
"This morning, Dr. Kuhl, you said there was no evidence that Rennell Price suffered from fetal alcohol syndrome or organic brain damage. Is it possible to have either, or both, while having a 'normal' appearance?"
"That's possible, yes."
"And that a CAT scan won't necessarily reveal either?"
"That's true."
"And that the so-called practice effect could have improved Rennell's scores on the tests you gave him to evaluate his IQ?"
"That's also true." Kuhl's voice held a trace of exasperation. "Which is why I emphasize forensic behavioral analysis, re-creating a defendant's actions in his normal life."
"Let's break that down. You'll concede that Rennell's 'normal life' on death row does not refute the assertion that he's retarded?"
"Not in itself, no . . ."
"Isn't it also true that—based on your nine-hour review—you are aware of nothing which makes his academic failure more likely to be willful than a sign of retardation?"
"Other than his own admission."
" 'Other than his own admission,' " Terri repeated softly. "I guess that leaves us with all those deliberate things he did in the commitment of this crime. Of course, if Payton Price were telling the truth, those things never happened, did they?"
"If Payton were telling the truth," the witness rejoined, "Rennell's innocent, retarded or no. But that's not what the jury found."
"True. In forming your opinion, Dr. Kuhl, did Mr. Pell give you any instructions regarding how to view the testimony of Eddie Fleet?"
"I was instructed to assume its truth."
Though questioning the witness, Terri directed her gaze at Bond. "In other words, your 'forensic behavioral analysis' rests primarily on the testimony of Mr. Fleet."
"In some measure, yes."
"Aren't you at least curious about whether he's telling the truth?"
"Of course. But trying to second-guess the 'truth' of facts established at the trial is beyond the scope of my assignment and—frankly—the proper purview of an expert in psychology."
"I see. Were you also asked to assume by implication that Payton Price was lying?"
"I suppose so."
"Wouldn't you like to see and hear Payton Price tell his story?"
Kuhl gave her a trapped, impatient look. "Payton Price is dead."
Terri glanced at Bond again. "Oh, I know. That leaves Eddie Fleet, doesn't it? Are you aware that since Mr. Pell sought your opinion and told you to rely on Fleet's testimony, Mr. Fleet has invoked the Fifth Amendment?"
"I am."
"How does that affect your reliance on Mr. Fleet in asserting that Rennell Price is not retarded?"
Kuhl glanced at Larry Pell. "My instructions are the same."
"Doesn't that bother you, Dr. Kuhl? Maybe just a little? After all, if the Court accepts your opinion, Rennell Price may well die."
"Objection," Pell said in a disdainful monotone. "Argumentative."
"Argumentative?" Terri echoed. "Forgive me, Dr. Kuhl. Let me ask the question another way. Would you now, knowing that Mr. Fleet has taken the Fifth, prefer to see and hear him before standing on your opinion?"
From Pell's expression, he saw, perhaps too late, where Terri had taken his witness. Defensively, Kuhl answered. "That's not my decision."
"No," Terri answered, looking toward Gardner Bond. "It's Mr. Pell's."
THIRTEEN
WHEN TERRI HAD FINISHED WITH DAVIS KUHL, LARRY PELL STOOD at once.
"I realize," he told Judge Bond, "that the Court has heard all the witnesses it cares to with respect to Rennell Price's state of mental functioning." Here Pell darted a look at Terri. "Absent," he added pointedly, "Mr. Price himself. But I wanted to address why the State did not feel the need to ask Dr. Kuhl to opine on the 'new' issue raised by Ms. Paget: whether Rennell's purported dependence on his brother, Payton, mitigates against a sentence of death for his role in the murder of Thuy Sen."
Bond nodded curtly. "Go ahead."
Pell rested one hand on the prosecution table, the other on his hip, a portrait of confidence. "Set aside that this argument conflicts with the assertion that Mr. Price is innocent. Set aside that Dr. Lane's testimony is another exercise in the dark autobiographical style so common to habeas corpus cases, wherein a murderer's hard childhood is offered to mitigate the murder of a child." Pell's voice became mordant. "Set aside that many abused children do not commit crimes; that the 'new' evidence of Rennell Price's childhood emerged at the eleventh hour; or that none of the supposed horrors—new or old—cited by Dr. Lane outweigh the horror of the crime itself.
