With a profound lack of anticipation, Callista sipped her third cup of coffee and reached into her in-box for the death list.
This was her least favorite aspect of the job: once a week, the Court's death penalty clerk circulated to the justices a photocopied sheet listing every execution pending in the United States, noting their status. In addition to her other responsibilities, Caroline Masters was the Circuit Justice for the most contentious Federal Court of Appeals in America, the Ninth Circuit, and it was Callista's business to maintain a watch list of cases which might land on the Chief's desk in the form of a last-minute request for a stay of execution. This week, Callista saw, the prisoner named Rennell Price had made it to the top of the list. From the description of its status, by next week Rennell Price might no longer be listed, and the absence of his name would give Callista goose bumps.
She picked up the telephone and called Caroline Masters's secretary.
* * *
"Okay," the Chief Justice requested, "tell me about this one."
They sat in Caroline's front office, graced with the same high ceilings and chandeliers, as well as group photos of the Court from various terms. "Man's on the bubble," Callista said flatly. "The district court judge dissolved the stay, and Price's lawyers have gone to the Ninth Circuit panel looking for a certificate of appealability. Only way they can come here for a stay of execution is if Price gets the COA, but then loses the appeal."
"What are the issues?"
"Any issue you can imagine, some of them pretty inventive. The one that jumps out at me is that AEDPA allows a claim of freestanding innocence."
The Chief raised her eyebrows. "You mean the idea we're still empowered to notice things like an innocent man being wrongly convicted? That could get some of my colleagues pretty excited. I assume his lawyers also try to couple this claim of innocence with a constitutional defect in the trial."
"Uh-huh. The usual ineffective assistance of counsel claim."
Caroline Masters stood, arching her back to relieve the tightness which came from too much sitting. "Usual," she amended, "and often legitimate. I'd bet that behind at least half of the names on your death list lurks a terrible lawyer. It's the single biggest reason people get executed. Aside from the fact that—we can only hope—the condemned actually committed the murder in question." The Chief Justice stopped herself abruptly, as though feeling she had said too much. "Who's on the panel?"
"Judges Montgomery, Nhu, and Sanders."
The Chief Justice allowed herself a faint, ambiguous smile. "That should be an adventure."
"What do you want me to do?"
"Nothing yet—if the COA's not granted, you'd be wasting your time."
"And if it is?"
"Then one of two things happens. If Price loses, he's on my doorstep within twenty-four hours, asking for a stay while we consider his petition. If Price wins, the State of California will try to persuade us that the Ninth Circuit has distorted the law so grievously we're obliged to correct its errors." Caroline sat down again, no longer looking amused. "Either way, it may be fairly unpleasant. If he loses, I'll need a memo from you immediately, recommending whether or not I should grant a stay and vote to hear his case. And if you think I should grant a stay, the memo needs to be good enough to persuade four other justices to extend my stay rather than dissolve it."
A certain grimness of tone put Callista on edge. "Will it really be that difficult? The real worry would be not granting a stay until we can have time to look at the merits."
The Chief Justice shook her head. "Stays of execution can occasion a particular bitterness. While it takes only four of us to decide to hear a case, it takes five to grant a stay. Which creates the not-so-theoretical possibility that our Court would vote to grant a hearing to a dead man."
"What about judicial courtesy, if four of you feel that strongly?"
Caroline's smile was sour. "A good question. A few years ago, Justice Powell would step in, voting for a stay to ensure that the petitioner didn't die—at least prematurely. But we have no Lewis Powells now. Justice Fini's a stickler for the rules, and he believes that our internal rules shouldn't permit a minority of us to stave off executions. His viewpoint seems to have spread. Capital punishment," she finished wryly, "has been the death of courtesy."
* * *
Late that night, Terri sat in the Pagets' upstairs library, outlining on four-by-six note cards the argument upon which Rennell Price's life depended. When it came to the simple concept of innocence—whether the State could insist on executing Rennell despite the indisputable possibility that Eddie Fleet was guilty of Thuy Sen's death—Terri could not quite find the phrase she wanted. Note cards with words scratched out lay on the desk in front of her.
