Conviction

THREE

CHRISTOPHER PAGET SAT WITH HIS WIFE AND SON. "HOW WAS your time at Kenyon and Walker?" he asked.

It was late afternoon of the following day, and a slanting sunlight grazed the waters of the bay, uncommonly serene. While Terri and Carlo had reviewed the files of Kenyon and Walker, Chris had amused Elena and Kit by taking them sailing. Now the family gathered on Chris's sailboat moored along the Marina District—Elena sprawled on her stomach reading a fashion magazine, Kit constructing an intricate fortress from Legos, and the three adults gathered around an improvised picnic. Carlo glanced at his stepmother. "According to Terri," he answered with some amusement, " 'just good enough to lose.' "

Turning to Terri, Chris raised his eyebrows. "They should stick to representing Merrill Lynch," she told him. "Assigning them Rennell's appeal was like putting the Good Housekeeping Seal of Approval on his death warrant."

"How so?"

"Because they know enough law to raise all the issues. And next to nothing about digging into a murder, or probing the lives of a dysfunctional black family in a subculture like the Bayview." Terri spread cheese on a cracker, her first nourishment since breakfast. "Laura Finney was right about this much—they made our job on a second petition as uphill as the evil geniuses who drafted AEDPA intended."

To his father, Carlo saw, this was all the explanation required: the acronym AEDPA—pronounced "edpa"—seemed to carry a totemic power. "Walk me through this," Carlo requested. "Terri mentioned it yesterday, but AEDPA's a new concept to me."

"AEDPA," his father answered promptly, "exists to keep folks like Rennell Price from delaying their own deaths. Let alone preventing them.

"The statute has two principal aims: to make state court impositions of the death penalty—no matter how biased or defective—nearly impossible to challenge; and to ensure that after the first habeas petition is ruled on, a second petition—even one based on new evidence of innocence—has almost no chance of staving off an execution."

"All Rennell's got left," Terri interjected, "is a second petition—under AEDPA the dregs of habeas corpus, bristling with restrictions." Preparing another cracker, she continued, "A claim presented in a first petition, however badly, is barred in a second—no matter how skimpy Kenyon and Walker's underlying inquiry. Habeas lawyers can be as lousy as they care to be."

At the corner of Carlo's vision, a seagull was creeping closer along the bow, perhaps preparing to snatch Terri's cracker in his bill. "Mind shooing him off?" he asked Kit. With far too much good cheer, Kit attempted a roar. But only when he half-rose, imitating a scarecrow, did the bird retreat.

"Impressive," Carlo assured his half brother and turned back to Terri. "Go on."

"Second, if Rennell is making an argument that the law has changed—for example, that we no longer execute the retarded—it can be based only on a Supreme Court ruling, and then only if the Court expressly held that it should apply to inmates who've already filed a habeas corpus petition. Otherwise, it's too late—the state can execute you, even if everyone who comes after you in a similar position would be saved—"

"Timing," Chris interjected dryly, "is truly all."

With this, both Terri and Chris fell silent, allowing Carlo to absorb what he had heard. He saw Terri's attention shift to Elena, still lying alone on the bow of the boat. It was a source of real guilt, he knew, that the unrelenting demands of an eleventh-hour death penalty petition all but deprived Elena of a mother. And the facts of this case, should Elena ever learn of them, surely deepened Terri's apprehension. A long moment later, Terri suspended her contemplation of Elena, turning back to Carlo. "Even as to innocence," she told him in a softer tone, "any new evidence must be so 'clear and convincing' that no reasonable jury would have convicted Rennell of murder. 'Reasonable doubt' is out the window—under AEDPA, the presumption of innocence has become a presumption of guilt."

"I had no idea the law of habeas corpus was that bad."

"No one does, except the lawyers who do this work. For the most part, the rest of America sits there, secure in our boundless fairness, believing that we coddle the condemned." Terri sipped from a can of cranberry juice. "We could find compelling evidence that Rennell is innocent," she continued, "and still end up witnessing his execution. Simply because some of the evidence was raised before, however badly. Or could have been raised before. Or because the trial was technically a fair one, even if the verdict was wrong. Or because the possibility of innocence is only fifty-fifty. Or maybe"—Terri picked up a cracker—"just because a three-judge panel of the Court of Appeals is in a crummy mood and won't give us leave to file a second petition under AEDPA. In which case we won't have to bother with all those other problems."

Chris and Carlo fell briefly silent. "How's Elena doing?" Chris asked.

"All right," Terri answered tiredly and then amended, "Not quite all right—there're some problems with her girlfriends. Thirteen's hard, even if you're not her."

"Want me to take her out for Mexican food?" Carlo asked. "We haven't done that in a while. And I've got street cred—she doesn't have to take it on faith that I used to be a teenager."

For a moment, Terri smiled, and her body, slumping slightly, seemed to relax. "That would be great," she told him. "Even if you're ducking work. You can meet us later."

"Who's 'us'?"

"Me. An experienced investigator, Johnny Moore. A Ph.D. in anthropology, Tammy Mattox—she's a mitigation specialist, and her job is putting together an entire social history of Rennell Price and his family. A psychiatric expert, Dr. Anthony Lane. All working around the clock until and unless, God forbid, the clock runs out."

Rising from his Lego fort, Kit crawled into his father's lap, his bare legs dangling above the deck. "I'm cold," he said.

Kissing the crown of Kit's head, Chris took off his windbreaker and draped it over the boy's shoulders. "We'll be going soon," Chris promised.

Such moments, Carlo reflected, summoned his earliest memories of his father. Except that Kit, his brother, looked so like Teresa Peralta. "Death cases are painful," she told Carlo. "I've learned to redefine my notions of success. So should you—because Rennell Price is very likely to die. It helps to believe two things. First, that your client is on death row because of what life dealt him, and he deserves to have that story told. The Attorney General's aim is to ensure that story is never told—to the judge, or to the public. Your job is to make sure he fails."

"What's the second thing?"

"That your client deserves each day of life that you can give him. No matter what he's done, or who he seems to be."

Carlo glanced toward Elena, still reading: noting her isolation, he wondered if she somehow knew about the nature of the case and, if so, how she felt about Rennell's lawyers—her own family. Which, once again, caused him to ponder how Terri would deal with Elena while representing Rennell Price, and with what Carlo knew to be Terri's ineradicable guilt. "Doesn't seem like Rennell can help us much," he said at length.

Terri shook her head. "Neither Yancey James nor Laura Finney tried to build a relationship with him. They just took it as a given that Rennell was sullen and uncooperative, a kind of sociopath. It never seems to have occurred to them that maybe he was frightened, or confused, or just plain couldn't help them because he really doesn't know what's going on. And never did."

"That's our biggest hope," Chris opined. "Proving that Rennell's retarded. It means that he could be manipulated and confused by the police, unable to assist his own defense, unable to knowingly waive James's conflict or comprehend the trial, and prone to look unfeeling to a jury when he didn't know what was happening all around him."

Glancing at Elena, Terri stood, ready to leave—perhaps, Carlo guessed, to sublimate through action some thought too painful to express. "More than that," she told both men, "it's the gateway to explaining his entire life, and our excuse for trying to jam in all the new evidence we can find." Looking down at Carlo, she finished, "If Rennell's still alive in forty-eight days, it'll be because we succeeded. So take Elena to dinner, and then we'll get to work."