"We simply rely on the law: because this 'new' evidence in mitigation supports an old argument, it is barred by AEDPA. This Court should not—and, I respectfully submit—cannot entertain it—"
"According to Ms. Paget," the judge rejoined, "the 'new' evidence is, indeed, new. Because Payton Price alone controlled whether he chose to speak."
"Is Rennell Price mute?" Pell countered. "Nothing in the last fifteen years barred him from discussing his own childhood . . ."
"He's retarded," Carlo whispered in disgust.
"Where was his grandmother?" Pell went on. "Where were his lawyers, the respected firm of Kenyon and Walker? Right here—in this Court." Pell drew himself to his full height, hands clasped in front of him. "For new evidence to be accepted on a second petition, there are two predicates: that original counsel must have failed to offer it because he was 'ineffective'; and that subsequent counsel could not have offered it because—despite their exercise of due diligence—they could not find it. Neither is true. The question of mitigation is closed."
Bond assumed an attitude of gravity. "You anticipate me," he said after a moment. "This Court will not accept any further argument in mitigation of the death penalty."
Terri felt her stomach clench. Beneath the table, Chris's fingers briefly grazed her wrist. "But Ms. Paget's more pertinent issue," Bond told Pell, "is with whether your office—or this Court—can compel Eddie Fleet to testify through a grant of 'use immunity,' barring the state from using such testimony against him in connection with the murder of Thuy Sen."
At this mention of his daughter's name, Meng Sen leaned forward in the front row. "Your Honor," Pell said in a dispassionate manner, "after due consideration, the Attorney General's Office does not believe that attempting to compel Mr. Fleet to testify again—when he already did so at the trial—serves the interests of justice.
"It is true that, in his deposition, Mr. Fleet declined to repeat that testimony . . ."
"And ran like a thief," Carlo murmured. "Or a child molester . . ."
"But little wonder." Pell gestured toward Terri with an outstretched hand, his gaze still focused on the judge. "Defense counsel has made it clear that its entire case regarding innocence rests on the assertion—despite the eyewitness testimony of Flora Lewis—that Eddie Fleet, not Rennell Price, was the second murderer. Including the insinuation, offered without any factual corroboration, that Mr. Fleet is a pedophile.
"What mischief," Pell added with disdain. "Slander has no standard of proof, and murder—the crime of which petitioner's counsel accuses Eddie Fleet—has no statute of limitations. So little wonder, indeed, that Mr. Fleet has concluded it will do him no good to brave the desperate tactics of dedicated counsel who, one way or the other, want this Court to rescue their client from death.
"Fifteen years ago, a jury determined the truth, and delivered justice. This Court cannot improve on it."
The judge angled his gaze toward Terri. "I imagine you have another viewpoint, Ms. Paget."
Terri rose, pausing to channel her indignation. "I have another 'truth,' " she answered. "The jury did not hear—
as Mr. Pell has—the accusation of Eddie Fleet by Payton Price. The jury did not see—as Mr. Pell has—Mr. Fleet invoking the Fifth Amendment when asked whether he had ever forced a child into oral copulation. And Mr. Pell has done his level best to ensure that this Court neither sees nor hears either of those men.
"Payton Price is dead—as Mr. Pell so urgently requested. Eddie Fleet is not dead. Fifteen years ago, the State—in the person of Lou Mauriani—offered Eddie Fleet a deal for his testimony against Payton and Rennell. Now the State, in the person of Mr. Pell, protects Fleet from appearing before this Court. By incentivizing Mr. Fleet to say that Rennell Price was guilty of a crime, the State allowed Mr. Fleet, quite literally, to get away with murder." Terri's voice filled with scorn. "This Court should not allow Mr. Fleet to do it twice. The death of Thuy Sen was tragic. The execution of Rennell Price, when the State knows there is such doubt, is tantamount to a cover-up. This Court should order the Attorney General's Office to immunize Eddie Fleet, and then drag Fleet into the light."
Pell stood. "May I comment, Your Honor?"
"Briefly."
