"To begin with," Fini said crisply, "this case involves a horrendous crime—"
"They're all horrendous," Huddleston murmured with a rumble of disdain.
Fini paused, to signal his annoyance, then continued as though Huddleston had not spoken. "—in a case which, to me, is wrongly decided and bristles with contempt for AEDPA. Not to mention whole paragraphs of result-oriented jurisprudence contrived by its progenitors, Judges Sanders and Montgomery."
You just can't resist going after Montgomery, Caroline thought.
"Among the more glaring problems," Justice Fini continued, "the majority concludes that the Atkins bar on executing the supposedly retarded applies retroactively to habeas corpus petitioners like Price; that it owed no deference to the California Supreme Court; that a dubious jailhouse confession establishes innocence under AEDPA; and that, regardless of AEDPA, Price had the right on a second habeas corpus petition to demonstrate freestanding innocence. In short," Fini concluded with disdain, "they tried every intellectual gyration necessary to bar an execution. To countenance such a shabby result is to beg for more—especially from jurists like this creative duo."
"Creative?" Kelly asked rhetorically. "You mean lawless."
Caroline chose to ignore this second breach of manners, another justice speaking out of turn. "Tony," she said to Fini, "do you have anything else?"
"No," Fini answered briskly. "Save that I vote to grant the State's petition."
Three votes to go, Caroline thought. "As Chief," she began, "and given that I'm responsible for the pool memo, I should respond.
"We all know the history between this Court and my former circuit. But it is essential not to personalize this matter." Her tone, though even, contained a touch of acid. "After all, I'm sure none of us believes that our Court's principal purpose is the moral instruction of Blair Montgomery."
Opposite Caroline, Huddleston smiled: in his view, distrust of the Ninth Circuit undermined his hope of saving what remained of the barriers against executing the innocent, and it was best to put this problem squarely on the table. Fini, too, smiled but sourly—he knew, as Caroline did, that the centrists did not wish to appear intemperate.
"As the Ninth Circuit's opinion noted," Caroline continued, "the California Supreme Court offered no analysis of the facts, which the State acknowledges could not—now—sustain a prosecution. The finding of retardation also hinges on the facts. And for this Court to deny Mr. Price a chance to prove, under Atkins, that he is retarded, would be to do what the Ninth Circuit is so often accused of—to go out of our way to achieve a desired result." She paused for effect. "But in our case it would be to execute one man rather than to save him. All of which makes me question why we want to touch this case."
The justices were still now, most soberly contemplating that: Caroline had portrayed a vote to hear the Price case as both spiteful and petty, an act beneath their dignity. "Which brings me," she said smoothly, "to Tony's principal concern—the passage regarding freestanding innocence.
"I make two points. First, the panel's primary ruling is that Mr. Price's evidence of innocence satisfies AEDPA, and rests on a constitutional defect at trial—a grossly incompetent lawyer who, believing Price's brother guilty, had an inescapable conflict of interest. Approving that claim is hardly revolutionary."
Glancing at McGeorge Glynn, she cut to the heart of her argument. "As for the majority's alternative grounds—that Price has the right to prove his innocence, even if the trial was fair—let me pose a question. Does this Court, in this case, truly want to say that there are no circumstances—no matter how compelling the evidence—under which a habeas corpus petitioner who is merely innocent can avoid execution?" Pausing, she held Glynn's troubled gaze. "Executing the innocent is every judge's nightmare. Nothing about the case of Rennell Price would justify this Court in enshrining such a risk."
Caroline stopped abruptly, allowing her colleagues to absorb this. After a sober silence, she looked toward Huddleston. "Walter?"
Huddleston leaned forward. "Practicing rough justice," he said flatly, "is to promote injustice. Denying innocent prisoners the right to prove their innocence is grotesque. I vote against."
Looking about the table, Caroline addressed the others in order of seniority. "Bryson?"
Head butting forward like a prow, Kelly spoke with typical brusqueness. "This case isn't about one man. It's about respecting the Supreme Court of California, and sending the Ninth Circuit a message so clear that we finally get out of the business of having to reverse them. I vote yes."
