Conviction

ELEVEN

THE EXPERT PSYCHOLOGIST FOR THE STATE OF CALIFORNIA, DR. Davis Kuhl, was a slender, dark-haired man in his early forties, with watchful, dark eyes, a prominent nose, and a dispassionate manner which lent weight to his opinions. "My conclusion," he told Larry Pell from the witness stand, "is that the evidence does not support a finding that Rennell Price is mentally retarded."

Terri watched him, pen poised over her legal pad. "In reaching that conclusion," Pell asked, "what methods did you employ?"

Kuhl placed his hands together, fingertips touching. "Extensive testing, obviously. But the essence of my approach is what I call forensic behavioral analysis: to re-create the defendant's behavior in his normal life and—minute by minute—in the commitment of the crime."

"Assumes guilt," Terri scribbled. "Opinion depends on Fleet—"

"There's a somewhat tired joke," Kuhl continued, "about how to tell if defendants are lying. The punch line is 'Because their lips are moving.' " Absently, he began rubbing his fingertips together. "I don't accept that, of course. But their actions can be far more telling than anything they say—or, for this case, anything that Payton Price said when he had nothing more to lose."

"Or Fleet," Carlo whispered to Terri. "When he had everything to gain."

"Kuhl's very selective," she answered dryly.

With a satisfied expression, Pell inquired, "I'd like you to begin with your examination of Rennell Price. What conclusions did you reach with respect to fetal alcohol syndrome or organic brain damage?"

Kuhl shook his head. "Fetal alcohol syndrome tends to affect impulse control, and I found no sign of impulsivity in my dealings with Rennell. Or in his life history as set forth by his own lawyers." Kuhl faced the defense table, as though to underscore his evenhandedness. "Claims of fetal alcohol syndrome and organic brain damage have become commonplace among petitioners in habeas corpus cases. Chaotic and abusive backgrounds, such as those existing in Rennell's family of origin, lend a superficial plausibility to such a claim. But the clearest manifestations of fetal alcohol syndrome are physical features—like a high palate or abnormal eye placement—wholly absent in this man, whose appearance is quite normal. Nor do the MRI and CAT scans we administered reveal any trauma to the brain."

Kuhl's mien of academic neutrality, Terri perceived, was well-chosen for an expert whose role was to preserve the State's right of execution. With a look of approval, Gardner Bond had taken out a fountain pen, making notes of his own.

Pell, too, seemed pleased. "As I understand it, you also find Rennell Price's numeric IQ to be well above the standard for retardation."

"Seventy-eight, to be precise." Giving Terri a deferential nod, he added, "But whether you believe his IQ is seventy-two or seventy-eight, neither score supports his claim to be retarded. Indeed, taken together, they contradict that claim." Cocking his head toward Bond, Kuhl adopted the manner of an expert clearing up confusion. "Dr. Lane himself noted that the improvement in IQ score evinces Rennell Price's ability to learn. Add the fact that he also says—correctly—that IQ is affected by deficits in education, and Rennell's actual intelligence may be higher than either score suggests."

"What about the relationship," Bond inquired, "between Mr. Price's alleged retardation and the reputed acts of abuse he suffered as a child, and in juvenile hall?"

"In my opinion there is no relationship. I also note that the specific assertions of abuse rest almost entirely on the deposition of Payton Price, whose credibility may be suspect . . ."

"What about the burn marks on Rennell's buttocks?" Chris murmured in disgust.

"Nonetheless," Kuhl continued, "let's take Payton's word as gospel. Abuse may affect a defendant's psychological makeup—even, perhaps, his sanity. But I find no evidence that the alleged abuse affected Rennell's IQ. And no one argues he's legally insane—Rennell Price clearly knows the difference between right and wrong." Kuhl's tone softened, evincing regret for his obligations as a truth teller. "Any abuse merits our sympathy as fellow humans, but it doesn't equate with mental retardation."

Bond nodded in agreement. As though emboldened, Kuhl added, "There's another thing I'd like to say, as a psychologist who studies the retarded. I accept that the Supreme Court ruled in Atkins that, in itself, retardation militates against the death penalty. But I have some qualms about that kind of generalization.

"In my experience, the majority of retarded people have too much empathy to contemplate a horrible crime against another person. Other retarded people may lack any empathy, or any ability to grasp the finality of murder. So I think we should be leery of making categorical judgments about the retarded, or of assuming that they're less responsible than you or me."

"Not the point," Terri scribbled angrily, adding, "Risk of wrongfully convicting the innocent," and then, hastily, "Doesn't understand legal system," before looking up at Kuhl with fresh intensity. Beneath his air of helpfulness, she thought, lurked the cynicism and coldness of a mercenary who had found his niche. As if to refute her, Kuhl concluded, "If I may venture an opinion, asking experts to testify that a defendant is retarded in order to spare him execution is damaging to both disciplines—psychology and law. It turns psychologists into judges, if not into God. It tempts experts to place defendants into simplistic boxes—retarded or not retarded—in order to determine their fates. Ultimately, it's corrupting."

Terri stood. "Your Honor," she told Judge Bond, "I move to strike that entire speech. With a touching air of melancholy, Dr. Kuhl has just informed us that the United States Supreme Court didn't know what it was doing in Atkins and invites this Court to nullify its ruling. It's Dr. Kuhl who has crossed the line, with a colossal arrogance dressed up as humility. All to ensure the execution of a man who is not like 'you or me.'

