Conviction

FOURTEEN

"WHAT'S YOUR PLEASURE," GARDNER BOND INQUIRED OF TERRI, "with respect to Rennell Price?"

Standing at the defense table, Terri hesitated—not because of last-minute indecision but because her decision felt so fateful. "We've determined not to call him as a witness, for all the reasons cited in Atkins—that he's prone to confusion, won't understand what he's asked, and doesn't know what happened the day that Thuy Sen died—"

"Wait a minute," Bond interrupted. "If Mr. Price wants to tell us that, he can. But don't withhold his testimony, then testify on his behalf."

"That wasn't my intention," Terri said simply.

"Good." Bond nodded her toward the podium which faced his bench. "On the question of Mr. Price's supposed innocence, you have asked us either to exonerate him, requiring his release from prison, or—at the least—to order a new trial. We've already reviewed Payton Price's deposition and the declarations of the others you wanted to call as witnesses. We're prepared to hear your argument, and that of Mr. Pell, and then rule."

Terri walked to the podium and rested her hands on its burnished wood. Bond had reduced the question of Rennell's fate to this—a half-hour argument between lawyers about a terrible event, fifteen years past, to which the actual witnesses were absent, or dead. Even the lawyers were new.

"At the moment Payton broke his silence," Terri began, "one thing was clear at once—that, on the record before this Court, the State of California should not be allowed to execute his brother—"

"You're assuming Payton's credibility," Bond interjected. "Why should this Court agree?"

"Normally," Terri conceded, "eleventh-hour confessions should be viewed with skepticism. But Payton's makes too much sense for that.

"First, it's consistent with the physical evidence. There's no forensic evidence whatsoever of Rennell's involvement in the crime itself—"

"What about Rennell's fingerprints, Ms. Paget? They were found in Fleet's car."

"But not in the trunk, Your Honor, where Fleet placed Thuy Sen's body. Payton Price confirmed what common sense suggests—because Fleet functioned as his driver, both brothers were frequent passengers in his Cadillac. Rennell's fingerprints are proof of nothing—"

"And Payton Price had nothing to lose by saying whatever he pleased."

"Perhaps," Terri answered softly. "But fifteen years ago, when Eddie Fleet testified against Rennell, Fleet had everything to gain: his freedom, and his life—despite a crime in which, even by his own self-serving admission, he was involved. And today, when Fleet has everything to lose, he refuses to repeat the testimony which sent Rennell to the death chamber.

"Today, the sole witness to the murder, Payton Price, testifies in the black and white of his deposition that Eddie Fleet killed Thuy Sen in an act of pedophilia. And that the State, by cutting a deal with Fleet then, and protecting him now, has become his accomplice in a second murder—"

"You go too far," Bond remonstrated. "What about Flora Lewis?"

"At seventy-two years old, she was looking at two men from over ninety feet away—too far to make out faces. So she 'saw' what she expected to see, Payton Price with Rennell, instead of what Payton swore she really saw: a man in a bulky sweatshirt who's the same height as Rennell, Eddie Fleet—"

Holding up his hand for silence, Bond riffled some legal pleadings in front of him. "According to the record, the police put Eddie Fleet in the same lineup with Rennell Price. Flora Lewis still picked out Rennell."

Terri nodded. "In support of our petition, we submitted school photographs of Rennell and Eddie Fleet, showing that their general features were quite similar. We've also submitted the declaration of Dr. Libby Holt, an expert on cross-racial identification, whom we've offered to call as a witness—so that the Court can see her, and Mr. Pell may cross-examine her. Dr. Holt makes two points: that eyewitness identifications are frequently driven by emotions and the witnesses' need for certainty. And that cross-racial identifications—especially those of blacks by whites—are particularly unreliable—"

"Even in a lineup?"

"Of course Flora Lewis 'identified' Rennell. She knew him." Terri paused, attempting to drain the exasperation from her voice. "At ninety feet, it's doubtful she could make out faces. All the lineup proved is that Flora Lewis could identify her neighbor, Rennell Price, from a distance of ten feet.

"Rennell's death sentence resulted from a tragic combination of Fleet's lies, Payton's self-serving silence, an old lady's mistake, and the incompetence of a lawyer who neither knew nor cared that Rennell Price is retarded—"

"If he is," Bond countered. "We can't assume Mr. Price's retardation for purposes of determining whether you've offered persuasive proof of innocence."

"But we know a lot," Terri countered. "As Yancey James spelled out in his declaration—and as he would tell this Court if asked—he believed Rennell guilty because Payton tacitly admitted that he, Payton, was guilty. James never developed a separate defense for Rennell, refused to believe Rennell's protestation of innocence, never investigated Eddie Fleet, and never raised the possibility that Fleet, not Rennell, was guilty—"

"Why would he?" Bond inquired sharply. "Payton Price was busy insisting that James put on the perjured testimony of Tasha Bramwell. As you point out, Payton Price didn't offer his alternative vision of the truth, admitting guilt and naming Fleet, until roughly three weeks ago. So why should we blame James's failure to attack Fleet on his supposed ineffectiveness—as required under AEDPA?"

Terri gathered her thoughts. "Mr. James's inaction offers no insight into what a competent lawyer would have done. In effect, Rennell Price had no lawyer—James didn't hear his claim of innocence, let alone try to corroborate it. This Court should not bless a death penalty imposed on a man for whom nothing was said or done—"

"Even one who waived Mr. James's supposed conflict?"

"Rennell Price is retarded, Your Honor. He couldn't comprehend the question asked him by Judge Warner."

"So your expert claims. But this Court has not heard from your client on that question, or any other."

Terri drew a breath. "With respect, Your Honor, Yancey James admits that he did nothing for Rennell. We've spelled out Rennell's intellectual deficiencies. We've set out the weakness in the State's evidence of guilt, and offered substantial new evidence of his innocence." She paused again, trying to subdue her impatience and anxiety, as well as to buttress her argument with precedent this judge might accept. "In Rios v. Rocha, the Ninth Circuit held that the weakness of the prosecution case is an important measure of whether a lawyer's failings resulted in a wrongful conviction. And the Ninth Circuit has previously found James constitutionally ineffective in People v. Coolman—"

"And rejected such a claim in four others of James's cases. I don't assume that makes him competent here. So don't ask me to assume the opposite because of Coolman." Pausing, Bond glanced at the papers spread in front of him. "Let me quote you the one presumption that AEDPA requires me to make: 'The factual findings of state courts are presumed to be correct, and the applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.'

"Ten days ago, the California Supreme Court found that your evidence of retardation, and your new evidence of innocence, did not justify vacating your client's death sentence. Why should this Court not defer to that finding as AEDPA directs?"

"Because it could have been written on a postcard," Terri answered promptly. "Because the opinion contained no findings, only conclusions. Because it gave this Court no basis for those conclusions. Because, in short, the California Supreme Court tells us that Rennell Price must die without condescending to tell us why—"

"Very well," Bond said coldly. "You've made your argument clear. It's time to hear from Mr. Pell."