"So," the white-haired justice said, folding his hands across his comfortable belly, "you're in need of spiritual counseling."
"It's the Price case, Walter. Tony's gone to work on McGeorge. I don't want the law, or my Court, to go where Tony wants to take it. But I'm still fairly new here. I'm not sure of how much, or how little, to do."
"That's what Fini counts on—plus the fact that you were narrowly confirmed and still have to feel your way. But he also tries to intimidate the others with his brilliance. Your strength is that you're smoother and more patient—not that Tony sets the latter bar very high." Huddleston's tone filled with bemusement. "To me, Tony Fini is Mussolini clad in bonhomie—self-satisfied to the point of inhumanity. But he tends to genuinely like his peers, excepting me and possibly you, and to treat them with real affection. That means something to McGeorge—he's fundamentally a sweet man and, since his wife died, a lonely one.
"With respect to the Price case, the key to understanding McGeorge is that he's also a romantic. From his fortunate birth to his smooth career, everything in his life has conspired to make him believe that the world—including our system of justice—is fairer than it is. But if he truly believes that some case exposes a genuine problem in the way the system works, his sympathies become engaged." Placing his hands behind his neck, Huddleston concluded, "That's what you may need to do—make this case seem real to him. As decorously as possible."
"So what do you suggest?"
Huddleston gazed at the ceiling. "The American Ballet Theatre is coming to the Kennedy Center. Before Frances died, the four of us would always go." Pausing, he looked back to Caroline with a smile. "I'll have to clear it with Bonita. But perhaps we can sacrifice our two tickets for the sake of Mr. Price. And, of course, our Court."
EIGHT
ON THE MORNING OF THE ARGUMENT, CHRIS, CARLO, AND TERRI took a limousine down Pennsylvania Avenue toward the Supreme Court.
Chris was quiet. Mentally, he reviewed the precepts of his argument. Prepare to be peppered with questions, to answer each one crisply and move on. Don't expect to make your points in the order you had planned. Keep your legal theories as narrow as you can. Answer hypotheticals with care, avoiding traps. Avoid sweeping statements about justice which would draw the ire of Justice Fini. Oh, yes, and keep calm.
He was as ready as he could be. Every day for the last week, he had practiced as Terri, Carlo, and two professors of constitutional law had interrupted with question upon question. "Mr. Paget," Carlo had asked before he finished his first sentence, "are you adopting the reasoning of Judges Montgomery and Sanders with respect to freestanding innocence—?"
It was Fini's question, of course. Now, once more, Chris rehearsed the answer.
* * *
At twenty minutes before ten o'clock, the Pagets entered the Great Hall, designed to provide an inspiring entrance to the courtroom—towering monolithic columns, a lofty doorway framing a view of the justices' bench and the clock behind it.
The Pagets passed through. As the press gathered and spectators filed in, the courtroom seemed to await the justices themselves. Amidst the murmur of anticipation, Carlo absorbed a setting which, until this moment, he had seen only in photographs.
The forty-four-foot ceiling created the sense that he had entered a cathedral of the law. On the walls to each side a procession of historic lawgivers—Hammurabi, Charlemagne, Moses, Solomon, Justinian, Mohammed, and to Carlo's astonishment, Napoleon—gazed down on him like secular saints. Behind the bench was a red curtain through which the justices would enter and, above that, an ornate frieze depicting allegorical figures representing the Defense of Human Rights, the Protection of the Innocent, the Safeguard of Liberty, and of course, Justice. Carlo could only hope that the all-too-human figures who would gather beneath them would—in at least five instances—personify these ideals for Rennell Price.
He pictured Rennell again, a single prisoner in a six-by-six cubicle three thousand miles away, and wondered if their client was any more real to the justices than they were to him.
* * *
At ten o'clock, the marshal of the Supreme Court, wearing formal morning clothes, entered the courtroom and intoned, "The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez!"
The courtroom rose as one: Chris and Terri standing at the respondents' table; Laurence Pell and Janice Terrell at the petitioners' table, to their left. Led by the Chief Justice, the justices emerged from the velvet curtain in groups of three and took the nine high-backed leather chairs behind the rich mahogany bench.
