Conviction

FIFTEEN

LARRY PELL ADOPTED THE CALM BUT DISMISSIVE MANNER OF A lawyer confronting a frivolous claim. "This petition," he began, "is Payton Price's last laugh, an eleventh-hour attempt to avenge himself on Eddie Fleet.

"There is not one scrap of evidence behind his incredible story. Flora Lewis contradicts it. The forensics do not support it. And AEDPA requires this Court to reject it. Indeed," he added in a tone of comfortable confidence, "the Court's questions to Ms. Paget almost obviate the need for any argument from me.

"So I'll briefly state my case by answering those questions.

"First, because Yancey James did not have the dubious benefit of Payton Price's story, his failure to offer it was not a failure of effective lawyering." Pell jabbed the podium for emphasis. "Right there, Your Honor, this petition must fail. Because there is no constitutional defect in the trial—in this case, ineffective assistance of counsel—as required by AEDPA before this Court can even consider Payton's dubious 'confession.' "

Bond listened serenely, showing no desire to interrupt. "Second," Pell told him, "and quite obviously, Payton's story is not the 'clear and convincing' evidence of innocence demanded by AEDPA before the Court can grant Rennell's petition."

"Third, the California Supreme Court has given Rennell Price three separate hearings. AEDPA does not require that Court to invest yet more time in rejecting his latest petition with the fulsomeness required to satisfy his counsel."

The wisp of a smile played at one corner of Bond's mouth.

"As for retardation," Pell continued, "it is a wholly separate issue from that of innocence. But its shortfall is the same: the evidence offered to support it is hardly sufficient to show that the California Supreme Court's decision was unreasonable. Which is why that Court should be sustained on this ground, too."

Pell stood back, hands spread on the rostrum. "AEDPA exists to bring finality to those for whom, like the family of Thuy Sen, this process must surely seem unending." Briefly, he swiveled his body toward the Sens, watching tautly from their seats in front of the assembled media. "Fifteen years after her death, their child deserves justice. That is the purpose of AEDPA. I respectfully submit that it is this Court's purpose to fulfill it."

With the ease of an athlete not required to break a sweat, Pell glided back to his chair. Quickly, Terri stood. "May I be heard in rebuttal, Your Honor?"

Even as she spoke, she saw the strain in her voice reflected in the impatience with which Bond snapped his neck to look at her. But a man's life was at stake: after the briefest hesitation, Bond said in an uninviting tone, "If you think it can illuminate what's already been said."

"Rennell Price is retarded," Terri insisted. "His entire life tells us that, and tells us why. And retardation is not separate from the question of innocence—it explains why a man whom the evidence now suggests is innocent has come within two days of execution.

"It explains why Rennell Price was his brother's shadow; why he could not help himself at trial; why the jury thought him a callous accomplice to Payton's every act, before and after the murder; and why he was convicted for a crime in which Eddie Fleet—even then—was far more obviously complicit than was Rennell." Terri's voice rose in anger. "Now Rennell is ensnared in a Byzantine, procedure-ridden legal system which allows the State to smugly claim that who Rennell Price is, and what they cannot prove he did, no longer matters at all."

Beneath Bond's silent stare she felt the deeper silence of the courtroom. "The last laugh," she continued, "doesn't belong to Payton Price. It belongs to the State, which insisted on Payton's execution, and now insists that a dead man is unworthy of belief, while inviting this Court to ignore the inconvenient fact that his brother may well be innocent. You don't need to think about innocence, they say, because you can 'presume' that the California Supreme Court has done the thinking for you.

"So let's be very clear about what Mr. Pell is really asking this Court to do." Terri turned to Pell. "There is no way—no way at all—that if Mr. Pell brought this case today, a jury would convict Rennell, let alone require his death.

"Eddie Fleet won't repeat his story. Payton Price refutes it. The State won't make Fleet tell it. There's no evidence to support it—"

"Because Flora Lewis is dead," Bond interrupted. "That's why a jury verdict rendered a year after the crime should not be endlessly relitigated until memories fade and witnesses die. At some point, we're entitled to presume that a jury verdict is reliable absent a compelling reason to doubt it."

"But this verdict?" Terri asked. "I wonder if even Flora Lewis would be so certain now. But I'm certain of this much—a case based on Flora Lewis alone would not convict Rennell. And that's all the State has left." Terri forced herself to finish calmly yet emphatically. "This Court cannot condemn Rennell Price to death without saying more than Congress ever intended in passing AEDPA, or the Constitution has ever allowed—that on the eve of execution, concepts like truth, or innocence, or justice have become irrelevant to the taking of this man's life.

