Conviction

TWENTY-TWO

THE NEXT MORNING, WITH FOUR DAYS REMAINING BEFORE PAYTON Price was scheduled to die by lethal injection, Terri applied with Payton's lawyer, Paul Rubin, for a stay of execution from the same federal district judge who had denied Rennell's prior habeas petition.

She, Carlo, and Chris had worked until three o'clock that morning, assembling the legal papers which outlined Payton's confession and her meeting with Eddie Fleet. The risk of filing was clear: that exposing Payton's accusation of Fleet would, if Fleet learned of it, end any chance of entrapping him. But there was no more time. So at 10:00 A.M., her nerves jangled with coffee, Terri found herself in the chambers of Judge Gardner W. Bond, as crisp and imperious as the pin-striped suit and starched white shirt which were his uniform, his peremptory gaze trained on those who gathered around his conference table—Bond's supplicants, Terri, Rubin, and the Assistant California Attorney General Laurence D. Pell—as well as the impassive female court reporter he had summoned to record his rulings.

With his gold wire-rim glasses, neatly clipped, graying brown mustache, and an erect posture which made him seem to tower while sitting, Gardner Bond often seemed to Terri less a person than a series of poses intended to convey his pride of place, the conviction that a well-ordered world was best run by men whose stringent sense of law was unleavened by sentiment and sloppiness of thought. But Judge Bond's sense of law—just as subjective as Terri knew her own to be—had been tempered on the forge of the Federalist Society, whose conservative philosophy held the death penalty to be redemptive of good moral order. At least the knowledge that Payton Price would die—perhaps quite soon—made Bond's behavior less peremptory than was his norm. Of course, Terri thought unkindly, the judge knew himself to be in good hands: those of death's bureaucrat, Larry Pell.

Pell was African American, a former college quarterback with keen eyes, a pleasant but somewhat guarded expression, and a gift for swaddling executions in what Terri considered sanitizing legalisms, making lethal injection sound like the resolution of a boundary dispute. Aside from a healthy professional respect for his skill in preserving executions, what Terri felt for Larry Pell was less dislike than bemusement: she could not understand how a black man could devote his professional life to making cosseted white males like Gardner Bond even more comfortable in their assumptions. But then life was full of such quandaries, not the least of which, in Terri's mind, was the pervasive and quite persuasive rumor that Gardner Bond, steward of the right-wing moral order, was a closeted homosexual.

"Your Honor," Pell told him calmly, "Payton Price can't get a stay of execution on his own merits. So he's piggybacked on his brother, Rennell, to save himself by claiming, incredibly, that he's been keeping Rennell on death row all these years in order to save himself. The sole consistent theme is 'whatever it takes to cheat death.' "

Gardner Bond turned to Terri, fingers steepled in front of him. "What's so compelling now, Ms. Paget, that the Court should be constrained to keep Payton Price alive?"

"The fact that he will die," Terri said flatly. "Either in four days or whenever his brother's second habeas corpus petition is resolved." Swiftly, she glanced at Rubin. "As Mr. Rubin can tell you, Payton Price has directed him not to pursue any further avenues to avoid execution—"

"As if his confession hadn't foreclosed them," Bond interjected.

"Then it's hardly a 'convenience,' is it?" Terri angled her head toward Pell. "Even from the State's point of view, what interest is greater—executing Payton Price as swiftly as possible, or ensuring that it doesn't execute an innocent man? Mr. Pell's argument comes perilously close to asking this Court to bury Payton Price so that the State of California can bury its mistake."

" 'As swiftly as possible'?" Pell echoed in an incredulous tone. "Fifteen years—during which Payton Price could have spoken out any time he wished? What of the State of California's interest in justice? What of Thuy Sen's family—awaiting justice? We'll be happy to let Ms. Paget depose Payton Price before he dies. It should be enough for her purposes to let his words live after him."

Pell's argument, Terri thought, was more raw than normal. "Words aren't enough," she answered. "It's important for a court to judge Payton's demeanor—the conviction of his testimony, the persuasiveness with which he answers the State's questions. That can only be captured by seeing and hearing a living witness."

Bond pressed his steepled fingers to his lips, a gesture of contemplation which Terri thought both stagy and overfastidious. "Would you consider a videotaped deposition, Mr. Pell?"

