Taking the page from her hand, Chris started reading aloud: "Neither the legislature of California, nor its courts, has enumerated any standards for determining whether Mr. Price is mentally retarded. Under these circumstances, the cursory treatment accorded this issue by the California Supreme Court is due little deference from this Court . . ."
"All right," Carlo murmured.
Chris continued reading. "Nor, in this case of first impression, was Judge Bond correct in finding that Mr. Price failed to establish his retardation. Under the appropriate standard—'preponderance of the evidence'—he has done so . . ."
Terri sat down, covering her face. "If this ruling holds up," she told Carlo, "at least Rennell's going to live."
Another sheet slipped into the fax tray. "They're on to innocence," Chris said.
Terri listened to her husband read. "As a preliminary matter, we decline to speculate on what effective counsel might have done to defend Rennell Price, when it is so painfully clear that Mr. James, effectively, did nothing . . ."
"That's the first step under AEDPA," Carlo said quietly.
"Nor can we find a knowing waiver of Mr. James's conflict of interest. There is no sign on the record that Rennell Price comprehended the complex issue to which he gave a rote response . . ."
The words brought Terri to her feet.
"As for the question of due diligence," Chris read, "Payton Price's delay in speaking out cannot be blamed on prior counsel." Taking the next page, he placed a hand on Terri's shoulder. "They're going to consider our evidence of innocence," he told her.
Mute, Terri stared at the paper in his hand.
"Keep reading," Carlo urged his father.
Chris started again. "The standard of proof was previously established by this Court: whether it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt. This does not require absolute proof of innocence but simply that there is sufficient evidence of innocence that this Court cannot have confidence in the outcome of the trial . . ."
Carlo's flesh tingled. "I think we're going to win," he murmured, then felt a superstitious fear that he had said too much.
"Under AEDPA," Chris continued quoting, "Mr. Price has satisfied the predicates which allow this Court to consider his claim of innocence. But even had he failed, the Constitution must allow him to prove—if he can—that he is, more likely than not, innocent of capital murder in the death of Thuy Sen—"
Chris stopped abruptly, reading to himself. Carlo could see his father's misgivings in the narrowing of his eyes.
"Go on," Terri urged her husband.
Chris hesitated, then began again. "By this, we mean innocent under the law, not innocent beyond a reasonable doubt."
"Yes," Carlo said.
Chris put his arm around Terri's shoulder, drawing her close. "In this case," he read to her, "Payton Price's accusation of Eddie Fleet stands unrefuted by Fleet himself. Not only was Fleet unwilling to repeat his allegations but the State was unwilling to compel his testimony through a grant of use immunity.
"Thus the only evidence of Rennell's complicity is the testimony of Flora Lewis, now deceased. In light of Payton's statement, this testimony, in itself, cannot sustain the conclusion that Rennell Price is guilty. Indeed, by conceding that it would not choose to try this case on the current record, the State admits as much."
Carlo emitted a whoop of joy. "Nonetheless," his father continued reading, "we allow the State one month to determine whether to retry Mr. Price for the death of Thuy Sen or to allow him to go free."
Abruptly, Chris fell silent.
Terri could not speak.
"You won," Chris told her gently. But Carlo could read his fear—that by approving a freestanding innocence claim, the Court might provoke the United States Supreme Court to review the case.
Terri mustered a smile. "We won," she corrected her husband. "For now, that's enough."
* * *
Terri sat across from Laurence Pell in the bright but crowded Hayes Street Grill. Picking at his garden salad, Pell said with the slightest suggestion of a smile, "I guess you want me to kick him loose."
Terri marshaled her thoughts. "You really can't retry him, Larry. You can afford to let one go. Do you honestly think he's some sort of pedophile?"
"You know that's not the point." Pell placed a curled finger to his chin. "Here's the problem," he said evenly. "It's not Rennell. It's not even Fleet. It's this: not only did the Ninth Circuit treat the California Supreme Court like it was retarded but they bought your freestanding innocence claim."
