Conviction

FOUR

ON THE MORNING OF THE HEARING WHICH WOULD DETERMINE whether Rennell Price died in three days' time, Terri, Carlo, and Chris gathered around a speakerphone in the Pagets' conference room. Across the table were Laurence Pell and his cocounsel, Janice Terrell, a cool, angular blonde in her early thirties whom Terri had come to think of as death's understudy.

All five lawyers gazed at the speakerphone, waiting for the three-judge panel of the Ninth Circuit Court of Appeals—hastily assembled in their own conference room in Pasadena—to announce themselves. There was no time for a formal hearing. But the prospect of pleading with disembodied voices struck Terri as the judicial equivalent of imploring three Wizards of Oz, hidden behind the screen of the squawk box. Perhaps they found the distance prophylactic, she thought sardonically—a safe execution, where no one saw Rennell, or even the faces of his lawyers. She still did not know who would replace Judge Olinger.

"Good morning." The voice abruptly issuing from the box was rough with age. "Are the lawyers for the parties there?"

Swiftly, Terri glanced at Chris and Carlo. The man speaking was clearly older than either Judge Nhu or Judge Sanders. Eyes narrowing, Larry Pell stared at the box.

"We are," he answered.

"This is Judge Blair Montgomery," the aged voice responded. "With me are Judges Harry Sanders and Viet Nhu. As fate and random selection would have it, I've replaced Judge Olinger as the presiding member of the panel."

Pell shot Janice Terrell a look of concern. "We've read your papers," Montgomery continued, "as well as the ruling of the California Supreme Court. The first issue we'd like to hear about is mental retardation. In light of the United States Supreme Court's recent decision in Atkins, barring execution of the retarded, why should this man die on Friday?"

"The answer is that he shouldn't," Terri said swiftly. "If shown, mental retardation now bars his execution. The California legislature has adopted no definition for retardation. The California Supreme Court offers none."

Pell began furiously scribbling notes. "At most," Terri continued, "the Court seems to accept that an IQ of seventy-two—despite a standard deviation of plus or minus five—means that Rennell Price is fit to execute. If so, the Court is measuring retardation as though Rennell were taking the college boards—by applying an arbitrary numerical standard of seventy IQ points, which ignores all the evidence of his lifelong inability to learn or cope on his own."

Pell shook his head. "Mr. Price's IQ is above seventy. Under AEDPA, state court rulings are presumptively correct, and the petitioner must rebut this presumption by clear and convincing evidence." Pell leaned toward the box, as if to speak past Montgomery to Judges Nhu and Sanders. "Plainly, the Court did not find the evidence convincing. AEDPA does not allow this Court to second-guess them."

"Indeed." The Asian-accented voice, sibilant and precise, was Judge Nhu's. "But does Atkins even apply to Mr. Price? For a new ruling such as Atkins to be retroactive—that is, applicable to defendants on habeas corpus, like Mr. Price—the Supreme Court must expressly say so in the ruling itself. Atkins contains no such statement. Why then, Mr. Pell, should this Court even allow Mr. Price to raise it?"

Though pleased, Pell seemed as startled as Terri. "Because in the Penry case," she interjected, "the Supreme Court said that if the Court later barred executing the retarded—as they did subsequently in Atkins—that ruling would be retroactive . . ."

"True enough." Montgomery's tone was deceptively benign. "Perhaps, Mr. Pell, you can explain to Judge Nhu—and certainly to me—why the Supreme Court didn't mean what it said in Penry, and therefore why this Court should allow the State to execute Mr. Price without a more thorough review of his intellectual capacities."

Pell hesitated, caught between the chance of victory offered him by Judge Nhu and the risk of antagonizing Montgomery with an argument that, but for Nhu's encouragement, he would never have dared to make. On either side of her, Terri saw Chris and Carlo looking anxiously toward Pell.

