Conviction

EIGHT

ON THE MORNING OF THE ARGUMENT, CHRIS, CARLO, AND TERRI took a limousine down Pennsylvania Avenue toward the Supreme Court.

Chris was quiet. Mentally, he reviewed the precepts of his argument. Prepare to be peppered with questions, to answer each one crisply and move on. Don't expect to make your points in the order you had planned. Keep your legal theories as narrow as you can. Answer hypotheticals with care, avoiding traps. Avoid sweeping statements about justice which would draw the ire of Justice Fini. Oh, yes, and keep calm.

He was as ready as he could be. Every day for the last week, he had practiced as Terri, Carlo, and two professors of constitutional law had interrupted with question upon question. "Mr. Paget," Carlo had asked before he finished his first sentence, "are you adopting the reasoning of Judges Montgomery and Sanders with respect to freestanding innocence—?"

It was Fini's question, of course. Now, once more, Chris rehearsed the answer.

* * *

At twenty minutes before ten o'clock, the Pagets entered the Great Hall, designed to provide an inspiring entrance to the courtroom—towering monolithic columns, a lofty doorway framing a view of the justices' bench and the clock behind it.

The Pagets passed through. As the press gathered and spectators filed in, the courtroom seemed to await the justices themselves. Amidst the murmur of anticipation, Carlo absorbed a setting which, until this moment, he had seen only in photographs.

The forty-four-foot ceiling created the sense that he had entered a cathedral of the law. On the walls to each side a procession of historic lawgivers—Hammurabi, Charlemagne, Moses, Solomon, Justinian, Mohammed, and to Carlo's astonishment, Napoleon—gazed down on him like secular saints. Behind the bench was a red curtain through which the justices would enter and, above that, an ornate frieze depicting allegorical figures representing the Defense of Human Rights, the Protection of the Innocent, the Safeguard of Liberty, and of course, Justice. Carlo could only hope that the all-too-human figures who would gather beneath them would—in at least five instances—personify these ideals for Rennell Price.

He pictured Rennell again, a single prisoner in a six-by-six cubicle three thousand miles away, and wondered if their client was any more real to the justices than they were to him.

* * *

At ten o'clock, the marshal of the Supreme Court, wearing formal morning clothes, entered the courtroom and intoned, "The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez!"

The courtroom rose as one: Chris and Terri standing at the respondents' table; Laurence Pell and Janice Terrell at the petitioners' table, to their left. Led by the Chief Justice, the justices emerged from the velvet curtain in groups of three and took the nine high-backed leather chairs behind the rich mahogany bench.

"All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God Save the United States and this Honorable Court."

On the bench, Chris knew, a green pad covered the space before each justice, separated from those of the others by wooden dividers. The bench itself formed three panels, two of them wings slanting from the center section, creating a well of intimacy half-surrounding the lectern from which the advocates would speak. Rocking and swiveling, the justices would perform a rite of aerobic listening to the advocates or one another, as the more theatrical among them, particularly Justice Fini, launched brainteasers and witty remarks at the embattled advocates. Within the law, it was the greatest show on earth, filled with drama, surprise, and personality, from which new lines of analysis might emerge, and a lawyer's misstep might presage disaster. When he had first come here, as a law student, Chris Paget had thought of himself and his fellow onlookers as spectators at some bloodless version of the Roman Colosseum, in which the various classes of society—the relatives of the justices, the members of the Supreme Court bar, the press, and seated farther back, mere members of the public—awaited some fatal error by one of the contesting gladiators.

Now Chris thought of Rennell, and came as close to prayer as he was able.

* * *

Flanked by Fini and Huddleston, the most senior justices, Chief Justice Masters called the case of Rennell Price, summoning Laurence Pell for his first appearance before the Court.

Advancing to the lectern, Pell looked appropriately daunted: from Chris's experience, Pell's time would move so quickly that the white light flashing on the podium, a five-minute warning, would startle him; the red light, commanding his immediate silence, would fill him with misgivings as to all he had not said. He, like Chris, would reprise the argument for years to come—one with pleasure, the other with regret. But at least they both would live.

Chris's regrets—should he have them—would be far more searing than Pell's.

* * *

Pell began with a jeremiad aimed at the Court's conservatives.

"This opinion—rendered by Judges Sanders and Montgomery over Judge Nhu's principled dissent—distorts the meaning of AEDPA and denies the California Supreme Court the deference which AEDPA requires. On both counts, this is a virtual act of civil disobedience—"

"Isn't Mr. Price's argument," Justice Glynn asked in unimpressed tones, "that we can't know what impelled the Supreme Court of California to rule as it did? How could the Ninth Circuit defer in a vacuum?"

"Under AEDPA," Pell answered without hesitation, "whether the opinion is one page or twenty, it constitutes a finding that Mr. Price's facts were insufficient to support his claim." Pell's voice filled with emotion. "It is well to remember—after fifteen years—what this case is really about: a nine-year-old girl forced to choke to death on semen—"

"Someone's semen," the Chief Justice interrupted caustically. "What this case is really about is whose. Aren't you asking this Court to 'defer' to the witness Eddie Fleet?"

