Conviction

SEVENTEEN

SIX HOURS LATER, ON THE MORNING THAT THEY WOULD SEEK leave from the Ninth Circuit to file Rennell's appeal, Chris and Terri sat with Carlo at their sun-splashed breakfast table. They were tired and subdued—by this afternoon, if the Ninth Circuit turned them down, Rennell's legal battle would be over. And still their internal disagreements lingered.

Sipping coffee, Chris gazed at Terri across the table. "We've agreed to argue everything, I know. But how we sequence our request to be heard is still important. Unless we win on the narrowest, least-controversial issues, we may have extended Rennell's life without saving it."

Meticulously, Terri spread strawberry jam across her toast, making sure to cover every corner. "What's your suggestion?"

"Atkins is a new case, and no one—not the California courts, not the legislature—has set out any standards for defining what retardation is. That's our best argument, I think. It's like Rennell Price lost the lottery."

"But all retardation buys him," Carlo interposed, "is a lifetime in prison. Innocence is his ticket out."

"True. But spelling out who Rennell is should create some sympathy, even if the Court doesn't buy that he's retarded. Then we segue into innocence having implanted the idea of a guy who couldn't defend himself and begin to hammer home that he had a lawyer who didn't defend him either. That's the perfect setup for arguing that Rennell's conviction is a frame job, with Rennell the perfect dupe for Eddie Fleet." Again Chris looked at Terri, speaking more softly. "You don't want to win on freestanding innocence—that's like a red flag for the Supreme Court, begging for a reversal. When you make your pitch on that, remind the panel that it doesn't need to go there if it fits this within AEDPA by finding Yancey James incompetent. Blair Montgomery needs to take Judge Sanders with him, and Sanders is a prudent man."

Terri considered this. "Reading judges," she remarked to Carlo, "is about as much of a science as reading the entrails of a goat. But I think Chris is right about this one—we need to make it as easy for Sanders as we can. As long as we try everything to keep Rennell alive."

Carlo glanced at his father, who still contemplated Terri with a look of faint misgiving. "If we can help it," he said finally, "I don't ever want to see the inside of the United States Supreme Court. Unless, of course, we've lost."

* * *

At one o'clock, Terri, Chris, and Carlo faced Larry Pell and Janice Terrell across a conference table in the State Office Building in San Francisco, a speaker box between them. From the beginning, Judge Sanders, silent during the first emergency proceeding, dominated this one.

"Tell me about Atkins," he demanded of Terri. "What's the essence of your argument on retardation?"

She glanced at Chris. "That Rennell Price is retarded," she answered. "Most important, that neither the State Supreme Court nor Judge Bond gave us any idea of why they ruled otherwise, or what their standards for determining retardation are. The State can't execute this man in a vacuum—"

"All right," Sanders interjected brusquely. "Mr. Pell?"

Pell gathered his thoughts. "Mr. Price's lawyer proposed standards," Pell argued, "as did we. Two courts were unpersuaded that he met them—"

"Based on what?" Judge Montgomery interjected dryly. "Are you suggesting that our proper role is divination? Or did those courts owe us—and more important, Mr. Price—some elucidation of their reasoning prior to his execution?"

Behind the fingers curled to his lips, Chris smiled faintly. With unusual bluntness, Pell answered, "What the California Supreme Court owed Mr. Price is due consideration of his claims, followed by a ruling. AEDPA requires that the federal courts respect that ruling absent a clear showing of error, which Judge Bond did. This Court should do the same—"

"What about innocence?" Sanders cut in. "In his papers, Mr. Price says quite plainly that—regardless of whether his counsel was ineffective—he's entitled to a new trial, or even his freedom, based on his brother's confession. Is that the law?"

"Absolutely not," Pell replied with real vehemence. "Under AEDPA, it is not this Court's role to conduct a second trial but to determine whether the original trial was fair. And it was."

"What say you to that, Ms. Paget?"

