Conviction

by Richard North Patterson

  Terri gathered her thoughts. "Mr. James's inaction offers no insight into what a competent lawyer would have done. In effect, Rennell Price had no lawyer—James didn't hear his claim of innocence, let alone try to corroborate it. This Court should not bless a death penalty imposed on a man for whom nothing was said or done—"

  "Even one who waived Mr. James's supposed conflict?"

  "Rennell Price is retarded, Your Honor. He couldn't comprehend the question asked him by Judge Warner."

  "So your expert claims. But this Court has not heard from your client on that question, or any other."

  Terri drew a breath. "With respect, Your Honor, Yancey James admits that he did nothing for Rennell. We've spelled out Rennell's intellectual deficiencies. We've set out the weakness in the State's evidence of guilt, and offered substantial new evidence of his innocence." She paused again, trying to subdue her impatience and anxiety, as well as to buttress her argument with precedent this judge might accept. "In Rios v. Rocha, the Ninth Circuit held that the weakness of the prosecution case is an important measure of whether a lawyer's failings resulted in a wrongful conviction. And the Ninth Circuit has previously found James constitutionally ineffective in People v. Coolman—"

  "And rejected such a claim in four others of James's cases. I don't assume that makes him competent here. So don't ask me to assume the opposite because of Coolman." Pausing, Bond glanced at the papers spread in front of him. "Let me quote you the one presumption that AEDPA requires me to make: 'The factual findings of state courts are presumed to be correct, and the applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.'

  "Ten days ago, the California Supreme Court found that your evidence of retardation, and your new evidence of innocence, did not justify vacating your client's death sentence. Why should this Court not defer to that finding as AEDPA directs?"

  "Because it could have been written on a postcard," Terri answered promptly. "Because the opinion contained no findings, only conclusions. Because it gave this Court no basis for those conclusions. Because, in short, the California Supreme Court tells us that Rennell Price must die without condescending to tell us why—"

  "Very well," Bond said coldly. "You've made your argument clear. It's time to hear from Mr. Pell."

  FIFTEEN

  LARRY PELL ADOPTED THE CALM BUT DISMISSIVE MANNER OF A lawyer confronting a frivolous claim. "This petition," he began, "is Payton Price's last laugh, an eleventh-hour attempt to avenge himself on Eddie Fleet.

  "There is not one scrap of evidence behind his incredible story. Flora Lewis contradicts it. The forensics do not support it. And AEDPA requires this Court to reject it. Indeed," he added in a tone of comfortable confidence, "the Court's questions to Ms. Paget almost obviate the need for any argument from me.

  "So I'll briefly state my case by answering those questions.

  "First, because Yancey James did not have the dubious benefit of Payton Price's story, his failure to offer it was not a failure of effective lawyering." Pell jabbed the podium for emphasis. "Right there, Your Honor, this petition must fail. Because there is no constitutional defect in the trial—in this case, ineffective assistance of counsel—as required by AEDPA before this Court can even consider Payton's dubious 'confession.' "

  Bond listened serenely, showing no desire to interrupt. "Second," Pell told him, "and quite obviously, Payton's story is not the 'clear and convincing' evidence of innocence demanded by AEDPA before the Court can grant Rennell's petition."

  "Third, the California Supreme Court has given Rennell Price three separate hearings. AEDPA does not require that Court to invest yet more time in rejecting his latest petition with the fulsomeness required to satisfy his counsel."

  The wisp of a smile played at one corner of Bond's mouth.

  "As for retardation," Pell continued, "it is a wholly separate issue from that of innocence. But its shortfall is the same: the evidence offered to support it is hardly sufficient to show that the California Supreme Court's decision was unreasonable. Which is why that Court should be sustained on this ground, too."

  Pell stood back, hands spread on the rostrum. "AEDPA exists to bring finality to those for whom, like the family of Thuy Sen, this process must surely seem unending." Briefly, he swiveled his body toward the Sens, watching tautly from their seats in front of the assembled media. "Fifteen years after her death, their child deserves justice. That is the purpose of AEDPA. I respectfully submit that it is this Court's purpose to fulfill it."