"The Supreme Court," Pell ventured at last, "cannot be deemed guilty of an oversight. Judge Nhu is correct—their silence in Atkins speaks for itself."

"I might sleep a little better," Montgomery observed dryly, "if they'd spoken about Penry. Or if the California Supreme Court had so much as mentioned it in the single sentence they devoted to condemning Rennell Price. But let's move to another matter—whether Mr. Price's new evidence creates a serious doubt that he's guilty of anything but being slow."

"Let's do that," Nhu amended sharply, "with respect to what AEDPA demands of you, Ms. Paget. First, whether your claim of innocence is based on facts which none of Mr. Price's prior counsel—in the exercise of due diligence—could have discovered before."

"That's simple," Terri answered. "That Payton Price remained silent for fifteen years is not the fault of Mr. James, or of Kenyon and Walker—"

"Precisely." Nhu's tone bespoke the triumph of a didactic law professor curbing a bumptious student. "When you concede that Yancey James did not have the benefit of Payton's death row confession, how can you claim that your client was convicted because Mr. James, to use the vernacular, 'blew it'?"

"We're getting dangerously close," Montgomery interjected with veiled sarcasm, "to actually considering the facts—including whether the State is about to execute an innocent dupe. But perhaps the People can protect us from such a painful exercise. For example, Mr. Pell, might Mr. James—short of extracting a confession from Payton—have honored Rennell Price's claim of innocence by investigating Mr. Fleet, whose implication of both brothers may have spared him from taking Rennell's place in this somewhat baleful proceeding?"

Carlo, Terri saw, was smiling grimly at the table. But though Blair Montgomery's participation had to be viewed as a stroke of luck, the dynamic of this hearing—a battle between Montgomery and Nhu, with the opposing lawyers as their surrogates—was made even more unpredictable by the silence of Judge Sanders.

"The requirements of AEDPA," Pell responded, "are not a technicality but the will of Congress. If Yancey James could not have discovered Payton Price's confession, Rennell Price cannot show that James was inadequate, and therefore fails that requirement of AEDPA. Conversely, if Rennell now complains that James should have questioned Fleet's credibility, that is not 'new evidence' at all, and therefore should have been presented earlier. Because Rennell Price fails both tests under AEDPA, this Court cannot consider his claim of innocence."

"Let's get to that," Montgomery said crisply. "Assuming, Ms. Paget, that you do satisfy the prerequisites outlined by Mr. Pell, why does Payton's confession entitle your client to go free? Or, at least, to receive a new trial?"

"And while you answer that," Judge Nhu cut in, "perhaps you can explain why that confession is 'clear and convincing' evidence of his brother's innocence."

Terri knew that her next few words might mean Rennell's life or death. "Your Honors," she began, "there is no direct evidence of Rennell Price's guilt. In fact, the only admitted witness to Thuy Sen's death, Payton Price, claims that Rennell was sleeping." She paused, slowing her speech for emphasis. "The key witness against Rennell was Eddie Fleet, who admitted disposing of the body. We know that he escaped prosecution by fingering Rennell Price. We believe—and there is nothing to refute us—that Fleet could testify in such persuasive detail because he was the actual murderer.

"Under this circuit's holding in Carriger v. Stewart, Rennell Price is not required to affirmatively prove his innocence but simply to present sufficient evidence of innocence to 'undermine confidence in the outcome of the trial'—"

"Or," Nhu interrupted, "put another way, that Mr. James's supposed failures 'probably resulted in the conviction of one who is actually innocent.' Does Ms. Paget's new evidence suggest that probability, Mr. Pell?"

"The eleventh-hour accusation," Pell asked rhetorically, "of an admitted murderer of a child, made against a witness he also tried to have murdered? Of course not. This is a last-ditch effort to have the State of California do to Eddie Fleet what Payton Price couldn't do himself—exact jailhouse revenge. The very kind of abuse AEDPA is meant to stop." Pell sat back, palms on the table, speaking with renewed confidence. "Fifteen years ago, the Superior Court of California held an utterly fair trial, after which twelve jurors condemned Rennell Price to death. Three times since—on direct appeal, on a prior petition, and now on this petition—the California Supreme Court has upheld that judgment. It is time to end this matter, today."