So far, Caroline thought, the tally was as expected. Addressing Judge Glynn, she reached the first moment of doubt. "What about you, McGeorge?"
Knowing that this vote could be decisive, Fini turned to Glynn with an expression far more imperative than imploring. Fingers clasped, Glynn propped his elbows on the table. "I'm very troubled by this opinion," he said at length. "Were Mr. Price's fate presently before us, I honestly don't know how I'd vote—it's the type of case which, however you decide it, virtually assures a bad result." He drew a breath. "Sometimes, the best way to deal with such a dilemma is to avoid it. This Court has that luxury. With some reluctance, I vote against granting this petition."
Caroline felt a tentative spurt of relief. But were Fini to garner the next vote, Justice Raymond's, the certain vote of Justice Ware would provide the fourth required to grant the State's petition. "Thomas," she said quietly.
Raymond glanced at McGeorge Glynn, seeming to take comfort in Glynn's familiar aspect and, perhaps, his colleague's inherent caution, which in Caroline's jaundiced view, masqueraded as wisdom. "Like McGeorge," he said amiably, "I'm of two minds—perhaps three or four. Which is probably the number of concurrences or dissents deciding this case would provoke." Facing Fini, he said, "I share your concerns, Tony. But even if the panel's decision is a mess, ours could be a bigger one—not to mention that it would become the law of the land. One thing we don't owe America is another piece of junk in an area like capital punishment."
Surprised by this conclusion, much like her own, Caroline saw Fini suppress a shrug of irritation before he trained his gaze on the most junior justice, Millar. Fini's eyes did not waiver when the seventh justice, John Ware, tersely voted yes, or when Miriam Rothbard countered with the no which Caroline had anticipated, leaving Anthony Fini one vote short.
Turning to Dennis Millar, Caroline said evenly, "It's down to you, Dennis."
Lips compressed, her thin, dark-haired colleague studied the papers before him. Tense with anticipation, Caroline prepared herself for the Hamlet-like circumlocutions which, so often, preceded some utterly unpredictable conclusion. "As Tony points out," Millar ventured, "there is a conflict in the circuits, and the opinion does raise serious questions regarding several aspects of AEDPA.
"But what worries me most," Millar went on, "is that deciding these death penalty cases, especially from the Ninth Circuit, seems to trap all of us in a recriminatory cycle . . ."
So don't take this case, Caroline silently urged him. But something in his turn of phrase—"recriminatory cycle"—sounded less like Millar than like Anthony Fini. "I fear for our collegiality," Millar said in a reluctant tone. "Perhaps, as Tony and Bryson suggest, it is time to draw some clearer lines to keep these cases from our door." He hesitated, then finished softly, "To allow us to attempt this—collegially, I hope—I vote to grant the petition."
That was it, Caroline thought. She saw Walter Huddleston quiver with disgust: in a particularly telling display of his notion of "collegiality," Fini had lobbied Millar against casting the fifth vote necessary to stay an execution in another case where four justices, led by Huddleston, had granted the prisoner's petition to be heard. Then, as now, Millar had complied with Fini's wishes: one might say that the prisoner had died from a shortfall of collegiality.
Ignoring Fini's look of triumph, Caroline said calmly, "The State of California's petition is granted," and moved to the next case on the list.
> * * *
Chris and Carlo were waiting at a French brasserie when Terri arrived late from the office, looking tired and distressed. "The Supreme Court is taking Rennell's case."
"Shit," Carlo said softly.
In sympathy and dismay, Chris reached across the white tablecloth to touch Terri's hand. "It's not good," he told Carlo. "At the least, it means that four out of nine justices are inclined to reinstitute Rennell's death sentence."
"Oh," Terri said, "it's a little worse than that. In eighty percent of these cases, the Supreme Court has reversed the lower court. With the Ninth Circuit, their record is twenty-seven in a row."
Carlo put down his beer, as if he could no longer taste it.
* * *
Driving toward the office down California Street, Terri heard her cell phone ring on the console where she had placed it.