Terri felt her spirits sag. "That's only an alternative ruling. The opinion as to innocence also rests on AEDPA."
"The opinion," Pell countered, "is out there. If I don't take this case up to the Supreme Court, in how many other cases will it come back and bite me?"
"A while ago," Terri said softly, "you asked me if I'd ever seen an execution. Now I have. You still haven't. So let me ask you this—would you watch the execution of Rennell Price, knowing that otherwise you'd have let him go free?
"This case is about one man who's suffered way too much already. Please, don't sacrifice him to the system. Let Rennell go."
Pell considered her across the table. "No one can fault your effort," he said at last. "I'll kick it around the office. We don't need to decide today."
* * *
It seemed a lifetime, Terri thought, since she first had faced Rennell in this same plastic cubicle.
"You mean they're not gonna kill me," he managed to say, "like Payton?"
Terri searched for the proper answer. "We won, for now. The Court stopped your execution."
Rennell struggled to comprehend this. "I can just walk out of here, go back to Grandma's house?"
She has no house, Terri thought, and there is no Grandma. "There's one more court the State can go to," she said. "I'm hoping they choose not to—if they do, it may take months. But unless the United States Supreme Court rules against us, you'll be free."
"Free," Rennell repeated softly. "Free."
"Yes."
His smile combined incredulity with fear. "What I do then?" he asked. "Been here so long I don't know free no more. Don't know how that be without my brother."
"I know. But you've got me now."
Rennell averted his eyes, and for a fleeting moment, Terri envisioned him as a bashful child—or, perhaps, a fearful one. "Maybe I could live with you . . ."
Sometimes lawyers did this, Terri knew, to bridge a client's transition. But she was Elena's mother. "We'll figure it out," she temporized. "We thought you could help us at our office. Keep things neat, like you do in your cell."
"Mean I'd sleep there, too?"
Terri hesitated. "There are lots of places." She stopped herself: even a halfway house for the retarded might shy away from a man once convicted, however wrongly, of a sex crime with a child. "Not to live, I mean. Just to help you figure out the world again. There are churches, too. People care about what happens to you. I know a minister in San Francisco who may want you to live there."
The words she could not say, that Elena could never live with him, shadowed her response. Taking his hand, Terri promised, "I'll always be there, Rennell. I'll make sure you're fine."
On the Monday after Terri's outing with Elena, the State of California petitioned the United States Supreme Court to review the case of Rennell Price.
PART FOUR
THE HIGH COURT
ONE
LATE MONDAY AFTERNOON, CHRIS, TERRI, AND CARLO MET around the conference table. "No surprises here," Chris said, then began reading aloud from the Attorney General's petition to the Supreme Court. "This decision resonates far beyond the particulars of the case against Rennell Price. It is a comprehensive usurpation by two Ninth Circuit judges of the role of Congress, of the Supreme Court of California, and by extension, of the United States District Court. It conflicts with the decisions of other circuit courts. And it arrogates
to these two judges the proper role of this Court to determine the rights available to habeas corpus petitioners far beyond Mr. Price."
"Yeah," Carlo remarked to Terri, "it also undermines the war on terror, promotes the teaching of evolution, and opens the floodgates to gay marriage."
Terri did not smile. "Pell is doing what he has to do—make the decision bigger than Rennell. The Supreme Court will take only cases which affect the law as a whole, and he has to persuade four justices that this is one of them."
Carlo considered this. "What's been so weird is watching Rennell become an afterthought. This isn't about him anymore."
"No," Terri concurred softly. "It's about all the sand we're throwing into the machinery of death." To Chris, she said, "What's Pell's argument on freestanding innocence?"
