Conviction

ELEVEN

ON THE MORNING OF THE FRIDAY CONFERENCE, CAROLINE MASTERS sat alone in her chambers, reviewing her notes.

Three of the cases were predictable—she already knew where the votes were and believed they would be correctly decided. At least, none of the rulings would deface the law, or bring rancor to the Court which was her charge.

Unless she was lucky, this would not be true in the matter of Rennell Price.

Idly scanning her notes, she pondered the chain of irony and mischance, the changing tides of law, through which one inmate, once a speck in the margins of society, had become the pawn of a fate which dwarfed his own. Then the buzzer sounded in her chambers, as in those of her eight colleagues, summoning the Court to conference.

* * *

As Chief Justice, it was Caroline's role to initiate the discussion of each case which had been argued, outlining the decision under review, explaining her views as to the applicable law, then casting her vote on whether to affirm or reverse. By now this ritual was second nature, one she performed with confidence and crispness, and she strove to treat the case of Rennell Price like any other. But the sharp attentiveness of her colleagues underscored the stakes.

"The Ninth Circuit ruling," she began, "has two distinct components:

"First, that Rennell Price met the burden of demonstrating mental retardation. The effect of that ruling is simply to bar his execution."

Anthony Fini, she saw, smiled slightly—his silent way of objecting to the assertion that Atkins applied at all. "Second," Caroline continued calmly, "the Ninth Circuit agreed with Mr. Price's assertion that new evidence of innocence entitled him to exoneration. As the State concedes that it could not now obtain a conviction, affirming the Ninth Circuit means that Price goes free.

"There are two alternative grounds for doing so. Under AEDPA, the Ninth Circuit held that Mr. Price was entitled to introduce new evidence of innocence—his brother's confession—because Yancey James's performance deprived him of the effective assistance of counsel, and because counsel's failure to offer the confession earlier was not caused by lack of diligence . . ."

Fini's eyebrows shot up, noting what, to him, was clearly a contradiction. Ignoring this, Caroline addressed herself to Justice Glynn, a silent portrait of indecision. "In the alternative," she said, "the majority held that, where the new evidence of innocence is compelling, Mr. Price was entitled to introduce it even if he could not satisfy the predicates of AEDPA—which is to say, even if Mr. James's performance was adequate and, therefore, his original trial was technically fair."

Pausing, Caroline surveyed the others—Justices Ware, Kelly, Rothbard, and Millar to her left; Justices Fini, Glynn, and Raymond to her right; and, at the other end, Justice Huddleston. Leaning forward, she rested both arms on the table. "On the Atkins claim, I vote to affirm. Mr. Price's social history establishes, by a preponderance of the evidence, that he is mentally retarded.

"On the innocence claim, I vote to affirm under AEDPA. That means we do not have to resolve whether a freestanding innocence claim exists, or what the proper standard of proof might be." Her voice became clipped. "To me, this case is hardly a landmark in the law. The only compelling question it presents relates to Mr. Price: will this Court permit the State to execute a man when it concedes that the evidence no longer even supports a conviction? And if we do, what on earth has the law—or this Court—gained? Nothing."

With that, the Chief Justice stopped abruptly, nodding to Justice Huddleston. Her senior colleague spoke slowly and deliberately. "There's been much discussion," he began, "of all the deference we owe to the ruling of the Supreme Court of California. It's boilerplate—less an opinion than a form for approving executions, with the victim's name left blank so the Court could fill it in later. I've seen a dozen of these, and they're all alike. And worth nothing.

"I vote with the Chief Justice."

By custom, the discussion turned to Fini. "Well," he said with a smile, "it's the third inning, and I'm already trailing two to nothing.

"But I should correct some misimpressions." Without overtly noting him, Fini leaned closer to Justice Glynn, speaking in a tone which combined regret with admonition. "This decision is about whether innocent victims like the family of Thuy Sen—a name we seem to have forgotten—will become our victims as well." Abruptly, his voice became biting. "In short, whether California has a death penalty at all, or whether the Ninth Circuit is allowed to practice abolition case by case.

"This last-minute confession is not 'clear and convincing' evidence of anything but Payton Price's desire to live a few weeks longer." Fini scanned the table. "Is this the first death row confession we've ever seen? They're routine. How naĎve can we be? How much mischief will we let inventive prisoners do to our justice system?