"All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God Save the United States and this Honorable Court."
On the bench, Chris knew, a green pad covered the space before each justice, separated from those of the others by wooden dividers. The bench itself formed three panels, two of them wings slanting from the center section, creating a well of intimacy half-surrounding the lectern from which the advocates would speak. Rocking and swiveling, the justices would perform a rite of aerobic listening to the advocates or one another, as the more theatrical among them, particularly Justice Fini, launched brainteasers and witty remarks at the embattled advocates. Within the law, it was the greatest show on earth, filled with drama, surprise, and personality, from which new lines of analysis might emerge, and a lawyer's misstep might presage disaster. When he had first come here, as a law student, Chris Paget had thought of himself and his fellow onlookers as spectators at some bloodless version of the Roman Colosseum, in which the various classes of society—the relatives of the justices, the members of the Supreme Court bar, the press, and seated farther back, mere members of the public—awaited some fatal error by one of the contesting gladiators.
Now Chris thought of Rennell, and came as close to prayer as he was able.
* * *
Flanked by Fini and Huddleston, the most senior justices, Chief Justice Masters called the case of Rennell Price, summoning Laurence Pell for his first appearance before the Court.
Advancing to the lectern, Pell looked appropriately daunted: from Chris's experience, Pell's time would move so quickly that the white light flashing on the podium, a five-minute warning, would startle him; the red light, commanding his immediate silence, would fill him with misgivings as to all he had not said. He, like Chris, would reprise the argument for years to come—one with pleasure, the other with regret. But at least they both would live.
Chris's regrets—should he have them—would be far more searing than Pell's.
* * *
Pell began with a jeremiad aimed at the Court's conservatives.
"This opinion—rendered by Judges Sanders and Montgomery over Judge Nhu's principled dissent—distorts the meaning of AEDPA and denies the California Supreme Court the deference which AEDPA requires. On both counts, this is a virtual act of civil disobedience—"
"Isn't Mr. Price's argument," Justice Glynn asked in unimpressed tones, "that we can't know what impelled the Supreme Court of California to rule as it did? How could the Ninth Circuit defer in a vacuum?"
"Under AEDPA," Pell answered without hesitation, "whether the opinion is one page or twenty, it constitutes a finding that Mr. Price's facts were insufficient to support his claim." Pell's voice filled with emotion. "It is well to remember—after fifteen years—what this case is really about: a nine-year-old girl forced to choke to death on semen—"
"Someone's semen," the Chief Justice interrupted caustically. "What this case is really about is whose. Aren't you asking this Court to 'defer' to the witness Eddie Fleet?"
"And to the jury which found him credible—"
"Before Payton Price's confession. But if we affirm the Ninth Circuit, you won't attempt to retry Rennell Price. Yet you're saying that Mr. Fleet was so credible fifteen years ago—in spite of what we've learned since then—that th
is Court can be sanguine about allowing you to execute Mr. Price."
On the bench, Justice Fini had turned to the Chief Justice, appraising her with a glint of humor. But Laurence Pell did not look amused. "It's a question of finality—"
"Finality to the max," Caroline Masters snapped. "But the trial you rely on was the product of Mr. James's worst efforts."
"The California Supreme Court," Pell insisted, "found James constitutionally adequate—"
The Chief Justice leaned forward. "The California Supreme Court," she said acerbically, " 'found' nothing. Answer my question, counselor—should this Court give Mr. James's performance its seal of approval?"
Pell attempted to gather himself. "The question," he responded, "is whether Mr. James supposed the conflict made any difference—"
"James admitted as much," the Chief Justice repeated with weary patience. "That means we don't have to decide freestanding innocence, doesn't it? Because the trial of Mr. Price was constitutionally defective under AEDPA."
Silently, Chris blessed the Chief Justice: with forensic skill, she had placed Rennell Price on the narrowest, and least contentious, path to freedom.