"I remind Dr. Kuhl that one purpose of Atkins—among many—is to keep us from executing the innocent. And that, far from being God, Dr. Kuhl's not even a judge." Pausing, she finished in a pointed tone, "Judges, after all, are sworn to uphold the law."

Bond's eyes narrowed in irritation. But while no doubt he, too, disliked the Atkins decision, Terri had invited the media to see him as he must not be seen—the judge who allowed a partisan expert to question the Supreme Court, and the law which governed whether Rennell Price might live. "This Court," he told her sternly, "is completely capable of defining the proper boundaries of expert testimony, and of setting aside any gratuitous remarks." Facing Kuhl, he added with more dispassion, "Nonetheless, any critique of Atkins risks blurring the question you're addressing—whether, under Atkins, Rennell Price is mentally retarded. Please confine yourself to that."

Terri sat again, doubting her decision to intervene. "No choice," Chris whispered in reassurance. "This undertaker was hijacking Bond's courtroom. At least you broke his rhythm."

"All right," Pell continued with the imperturbable manner of one too confident to be diverted. "I'll ask you to focus on Mr. Price. I believe you videotaped your examination at San Quentin State Prison."

Kuhl's eyes flickered toward Terri. "That's correct."

"Perhaps you can show us a portion of that tape, and give us your opinion on what it means."

Stepping off the witness stand, Kuhl stood next to a television screen, pressing a button. For a moment numbers flashed against a black background, five counting down to one, and then Rennell Price's face appeared in close-up.

To an untutored eye, Terri thought, his round face would look normal, though somewhat lacking in expression. Perhaps only she could read the fear in his eyes, his hope of not appearing stupid.

From off camera, Kuhl's voice was calm and encouraging. "I'm going to ask you to remember three words, okay?"

Rennell hesitated, eyes focused on the speaker. "Okay."

"Ap-ple," Kuhl articulated each syllable. "Ta-ble. Mo-ney. Got that? 'Apple,' 'table,' 'money.' "

"Okay."

At the corner of the screen, a digital clock appeared, counting down five minutes. "All right," Kuhl's voice said. "I'd like you to work this puzzle for me."

The immobile stare Rennell gave Kuhl could be read as recalcitrance or, in Terri's experience, a reluctance to appear foolish. Then Rennell gazed slowly downward and, with the animation of an automaton—or the disdain of a truant—began moving pieces of a puzzle the screen did not show. Little about him seemed sympathetic or engaging.

In the silent courtroom, Kuhl and his audience watched the clock tick down. "The puzzle is a simple one," Kuhl explained to Bond. "It involved putting the figures of ten animals into spaces with corresponding shapes. He did this, as you will see, in less than two minutes . . ."

"Or in Kit's case," Carlo murmured, "sixty seconds. Kuhl makes it sound like Rennell just passed the bar." After a pause, he added, "What's grotesque is that if he passes, he gets to die."

"What's the animal at the bottom?" Kuhl was asking Rennell.

Rennell hesitated. "Zebra."

"And at the top?"

"Lion." Rennell's voice filled with contempt—or pride. "Not stupid, man."

The clock kept ticking down. "You know your animals," Kuhl's calm voice said. "Did you ever go to the zoo?"

Expressionless, Rennell shook his head.

"Then how did you know a zebra?"

Rennell shrugged. "Readin' books."

"From cartoons," Terri told Carlo. "Except for Hawkman comics, Rennell avoids books like the plague." In despair, she saw the clock tick down to zero, watching as Rennell resisted acknowledging his incapacity.

"How come your grades weren't better?" Kuhl asked.

Rennell shrugged again. "Just fuckin' off. Stopped tryin', is all."

The digital clock read "0:00."

"Remember the words I gave you?"

"Yeah." Rennell pursed his lips. " 'Apple,' " he repeated slowly. " 'Table.' " Briefly, his eyes seemed to roll back in his head, then to re-focus. " 'Money.' "

As the screen went blank, Kuhl turned to face the judge. "When Rennell Price cares to, Your Honor, he has a functioning memory. He is by no means bright. But I think his own words account for a good portion of his academic failures: like many of his peers, he stopped trying."

"What other evidence do you have for that?" Pell asked.

"Interviews with the prison guards." Before continuing, Kuhl returned to the witness stand. "In their observation, Rennell can count money, write and address cards to his grandmother, and answer questions in a coherent manner. One guard reports seeing Rennell reading a sports magazine."

He was looking at the pictures, Terri thought. But she could do nothing; against her will, a version of Rennell Price had materialized in the courtroom, and it was not the one she knew.

"Do still other factors," Pell pursued, "support your opinion that Rennell Price is not retarded?"

"The crime itself." Kuhl began rubbing his fingertips again. "You've already reviewed the facts established at the trial with Dr. Lane. Taken together, they suggest a course of action which was rational, purposeful, and aware . . ."

And a total fiction, Terri thought.

"As well as," Kuhl continued, "evincing a fully functional awareness of the need to hide Thuy Sen's body, and the consequences of getting caught."

Frozen, the Sen family watched and listened, a triptych of grief and loss, pleading with their eyes for Gardner Bond to exact a final measure of justice. "Payton and Rennell Price," Kuhl concluded, "both knew what they had done. That's why they recruited Eddie Fleet. That's why Rennell Price dumped that child's corpse. And that's why—with utter rationality—Rennell denied his own involvement. These are not the acts of a man too dull to cope."

"Thank you," Pell said briskly. "That's all I've got for you."