Staring at the latest card, Terri felt a tingle in the back of her neck, the slow awareness of the presence of another. Turning, she saw Elena in the doorway.
Her daughter, whom Terri had thought was sleeping, studied her as if she were a stranger. The clinical coolness in Elena's eyes cut through Terri like a knife.
"I thought you were asleep," Terri managed to say.
"How would you know?" the girl inquired coldly. "You didn't come to my room."
"It was late, Elena. I didn't want to wake you."
Elena ignored this. Walking to the desk, she picked up a note card with Terri's futile scratchings, scanning it with narrow eyes.
"I'm writing out my argument," Terri said. "If we don't win tomorrow, a man's going to die."
"No," Elena answered tersely. "A creep is going to die."
Terri expelled a breath. "You don't know him."
"I knew my father," Elena answered. "If you weren't my mother, would you have been his lawyer? Or maybe you would be anyhow."
Terri felt too heartsick to respond. Silently, she shook her head, less in answer than in a vain wish to banish all she felt. "You can't even look at me," she heard Elena say, and then realized that she was staring at her note cards through a film of dampness.
At length, she gazed up at her daughter. "I don't understand what your father did to you," she said softly. "I don't want to. But I understand what happened to this man, and I don't think it's right for us to kill him."
Elena folded her arms. "You think that about everyone. That's all your life's about."
What my life is about, Terri wanted to say, is too complicated for you to know. And so is Rennell Price's. But she could not explain her own childhood, the painful duality of wishing her father dead and yet knowing how defenseless a child could be against the damage inflicted by those who, themselves, had once been damaged children.
"Elena," she said quietly, "I don't think we can ever know enough about someone to execute him. I don't think we're that wise, or that fair. I don't even think we're wise enough to keep from killing innocent men.
"This man could be innocent. I think he is, that another man was the one who killed Thuy Sen. How can I know that and not do everything in my power to save him?"
Elena's eyelids fluttered. "Because maybe he did it, Mama. Maybe he'll do it again."
Once more, Terri thought of Eddie Fleet. She stood by instinct, reaching out to embrace her daughter. "Don't touch me," the girl said fiercely and fled the room.
SEVENTEEN
SIX HOURS LATER, ON THE MORNING THAT THEY WOULD SEEK leave from the Ninth Circuit to file Rennell's appeal, Chris and Terri sat with Carlo at their sun-splashed breakfast table. They were tired and subdued—by this afternoon, if the Ninth Circuit turned them down, Rennell's legal battle would be over. And still their internal disagreements lingered.
Sipping coffee, Chris gazed at Terri across the table. "We've agreed to argue everything, I know. But how we sequence our request to be heard is still important. Unless we win on the narrowest, least-controversial issues, we may have extended Rennell's life without saving it."
Meticulously, Terri spread strawberry jam across her toast, making sure to cover every corner. "What's your suggestion?"
> "Atkins is a new case, and no one—not the California courts, not the legislature—has set out any standards for defining what retardation is. That's our best argument, I think. It's like Rennell Price lost the lottery."
"But all retardation buys him," Carlo interposed, "is a lifetime in prison. Innocence is his ticket out."
"True. But spelling out who Rennell is should create some sympathy, even if the Court doesn't buy that he's retarded. Then we segue into innocence having implanted the idea of a guy who couldn't defend himself and begin to hammer home that he had a lawyer who didn't defend him either. That's the perfect setup for arguing that Rennell's conviction is a frame job, with Rennell the perfect dupe for Eddie Fleet." Again Chris looked at Terri, speaking more softly. "You don't want to win on freestanding innocence—that's like a red flag for the Supreme Court, begging for a reversal. When you make your pitch on that, remind the panel that it doesn't need to go there if it fits this within AEDPA by finding Yancey James incompetent. Blair Montgomery needs to take Judge Sanders with him, and Sanders is a prudent man."