"Nothing Mr. James did or didn't do," Pell replied, "could have affected Payton Price's decision to confess. Therefore, his conflict did not affect the outcome of the trial, and Mr. Price cannot offer new evidence of innocence under AEDPA."
Caroline Masters summoned a smile of incredulity. "Let's grant—for the moment—your argument that a lawyer who assumes one client's guilt because he believes the other client guilty is good enough for both of them. Are you saying that even if new DNA evidence excluded Mr. Price as the murderer, you still can execute him as long as his original trial was okay?"
Pell hesitated. "In theory, yes. But our office would never do so. And, if we tried, the Governor would grant clemency—"
"Really? Because of DNA?"
"Yes."
The Chief Justice smiled thinly. "So it's okay to execute someone we're just pretty sure is innocent if his trial—however dubious its outcome—was 'fair.' "
With this, Chris thought, the Chief Justice cut to the heart of Pell's argument. Sitting to her right, Justice Glynn regarded Pell with a dubious frown.
"What I'd say," Pell answered slowly, "is that—under AEDPA—that decision should rest with the Supreme Court of California. This Court should not become the court of second guesses."
From the bench, Justice Fini nodded, briefly eyeing Justice Glynn. "Enough of hypotheticals," he said to Pell. "In reality, isn't the entirety of Mr. Price's affirmative evidence of innocence his own brother's extremely belated—and wholly unsupported—confession?"
"That's right."
"Does that 'confession' negate AEDPA's requirement of 'clear and convincing' evidence?"
Heartened, Pell spoke more firmly. "It does not."
"And even if you fabricate a claim of freestanding innocence, the standard for innocence should hardly be less than that of AEDPA, correct?"
"I agree."
Briskly, Chris saw, Fini had both rescued Pell and reduced him to a prop. "Therefore," Fini prodded, "under any theory of innocence, Mr. Price must fail?"
"That's correct."
"All right," Fini said with obvious satisfaction. "So, according to Judges Sanders and Montgomery, the one remaining impediment to Rennell Price's execution is his claim of mental retardation under Atkins?"
"That's also correct."
"Which Judge Bond, Judge Nhu, and all seven justices on the California Supreme Court found unsupported by the evidence."
"Yes."
Fini cast an eye toward Justice Raymond—by Chris's calculation, the swing vote of the Court along with Justice Glynn. "And so," Fini continued, "as is the case with innocence, Judges Montgomery and Sanders stand alone in finding Mr. Price retarded."
"Yes."
"Of course," Fini interjected smoothly, "all of their singular reasoning is irrelevant unless Atkins applies to habeas corpus petitioners like Mr. Price. Does it?"
This invitation to controversy, however tempting, seemed to give Pell pause. Carefully, he answered, "I do not believe that it does. To me, the rule of law is clear—a new principle of constitutional law doesn't apply to habeas corpus petitions unless this Court expressly says so. In Atkins, the Court did not say so."
Chris felt Terri tense—if he could, Fini clearly intended to use Rennell Price to construct a landmark in the law of capital punishment, imposing the death penalty more frequently and with greater stringency. "And therefore," Fini concluded, "Atkins does not ban the execution of Mr. Price, or of any habeas corpus petitioner—even if the petitioner is supposedly retarded."
"That's correct," Pell said to Fini.
To Chris Paget, three justices formed their own frieze of conflicting attitudes: Fini satisfied, Masters antagonized, Glynn torn and deeply troubled. And then the red light flashed on, and Pell's time was up.
NINE
ADVANCING TO THE LECTERN, CHRISTOPHER PAGET FELT THE PROXIMITY of the justices, seated so close to him on both sides that he could not see them all at once. Experience had taught him that their questions, carried through speakers high above him, could seem disembodied from the justices who asked them, identifiable only by voice. But Justice Fini was squarely in front of him.
Turning slightly, Chris spoke to Justice Glynn. "The State of California seeks to execute a man," he began, "in a case where they executed the key witness to his innocence before the witness could be heard in court.
"Where the State's principal witness now invokes the Fifth Amendment.
"Where it refused to immunize this witness so that we could seek the truth.