"The finding on innocence is an abuse. As for Atkins, our opinion did not state—as required—that it applies to all the numberless habeas corpus petitioners who will now become 'retarded.' And if it does, it requires far more compelling evidence than that presented by Mr. Price.

"This case is poison," Fini concluded with disgust. "Thanks to our system of 'justice,' the Sen family has served fifteen years in a purgatory of our own invention. The vote stands two to one."

Sitting beside Fini, McGeorge Glynn looked so riven that Caroline felt a moment's pity, followed by irritation—in all likelihood, Glynn held a man's life in his hands, and it was time for him to face it. "McGeorge?"

Gazing at the table, he rubbed his fingertips together. "I'm reminded of that hoary cliché—'Hard cases make bad law.' I find both sides equally compelling, and equally perplexing."

And so? Caroline thought. The silence among his colleagues conveyed the common assessment apparent in Fini's taut gaze—that Justice Glynn was about to decide the case. "I've never seen anyone do this," Glynn said at last, "but I'd like to reserve my vote until I've heard more discussion." Apologetically, he faced Caroline. "I could cast a tentative vote for the sake of casting one, but it would only be that."

Startled, Caroline considered the benefits of suggesting that he do so and encountered her own unwonted hesitance—she did not know which way Glynn would jump, and worried about being the one to force him. "No need," she said in a pleasant tone. "If Tony, Walter, and I haven't dazzled you, there're still five of us to go."

She turned to Justice Raymond, knowing that he, too, could become the deciding vote to condemn Rennell Price. "Thomas?"

The rumpled and amiable Raymond—a self-styled practical man—smiled at Justice Glynn. "I'll tread where the brighter of us fear to go. Like you, McGeorge, I can argue this thing either way. But what decides it for me is that I used to be a State Supreme Court judge.

"I wasn't impressed then," Raymond continued dryly, "and I'm not now. We were elected; so are these people in California. We were afraid of capital cases; so are they.

"As Walter suggests, except for the name Rennell Price, the State Supreme Court's opinion could pertain to any case, and tells us nothing about this one. Until they start doing their job, someone should—even if it's the Ninth Circuit." Looking at his colleagues, Raymond finished serenely, "I vote to affirm."

Thank God for Tom, Caroline thought—a sensible man who knows his own mind and who, she felt certain, would sleep soundly tonight. But Tony Fini had clearly entertained the hope that Thomas Raymond was persuadable; it took Fini a moment to erase his scowl before he turned to his soul mate in ideology, Justice Ware.

As John Ware prepared to break his accustomed silence, Caroline pondered anew the complexities of race, the wounds sustained by John Ware in ways which she could never know. Though sometimes affable, Ware struck her as an angry man. But what made him angry was less racism than his belief that society's sporadic efforts to ameliorate it cheapened his own achievements, condemning him in others' minds—and perhaps his own—to a second-class citizenship he could no more escape than he could escape his race. Yet Ware had risen through the patronage of conservatives who, trumpeting a black man who purported to believe as they did, had taken a judge of more modest accomplishment than any number of African American judges or lawyers and put him on the Court. Knowing this, Caroline suspected, had further tied Ware in psychic knots. But there was one thing she knew for sure—for Mr. Justice Ware, Rennell Price's dilemma was far less vivid than his own.

"In my mind," Ware said tersely, "this is about the respect we owe state courts. This isn't nursery school—it's not our purpose to draw smiley faces on the margins of opinions with the most words in them. I vote to reverse."

The vote stood at three to two. As he butted his head forward, Bryson Kelly's bristles of crew-cut red hair evoked the football player he once had been. Looking directly at Justice Glynn, Kelly said, "Tony and John have spoken for me. We've reversed the Ninth Circuit in case after case, and still we have this problem. To encourage them further is weak-minded. As I used to say when I was in politics, 'Send them a message.' "

Justice Glynn pondered this, eyes fixed on the green leather pad before him. Caroline could sense the swirl of his conflicting emotions: cautious by nature and moderate by inclination, Glynn also suffered from the contradictory impulses of the sweet-souled but weak-willed—the desire to be fair without giving offense, for which he sometimes overcompensated by sudden outbursts of rigidity. How those forces would resolve themselves was as opaque as his expression.