  With the ease of an athlete not required to break a sweat, Pell glided back to his chair. Quickly, Terri stood. "May I be heard in rebuttal, Your Honor?"

  Even as she spoke, she saw the strain in her voice reflected in the impatience with which Bond snapped his neck to look at her. But a man's life was at stake: after the briefest hesitation, Bond said in an uninviting tone, "If you think it can illuminate what's already been said."

  "Rennell Price is retarded," Terri insisted. "His entire life tells us that, and tells us why. And retardation is not separate from the question of innocence—it explains why a man whom the evidence now suggests is innocent has come within two days of execution.

  "It explains why Rennell Price was his brother's shadow; why he could not help himself at trial; why the jury thought him a callous accomplice to Payton's every act, before and after the murder; and why he was convicted for a crime in which Eddie Fleet—even then—was far more obviously complicit than was Rennell." Terri's voice rose in anger. "Now Rennell is ensnared in a Byzantine, procedure-ridden legal system which allows the State to smugly claim that who Rennell Price is, and what they cannot prove he did, no longer matters at all."

  Beneath Bond's silent stare she felt the deeper silence of the courtroom. "The last laugh," she continued, "doesn't belong to Payton Price. It belongs to the State, which insisted on Payton's execution, and now insists that a dead man is unworthy of belief, while inviting this Court to ignore the inconvenient fact that his brother may well be innocent. You don't need to think about innocence, they say, because you can 'presume' that the California Supreme Court has done the thinking for you.

  "So let's be very clear about what Mr. Pell is really asking this Court to do." Terri turned to Pell. "There is no way—no way at all—that if Mr. Pell brought this case today, a jury would convict Rennell, let alone require his death.

  "Eddie Fleet won't repeat his story. Payton Price refutes it. The State won't make Fleet tell it. There's no evidence to support it—"

  "Because Flora Lewis is dead," Bond interrupted. "That's why a jury verdict rendered a year after the crime should not be endlessly relitigated until memories fade and witnesses die. At some point, we're entitled to presume that a jury verdict is reliable absent a compelling reason to doubt it."

  "But this verdict?" Terri asked. "I wonder if even Flora Lewis would be so certain now. But I'm certain of this much—a case based on Flora Lewis alone would not convict Rennell. And that's all the State has left." Terri forced herself to finish calmly yet emphatically. "This Court cannot condemn Rennell Price to death without saying more than Congress ever intended in passing AEDPA, or the Constitution has ever allowed—that on the eve of execution, concepts like truth, or innocence, or justice have become irrelevant to the taking of this man's life.

  "Thank you, Your Honor."

  Walking back to the defense table, Terri felt the stone-faced stare of Thuy Sen's father.

  "That was good," Chris told her softly, and she heard beneath his words the judgment, and the sympathy, of a man who loved her, and a lawyer who was certain that she had lost.

  From the bench, Gardner Bond surveyed the parties, the media, and last of all, the Sens. "This Court," he announced, "is prepared to rule."

  Looking down, the judge began reading, and Terri realized, with deep foreboding, that Bond had written his opinion the night before. "With respect to the issue of mental retardation," he began, "the question is not whether
Rennell Price is of below average intelligence. Rather, even assuming that Atkins applies to Mr. Price's petition, the question, under AEDPA, is whether petitioner has shown that the Supreme Court of California's rejection of his claim 'was contrary to, or involved an unreasonable application of, clearly established federal law.'

  "Clearly, he has not."

  Blank-faced, Carlo had begun to take notes. Bond's judicial drone seemed to reach Terri from some great distance.

  "With respect to innocence," the judge pronounced, "the evidence does not show a constitutional error at trial. And even were this Court to find that Mr. James's performance denied Rennell Price the effective assistance of counsel, Payton Price's last-minute confession does not warrant overturning the verdict rendered by the jury."

  Pausing, Bond addressed Terri in a tone of mild reproof. "Fifteen years later, the question before this Court is not whether it believes Rennell Price guilty beyond a reasonable doubt. That decision belonged to the original jury. This Court cannot disturb it—or the decision of this state's highest court—unless it has compelling evidence that the verdict was unjust. We do not.

