Conviction

THREE

READING THE OPINION OF THE CALIFORNIA SUPREME COURT in response to Rennell's petition, Terri experienced the jolt familiar to death penalty lawyers. Even though she had tried to steel herself against disappointment, the cold reality of the judicial approval of a death warrant, set forth in typed print on a single page, made her feel queasy.

"One sentence," Carlo said from over her shoulder. "A man's life, and all these issues, and they blow it off with 'each claim is denied on the merits.' "

A few words of legal shorthand, Terri thought, a concise staccato that did not reveal the Court's reasoning or suggest the seriousness of its decision. Only the swiftness of its issuance bespoke the fact that Rennell's execution was days away.

Contemptuously, Chris tossed the page toward a corner of the room. "At least our clemency petition is in."

Terri gazed out the window of the conference room. Through a dense fog, rain spattered on the glass, droplets zigzagging down the ten-foot panes. "Okay," she said emphatically. "They've given us what we needed to file in federal court—today. All we have to do is fill in the part of our brief reserved for their considered wisdom."

"That shouldn't take long," Carlo said.

* * *

Within two hours all that remained was to photocopy their revised habeas corpus petition and their application to the Ninth Circuit Court of Appeals for permission to file the petition before Judge Gardner Bond of the United States District Court. The most important part of which—and all that stood between Rennell Price and lethal injection—was his plea for a stay of execution.

This knowledge, Terri supposed, accounted for Carlo's unwonted silence. "I can't believe it's down to this," he finally said. "That if the same Ninth Circuit panel which turned down Rennell's first petition refuses to let us file this one, it's over. No recourse—no petition for rehearing or to the U.S. Supreme Court."

"That's because AEDPA bars them," Terri answered. "Another of its unique efficiencies, intended solely to end matters: if the same three judges turn Rennell down again, they can't be reviewed by anyone. Their word is literally final."

"Do we have a chance with them?"

"One judge is hopeless, I think—Viet Nhu. He's young, brilliant, a hard-line conservative, and a potential Republican appointment to the Supreme Court. He's also a former clerk for Justice Fini." Terri sipped her coffee. "Fini got him a key job in the Criminal Division of the Justice Department when he was barely thirty. That pretty much tells you where he stands on the death penalty."

"What about the other two?"

"Iffy. Judge Sanders is a moderate. If he thinks we've made a reasonable showing that we might succeed on the merits, he may not be comfortable consigning Rennell to death without some type of proceeding before Judge Bond. Especially on retardation, which wasn't before them last time around." Terri paused, rubbing her temples. "A lot may depend on the third member of the panel."

"Who is?"

"Dead." As her legal assistant rushed into the room with a stack of pleadings, Terri picked up her pen. "Judge Olinger died of a heart attack three days after ruling on Rennell's last habeas petition. Too bad—both in itself and because he was another middle-of-the-roader who might have been persuadable this time."

"So we don't know who the third judge will be."

"No. And won't until the day they rule." Swiftly, Terri signed her name to the original pleading to be filed with the Court, feeling, as she did, the weight these papers carried, Rennell's last chance at life. "Believe it or not, whether Rennell lives or dies this Friday will be settled by computer. That's how they pick the final judge."

Carlo shook his head, silent again.