Chris stood straighter. "The proper question, with all respect, is, When do we ignore it when the consequence is death? My answer is, Not here. Not in this case, on these facts—"
"Does freestanding innocence even exist?"
Fini's questions came more swiftly now, forcing Chris to speak from instinct. "First and foremost, I rely on AEDPA—"
"But if we find that Mr. James's performance did not affect the outcome, do you then rely on freestanding innocence?"
"Yes," Chris retorted. "In this case, on these facts, before the State of California is allowed to execute this man—"
"Indeed," Fini pounced, "you also argued to the Ninth Circuit that—absent such a claim—AEDPA, and the death penalty itself, were unconstitutional."
Inwardly, Terri flinched—with one poisoned shaft of a question, Fini had attempted to paint Chris as an antideath penalty zealot, whose radical theories were designed to distort the law. "Only," Chris answered mildly, "if petitioners like Mr. Price are foreclosed from proving their innocence on the theory that the original verdict—though erroneous—was 'fairly' reached. But the Ninth Circuit did not accept this—"
"Nor did they reject it." Fini's voice became ironic. Briefly, he glanced at Glynn. "Would you say—in light of the array of inventive arguments you advanced to the Ninth Circuit, and that Court's apparent willingness to entertain them—that we owe the Ninth Circuit some guidance on this issue?"
The question, Terri knew, was aimed at the swing justices: Fini's hope was that the case would be less about Rennell, or even the issues before the Court, than about the noxious combination of unruly Ninth Circuit judges and advocates like Christopher Paget.
"No," Chris answered with renewed confidence. "The Court's obligations are confined to my client, and based on the opinion before it." Turning, he made a final plea to Justice Glynn. "This is not about the law of capital punishment. Nor is it about what the Ninth Circuit might say in some future case which may never occur. It is about one man, and whether we will execute him—"
"Thank you," Fini said dismissively.
* * *
No sooner had Laurence Pell launched his rebuttal than Caroline Masters broke her silence. "Why shouldn't we agree with the Ninth Circuit that this man is retarded? Are you relying on his impressive score of seventy-two?"
"In part—"
"The man couldn't cope," Caroline Masters cut in. "From day one. Are you arguing that that was a lifestyle choice?"
Pell hesitated. "According to our expert, it was antisocial behavior—"
"Like getting himself tied to a space heater?"
Pell tried to adopt an attitude of patience. "In capital cases, virtually every habeas corpus petitioner portrays his childhood as a Dickensian nightmare. But that doesn't go to retardation. Both the California Supreme Court and Judge Bond found the evidence of retardation less than persuasive—"
"Oh, I know," the Chief Justice said with a wave of her hand. "Judges Sanders and Montgomery just got carried away by Mr. Paget's blandishments, and found Mr. Price retarded under Atkins and innocent under AEDPA. But did they rule on anything else?"
Pell paused, demonstrably unhappy. "Freestanding innocence—"
"As a fallback. Anything beyond that?"
"No."
"So would you agree that this Court need not issue some gratuitous advisory opinion on whatever else Mr. Price's lawyers might have argued?"
Peremptorily, Justice Fini looked from Caroline Masters to Laurence Pell. The lawyer paused again, plainly reluctant to be diverted from his argument by the chamber of horrors conjured by Fini, yet chary of offending his fiercest partisan on the Court. "Such a ruling," he ventured, "could clarify the law surrounding executions."
Caroline Masters gave him a dubious smile. "Perhaps we'd be better off proceeding one execution at a time. All this case requires, I submit, is for this Court to determine whether Rennell Price lives or dies—a weighty enough matter for most of us. But it does make one wonder why we granted your petition."
Nettled, Fini grimaced. Beside him, the Chief Justice finished airily, "But thank you for the enlightenment, Mr. Pell. Case submitted."
All at once, it was over. "So who won?" Chris quietly asked Terri.
Still watching the justices, she touched his hand.
TEN
THE PRICE CASE WAS ARGUED ON A TUESDAY, THE VOTE AMONG the justices scheduled for Friday. But in ways small and large, the uncertainty of its outcome reverberated within the Court.
