Conviction

SIXTEEN

AT 2:00 A.M., HUDDLED IN THEIR LIBRARY NEAR ELENA'S BEDROOM, the adult Pagets cobbled together Rennell Price's petition to the Ninth Circuit Court of Appeals, seeking a stay of execution and permission to appeal the decision of Judge Bond which condemned Rennell to death. Strewn before them on the conference table were drafts of legal arguments on all potential issues.

"We have to show the 'substantial denial of a constitutional right,' " Chris argued. "If it were up to me, I'd focus exclusively on innocence and retardation. The other marginal issues we crammed into our papers before Bond will only dissipate their impact."

Still haunted by the telephone call, Terri rubbed her temples. "We should use it all. We've got Montgomery, so we've got at least one sympathetic ear. Throwing away any ground which could save Rennell could be throwing away his life."

"Throwing in the kitchen sink," Chris answered tartly, "is too easy. We'll look desperate instead of credible." He waved his hand at the papers. "What do we really believe in here?"

"Everything," Terri snapped. "I don't have a favorite reason Rennell Price ought to live. We can't let this ridiculous statute keep us from making every argument we can. Don't you think there's a constitutional problem if a statute, like AEDPA, can be used to justify executing Rennell for a crime it appears he didn't commit?"

"Are you asking me how I want the world to be? Or what I think this statute says?" Chris glanced at Carlo. "If it looks like we got the Ninth Circuit to turn AEDPA inside out, the Supreme Court will jump all over this case."

"And Rennell will still be alive," Terri answered coolly. "That's a problem I can live with." She paused, speaking with quiet force. "You've never even met Rennell. He's only an abstraction to you. I'm not going to face him tomorrow without having done everything we can to keep the State from killing him."

Softly, Chris asked, "Isn't that the problem, Terri? This isn't about how you feel . . ."

Stung, Terri was momentarily speechless. "Not fair," Carlo said to his father. "I've met Rennell, too. Does caring about him disqualify me from having an opinion?"

"Not unless it keeps you from functioning as a lawyer."

"As a lawyer, Dad, I think there's a more than decent constitutional argument that AEDPA can't be applied to render innocence irrelevant. Call me sentimental, but I'm with Terri on this."

Chris studied his son in silence, and then—despite the hour and the emotion of the evening—Terri detected a faint hint of amusement in his eyes, perhaps commingled with pride. "I guess that makes it two to one," he answered, "in favor of the kitchen sink." Turning to Terri, he said calmly, "About Fleet, Terri, we'll hire a security firm. This case is hard enough."

* * *

"We lost," Terri told Rennell. "The judge just didn't believe me."

He stared at the table, lips moving wordlessly. It was as though he were seeing something too awesome and enormous to articulate.

Terri took his hand. "There's still a chance, Rennell. There are three more judges who have power over this judge. If they don't think he did right, they can change it."

Rennell did not seem to hear. "They be comin' for me soon," he said softly. "Like Payton. Lock this whole place down till I be dead."

Terri felt a tremor pass through her, a brief flashback to Payton's death. She did not know whether it was fair, or cruel, to plead with Rennell to maintain hope, or to imbue him, despite his loss of Payton and their grandmother, with the wish to keep on living. We're so close, she wanted to say. If we can make our case for innocence, you can just walk out of here.

And then what? her conscience asked her. And her heart responded, I'll help you find a new life, one better than you had.

"Whatever happens," Terri promised, "I'll be with you."

* * *

It was a good thing she liked her office, Callista Hill reflected for perhaps the hundredth time, casting a weary eye at the eighteen-foot ceiling and the elegant brass chandelier. If you clerked for Chief Justice Caroline Clark Masters, you worked fourteen-hour days Monday through Saturday, easing off to half that most Sundays. The dirty clothes hamper in one corner of Callista's bedroom was filling up again; she hadn't eaten a civilized dinner in three weeks; and her sex life felt like the waste of a formerly terrific body suffering from too little exercise of any kind. But she would not trade her year with the brilliant woman who was Chief Justice for any job on earth.

Of Chief Justice Masters's four clerks, Callista knew that she stood out—not only as an African American with the look and carriage of a runway model but for her swiftness of speech and thought, along with an arid and somewhat lacerating wit most like Caroline Masters's own. Though brisk and businesslike, the Chief Justice found amusement in the foibles of law and personality that permeated the Court and, on occasion, would let this slip out in her comments when she and Callista were alone. Callista's mother, Janie, a divorced English teacher at an inner-city school in Philadelphia, had treated her gifted only child as the intelligent being she was, encouraging her freedom of thought and action, and had been rewarded with a loyal daughter who was also a good companion. Caroline Masters, Callista sometimes thought, was Janie Hill transformed into a WASP aristocrat but ironically deprived of Janie's freedom to express her sometimes caustic opinions. "The death penalty," Janie had once told Callista, "is like a war film or a monster movie. The black man always gets it first."

With a profound lack of anticipation, Callista sipped her third cup of coffee and reached into her in-box for the death list.

This was her least favorite aspect of the job: once a week, the Court's death penalty clerk circulated to the justices a photocopied sheet listing every execution pending in the United States, noting their status. In addition to her other responsibilities, Caroline Masters was the Circuit Justice for the most contentious Federal Court of Appeals in America, the Ninth Circuit, and it was Callista's business to maintain a watch list of cases which might land on the Chief's desk in the form of a last-minute request for a stay of execution. This week, Callista saw, the prisoner named Rennell Price had made it to the top of the list. From the description of its status, by next week Rennell Price might no longer be listed, and the absence of his name would give Callista goose bumps.

