Conviction

THIRTEEN

WHEN TERRI HAD FINISHED WITH DAVIS KUHL, LARRY PELL STOOD at once.

"I realize," he told Judge Bond, "that the Court has heard all the witnesses it cares to with respect to Rennell Price's state of mental functioning." Here Pell darted a look at Terri. "Absent," he added pointedly, "Mr. Price himself. But I wanted to address why the State did not feel the need to ask Dr. Kuhl to opine on the 'new' issue raised by Ms. Paget: whether Rennell's purported dependence on his brother, Payton, mitigates against a sentence of death for his role in the murder of Thuy Sen."

Bond nodded curtly. "Go ahead."

Pell rested one hand on the prosecution table, the other on his hip, a portrait of confidence. "Set aside that this argument conflicts with the assertion that Mr. Price is innocent. Set aside that Dr. Lane's testimony is another exercise in the dark autobiographical style so common to habeas corpus cases, wherein a murderer's hard childhood is offered to mitigate the murder of a child." Pell's voice became mordant. "Set aside that many abused children do not commit crimes; that the 'new' evidence of Rennell Price's childhood emerged at the eleventh hour; or that none of the supposed horrors—new or old—cited by Dr. Lane outweigh the horror of the crime itself.

"We simply rely on the law: because this 'new' evidence in mitigation supports an old argument, it is barred by AEDPA. This Court should not—and, I respectfully submit—cannot entertain it—"

"According to Ms. Paget," the judge rejoined, "the 'new' evidence is, indeed, new. Because Payton Price alone controlled whether he chose to speak."

"Is Rennell Price mute?" Pell countered. "Nothing in the last fifteen years barred him from discussing his own childhood . . ."

"He's retarded," Carlo whispered in disgust.

"Where was his grandmother?" Pell went on. "Where were his lawyers, the respected firm of Kenyon and Walker? Right here—in this Court." Pell drew himself to his full height, hands clasped in front of him. "For new evidence to be accepted on a second petition, there are two predicates: that original counsel must have failed to offer it because he was 'ineffective'; and that subsequent counsel could not have offered it because—despite their exercise of due diligence—they could not find it. Neither is true. The question of mitigation is closed."

Bond assumed an attitude of gravity. "You anticipate me," he said after a moment. "This Court will not accept any further argument in mitigation of the death penalty."

Terri felt her stomach clench. Beneath the table, Chris's fingers briefly grazed her wrist. "But Ms. Paget's more pertinent issue," Bond told Pell, "is with whether your office—or this Court—can compel Eddie Fleet to testify through a grant of 'use immunity,' barring the state from using such testimony against him in connection with the murder of Thuy Sen."

At this mention of his daughter's name, Meng Sen leaned forward in the front row. "Your Honor," Pell said in a dispassionate manner, "after due consideration, the Attorney General's Office does not believe that attempting to compel Mr. Fleet to testify again—when he already did so at the trial—serves the interests of justice.

"It is true that, in his deposition, Mr. Fleet declined to repeat that testimony . . ."

"And ran like a thief," Carlo murmured. "Or a child molester . . ."

"But little wonder." Pell gestured toward Terri with an outstretched hand, his gaze still focused on the judge. "Defense counsel has made it clear that its entire case regarding innocence rests on the assertion—despite the eyewitness testimony of Flora Lewis—that Eddie Fleet, not Rennell Price, was the second murderer. Including the insinuation, offered without any factual corroboration, that Mr. Fleet is a pedophile.

"What mischief," Pell added with disdain. "Slander has no standard of proof, and murder—the crime of which petitioner's counsel accuses Eddie Fleet—has no statute of limitations. So little wonder, indeed, that Mr. Fleet has concluded it will do him no good to brave the desperate tactics of dedicated counsel who, one way or the other, want this Court to rescue their client from death.

"Fifteen years ago, a jury determined the truth, and delivered justice. This Court cannot improve on it."

The judge angled his gaze toward Terri. "I imagine you have another viewpoint, Ms. Paget."

Terri rose, pausing to channel her indignation. "I have another 'truth,' " she answered. "The jury did not hear—as Mr. Pell has—the accusation of Eddie Fleet by Payton Price. The jury did not see—as Mr. Pell has—Mr. Fleet invoking the Fifth Amendment when asked whether he had ever forced a child into oral copulation. And Mr. Pell has done his level best to ensure that this Court neither sees nor hears either of those men.