The screen read "private caller." Hastily, she answered.
"See you lost again," the familiar voice said. "Time to let the sucker die, or face the con-sequences."
Willing herself to be calm, Terri answered tightly, "And what might those be?"
"The ones that happen to bitches keep huntin' for Betty Sims."
There was no way, Terri knew, to trace the call. "What if I found her? Or her daughter?"
For a moment, the voice was silent. "What if I find your daughter?" it asked softly. "Maybe I'd teach her, and send you the pictures. Close-ups, with her lookin' up at me, eyes as big as her mouth need to be."
The phone went dead.
Shaking, Terri pulled to the side and called Charles Monk.
He was still at the office. This time he did not challenge her, perhaps because of the way she sounded. There was little the police could do, he said, and perhaps her caller was just guessing she had a daughter, trying to strike a nerve. But if he had mentioned Betty Sims, it was time for Terri to fill out a police report.
She drove to the Hall of Justice and did that. But by then, Monk reported the next day, Eddie Fleet had vanished.
FIVE
THE SUPREME COURT HEARING WAS SET FOR APRIL.
Starting in December, when the Court had granted the State's petition, the Pagets shaped their strategy. Proving retardation alone would condemn Rennell to a life in prison; reliance on freestanding innocence might provoke a reversal of the Ninth Circuit, leading to his execution. The only clear path was arguing that their evidence was sufficient to establish Rennell's claim of innocence under AEDPA and—equally crucial—that freeing him under such a theory would in no way alter the law.
The Court would announce its ruling in June. "At least," Carlo said after a long day spent honing their brief, "we'll have kept him alive for six more months." But no one truly accepted this—the Pagets, and Rennell, had tasted freedom.
They visited him daily—Terri or Carlo or, at times, Anthony Lane. Their common goal was to raise his spirits and, with Lane's help, to prepare him for what they still hoped would come: a life outside the prisons where he had spent his life—the one where he now lived, the one where he was born—without the brother who had been his protector and betrayer. As the Pagets labored in the shadow of the Supreme Court, Rennell seemed to grow stronger. He did not know, and they had no heart to tell him, how precarious his purchase on life had become.
And so, on the surface, their lives went on, his and theirs. Rennell read simple stories which had belonged to Elena or Kit. Elena turned fourteen, and in early March, Carlo's new girlfriend moved her clothes into his apartment. The Pagets worked on other cases. There was no sign of Fleet, no calls to Terri.
Yet his specter, and that of the hearing, wound through the fabric of their lives. Elena and Kit went nowhere unattended. Looking for notoriety, self-proclaimed Supreme Court specialists tried to shoulder the Pagets aside; one predator, not fully appreciative of Rennell's limitations, wrote him in prison to offer himself as counsel. Chris and Terri gave the media a spate of stories about Rennell which focused on his innocence, not the pitfalls of AEDPA. But there was another problem wholly beyond their control: whether the Solicitor General of the United States, whose prestige was matchless, and whose mandate included defending federal statutes such as AEDPA, would file a brief in opposition to Rennell, reaffirming the President's support of AEDPA and the death penalty.
This the Pagets dreaded. "In a close case," Chris told Carlo, "the Solicitor General could be the difference."
And so they waited.
* * *
In late March, when the San Francisco Giants opened the baseball season against the Los Angeles Dodgers, the Baltimore Orioles hosted Tony Fini's beloved Yankees. Gifted with two tickets behind home plate at Camden Yards, Justice Fini took Adam Wendt.
The afternoon was sunny, and although it was breezy and a little cool, Justice Fini did not let this spoil his enjoyment of another beginning, in his mind second only to Easter as a sacred rite of spring. Between innings he sat back with his eyes shut, half-smiling, absorbing the smells of hot dogs and spilled beer as sunlight warmed his face. Adam had never seen a man so perfectly content.
"When I was a kid," Fini said, "I'd skip school for opening day at Yankee Stadium. It was the only sin I didn't mind confessing—no God worth worshiping would fail to understand."