Terri considered this. "Reading judges," she remarked to Carlo, "is about as much of a science as reading the entrails of a goat. But I think Chris is right about this one—we need to make it as easy for Sanders as we can. As long as we try everything to keep Rennell alive."
Carlo glanced at his father, who still contemplated Terri with a look of faint misgiving. "If we can help it," he said finally, "I don't ever want to see the inside of the United States Supreme Court. Unless, of course, we've lost."
* * *
At one o'clock, Terri, Chris, and Carlo faced Larry Pell and Janice Terrell across a conference table in the State Office Building in San Francisco, a speaker box between them. From the beginning, Judge Sanders, silent during the first emergency proceeding, dominated this one.
"Tell me about Atkins," he demanded of Terri. "What's the essence of your argument on retardation?"
She glanced at Chris. "That Rennell Price is retarded," she answered. "Most important, that neither the State Supreme Court nor Judge Bond gave us any idea of why they ruled otherwise, or what their standards for determining retardation are. The State can't execute this man in a vacuum—"
"All right," Sanders interjected brusquely. "Mr. Pell?"
Pell gathered his thoughts. "Mr. Price's lawyer proposed standards," Pell argued, "as did we. Two courts were unpersuaded that he met them—"
"Based on what?" Judge Montgomery interjected dryly. "Are you suggesting that our proper role is divination? Or did those courts owe us—and more important, Mr. Price—some elucidation of their reasoning prior to his execution?"
Behind the fingers curled to his lips, Chris smiled faintly. With unusual bluntness, Pell answered, "What the California Supreme Court owed Mr. Price is due consideration of his claims, followed by a ruling. AEDPA requires that the federal courts respect that ruling absent a clear showing of error, which Judge Bond did. This Court should do the same—"
"What about innocence?" Sanders cut in. "In his papers, Mr. Price says quite plainly that—regardless of whether his counsel was ineffective—he's entitled to a new trial, or even his freedom, based on his brother's confession. Is that the law?"
"Absolutely not," Pell replied with real vehemence. "Under AEDPA, it is not this Court's role to conduct a second trial but to determine whether the original trial was fair. And it was."
"What say you to that, Ms. Paget?"
Terri read the warning in Chris's eyes. "Are we deciding, Your Honor, whether a fifteen-year-old trial was good enough to justify the wrong results—in which case, it's permissible to execute a man who now appears to be innocent? Or is it this Court's duty, when faced with compelling new evidence of a condemned man's innocence, to consider whether it is still appropriate to execute him—"
"What about AEDPA?" Sanders interjected sharply. "It's very clear that its wording sets forth a precondition to considering new evidence of innocence—that the original trial denied Mr. Price a constitutional right, such as the effective assistance of counsel."
"Let me pose a hypothetical," Terri replied. "Suppose this Court was absolutely certain that new evidence showed Rennell Price to be innocent but that Mr. Pell insisted the Court ignore that evidence unless Mr. James's deficiencies kept Rennell's innocence from coming to light at the original trial. I do not believe that AEDPA can—or should—be read to require execution of the innocent—"
"That's not this case," Sanders retorted. "Your client's innocence is hardly certain."
"Then the difference is only a matter of degree. The evidence of Rennell Price's innocence is at least as compelling as the evidence of his guilt." Terri paused, to emphasize her final point. "But the evidence of Mr. James's ineffectiveness—beginning with his own admission—is also compelling. So this Court need not resolve the vexing question of freestanding innocence."
Her invisible audience fell momentarily silent. "It is a vexing question," Sanders concurred in more contemplative tone. "Your petition raises a number of them. Please give us a moment to confer."
Terri's hopeful glance toward Chris was met by a reflective and, she thought, somewhat worried frown. Across from her, Larry Pell's expression was opaque, Janice Terrell's dubious.
"All right." This time the disembodied voice was Judge Montgomery's. "All of us wish to make very clear that we have not prejudged the merits. But we unanimously conclude that this appeal raises issues which meet our standard for review: 'debatable among jurists of reason.' Which all of us like to think we are.