On Tuesday afternoon, Adam Wendt—finding Elizabeth Burke unresponsive—called another of Justice Glynn's clerks, Conor Farrell, and suggested they shoot some hoops on the "Highest Court in the Land," the top-floor gym reserved for those who worked in the building. Amidst the blare of rap music from a boom box which accompanied a spirited half-court game among the marshals, Adam and Conor played a leisurely game of Horse at the opposite end of the court.
Ever the competitor, Conor grinned at Adam. "Why don't we ratchet up the pressure?" he proposed. "Winner takes the loser to a Wizards game. Or are you wilting under the spotlight?"
"The disciples of Justice Fini," Adam said gravely, "never wilt—"
"Or experience doubt."
The sardonic remark brought a tighter smile to Adam's lips. "Why not this—two Wizards tickets against your justice's vote in the Price case. Think you can swing that, Conor?"
Conor regarded him with a more serious expression. "Doubt is sometimes better than confidence. And I'd never stake anyone's life on my jump shot."
"What about our legal system?" Adam retorted. "How many of these cases can this Court take? How many should it take?"
Absentmindedly, Conor began dribbling the basketball. "Two good questions," he answered. "I think that's what Justice Glynn's asking himself. What he's not looking for, I'm guessing, is a chance to make grand statements. I don't believe that's how your justice will get my justice to sign on."
Which, after graciously losing to Conor, Adam reported to Justice Fini.
* * *
"The Supreme Court," Rennell asked Terri. "What that be like?"
Terri considered this, wondering how to describe the Court to a retarded man in a plastic cubicle. "Grand," she said, "like a church, or a cathedral." Then she realized that Eula Price's modest church in the Bayview was so little like her own that the reference had no meaning. "It has high ceilings," she continued, "with marble statues and pillars everywhere, and drawings of great lawgivers. And there's a long bench for the justices, because there's nine of them."
Rennell strained to imagine this. Softly, he asked, "Those men all be wearin' them black robes?"
The question, Terri perceived, carried echoes of his trial—fifteen years ago, the last man in a black robe, Angelo Rotelli, had sentenced Payton and Rennell to death. And now only Rennell survived, his life hanging on the votes of nine other judges in robes.
"Two of them are women," Terri said. "They really listened hard to everything Chris told them about you."
But saying this revived Terri's sense of deep disquiet. As if he could hear her thoughts, Rennell stared at the table.
She covered his hand. "I've got good news, Rennell. We found you a home—living with a minister a few blocks from our house."
Rennell closed his eyes. "When those judges gonna tell us?"
"June. That's when they'll announce it."
"How long that be?"
An eternity. "Not long. Two months from now, that's all."
"Long," Rennell said wearily. "You tell that minister to wait for me, okay?"
* * *
The next morning, Terri, as was her custom, awoke at 6:00 A.M., before the others, to sip black coffee and read The New York Times.
As always, the Times had appeared on her doorstep, delivered in the hours before dawn. The only difference—which at first Terri barely registered—was that it lay flat on the front porch, unrolled from the tight blue cellophane wrapping, which today lay beside it.
&n
bsp; Pausing, Terri looked up and down the tree-lined street. It was silent, save for the dull, thudding tread of a single jogger, running up the slope of Pacific Avenue in the thin glow of dawn. Pensive, Terri closed the door behind her, and went to the kitchen to pour her first cup of coffee and start reading at the breakfast table.
Lifting the front section from the others, she froze.
A loose photograph lay across Section B, inserted in the paper. Its image, though grainy, was clear enough—an adolescent girl on her knees, performing oral sex on a dark man with an oversize penis, his torso visible only from the waist down. The girl's hair was black like Elena's, her skin as pale.
Fighting back nausea, Terri heard her own brief cry.
ELEVEN
ON THE MORNING OF THE FRIDAY CONFERENCE, CAROLINE MASTERS sat alone in her chambers, reviewing her notes.
Three of the cases were predictable—she already knew where the votes were and believed they would be correctly decided. At least, none of the rulings would deface the law, or bring rancor to the Court which was her charge.