  "Therefore, we rule as follows:

  "Rennell Price's petition is denied.

  "His petition to appeal this ruling is denied." Pausing, Bond finished crisply. "The stay of execution is dissolved. The State of California may now carry out the death warrant."

  "Bastard," Carlo murmured.

  Bond's gavel cracked. "All rise," his deputy called out, and Bond left the bench, the courtroom buzz at this release from silence sounding mournful and subdued.

  Terri picked up her briefcase. "Save it for the Ninth Circuit," she told Carlo. "There's three days until the execution, and we've got work to do."

  * * *

  That night, after a hasty dinner with Elena, Terri returned to the office to continue preparing the papers Rennell would need for the Ninth Circuit and, she still hoped, to save his life. She worked intently, in silence. Only after an hour or so did the telephone ring. "Teresa Paget," she answered swiftly.

  "Been watchin' the news," the deep voice began. "Seems like that judge gone and fucked you in the ass. Got to thinkin' it might feel pretty good."

  Terri stood, jolted upright by a current of fear. "I owe you," the voice continued softly. "But maybe you'd like it better in the mouth. Or maybe you got a kid, and I could make you watch."

  Laughing softly, Eddie Fleet hung up.

  Hand pressed to her mouth, Terri felt herself trembling. Fighting for self-control, she stabbed the ID button, staring at its screen. But all that appeared were the words "private caller."

  Scared and angry, Terri collected herself, then called her husband.

  "I'm coming to get you," Chris said.

  "You don't need to—"

  "No arguments, Terri—we're working together, at home. Let's just say I'm doing it for me."

  And for Elena, Terri thought. She did not argue further.

  Waiting for Chris, she tracked down Charles Monk at home.

  She had interrupted his dinner. Nonetheless, and with considerable patience, he heard her out.

  "Could have been him," he said. "Could have been some prankster pretending to be him. Your accusation's been all over the news. A more cynical man than me might say you made this up to help your own case, or get us on Fleet's case."

  Disheartened, Terri realized this was true. "It was him," she insisted.

  "If it was," Monk answered calmly, "he's too smart to get caught at it, and you've got no evidence at all. But we can send someone to roust him, if you want that."

  Terri weighed the benefits of his offer. "Can you watch our house?" she said, and then felt foolish.

  "On the basis of this? Not twenty-four/seven." Monk paused, his voice acknowledging her worry and, perhaps, his own misgivings about Fleet. "Like I said, Fleet's smart. It would take a stupid black man to start haunting a house in Pacific Heights, menacing rich white folks. Scared black folks would be more his thing."

  Perhaps that was right, the reasoning part of Terri thought. But then Monk was not Elena's mother, and knew nothing about her, or the guilt and fears Terri could not express. "I just want my daughter safe," she said.

  "How would he even know you have one? But my offer stands—say the word, and we'll go see him. At least it might keep him off the phone."

  But maybe I can trap him, Terri thought, and then found herself caught in the crosscurrents of lawyer and mother, and confused by what was best to do for her daughter, and for Rennell.

  "I'll think about it," she said simply. Then she thanked him and got off.

  SIXTEEN

  AT 2:00 A.M., HUDDLED IN THEIR LIBRARY NEAR ELENA'S BEDROOM, the adult Pagets cobbled together Rennell Price's petition to the Ninth Circuit Court of Appeals, seeking a stay of execution and permission to appeal the decision of Judge Bond which condemned Rennell to death. Strewn before them on the conference table were drafts of legal arguments on all potential issues.

  "We have to show the 'substantial denial of a constitutional right,' " Chris argued. "If it were up to me, I'd focus exclusively on innocence and retardation. The other marginal issues we crammed into our papers before Bond will only dissipate their impact."

  Still haunted by the telephone call, Terri rubbed her temples. "We should use it all. We've got Montgomery, so we've got at least one sympathetic ear. Throwing away any ground which could save Rennell could be throwing away his life."