Adam smiled. Until the sixth inning, the newness of spring, the timeless geometry of baseball, absorbed every molecule of Justice Fini's being. Then, between the top and bottom of the inning, Fini spoke without taking his eyes off the Yankees' starting pitcher as he began his warm-up tosses. "The Price case, Adam. Looked at the briefs yet?"
Adam balled up his hot dog wrapper and tossed it beneath his seat. "Uh-huh," he answered. "Price's lawyers do a fairly artful job of tiptoeing through the minefield. I'd give them an A minus to the State's B plus."
Fini nodded, satisfied; that the justice now reposed such confidence in his judgment warmed Adam beyond description. Still watching the pitcher, Fini inquired, "So who wins?"
"I couldn't guess. But Price could hold the middle, Justices Glynn and Raymond. His brief does everything it can to give them a way out."
Fini pursed his lips. "Circulate a memo," he directed, "arguing that we should invite the Solicitor General to weigh in."
Adam hesitated. "In this administration?" he inquired with some trepidation. "The President who appointed the Solicitor General also appointed the Chief Justice."
Fini's keen eyes glinted. "True. But even this President, as a senator, voted for AEDPA. And there's a presidential election coming up. There are only two possibilities—that the S.G.'s office ducks the issue or, more likely, comes to AEDPA's defense. The latter could tip my less decisive brethren."
Quiet, Adam absorbed this. What made Fini exceptional was not simply the capaciousness of his mind but its shrewdness and practicality, firmly moored in the world outside the Court. A great justice, Adam saw, must be a great tactician.
Fini still eyed the pitcher. "How's Clemens looking to you?" he asked.
Adam had been watching Fini, not Roger Clemens. "Okay, I guess."
"He's one or two batters short of finished," Fini demurred with a smile. "A manager has to smell blood in the water before the sharks do."
* * *
As the guards eased Rennell Price into the cubicle, Christopher Paget's first reaction was one he had not expected—that this hulking man with a lineless face, a looming presence in the life of Chris's family, was young enough to be his son.
"I'm Chris." Extending his hand, Chris added with a smile, "Terri's husband, and Carlo's dad. You're about all they ever talk about."
Rennell's soft hand enveloped his. But the man's eyes were expressionless, as though studying Chris for clues: though Rennell's life had become his charge, Rennell Price did not know Chris, and Chris did not know Rennell. That had been better, the rationalist in Chris believed—to feel affection for this man, as Terri did, might cloud his judgment at some crucial moment, perhaps before the Supreme Court, when coolness was what Rennell needed most from
him. But now Chris had needed to come here.
He did not know how to begin. "I wanted to meet you," he said at last.
Still Rennell studied him. Perhaps, Chris thought, this man was so attached to Terri that the reality of her husband, an abstraction become flesh, was unwelcome.
"Let's sit down," Chris suggested.
Slowly, Rennell did so. The deliberateness of his movements, his apparent fear of some lapse in coordination, brought home to Chris the vulnerabilities which made the idea of this man's death so difficult for Terri to endure.
"So," Chris inquired awkwardly, "how are you getting along?"
No sooner had he asked this question than its pointlessness overwhelmed him. But all the man in front of him said was "Same stuff, mostly. Waitin' to leave here."
The knowledge that Rennell was ensnared by forces he could not comprehend, and antagonists to whom he was barely more real than they were to him, filled Chris with anger and pity. But there was no way to explain this. "I took Carlo to a baseball game," he told Rennell. "Just yesterday. We were wondering how you'd have liked it."
Rennell nodded—whether out of instinct or merely to avoid speaking, Chris could not tell.
"Ever go to a game, Rennell?"
Rennell folded his hands. Softly, he answered, "Daddy never took me to no games."
Yeah, Chris thought, too busy with that space heater—fun for the entire family. He felt more foolish than before.
"What they like?" Rennell asked.
"Fun," Chris answered with a smile. "There's all kinds of food."
Rennell seemed to ponder this. "Food here's all the same. Sometimes, Grandma, she take me out for barbecue." He hesitated. "Before all this happen."
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