"We've reviewed the record with Mr. Mauriani. He granted no immunity to Eddie Fleet—merely promised to consider Fleet's cooperation once the trial was done. We also conclude, upon thorough review, that the original prosecution was well-founded. There was no immunity, and there is no distortion of truth."
"If Mr. Pell were so confident of the 'truth,' " Terri rejoined, "he would not object to immunizing Mr. Fleet."
"What Mr. Pell is saying," Bond responded, "is that there were no 'terms' but only the proffer of consideration. In prudence, this Court cannot intrude on the good faith judgment of the Attorney General's Office. Therefore, we will not compel Mr. Fleet to appear before us." Bond's tone, though mild, concealed another trap. "Please be assured that the Court will consider every inference—including whatever can be drawn from the circumstances of Mr. Fleet's original testimony—as well as any testimony you offer us from Mr. Price himself.
"Tomorrow morning we turn to the alleged new evidence of innocence. Unlike with Mr. Fleet, Ms. Paget, you do control the presence of Rennell Price." After pausing, the judge concluded firmly, "It's time for you to decide. Either call the petitioner as a witness or make your showing without him."
* * *
It was midnight, and Terri sat with Chris at their kitchen table. The high from her cross-examination of Davis Kuhl seemed to have occurred in some other life, perhaps to another lawyer.
"I can't do it," Terri said. "I think Pell could destroy Rennell. I think Bond could use some foolish thing he said—like 'I was just a fuck-off'—to send him to the death chamber." Pausing, she watched her husband's expression. "On retardation, I pretty much eviscerated Davis Kuhl. On innocence, no jury would convict Rennell with the evidence we have today—"
"That's not the point, Terri, and you know it." In the harsh light of the kitchen, Chris's face, lean and weathered, held a melancholy certainty. "The only way to keep this judge from dissolving the stay of execution is to show Rennell Price to the world. That's the place Bond put you when he allowed the State to conceal Eddie Fleet."
Terri thought of Rennell as she had seen him that afternoon, listening to her account of the day's proceedings as though Bond's courtroom were a foreign country he feared to visit. "Been in court," he had said softly. "Don't never want to go again." The tremor in his voice had conveyed far more than words.
"Even if Bond turns us down," Terri told Chris, "there's a fair chance Blair Montgomery's panel will agree to hear the case."
"Maybe so. But spin out with me what happens next.
"If Rennell wins before Bond, and then the Ninth Circuit agrees, even if Pell succeeds in getting the U.S. Supreme Court to review it, you're still in okay shape. At least you and the Ninth Circuit are both relying on the opinion of a very conservative district judge. But if a Ninth Circuit panel reverses Bond, and Pell takes it to the Supreme Court, you've got an entirely different dynamic—"
"I know," Terri said tiredly. "The Supreme Court will see a rogue panel from a rogue circuit, headed by a liberal judge, flouting the law as interpreted by a right-thinking conservative like Gardner Bond."
"You've got Justice Fini," Chris said flatly. "And you don't want this case ever to cross his mind."
Exhausted, Terri tried to imagine the gravitational pull between a retarded black man and a brilliant Supreme Court justice she hoped would never become aware of Rennell's existence. "Too far ahead," she finally answered. "All I can try to do is what's best to do tomorrow."
FOURTEEN
"WHAT'S YOUR PLEASURE," GARDNER BOND INQUIRED OF TERRI, "with respect to Rennell Price?"
Standing at the defense table, Terri hesitated—not because of last-minute indecision but because her decision felt so fateful. "We've determined not to call him as a witness, for all the reasons cited in Atkins—that he's prone to confusion, won't understand what he's asked, and doesn't know what happened the day that Thuy Sen died—"
"Wait a minute," Bond interrupted. "If Mr. Price wants to tell us that, he can. But don't withhold his testimony, then testify on his behalf."
"That wasn't my intention," Terri said simply.
"Good." Bond nodded her toward the podium which faced his bench. "On the question of Mr. Price's supposed innocence, you have asked us either to exonerate him, requiring his release from prison, or—at the least—to order a new trial. We've already reviewed Payton Price's deposition and the declarations of the others you wanted to call as witnesses. We're prepared to hear your argument, and that of Mr. Pell, and then rule."