Unless she was lucky, this would not be true in the matter of Rennell Price.
Idly scanning her notes, she pondered the chain of irony and mischance, the changing tides of law, through which one inmate, once a speck in the margins of society, had become the pawn of a fate which dwarfed his own. Then the buzzer sounded in her chambers, as in those of her eight colleagues, summoning the Court to conference.
* * *
As Chief Justice, it was Caroline's role to initiate the discussion of each case which had been argued, outlining the decision under review, explaining her views as to the applicable law, then casting her vote on whether to affirm or reverse. By now this ritual was second nature, one she performed with confidence and crispness, and she strove to treat the case of Rennell Price like any other. But the sharp attentiveness of her colleagues underscored the stakes.
"The Ninth Circuit ruling," she began, "has two distinct components:
"First, that Rennell Price met the burden of demonstrating mental retardation. The effect of that ruling is simply to bar his execution."
Anthony Fini, she saw, smiled slightly—his silent way of objecting to the assertion that Atkins applied at all. "Second," Caroline continued calmly, "the Ninth Circuit agreed with Mr. Price's assertion that new evidence of innocence entitled him to exoneration. As the State concedes that it could not now obtain a conviction, affirming the Ninth Circuit means that Price goes free.
"There are two alternative grounds for doing so. Under AEDPA, the Ninth Circuit held that Mr. Price was entitled to introduce new evidence of innocence—his brother's confession—because Yancey James's performance deprived him of the effective assistance of counsel, and because counsel's failure to offer the confession earlier was not caused by lack of diligence . . ."
Fini's eyebrows shot up, noting what, to him, was clearly a contradiction. Ignoring this, Caroline addressed herself to Justice Glynn, a silent portrait of indecision. "In the alternative," she said, "the majority held that, where the new evidence of innocence is compelling, Mr. Price was entitled to introduce it even if he could not satisfy the predicates of AEDPA—which is to say, even if Mr. James's performance was adequate and, therefore, his original trial was technically fair."
Pausing, Caroline surveyed the others—Justices Ware, Kelly, Rothbard, and Millar to her left; Justices Fini, Glynn, and Raymond to her right; and, at the other end, Justice Huddleston. Leaning forward, she rested both arms on the table. "On the Atkins claim, I vote to affirm. Mr. Price's social history establishes, by a preponderance of the evidence, that he is mentally retarded.
"On the innocence claim, I vote to affirm under AEDPA. That means we do not have to resolve whether a freestanding innocence claim exists, or what the proper standard of proof might be." Her voice became clipped. "To me, this case is hardly a landmark in the law. The only compelling question it presents relates to Mr. Price: will this Court permit the State to execute a man when it concedes that the evidence no longer even supports a conviction? And if we do, what on earth has the law—or this Court—gained? Nothing."
With that, the Chief Justice stopped abruptly, nodding to Justice Huddleston. Her senior colleague spoke slowly and deliberately. "There's been much discussion," he began, "of all the deference we owe to the ruling of the Supreme Court of California. It's boilerplate—less an opinion than a form for approving executions, with the victim's name left blank so the Court could fill it in later. I've seen a dozen of these, and they're all alike. And worth nothing.
"I vote with the Chief Justice."
By custom, the discussion turned to Fini. "Well," he said with a smile, "it's the third inning, and I'm already trailing two to nothing.
"But I should correct some misimpressions." Without overtly noting him, Fini leaned closer to Justice Glynn, speaking in a tone which combined regret with admonition. "This decision is about whether innocent victims like the family of Thuy Sen—a name we seem to have forgotten—will become our victims as well." Abruptly, his voice became biting. "In short, whether California has a death penalty at all, or whether the Ninth Circuit is allowed to practice abolition case by case.
"This last-minute confession is not 'clear and convincing' evidence of anything but Payton Price's desire to live a few weeks longer." Fini scanned the table. "Is this the first death row confession we've ever seen? They're routine. How naĎve can we be? How much mischief will we let inventive prisoners do to our justice system?
"The finding on innocence is an abuse. As for Atkins, our opinion did not state—as required—that it applies to all the numberless habeas corpus petitioners who will now become 'retarded.' And if it does, it requires far more compelling evidence than that presented by Mr. Price.