"Payton Price is dead—as Mr. Pell so urgently requested. Eddie Fleet is not dead. Fifteen years ago, the State—in the person of Lou Mauriani—offered Eddie Fleet a deal for his testimony against Payton and Rennell. Now the State, in the person of Mr. Pell, protects Fleet from appearing before this Court. By incentivizing Mr. Fleet to say that Rennell Price was guilty of a crime, the State allowed Mr. Fleet, quite literally, to get away with murder." Terri's voice filled with scorn. "This Court should not allow Mr. Fleet to do it twice. The death of Thuy Sen was tragic. The execution of Rennell Price, when the State knows there is such doubt, is tantamount to a cover-up. This Court should order the Attorney General's Office to immunize Eddie Fleet, and then drag Fleet into the light."

Pell stood. "May I comment, Your Honor?"

"Briefly."

"We've reviewed the record with Mr. Mauriani. He granted no immunity to Eddie Fleet—merely promised to consider Fleet's cooperation once the trial was done. We also conclude, upon thorough review, that the original prosecution was well-founded. There was no immunity, and there is no distortion of truth."

"If Mr. Pell were so confident of the 'truth,' " Terri rejoined, "he would not object to immunizing Mr. Fleet."

"What Mr. Pell is saying," Bond responded, "is that there were no 'terms' but only the proffer of consideration. In prudence, this Court cannot intrude on the good faith judgment of the Attorney General's Office. Therefore, we will not compel Mr. Fleet to appear before us." Bond's tone, though mild, concealed another trap. "Please be assured that the Court will consider every inference—including whatever can be drawn from the circumstances of Mr. Fleet's original testimony—as well as any testimony you offer us from Mr. Price himself.

"Tomorrow morning we turn to the alleged new evidence of innocence. Unlike with Mr. Fleet, Ms. Paget, you do control the presence of Rennell Price." After pausing, the judge concluded firmly, "It's time for you to decide. Either call the petitioner as a witness or make your showing without him."

* * *

It was midnight, and Terri sat with Chris at their kitchen table. The high from her cross-examination of Davis Kuhl seemed to have occurred in some other life, perhaps to another lawyer.

"I can't do it," Terri said. "I think Pell could destroy Rennell. I think Bond could use some foolish thing he said—like 'I was just a fuck-off'—to send him to the death chamber." Pausing, she watched her husband's expression. "On retardation, I pretty much eviscerated Davis Kuhl. On innocence, no jury would convict Rennell with the evidence we have today—"

"That's not the point, Terri, and you know it." In the harsh light of the kitchen, Chris's face, lean and weathered, held a melancholy certainty. "The only way to keep this judge from dissolving the stay of execution is to show Rennell Price to the world. That's the place Bond put you when he allowed the State to conceal Eddie Fleet."

Terri thought of Rennell as she had seen him that afternoon, listening to her account of the day's proceedings as though Bond's courtroom were a foreign country he feared to visit. "Been in court," he had said softly. "Don't never want to go again." The tremor in his voice had conveyed far more than words.

"Even if Bond turns us down," Terri told Chris, "there's a fair chance Blair Montgomery's panel will agree to hear the case."

"Maybe so. But spin out with me what happens next.

"If Rennell wins before Bond, and then the Ninth Circuit agrees, even if Pell succeeds in getting the U.S. Supreme Court to review it, you're still in okay shape. At least you and the Ninth Circuit are both relying on the opinion of a very conservative district judge. But if a Ninth Circuit panel reverses Bond, and Pell takes it to the Supreme Court, you've got an entirely different dynamic—"

"I know," Terri said tiredly. "The Supreme Court will see a rogue panel from a rogue circuit, headed by a liberal judge, flouting the law as interpreted by a right-thinking conservative like Gardner Bond."

"You've got Justice Fini," Chris said flatly. "And you don't want this case ever to cross his mind."

Exhausted, Terri tried to imagine the gravitational pull between a retarded black man and a brilliant Supreme Court justice she hoped would never become aware of Rennell's existence. "Too far ahead," she finally answered. "All I can try to do is what's best to do tomorrow."