Terri read the warning in Chris's eyes. "Are we deciding, Your Honor, whether a fifteen-year-old trial was good enough to justify the wrong results—in which case, it's permissible to execute a man who now appears to be innocent? Or is it this Court's duty, when faced with compelling new evidence of a condemned man's innocence, to consider whether it is still appropriate to execute him—"

"What about AEDPA?" Sanders interjected sharply. "It's very clear that its wording sets forth a precondition to considering new evidence of innocence—that the original trial denied Mr. Price a constitutional right, such as the effective assistance of counsel."

"Let me pose a hypothetical," Terri replied. "Suppose this Court was absolutely certain that new evidence showed Rennell Price to be innocent but that Mr. Pell insisted the Court ignore that evidence unless Mr. James's deficiencies kept Rennell's innocence from coming to light at the original trial. I do not believe that AEDPA can—or should—be read to require execution of the innocent—"

"That's not this case," Sanders retorted. "Your client's innocence is hardly certain."

"Then the difference is only a matter of degree. The evidence of Rennell Price's innocence is at least as compelling as the evidence of his guilt." Terri paused, to emphasize her final point. "But the evidence of Mr. James's ineffectiveness—beginning with his own admission—is also compelling. So this Court need not resolve the vexing question of freestanding innocence."

Her invisible audience fell momentarily silent. "It is a vexing question," Sanders concurred in more contemplative tone. "Your petition raises a number of them. Please give us a moment to confer."

Terri's hopeful glance toward Chris was met by a reflective and, she thought, somewhat worried frown. Across from her, Larry Pell's expression was opaque, Janice Terrell's dubious.

"All right." This time the disembodied voice was Judge Montgomery's. "All of us wish to make very clear that we have not prejudged the merits. But we unanimously conclude that this appeal raises issues which meet our standard for review: 'debatable among jurists of reason.' Which all of us like to think we are.

"Therefore, we are staying the execution of Rennell Price, and granting permission to appeal all claims." Montgomery's voice became peremptory. "Petitioner will file his brief tomorrow; the State will respond by the close of business two days after; we'll hear oral argument two days after that. A written order will follow."

In sheer relief, Terri glanced at Chris. But his expression showed no elation. At once she grasped his reason: the suspicion that Viet Nhu, a judicial gamesman of the first order, was giving his more liberal colleagues enough rope to hang themselves and, with it, Rennell Price—if not soon then in the far less hospitable environs of the United States Supreme Court. But that was tomorrow's problem.

"Thank you," Terri told the panel.

* * *

Returning home, Terri found Elena waiting in the living room with her arms folded, a hostile expression on her face.

"There's a strange man in my bedroom," she said with an edge Terri found hard to define.

Startled, Terri stared at her daughter and then—hearing the echo of pointed sarcasm—realized who Elena meant.

"It's someone from the security firm," Terri said.

"I know. He's putting in a camera so I can push a button and see who's at the front door. I can't wait to show my friends the present my mom gave me. They already think this case is really cool."

Terri studied her. "Sit down," she said.

Elena stared at her, resistant, and then read something in her mother's face. With a show of reluctance, she sat down beside Terri in the matching overstuffed chair.

"A few nights ago," Terri began, "I got a phone call, I think from someone in the Price case. He made some threats—"

"Like what?"

"Just threats—he wasn't specific." Terri's voice softened. "Then he asked if I had kids. It's probably nothing. But that's why we hired a security firm and why you've got a video receiver in your room."

Elena's shoulders hunched; perhaps it was an illusion caused by the overstuffed chair, but to Terri, her daughter suddenly seemed smaller and more vulnerable. "Who is he?" Elena asked.

Terri hesitated and then, though torn, chose to speak the truth. "The second man, Elena—the one I think caused Thuy Sen's death."

Elena blanched, and then outrage overcame her fear, propelling her from the chair. "So now you're afraid he'll do that to me. There's no place I'm safe from what you do, is there? Not even my own room." Tears filled her eyes. "Maybe this time I'll die, and then he can be your client."

Terri stood.

"Don't touch me," her daughter screamed. "I just want to be alone."

Turning, Elena ran from the room.