  "Throwing in the kitchen sink," Chris answered tartly, "is too easy. We'll look desperate instead of credible." He waved his hand at the papers. "What do we really believe in here?"

  "Everything," Terri snapped. "I don't have a favorite reason Rennell Price ought to live. We can't let this ridiculous statute keep us from making every argument we can. Don't you think there's a constitutional problem if a statute, like AEDPA, can be used to justify executing Rennell for a crime it appears he didn't commit?"

  "Are you asking me how I want the world to be? Or what I think this statute says?" Chris glanced at Carlo. "If it looks like we got the Ninth Circuit to turn AEDPA inside out, the Supreme Court will jump all over this case."

  "And Rennell will still be alive," Terri answered coolly. "That's a problem I can live with." She paused, speaking with quiet force. "You've never even met Rennell. He's only an abstraction to you. I'm not going to face him tomorrow without having done everything we can to keep the State from killing him."

  Softly, Chris asked, "Isn't that the problem, Terri? This isn't about how you feel . . ."

  Stung, Terri was momentarily speechless. "Not fair," Carlo said to his father. "I've met Rennell, too. Does caring about him disqualify me from having an opinion?"

  "Not unless it keeps you from functioning as a lawyer."

  "As a lawyer, Dad, I think there's a more than decent constitutional argument that AEDPA can't be applied to render innocence irrelevant. Call me sentimental, but I'm with Terri on this."

  Chris studied his son in silence, and then—despite the hour and the emotion of the evening—Terri detected a faint hint of amusement in his eyes, perhaps commingled with pride. "I guess that makes it two to one," he answered, "in favor of the kitchen sink." Turning to Terri, he said calmly, "About Fleet, Terri, we'll hire a security firm. This case is hard enough."

  * * *

  "We lost," Terri told Rennell. "The judge just didn't believe me."

  He stared at the table, lips moving wordlessly. It was as though he were seeing something too awesome and enormous to articulate.

  Terri took his hand. "There's still a chance, Rennell. There are three more judges who have power over this judge. If they don't think he did right, they can change it."

  Rennell did not seem to hear. "They be comin' for me soon," he said softly. "Like Payton. Lock this whole place down till I be dead."

  Terri felt a tremor pass through her, a brief flashback to Payton's death. She did not know whether it was fair, or cruel, to plead with Rennell to maint
ain hope, or to imbue him, despite his loss of Payton and their grandmother, with the wish to keep on living. We're so close, she wanted to say. If we can make our case for innocence, you can just walk out of here.

  And then what? her conscience asked her. And her heart responded, I'll help you find a new life, one better than you had.

  "Whatever happens," Terri promised, "I'll be with you."

  * * *

  It was a good thing she liked her office, Callista Hill reflected for perhaps the hundredth time, casting a weary eye at the eighteen-foot ceiling and the elegant brass chandelier. If you clerked for Chief Justice Caroline Clark Masters, you worked fourteen-hour days Monday through Saturday, easing off to half that most Sundays. The dirty clothes hamper in one corner of Callista's bedroom was filling up again; she hadn't eaten a civilized dinner in three weeks; and her sex life felt like the waste of a formerly terrific body suffering from too little exercise of any kind. But she would not trade her year with the brilliant woman who was Chief Justice for any job on earth.

  Of Chief Justice Masters's four clerks, Callista knew that she stood out—not only as an African American with the look and carriage of a runway model but for her swiftness of speech and thought, along with an arid and somewhat lacerating wit most like Caroline Masters's own. Though brisk and businesslike, the Chief Justice found amusement in the foibles of law and personality that permeated the Court and, on occasion, would let this slip out in her comments when she and Callista were alone. Callista's mother, Janie, a divorced English teacher at an inner-city school in Philadelphia, had treated her gifted only child as the intelligent being she was, encouraging her freedom of thought and action, and had been rewarded with a loyal daughter who was also a good companion. Caroline Masters, Callista sometimes thought, was Janie Hill transformed into a WASP aristocrat but ironically deprived of Janie's freedom to express her sometimes caustic opinions. "The death penalty," Janie had once told Callista, "is like a war film or a monster movie. The black man always gets it first."