"Therefore, we are staying the execution of Rennell Price, and granting permission to appeal all claims." Montgomery's voice became peremptory. "Petitioner will file his brief tomorrow; the State will respond by the close of business two days after; we'll hear oral argument two days after that. A written order will follow."
In sheer relief, Terri glanced at Chris. But his expression showed no elation. At once she grasped his reason: the suspicion that Viet Nhu, a judicial gamesman of the first order, was giving his more liberal colleagues enough rope to hang themselves and, with it, Rennell Price—if not soon then in the far less hospitable environs of the United States Supreme Court. But that was tomorrow's problem.
"Thank you," Terri told the panel.
* * *
Returning home, Terri found Elena waiting in the living room with her arms folded, a hostile expression on her face.
"There's a strange man in my bedroom," she said with an edge Terri found hard to define.
Startled, Terri stared at her daughter and then—hearing the echo of pointed sarcasm—realized who Elena meant.
"It's someone from the security firm," Terri said.
"I know. He's putting in a camera so I can push a button and see who's at the front door. I can't wait to show my friends the present my mom gave me. They already think this case is really cool."
Terri studied her. "Sit down," she said.
Elena stared at her, resistant, and then read something in her mother's face. With a show of reluctance, she sat down beside Terri in the matching overstuffed chair.
"A few nights ago," Terri began, "I got a phone call, I think from someone in the Price case. He made some threats—"
"Like what?"
"Just threats—he wasn't specific." Terri's voice softened. "Then he asked if I had kids. It's probably nothing. But that's why we hired a security firm and why you've got a video receiver in your room."
Elena's shoulders hunched; perhaps it was an illusion caused by the overstuffed chair, but to Terri, her daughter suddenly seemed smaller and more vulnerable. "Who is he?" Elena asked.
Terri hesitated and then, though torn, chose to speak the truth. "The second man, Elena—the one I think caused Thuy Sen's death."
Elena blanched, and then outrage overcame her fear, propelling her from the chair. "So now you're afraid he'll do that to me. There's no place I'm safe from what you do, is there? Not even my own room." Tears filled her eyes. "Maybe th
is time I'll die, and then he can be your client."
Terri stood.
"Don't touch me," her daughter screamed. "I just want to be alone."
Turning, Elena ran from the room.
EIGHTEEN
ON SUNDAY AFTERNOON, WHILE THE NINTH CIRCUIT HEARD oral argument in the case of Rennell Price, Carlo Paget worked in his cramped office, drafting a petition to the U.S. Supreme Court to be filed if Judges Montgomery, Nhu, and Sanders affirmed Rennell's sentence of death. The argument had commenced at one o'clock; every fifteen minutes or so, Carlo would glance at the digital clock on his desk and imagine the course of the arguments presented by his father and Larry Pell.
"Why is Dad doing the hearing?" he had asked Terri with genuine puzzlement.
"Watching is going to be hard for me," she had acknowledged. "But he knows the law backward and forward, and he's the best I've ever seen at oral argument on appeal. And who better to argue on behalf of a retarded black man than a white establishment lawyer who doesn't come off like an antideath fanatic?"
This was said without apparent rancor. But it impressed Carlo, once again, with the complexity of the partnership—personal and professional—between his father, on the surface the prototype of a WASP, and the younger Latina to whom little had come easily and whose passions were fueled, despite her current access to privilege, by an outsider's sensibility. He imagined her now as she watched Rennell's fate being determined by others, her anxiety intensified by her inability to speak, and hoped for both Terri's and his father's sakes that Chris's argument was flawless.
At five minutes past two, Carlo glanced at the clock again and realized the argument was now over.
He willed himself to keep writing, undistracted. He was revising the introduction when Terri rushed through his door. "How's it going?" she asked hurriedly.
The question implied to Carlo that his work would be needed. "Close to final," he answered tersely. "Where's Dad?"
"He went home to check on Elena and Kit. I'm all the help you've got."
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