She picked up the telephone and called Caroline Masters's secretary.

* * *

"Okay," the Chief Justice requested, "tell me about this one."

They sat in Caroline's front office, graced with the same high ceilings and chandeliers, as well as group photos of the Court from various terms. "Man's on the bubble," Callista said flatly. "The district court judge dissolved the stay, and Price's lawyers have gone to the Ninth Circuit panel looking for a certificate of appealability. Only way they can come here for a stay of execution is if Price gets the COA, but then loses the appeal."

"What are the issues?"

"Any issue you can imagine, some of them pretty inventive. The one that jumps out at me is that AEDPA allows a claim of freestanding innocence."

The Chief raised her eyebrows. "You mean the idea we're still empowered to notice things like an innocent man being wrongly convicted? That could get some of my colleagues pretty excited. I assume his lawyers also try to couple this claim of innocence with a constitutional defect in the trial."

"Uh-huh. The usual ineffective assistance of counsel claim."

Caroline Masters stood, arching her back to relieve the tightness which came from too much sitting. "Usual," she amended, "and often legitimate. I'd bet that behind at least half of the names on your death list lurks a terrible lawyer. It's the single biggest reason people get executed. Aside from the fact that—we can only hope—the condemned actually committed the murder in question." The Chief Justice stopped herself abruptly, as though feeling she had said too much. "Who's on the panel?"

"Judges Montgomery, Nhu, and Sanders."

The Chief Justice allowed herself a faint, ambiguous smile. "That should be an adventure."

"What do you want me to do?"

"Nothing yet—if the COA's not granted, you'd be wasting your time."

"And if it is?"

"Then one of two things happens. If Price loses, he's on my doorstep within twenty-four hours, asking for a stay while we consider his petition. If Price wins, the State of California will try to persuade us that the Ninth Circuit has distorted the law so grievously we're obliged to correct its errors." Caroline sat down again, no longer looking amused. "Either way, it may be fairly unpleasant. If he loses, I'll need a memo from you immediately, recommending whether or not I should grant a stay and vote to hear his case. And if you think I should grant a stay, the memo needs to be good enough to persuade four other justices to extend my stay rather than dissolve it."

A certain grimness of tone put Callista on edge. "Will it really be that difficult? The real worry would be not granting a stay until we can have time to look at the merits."

The Chief Justice shook her head. "Stays of execution can occasion a particular bitterness. While it takes only four of us to decide to hear a case, it takes five to grant a stay. Which creates the not-so-theoretical possibility that our Court would vote to grant a hearing to a dead man."

"What about judicial courtesy, if four of you feel that strongly?"

Caroline's smile was sour. "A good question. A few years ago, Justice Powell would step in, voting for a stay to ensure that the petitioner didn't die—at least prematurely. But we have no Lewis Powells now. Justice Fini's a stickler for the rules, and he believes that our internal rules shouldn't permit a minority of us to stave off executions. His viewpoint seems to have spread. Capital punishment," she finished wryly, "has been the death of courtesy."

* * *

Late that night, Terri sat in the Pagets' upstairs library, outlining on four-by-six note cards the argument upon which Rennell Price's life depended. When it came to the simple concept of innocence—whether the State could insist on executing Rennell despite the indisputable possibility that Eddie Fleet was guilty of Thuy Sen's death—Terri could not quite find the phrase she wanted. Note cards with words scratched out lay on the desk in front of her.

Staring at the latest card, Terri felt a tingle in the back of her neck, the slow awareness of the presence of another. Turning, she saw Elena in the doorway.

Her daughter, whom Terri had thought was sleeping, studied her as if she were a stranger. The clinical coolness in Elena's eyes cut through Terri like a knife.

"I thought you were asleep," Terri managed to say.

"How would you know?" the girl inquired coldly. "You didn't come to my room."

"It was late, Elena. I didn't want to wake you."

Elena ignored this. Walking to the desk, she picked up a note card with Terri's futile scratchings, scanning it with narrow eyes.

"I'm writing out my argument," Terri said. "If we don't win tomorrow, a man's going to die."

"No," Elena answered tersely. "A creep is going to die."

Terri expelled a breath. "You don't know him."

"I knew my father," Elena answered. "If you weren't my mother, would you have been his lawyer? Or maybe you would be anyhow."

Terri felt too heartsick to respond. Silently, she shook her head, less in answer than in a vain wish to banish all she felt. "You can't even look at me," she heard Elena say, and then realized that she was staring at her note cards through a film of dampness.

At length, she gazed up at her daughter. "I don't understand what your father did to you," she said softly. "I don't want to. But I understand what happened to this man, and I don't think it's right for us to kill him."

Elena folded her arms. "You think that about everyone. That's all your life's about."

What my life is about, Terri wanted to say, is too complicated for you to know. And so is Rennell Price's. But she could not explain her own childhood, the painful duality of wishing her father dead and yet knowing how defenseless a child could be against the damage inflicted by those who, themselves, had once been damaged children.

"Elena," she said quietly, "I don't think we can ever know enough about someone to execute him. I don't think we're that wise, or that fair. I don't even think we're wise enough to keep from killing innocent men.

"This man could be innocent. I think he is, that another man was the one who killed Thuy Sen. How can I know that and not do everything in my power to save him?"

Elena's eyelids fluttered. "Because maybe he did it, Mama. Maybe he'll do it again."

Once more, Terri thought of Eddie Fleet. She stood by instinct, reaching out to embrace her daughter. "Don't touch me," the girl said fiercely and fled the room.