"So soon?" Blair Montgomery asked. "Carriger rested on a standard enunciated by the U.S. Supreme Court: whether, given the new evidence, 'it is more likely than not that no reasonable juror would have found the defendant guilty beyond a reasonable doubt.' On the evidence before us today—which Ms. Paget fairly described—could you, as a juror, convict Mr. Price in good conscience?"

The question, stunning in its directness, caught Pell short. He glanced at Janice Terrell, who bit her lip. "The California Supreme Court," Pell ventured, "decided as a question of fact that the 'new' evidence of innocence was insufficient."

"I know all about AEDPA," Montgomery snapped. "I know all about the California Supreme Court. I even took the ten seconds or so required to read its opinion—in its entirety. So please answer my question."

Pell shrugged, a silent gesture of helplessness. "I can't put myself in the place of a juror," he answered. "My answer is appropriate under AEDPA—this Court cannot say that the California Supreme Court's refusal to believe Payton Price's confession is in error, and therefore should not overrule it—"

"If it doesn't," Terri cut in, "then even this cursory opinion is beyond review. So it is well to ask on what basis this Court should 'defer' to the California Supreme Court.

"Its hearing on the facts? There was none.

"The reasoning of its opinion? There is none.

"Its record in death penalty cases?" Terri's voice became quietly scathing. "There, at last, we have something to go on.

"The State Supreme Court reverses less than ten percent of all death penalty convictions. Of the other ninety percent, the federal courts—including this Court—have reversed almost two-thirds, the highest reversal rate for any state supreme court in the country."

Terri looked at Pell directly. "The State of California has, again and again, hidden behind the shield of AEDPA. 'We're entitled to a presumption of correctness,' the State tells us. 'So please don't look too hard at the facts. After all, we don't.' "

Though Pell's calm demeanor was unchanged, he seemed to grip his pen more tightly. Terri turned to address the plastic box. "Fifteen years ago, an old woman—now deceased—saw two black men across the street, and thought one of them was Rennell Price. Without explanation or the inconvenience of a hearing, the California Supreme Court dismissed—in a single sentence—compelling evidence that she was wrong. That single sentence is entitled to the precise amount of 'deference' it deserves, and nothing more."

For the first time, no immediate questions issued from the squawk box. "Mr. Pell," Judge Montgomery said at last, "if this Court concludes that Mr. James's defects did not affect the outcome of the trial, are you saying that—under AEDPA—we are barred from considering whether Rennell Price is innocent?"

Briefly, Pell hesitated. "Yes," he answered without apology. "Under AEDPA, there is no right to a new determination of guilt or innocence as long as the original trial was fair. This one was."

"No exceptions?"

"If there is one," Pell said dubiously, "it would require evidence so compelling as to make clear beyond all doubt that the petitioner is innocent. That's not this case."

"Thank you," Montgomery said dryly. "That's admirably straightforward."

"So it is," Judge Nhu said in a more approving tone. "Let me ask the Attorney General to respond briefly to Rennell Price's somewhat contradictory assertion that—if he did help cause Thuy Sen's death—an abusive childhood made him so dependent on Payton that it cuts against imposing the death penalty."

"This is nothing new," Pell answered. "All the evidence cited by Ms. Paget was available in 1987. Even if Mr. James failed to present it, Kenyon and Walker presented some of it and could have presented more. AEDPA says enough is enough."

"And so it is," Montgomery said brusquely. "We can rely on the papers before us on that issue, and on the other claims raised by Mr. Price. Before we conclude, is there anything else anyone cares to say?"

For all Terri could tell, Judge Sanders had slept through the entire hearing. Nonetheless, she framed her final words for him. "Simply this. If this panel denies permission to file, Rennell Price will die on Friday.