"This case is poison," Fini concluded with disgust. "Thanks to our system of 'justice,' the Sen family has served fifteen years in a purgatory of our own invention. The vote stands two to one."
Sitting beside Fini, McGeorge Glynn looked so riven that Caroline felt a moment's pity, followed by irritation—in all likelihood, Glynn held a man's life in his hands, and it was time for him to face it. "McGeorge?"
Gazing at the table, he rubbed his fingertips together. "I'm reminded of that hoary cliché—'Hard cases make bad law.' I find both sides equally compelling, and equally perplexing."
And so? Caroline thought. The silence among his colleagues conveyed the common assessment apparent in Fini's taut gaze—that Justice Glynn was about to decide the case. "I've never seen anyone do this," Glynn said at last, "but I'd like to reserve my vote until I've heard more discussion." Apologetically, he faced Caroline. "I could cast a tentative vote for the sake of casting one, but it would only be that."
Startled, Caroline considered the benefits of suggesting that he do so and encountered her own unwonted hesitance—she did not know which way Glynn would jump, and worried about being the one to force him. "No need," she said in a pleasant tone. "If Tony, Walter, and I haven't dazzled you, there're still five of us to go."
She turned to Justice Raymond, knowing that he, too, could become the deciding vote to condemn Rennell Price. "Thomas?"
The rumpled and amiable Raymond—a self-styled practical man—smiled at Justice Glynn. "I'll tread where the brighter of us fear to go. Like you, McGeorge, I can argue this thing either way. But what decides it for me is that I used to be a State Supreme Court judge.
"I wasn't impressed then," Raymond continued dryly, "and I'm not now. We were elected; so are these people in California. We were afraid of capital cases; so are they.
"As Walter suggests, except for the name Rennell Price, the State Supreme Court's opinion could pertain to any case, and tells us nothing about this one. Until they start doing their job, someone should—even if it's the Ninth Circuit." Looking at his colleagues, Raymond finished serenely, "I vote to affirm."
Thank God for Tom, Caroline thought—a sensible man who knows his own mind and who, she felt certain,
would sleep soundly tonight. But Tony Fini had clearly entertained the hope that Thomas Raymond was persuadable; it took Fini a moment to erase his scowl before he turned to his soul mate in ideology, Justice Ware.
As John Ware prepared to break his accustomed silence, Caroline pondered anew the complexities of race, the wounds sustained by John Ware in ways which she could never know. Though sometimes affable, Ware struck her as an angry man. But what made him angry was less racism than his belief that society's sporadic efforts to ameliorate it cheapened his own achievements, condemning him in others' minds—and perhaps his own—to a second-class citizenship he could no more escape than he could escape his race. Yet Ware had risen through the patronage of conservatives who, trumpeting a black man who purported to believe as they did, had taken a judge of more modest accomplishment than any number of African American judges or lawyers and put him on the Court. Knowing this, Caroline suspected, had further tied Ware in psychic knots. But there was one thing she knew for sure—for Mr. Justice Ware, Rennell Price's dilemma was far less vivid than his own.
"In my mind," Ware said tersely, "this is about the respect we owe state courts. This isn't nursery school—it's not our purpose to draw smiley faces on the margins of opinions with the most words in them. I vote to reverse."
The vote stood at three to two. As he butted his head forward, Bryson Kelly's bristles of crew-cut red hair evoked the football player he once had been. Looking directly at Justice Glynn, Kelly said, "Tony and John have spoken for me. We've reversed the Ninth Circuit in case after case, and still we have this problem. To encourage them further is weak-minded. As I used to say when I was in politics, 'Send them a message.' "
Justice Glynn pondered this, eyes fixed on the green leather pad before him. Caroline could sense the swirl of his conflicting emotions: cautious by nature and moderate by inclination, Glynn also suffered from the contradictory impulses of the sweet-souled but weak-willed—the desire to be fair without giving offense, for which he sometimes overcompensated by sudden outbursts of rigidity. How those forces would resolve themselves was as opaque as his expression.
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