"And where, it seems, all that matters to the State is 'winning.' "
Magnified by thick glasses, Glynn's eyes seemed to radiate concern. "But," Chris told him quietly, "there can be no 'victory' here. This is a tragic case of human fallibility, where all the components of human error—an appalling crime, an untrustworthy witness, a guilty brother, an incompetent lawyer, an Attorney General's Office bent on 'winning'—have brought a mentally impaired scapegoat to the brink of execution. While an almost-certain pedophile, Eddie Fleet, is free to repeat his crimes."
"So you say," Fini interrupted sharply. As Chris turned to him, Fini's eyes were combative, though his voice seemed to come not from his mouth but from above. "But AEDPA requires 'clear and convincing' evidence of innocence, not proof of imperfection. Where's your evidence?"
"Had Payton Price testified against Eddie Fleet at trial," Chris answered, "Rennell would not be here. Payton's confession takes the prosecution's 'evidence' and turns it inside out: there is no way a reasonable jury—then or now—could find Rennell Price guilty in the death of Thuy Sen. The Ninth Circuit was correct: James's admission of ineffectiveness, and the Attorney General's admission that they could not now convict Rennell, satisfies AEDPA. Such a ruling has no implications for anyone but Mr. Price—"
"Until," Fini interjected sternly, "the next petitioner argues that the Ninth Circuit should once more serve as fact finders, with no regard for the California Supreme Court or—in this case—Judge Bond's careful reasoning. Or are a federal trial judge's conclusions also beneath the Ninth Circuit's notice?"
Justice Glynn, Chris noticed, pivoted from Fini back to him, seeming to second his colleague's question. "Judge Bond's ruling," he answered carefully, "relied heavily on the California Supreme Court, and therefore stands on quicksand—"
"Judge Bond," Fini snapped, "specifically found that Rennell Price's IQ was—at the least—seventy-two. Was the Ninth Circuit also justified in ignoring that?"
"That goes to retardation," Chris answered, "not innocence. As to retardation, the Ninth Circuit simply ruled that the California Supreme Court's opinion—which could have been written on a postcard—was not sacrosanct because of two IQ points." He looked toward Justice Glynn. "Indeed, this case encapsulates the reason for Atkins—a man who now appears innocent was set up by a man
who appears guilty, and then fell victim to a legal process he never understood—"
"Isn't there a risk," Fini asked sardonically, "that habeas corpus petitioners like your client will start faking retardation, drowning this Court in a tidal wave of newly minted idiots?"
Despite the harshness of the question, Chris smiled. "I hope you're not referring to me, Your Honor." Interrupted by laughter, he paused. "As for the other 'idiots,' that's why the mental health profession requires evidence of retardation well before age eighteen—present in abundance here. I cannot conceive of a prisoner so fiendishly proactive that, beginning in grade school, he starts flunking standardized tests and bamboozling his way into special ed classes. Certainly not Rennell Price."
The Chief Justice, Terri saw, suppressed a smile of her own. But Fini, eyes glinting, was undaunted. "Why," he asked, "was Rennell Price—with an IQ above the threshold—incapable of knowing the difference between right and wrong?"
"He does know the difference," Chris answered easily. "That's why insisting on his innocence—as he has since he was eighteen years old—is so important to him. What his retardation impeded was his ability to keep the State of California from putting him on death row."
"The Attorney General," Fini rejoined, "points to the total absence of evidence that the State of California has ever executed an innocent man."
Chris permitted himself the briefest trace of a smile. "Proving that," he said dryly, "has never been the State's foremost priority. But the day may come when—despite their lack of interest—DNA will prove California wrong." Abruptly, his smile vanished. "Semen samples exist here. DNA technology is improving all the time. Rennell Price could be a human time bomb, Justice Fini. If this Court reverses the Ninth Circuit, this could be the case where—at last—we find out that the State of California has killed an innocent man."
At this, Justice Glynn blinked—the complicity suggested by Chris's prediction seemed to affect him physically. "The possibility of error," Fini objected, "hovers over any human process. Why should we allow that to cripple us?"
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