"He'll die even though we've made a substantial showing that he's retarded.

"He'll die even though there's substantial new evidence that he's innocent.

"He'll die without any court ever giving him a hearing on those claims." Terri drew herself up. "That, Your Honors, is the nearest thing to a summary execution I can imagine. It substitutes finality for justice. Its only 'virtue' is to remove one more human being from the system which, at bottom, exists to protect him, not to erase him."

"Mr. Pell?" Montgomery asked.

Pell glanced at his notes. "According to the United States Supreme Court, in the words of Justice Fini, granting a stay of execution on a second habeas corpus petition is 'particularly egregious' unless there are 'substantial grounds' on which such relief should be granted. The California Supreme Court has already found that this petition fails.

"AEDPA exists to keep federal courts from being bogged down in endless death penalty litigation—however heartfelt." He leaned forward. "This case is no different. Fifteen years ago, a nine-year-old girl was murdered. Fifteen years is time enough for justice. For her, and for her family."

"The application is submitted," Judge Montgomery pronounced. "We expect to rule within the hour, by telephone."

The squawk box went dead.

An awkward silence descended on the room. "Well," Terri said at length, "we've got an hour to kill."

The others shifted, discomfited. "How're your kids?" Pell asked of Terri and Chris, flashing a brief smile at Carlo. "I mean the ones who haven't gone bad yet."

Let's start with Elena, Terri thought to herself, who hates me for what I've been doing here. "Oh, they're fine," she said. "And yours?"

"Good. Julie's seven and in ballet school, and so serious I can't smile at her recitals, even when the kids make me want to laugh out loud." Amiably, he turned to Carlo. "How do you like the practice of law?"

"Depends on the day." Carlo glanced at his watch, then at the squawk box. "Can't say I've laughed in a while."

Janice Terrell raised her eyebrows, as though noting a display of bad manners. Silently, Terri blessed her stepson for casting a pall on the chitchat through which lawyers pretended to rise above their differences.

The telephone rang.

Terri hit the button on the speakerphone. "Teresa Paget."

"This is Judge Montgomery. Are both sides there?"

"Yes," Terri answered in a tight voice. "We are."

"Very well." Montgomery paused, his tone soft and grave. "We've reached our decision."

Briefly, Terri closed her eyes. "By a vote of two to one," Montgomery continued, "Judge Viet Nhu dissenting, this Court stays the execution of Rennell Price and grants his counsel permission to file a petition for habeas corpus—on all issues—before United States District Judge Gardner Bond."

Carlo bent forward, hands covering his face. But Terri kept herself from showing any emotion. Pell, too, remained impassive, making notations on his legal pad.

"A written order will follow," Montgomery finished. "Thank you, all."

The phone clicked off.

"The Ninth Circuit's done it again," Terri heard Janice Terrell murmur in disgust.

Scraping up his papers, Pell mustered a fatalistic smile. "Congratulations, 'all,' " he said across the table. "See you in court, as they say."

* * *

It was not until the next morning—two days before what would have been his date of execution—that Terri was able to see Rennell.

She gazed into his eyes, encouraging him to take heart. "Your execution's been put off," she told him. "At least for now. The judges heard what Payton said. Payton saved you, Rennell, just like he wanted to."

Rennell's eyes widened. With painful slowness, he struggled to comprehend. In a tentative voice, he asked, "You mean I can leave here?"

Heartsick, Terri shook her head. "Not yet. What it means is that you should take care of yourself, do what Payton asked." She took his hand, speaking softly. "The important thing is that no one's going to take you from here on Friday. You're safe from that, okay?"

The first light seemed to seep through his depression and with it, Terri hoped, renewed appreciation of the chance to live. "What they gonna do to me?"

"Keep you here, for now." Terri forced herself to sound confident. "I'm going to see another judge, tomorrow morning. I'll do my best to make him understand who you really are."