"Thank you, Your Honor."

Walking back to the defense table, Terri felt the stone-faced stare of Thuy Sen's father.

"That was good," Chris told her softly, and she heard beneath his words the judgment, and the sympathy, of a man who loved her, and a lawyer who was certain that she had lost.

From the bench, Gardner Bond surveyed the parties, the media, and last of all, the Sens. "This Court," he announced, "is prepared to rule."

Looking down, the judge began reading, and Terri realized, with deep foreboding, that Bond had written his opinion the night before. "With respect to the issue of mental retardation," he began, "the question is not whether Rennell Price is of below average intelligence. Rather, even assuming that Atkins applies to Mr. Price's petition, the question, under AEDPA, is whether petitioner has shown that the Supreme Court of California's rejection of his claim 'was contrary to, or involved an unreasonable application of, clearly established federal law.'

"Clearly, he has not."

Blank-faced, Carlo had begun to take notes. Bond's judicial drone seemed to reach Terri from some great distance.

"With respect to innocence," the judge pronounced, "the evidence does not show a constitutional error at trial. And even were this Court to find that Mr. James's performance denied Rennell Price the effective assistance of counsel, Payton Price's last-minute confession does not warrant overturning the verdict rendered by the jury."

Pausing, Bond addressed Terri in a tone of mild reproof. "Fifteen years later, the question before this Court is not whether it believes Rennell Price guilty beyond a reasonable doubt. That decision belonged to the original jury. This Court cannot disturb it—or the decision of this state's highest court—unless it has compelling evidence that the verdict was unjust. We do not.

"Therefore, we rule as follows:

"Rennell Price's petition is denied.

"His petition to appeal this ruling is denied." Pausing, Bond finished crisply. "The stay of execution is dissolved. The State of California may now carry out the death warrant."

"Bastard," Carlo murmured.

Bond's gavel cracked. "All rise," his deputy called out, and Bond left the bench, the courtroom buzz at this release from silence sounding mournful and subdued.

Terri picked up her briefcase. "Save it for the Ninth Circuit," she told Carlo. "There's three days until the execution, and we've got work to do."

* * *

That night, after a hasty dinner with Elena, Terri returned to the office to continue preparing the papers Rennell would need for the Ninth Circuit and, she still hoped, to save his life. She worked intently, in silence. Only after an hour or so did the telephone ring. "Teresa Paget," she answered swiftly.

"Been watchin' the news," the deep voice began. "Seems like that judge gone and fucked you in the ass. Got to thinkin' it might feel pretty good."

Terri stood, jolted upright by a current of fear. "I owe you," the voice continued softly. "But maybe you'd like it better in the mouth. Or maybe you got a kid, and I could make you watch."

Laughing softly, Eddie Fleet hung up.

Hand pressed to her mouth, Terri felt herself trembling. Fighting for self-control, she stabbed the ID button, staring at its screen. But all that appeared were the words "private caller."

Scared and angry, Terri collected herself, then called her husband.

"I'm coming to get you," Chris said.

"You don't need to—"

"No arguments, Terri—we're working together, at home. Let's just say I'm doing it for me."

And for Elena, Terri thought. She did not argue further.

Waiting for Chris, she tracked down Charles Monk at home.

She had interrupted his dinner. Nonetheless, and with considerable patience, he heard her out.

"Could have been him," he said. "Could have been some prankster pretending to be him. Your accusation's been all over the news. A more cynical man than me might say you made this up to help your own case, or get us on Fleet's case."

Disheartened, Terri realized this was true. "It was him," she insisted.

"If it was," Monk answered calmly, "he's too smart to get caught at it, and you've got no evidence at all. But we can send someone to roust him, if you want that."

Terri weighed the benefits of his offer. "Can you watch our house?" she said, and then felt foolish.

"On the basis of this? Not twenty-four/seven." Monk paused, his voice acknowledging her worry and, perhaps, his own misgivings about Fleet. "Like I said, Fleet's smart. It would take a stupid black man to start haunting a house in Pacific Heights, menacing rich white folks. Scared black folks would be more his thing."

Perhaps that was right, the reasoning part of Terri thought. But then Monk was not Elena's mother, and knew nothing about her, or the guilt and fears Terri could not express. "I just want my daughter safe," she said.

"How would he even know you have one? But my offer stands—say the word, and we'll go see him. At least it might keep him off the phone."

But maybe I can trap him, Terri thought, and then found herself caught in the crosscurrents of lawyer and mother, and confused by what was best to do for her daughter, and for Rennell.

"I'll think about it," she said simply. Then she thanked him and got off.