Frowning, Chris flipped the bound pages. "This captures the essence," he told her. "Based on the last-minute confession of a death row inmate—an all-too-common event—Judges Montgomery and Sanders have abrogated Congress's carefully crafted effort to ensure that, after thorough consideration of a prisoner's constitutional rights, a sentence of death is carried out. The result is a legal mutation: an invitation to serial habeas corpus petitions, wherein piecemeal 'new' evidence of innocence is conjured by desperate prisoners and inventive lawyers, and courts are forced to entertain them one by one. If this opinion stands, the fifteen years so far consumed by Rennell Price is only the beginning, and this decision the beginning of the end of capital punishment as we know it." Chris looked up. "That would be a shame."
Terri slowly shook her head. "I can never say you didn't warn me."
"Let it go," Chris answered quietly. "Rennell was forty-eight hours from execution. We had to argue everything we could."
Carlo looked from his father to Terri. "And we've kept Rennell alive. All we need to do now is persuade the Supreme Court not to take the case. I mean, they only grant about one percent of these petitions, right?"
"That doesn't mean much here," Terri told him. "Pell has packaged this as Armageddon, creating an absolute necessity for the Supreme Court to save AEDPA, slap down the Ninth Circuit, and pillory Blair Montgomery." Turning to Chris, she asked, "How many times does Pell mention Montgomery's name?"
Chris smiled faintly. "I lost count."
Carlo stood, stretching his arms over his head. "Can't we crosspetition on the issues we lost? Maybe the Court will look at the whole mess and decide they don't want to consider whether the entire capital punishment system is all screwed up."
"Bad idea," Terri said flatly. "We want to make this case sound ordinary, and Pell sound like he's hyperventilating. Having to defend the ruling on freestanding innocence will be hard enough."
"Terri's right," Chris concurred. "As I read the Supreme Court, Pell has got three likely votes already—Justices Fini, Kelly, and Ware. Rothbard, Huddleston, and the Chief Justice are probably inclined toward us. We have to pitch this case to the cautious middle: Raymond, Millar, and, especially, Justice Glynn—"
"All Pell needs is one more vote," Terri interjected, "and the Supreme Court will take the case. Two votes, and the Court can summarily reverse the Ninth Circuit—without even giving us a hearing. Our best hope is to persuade Glynn, Raymond, and Millar that this case is just about one prisoner, Rennell Price, and nothing to get excited over."
"In other words," Chris said dryly, "that the machinery of death will grind on as before. Just without Rennell."
* * *
Hearing the identity of his caller, Charles Monk chuckled softly.
"Congratulations, counselor. Been reading where you saved that poor innocent we persecuted. Must be on top of the world."
"High on life," Terri said pleasantly. "As it were. Are you really feeling all that aggrieved?"
"Oh, I'll live, too. I'm more sorry for that girl's family. No end to this for them."
"And killing Rennell would be an end?"
"For some families it is, of a kind. You never know before they execute the guy. Or in this case, the last guy." Monk's voice softened. "But you didn't call me to gloat, or argue capital punishment. You want something."
"Other than Eddie Fleet?" Terri answered in a pointed tone. "Betty Sims. I was wondering if you'd found her yet."
Monk laughed again. "Guess you think you haven't got the degree of innocence some judges may be looking for. Pell told me he's taking this all the way to the U.S. Supremes."
"Yeah," Terri said sardonically. "It's an outrage, what those two judges did. Pell still thinks there's at least a chance Rennell might actually be guilty, which is more than enough for him. What about you?"
"Me? I'm sitting here looking at some crime scene pictures—double murder of a mom and kid in the Mission District, domestic probably. Killed with a knife. A whole lot nastier than lethal injection, though at least it came as a surprise to the folks in these photographs." Monk paused a moment. "About Betty Sims, she's nowhere in the Bayview. I don't have much time these days, and my guess is she's long gone from San Francisco. But I'll poke around a little more."
"Thanks," Terri said, her voice revealing more relief than she wished. "Guess you're more curious than Larry."
"Maybe about Fleet," Monk answered. "You know how cops are. Never a good reason to hide behind the Fifth Amendment."
With this remark—perhaps, Terri thought, a tacit jibe at Larry Pell—Monk got off.