"Miriam?" the Chief Justice said to Justice Rothbard.

Though the kindest of women, Miriam Rothbard had a look of intellectual severity; her plain wire-rim glasses and hair pulled back in a bun reminded Caroline that Justice Rothbard had been an early feminist, one of the first—and still one of the brightest—women to graduate from Harvard Law School. "Like the Chief Justice," she said to Glynn, "I started out by defending criminal cases. I never saw a defendant sentenced to death who didn't have a terrible lawyer. And yet only twice—in this Court's entire history—have we found that a lawyer's poor performance violated a condemned man's right to counsel."

Pausing, she glanced pointedly at Justice Fini. "Something's wrong here. Either my experience is anomalous—which I very much doubt—or this Court is pretzeling itself to let terrible lawyers become corpse valets. If any of us would let Yancey James represent him with his life on the line, I'd sincerely like to understand why."

Fini gave his friend and fellow opera buff a smile of reproof. "That's really not the issue—"

"Reality never is, is it, Tony?" Rothbard returned his smile with a killer smile of her own. "Only the most arid kind of abstraction could turn a drug-addicted hack into an excuse for executing a retarded black man who might as well have been representing himself."

Suppressing a smile of her own, Caroline bit her lip. "If this lawyer isn't bad enough to satisfy you," Justice Rothbard concluded, "no one is. I vote to affirm."

Caroline fixed her gaze on Justice Millar, hopeful, despite his vote to grant the State's petition, that Justice Raymond or Justice Rothbard might have caused him second thoughts. "Dennis?"

Millar, the court's ascetic, regarded her with a wistful air. "If I may say so, I find this whole discussion melancholy.

"There seem to be two very different versions of the Court—one that places trust in state courts, one that sees us as their keeper. The latter course, it seems to me, will embroil us in more contention. I vote to reverse."

So much for Rennell Price, Caroline thought caustically—the purpose of this Court is to keep its own docket tidy. The vote stood at four to four.

With deep misgivings, she faced Justice Glynn, saying gently, "The buck is passed, McGeorge."

Turning his entire body, Fini stared at his wavering colleague, willing his acquiescence. Caroline's mouth felt dry.

Glynn folded his hands, turning to the Chief Justice. "I have two concerns, and they're in conflict.

"The first is Miriam's: that a lackadaisical lawyer contributed to this man's conviction—though I'm stymied, I'll admit, by the fact that his deficiencies have nothing to do with Payton Price's failure to confess. But I'm also troubled that, by ruling for Mr. Price, we're going to encourage Ninth Circuit judges, some of them de facto death penalty abolitionists, to second-guess judges and juries who were closer to the facts."

"Suppose," Caroline swiftly proposed, "that I assign you the task of drafting a majority opinion affirming the Ninth Circuit. That way you can write it to accommodate your concerns, confining its scope to the particulars concerning Mr. Price."

Fearing her sudden effort to co-opt the fifth vote, Fini interjected, "I'm not sure that's giving due credit to his ambivalence—"

"For which," she cut in, "I'm offering a cure. In the process, perhaps McGeorge can find us all a way out of this mess."

"Assuming that we want one." Again facing Justice Glynn, Fini added incisively, "I, for one, don't."

As though cornered, Glynn turned to Caroline for relief. "At this point, I'm not sure I'm prepared to pick up the laboring oar."

"Then let's do this," she responded easily. "I'll draft a majority opinion addressing your qualms—"

"There is no majority," Fini retorted. "We're split four to four, with McGeorge still undecided.

"Let me suggest this: you draft your proposed majority opinion, and I, as senior justice among the opposing four, will draft ours. Then we can circulate them to the others, while giving McGeorge a basis for comparison and, I would hope, a resting place that pleases him." Before Caroline could respond, Fini turned to Glynn. "Would that be helpful, McGeorge?"

Glynn accorded him a look of genuine gratitude. "Yes. It would."

Fini flashed a grin. "Excellent. What say you, Madam Chief?"

Finessed, Caroline silently cursed McGeorge Glynn for his dithering. Of Fini, she inquired, "Is ten days enough time for an exchange of drafts?"

"Ample."

"Good. Then that's what we'll do." Checking her notes, the Chief Justice said evenly, "The next case is City of Cincinnati v. Roberts."