"And to the jury which found him credible—"

"Before Payton Price's confession. But if we affirm the Ninth Circuit, you won't attempt to retry Rennell Price. Yet you're saying that Mr. Fleet was so credible fifteen years ago—in spite of what we've learned since then—that this Court can be sanguine about allowing you to execute Mr. Price."

On the bench, Justice Fini had turned to the Chief Justice, appraising her with a glint of humor. But Laurence Pell did not look amused. "It's a question of finality—"

"Finality to the max," Caroline Masters snapped. "But the trial you rely on was the product of Mr. James's worst efforts."

"The California Supreme Court," Pell insisted, "found James constitutionally adequate—"

The Chief Justice leaned forward. "The California Supreme Court," she said acerbically, " 'found' nothing. Answer my question, counselor—should this Court give Mr. James's performance its seal of approval?"

Pell attempted to gather himself. "The question," he responded, "is whether Mr. James supposed the conflict made any difference—"

"James admitted as much," the Chief Justice repeated with weary patience. "That means we don't have to decide freestanding innocence, doesn't it? Because the trial of Mr. Price was constitutionally defective under AEDPA."

Silently, Chris blessed the Chief Justice: with forensic skill, she had placed Rennell Price on the narrowest, and least contentious, path to freedom.

"Nothing Mr. James did or didn't do," Pell replied, "could have affected Payton Price's decision to confess. Therefore, his conflict did not affect the outcome of the trial, and Mr. Price cannot offer new evidence of innocence under AEDPA."

Caroline Masters summoned a smile of incredulity. "Let's grant—for the moment—your argument that a lawyer who assumes one client's guilt because he believes the other client guilty is good enough for both of them. Are you saying that even if new DNA evidence excluded Mr. Price as the murderer, you still can execute him as long as his original trial was okay?"

Pell hesitated. "In theory, yes. But our office would never do so. And, if we tried, the Governor would grant clemency—"

"Really? Because of DNA?"

"Yes."

The Chief Justice smiled thinly. "So it's okay to execute someone we're just pretty sure is innocent if his trial—however dubious its outcome—was 'fair.' "

With this, Chris thought, the Chief Justice cut to the heart of Pell's argument. Sitting to her right, Justice Glynn regarded Pell with a dubious frown.

"What I'd say," Pell answered slowly, "is that—under AEDPA—that decision should rest with the Supreme Court of California. This Court should not become the court of second guesses."

From the bench, Justice Fini nodded, briefly eyeing Justice Glynn. "Enough of hypotheticals," he said to Pell. "In reality, isn't the entirety of Mr. Price's affirmative evidence of innocence his own brother's extremely belated—and wholly unsupported—confession?"

"That's right."

"Does that 'confession' negate AEDPA's requirement of 'clear and convincing' evidence?"

Heartened, Pell spoke more firmly. "It does not."

"And even if you fabricate a claim of freestanding innocence, the standard for innocence should hardly be less than that of AEDPA, correct?"

"I agree."

Briskly, Chris saw, Fini had both rescued Pell and reduced him to a prop. "Therefore," Fini prodded, "under any theory of innocence, Mr. Price must fail?"

"That's correct."

"All right," Fini said with obvious satisfaction. "So, according to Judges Sanders and Montgomery, the one remaining impediment to Rennell Price's execution is his claim of mental retardation under Atkins?"

"That's also correct."

"Which Judge Bond, Judge Nhu, and all seven justices on the California Supreme Court found unsupported by the evidence."

"Yes."

Fini cast an eye toward Justice Raymond—by Chris's calculation, the swing vote of the Court along with Justice Glynn. "And so," Fini continued, "as is the case with innocence, Judges Montgomery and Sanders stand alone in finding Mr. Price retarded."

"Yes."

"Of course," Fini interjected smoothly, "all of their singular reasoning is irrelevant unless Atkins applies to habeas corpus petitioners like Mr. Price. Does it?"

This invitation to controversy, however tempting, seemed to give Pell pause. Carefully, he answered, "I do not believe that it does. To me, the rule of law is clear—a new principle of constitutional law doesn't apply to habeas corpus petitions unless this Court expressly says so. In Atkins, the Court did not say so."

Chris felt Terri tense—if he could, Fini clearly intended to use Rennell Price to construct a landmark in the law of capital punishment, imposing the death penalty more frequently and with greater stringency. "And therefore," Fini concluded, "Atkins does not ban the execution of Mr. Price, or of any habeas corpus petitioner—even if the petitioner is supposedly retarded."

"That's correct," Pell said to Fini.

To Chris Paget, three justices formed their own frieze of conflicting attitudes: Fini satisfied, Masters antagonized, Glynn torn and deeply troubled. And then the red light flashed on, and Pell's time was up.