* * *
"Betty Sims?" Johnny Moore asked Terri. "Still can't find her. In fact, I've still got nothing concrete that says Eddie Fleet likes little girls."
"Well, he does," Terri snapped. "Take it from this girl."
"I'm turning over every rock I can find," Moore answered patiently. "But a lot of bad things happen to kids no one ever knows about—at least until it's too late."
Terri stood. "We may need this, Johnny. I don't want it to be 'too late' for Rennell." She paused, speaking in a lower voice. "Or for Elena."
There was a long silence. "I understand." Moore's tone was sober and measured. "Anything else?"
"Yeah. Tasha Bramwell."
Moore hesitated. "Sure you want me to find her?"
Surprised, Terri realized that, in her anxiety, the question had not occurred to her. "Why not? It seems to me she's a missing piece."
"But if she knew Rennell was innocent, wouldn't she have said so? Instead she lied—which we've always assumed she did for Payton. What if Tasha knows something about Rennell that you don't want to know?"
"Then I guess I'll have to live with it," Terri answered.
TWO
ON A DECEMBER MORNING WHEN A CASCADE OF MOIST SNOWFLAKES stuck to the ground and crippled much of Washington, Callista Hill arrived at the Supreme Court shortly after seven o'clock. By now, three months into her year of clerkship, Callista barely noticed her surroundings. But when she had first begun they'd stirred a sense of awe: four floors of marble, linked by spiral staircases, and lined with statuary and busts of the Chief Justices. This grandeur obscured what Callista had come to think of as a hermetically sealed environment, housing its own cafeteria, gym, library, wood shop, police force, barbershop, seamstress, print shop, curator, and of course, in-house law office. From the beginning of a workday until its end, perhaps fourteen hours later, Callista rarely ventured outside, nor did the others—including the justices—who labored here.
The rhythms of that work were unvarying. For seven two-week sessions each term—the first in October, the last in April—the Court sat for argument in the cases it deigned to hear. During each week of oral argument, the justices met in conference twice—on Wednesday after hearing oral argument, to debate and vote on the cases argued on the preceding Monday; and on Friday, to resolve the cases presented on Tuesday and Wednesday. But the periods between these sessions were equally intense: this was when the justices and their clerks drafted and polished the opinions which, for better or worse, defined the law for the nearly three hundred million Americans outside this building.
Much of Callista's da
y was spent coping with—or generating—a tsunami of paper: advising the Chief Justice on emergency applications for relief, often requests for stays of execution; writing bench memos to prepare the Chief to hear oral argument; drafting majority opinions, dissents, or concurrences; or commenting on the drafts of majority opinions, dissents, and concurrences circulated by the other justices—each with his or her own philosophy, style, and mode of working with clerks. Caroline Masters insisted that her four clerks be prepared to challenge her thinking and defend their own, which meant that Callista's work life, while stimulating, was even more demanding than that of clerks for some of the other justices. But there was one aspect of the Court's work so overwhelming that it mandated a pooling of resources among the nine chambers of the justices—the flood of petitions for certiorari in civil and criminal cases, roughly one hundred fifty every week, through which litigants defeated in the courts below pled with the High Court to hear them.
Every week, the clerks' office would roll a wooden cart groaning with cert petitions into Callista's office. Her job was to administer what insiders called the "cert pool": the division of these petitions among the chambers by rotation, wherein a law clerk for one of the justices would draft, and then circulate, a recommendation to grant or deny a given petition. In theory these recommendations were based on common criteria: whether the petition presented an issue of broad national importance; or a process which departed in some dramatic way from the commonly accepted operation of law; or was based on a decision which conflicted with the decision of the State Supreme Court, or another federal circuit, or—most remarkably—the United States Supreme Court itself. These criteria eliminated all but a relative handful: the average petition, Callista sometimes thought, had the life expectancy of a sperm. But the recommendations in the toughest cases were, inevitably, colored by the views of the justice, and the law clerk, who drafted it. Which was the reason for another of Callista's tasks—reviewing the recommendations of other chambers with a gimlet eye.
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