Terri walked to the podium and rested her hands on its burnished wood. Bond had reduced the question of Rennell's fate to this—a half-hour argument between lawyers about a terrible event, fifteen years past, to which the actual witnesses were absent, or dead. Even the lawyers were new.
"At the moment Payton broke his silence," Terri began, "one thing was clear at once—that, on the record before this Court, the State of California should not be allowed to execute his brother—"
"You're assuming Payton's credibility," Bond interjected. "Why should this Court agree?"
"Normally," Terri conceded, "eleventh-hour confessions should be viewed with skepticism. But Payton's makes too much sense for that.
"First, it's consistent with the physical evidence. There's no forensic evidence whatsoever of Rennell's involvement in the crime itself—"
"What about Rennell's fingerprints, Ms. Paget? They were found in Fleet's car."
"But not in the trunk, Your Honor, where Fleet placed Thuy Sen's body. Payton Price confirmed what common sense suggests—because Fleet functioned as his driver, both brothers were frequent passengers in his Cadillac. Rennell's fingerprints are proof of nothing—"
"And Payton Price had nothing to lose by saying whatever he pleased."
"Perhaps," Terri answered softly. "But fifteen years ago, when Eddie Fleet testified against Rennell, Fleet had everything to gain: his freedom, and his life—despite a crime in which, even by his own self-serving admission, he was involved. And today, when Fleet has everything to lose, he refuses to repeat the testimony which sent Rennell to the death chamber.
"Today, the sole witness to the murder, Payton Price, testifies in the black and white of his deposition that Eddie Fleet killed Thuy Sen in an act of pedophilia. And that the State, by cutting a deal with Fleet then, and protecting him now, has become his accomplice in a second murder—"
"You go too far," Bond remonstrated. "What about Flora Lewis?"
"At seventy-two years old, she was looking at two men from over ninety feet away—too far to make out faces. So she 'saw' what she expected to see, Payton Price with Rennell, instead of what Payton swore she really saw: a man in a bulky sweatshirt who's the same height as Rennell, Eddie Fleet—"
Holding up his hand for silence, Bond riffled some legal pleadings in front of him. "According to the record, the police put Eddie Fleet in the same lineup wit
h Rennell Price. Flora Lewis still picked out Rennell."
Terri nodded. "In support of our petition, we submitted school photographs of Rennell and Eddie Fleet, showing that their general features were quite similar. We've also submitted the declaration of Dr. Libby Holt, an expert on cross-racial identification, whom we've offered to call as a witness—so that the Court can see her, and Mr. Pell may cross-examine her. Dr. Holt makes two points: that eyewitness identifications are frequently driven by emotions and the witnesses' need for certainty. And that cross-racial identifications—especially those of blacks by whites—are particularly unreliable—"
"Even in a lineup?"
"Of course Flora Lewis 'identified' Rennell. She knew him." Terri paused, attempting to drain the exasperation from her voice. "At ninety feet, it's doubtful she could make out faces. All the lineup proved is that Flora Lewis could identify her neighbor, Rennell Price, from a distance of ten feet.
"Rennell's death sentence resulted from a tragic combination of Fleet's lies, Payton's self-serving silence, an old lady's mistake, and the incompetence of a lawyer who neither knew nor cared that Rennell Price is retarded—"
"If he is," Bond countered. "We can't assume Mr. Price's retardation for purposes of determining whether you've offered persuasive proof of innocence."
"But we know a lot," Terri countered. "As Yancey James spelled out in his declaration—and as he would tell this Court if asked—he believed Rennell guilty because Payton tacitly admitted that he, Payton, was guilty. James never developed a separate defense for Rennell, refused to believe Rennell's protestation of innocence, never investigated Eddie Fleet, and never raised the possibility that Fleet, not Rennell, was guilty—"
"Why would he?" Bond inquired sharply. "Payton Price was busy insisting that James put on the perjured testimony of Tasha Bramwell. As you point out, Payton Price didn't offer his alternative vision of the truth, admitting guilt and naming Fleet, until roughly three weeks ago. So why should we blame James's failure to attack Fleet on his supposed ineffectiveness—as required under AEDPA?"
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