"We're opposed to that," Pell answered crisply. "A transcript will preserve what is said. A videotape serves only the kind of media public relations campaign which all too often pervades these cases—the desperate attempt to influence the legal process by extralegal means."

Fatigue frayed Terri's temper. "I want a living witness for this Court, not for the media. What's desperate is for the State to execute both Payton and Rennell Price in a way that keeps us from ever knowing that they'd executed an innocent man. After all, we wouldn't want the citizens of California to lose faith in our system of justice—"

"That's uncalled for," Pell said swiftly.

"Then so is your indecent haste to execute the only witness to my client's innocence." As Bond held up a hand in warning, Terri paused, her next words clear and calm. "My point, Your Honor, is that Payton confessed six days ago. Our inquiry is just beginning—including into Eddie Fleet, the potential second murderer, upon whose very dubious testimony the State's case depends. This Court should see Payton, Fleet, and any other witness for itself before determining Rennell's guilt or innocence."

"This is not a trial," Pell rejoined. "Five courts have, effectively, found Rennell Price guilty: the trial court, the California Supreme Court, this Court, the Federal Court of Appeals, and the U.S. Supreme Court. He had his trial fifteen years ago."

The reporter's fingers tapped swiftly now.

"He should have another," Terri shot back, "if new evidence suggests that verdict was wrong. In the meanwhile, this Court can allow Payton Price to take a polygraph—"

"They're not admissible as evidence," the judge remonstrated. "You're well aware of that."

The opacity of Bond's expression made Terri more anxious yet. "True, Your Honor. But it may be indicative of Payton's veracity and, therefore, whether his life should be preserved until his brother's petition is resolved."

Bond raised a dubious eyebrow in Pell's direction, inviting a response. With the serenity of a man who sensed himself winning, Pell replied, "Any sociopath can pass a polygraph. That's why they're not admissible in court. Payton Price should not be permitted to use this discredited tool as a 'life preserver'—"

"He's going to die," Paul Rubin burst out in anger. "Do you understand that, Larry? Do you really think they'll abolish the death penalty before you can kill him off?"

"That's enough," Bond snapped. "Next time you would care to be heard, Mr. Rubin, ask first. You might also stop to consider what you wish to say, and to whom you wish to say it. This is a court of law, not a school yard."

Of course, Terri thought to herself. At whatever cost, the decorum of death must be preserved. But Rubin's outburst had not helped her position. "Your Honor," she tried again, "the State of California wishes to execute Rennell Price. His guilt or innocence is what's important here—not 'sanitizing' the process by eliminating such unseemly spectacles as polygraphs and videotapes. Let alone, Lord help us, a living witness to his innocence. The State's priorities are skewed."

Bond sat back, surveying the lawyers, his expression closed to further argument. "The interests of the parties," he admonished Terri, "are for this Court to balance. Including those of the victim's parents, who have no voice but Mr. Pell, and who would only suffer more from needless publicity and unwarranted delay. And your argument, Ms. Paget, prematurely assumes that your client's next petition will, under the AEDPA statute, prove meritorious enough to be heard at all. Let alone granted.

"Mr. Pell is not attempting to suppress Payton Price's testimony. By order of this Court, you'll have his deposition—two days from now." He turned to Pell. "And four days from now, by order of its Supreme Court, the State of California may carry out his sentence."

"Thank you, Your Honor," Pell said swiftly, the rote obeisance of an advocate. Terri could not bring herself to emulate the courtesy.

* * *

Afterward, Terri, Rubin, and Pell left Bond's chambers together, silent until they reached the long tiled corridor outside his courtroom. For a moment the only sounds were the click of Terri's heels and the deeper echoes of the two men's hard-soled shoes. "Tell me," she asked Pell, "have you ever witnessed an execution?"

He looked at her sideways, curious. "Why should it matter?"

"It just seems funny to me," Terri said. "Like a football coach skipping the postgame celebration."

Pell's slight smile was defensive. "I don't have to see it to believe in it. Have you ever watched a client die?"

"No."

"Then isn't that like a doctor abandoning her patient because the operation failed?"

"No," Terri answered. "It's like a lawyer who's still trying to stop the process you've chosen not to see. I guess it helps your side 'believe' if death remains invisible. So why not put yourself to the test?"