Conviction

TWELVE

THE DRAFTS PREPARED BY THE CHIEF JUSTICE AND JUSTICE FINI were written for an audience of one, Justice Glynn. Caroline's instructions to Callista Hill were clear: apply Atkins, find Rennell Price innocent within the parameters of AEDPA, and avoid resolving the question of freestanding innocence. "Ground it in the specific facts," she ordered. "No broad rulings, no sharp edges."

Fini's directions were the opposite. "Hit all the issues, both on the facts and on the law," he told Adam Wendt. "If Justice Glynn signs off on a broad ruling, we've hamstrung the Ninth Circuit and changed the face of the law. If he won't, then we've still got room to narrow the opinion in a way that pleases him.

"One thing needs to be clear. If his brother's death row confession is enough to exonerate Rennell Price, there'll be no end to exonerations."

And so, exchanging drafts, the two chambers took one case and fashioned two different realities for the benefit of Justice Glynn.

"Amazing," Conor Farrell said to his colleague Elizabeth Burke. "Fini's written a broadside on the subject of capital punishment."

Closeted in Justice Glynn's conference room, they compared the two drafts. "I think the Chief's outsmarted him," Elizabeth said. "Our justice will never buy off on saying Atkins doesn't apply to Price."

Nodding, Conor read aloud from the Chief Justice's opinion: "To execute a retarded man for the crime of being convicted before Atkins is anomalous. If that be our ruling, then capital punishment is to the rest of all law what surrealism is to realism. It destroys the logic of our judicial system."

Elizabeth smiled. "You can tell where Callista leaves off," she opined. "That paragraph has Caroline Masters all over it."

* * *

Fini handed Adam Wendt a page of the Chief Justice's draft. Swiftly, Adam read the lines his mentor had underlined in red:

Justice Fini excoriates the Ninth Circuit for overstepping its bounds. But the perverse genius of our system is that it allows all of us to claim that everyone but us is responsible for deciding life or death.

Federal courts must defer to state supreme courts; state supreme courts to state trial courts, and when either fails to act, they point to the federal courts as the last redoubt for correcting error. In the area of clemency, courts defer to governors, and governors to courts. And, of course, everyone who is elected defers to the voters who elect them, and who favor capital punishment.

In this antiseptic process of death by default, it is hard to fault the Ninth Circuit for looking at an inconvenient but stubborn fact: that the State of California seeks to execute a man whom the evidence no longer permits them to convict.

"If you buy this," Adam said, "the Ninth Circuit can designate itself as primary arbiter of innocence . . ."

"Exactly," Fini said. "If all else fails, that's what we sell to Justice Glynn."

* * *

At nine o'clock, returning from a solitary dinner, Justice Glynn interrupted his clerks' discussion.

"How are the opinions?" he inquired.

"Contentious," Conor said. "Justice Fini's mainly. He claims Atkins doesn't apply to habeas corpus petitioners like Price."

"Good God," Justice Glynn said in dismay. "Anthony's a brilliant man. But I wish, sometimes, that his notion of justice included appearing to do justice." This thought led to another. "What do they say about freestanding innocence?"

"The Chief Justice says almost nothing." Picking up a page of Caroline Masters's draft, Elizabeth said, "There's just one sentence: 'Because Rennell Price has satisfied the predicate for offering proof of innocence under AEDPA, we need not decide whether—in the absence of a constitutionally defective trial—the law offers any avenue for Mr. Price to show his innocence.' "

"Good."

"However, she goes on to say, 'To create contention where there is none, Justice Fini ranges far afield, issuing gratuitous admonitions on irrelevant issues to imaginary foes bent on abolishing the death penalty by stealth. These tendentious disquisitions, however philosophically interesting, are unnecessary to the disposition of the case of Rennell Price.' "

Justice Glynn sat heavily. "What about Anthony?"

"He jumps right into it," Elizabeth answered. "Listen to this: 'Given Price's failure to satisfy AEDPA, addressing whether a claim of "freestanding innocence" exists is hardly gratuitous—it is necessary. Indeed, a failure to do so would cause havoc in the federal courts, inducing a steady trickle of deceitful and sadistic habeas corpus petitions, filed by defendants playing in a lottery of our own invention.' "

"Oh, dear," Justice Glynn said softly. "I sometimes wish Justice Fini weren't quite so vivid. If you try to kill your audience with every sentence, you're likely to succeed."

"There's more," Elizabeth answered with a smile. " 'Absent a constitutional defect in the trial itself, there is no basis in the Constitution for demanding judicial consideration of evidence which somehow materializes after conviction. It is time to put this argument to an end: truly compelling proof of innocence—not present here—would undoubtedly provoke a pardon by the Governor.' "

Glynn slowly shook his head. "That's way too peremptory," he said. "If there's one thing Americans bridle at, it's the prospect of executing the innocent."

"Justice Fini," Elizabeth told him, "doesn't shrink from that, either. Here's what he says:

" 'One could hazard a guess that some nontrivial number of people in prison are, in fact, innocent. But because of the tremendous resources focused on death penalty litigation, it is fair to conclude that few—if any—of them reside on death row.

" 'Any human decision carries the risk of human error. But we have not, because of that, abolished the justice system. And by comparison with noncapital punishment, imposition of the death penalty is a model of exactitude. ' "

"What does the Chief Justice say to that?"

Picking up the opposing draft, Elizabeth performed a fair rendition of Caroline Masters at her most mordant: " 'Whether the error rate on capital crimes is insignificant depends, we might well suppose, on whether one is a statistic. The question is whether this Court is required to adopt the perspective of the statistician. The sheer number of exonerations counsels greater humility—not to mention humanity—' "

"To which," Conor put in, "Justice Fini responds by focusing on the guilty: 'Far from being inhumane, imposing the death penalty on a murderer is the essence of humanity. It vindicates the moral order, and confirms our respect for innocent life. It acknowledges the existence of evil in the world, and confirms the primacy of personal responsibility.' " Pausing, Conor raised his eyebrows. " 'Even the debate over deterrence cannot erase one undeniable fact—once the sentence of death is carried out, the recidivism rate for that defendant is extremely low.' "

Standing, Justice Glynn gazed out the window, his worry palpable. "This divisiveness won't do," he said. "Cases like this could tarnish us as an institution.

"The Chief Justice was right. If it falls to me to find us a way out, then it does."

* * *

Over the next two days, the outcome of the Price case narrowed, as expected, to the vote of Justice Glynn.

The Chief Justice's chambers received three "join memos"—the traditional letters from other justices saying "Please join me in your opinion"—from Justices Huddleston, Raymond, and Rothbard. And Justice Fini, Callista Hill informed Caroline, had three join memos—from Justices Ware, Kelly, and Millar—accepting his opinion without requesting any changes. With one more vote on Fini's side, the opinion of the United States Supreme Court would be a sweeping triumph for conservatives—strictly interpreting AEDPA, barring claims of freestanding innocence, and denying habeas corpus petitioners the right to assert mental retardation. As with the incidental effect of this—Rennell Price's execution—Glynn gave no sign of his inclinations.

"McGeorge," Huddleston told the Chief Justice in her chambers, "has incredible leverage over the jurisprudence of death. The worry is how he'll use it."

Huddleston pondered this. "What Anthony has going for him is, to me, McGeorge's frightening level of naĎveté: he has far too much faith that anyone who takes an oath and puts on a robe will do the right thing. He won't want to be seen as slapping down the California Supreme Court—whatever you do, you'll have to get around that."

Unhappily, Caroline nodded. "He's avoiding me," she informed her friend. "My spies tell me he's sitting down with Fini first."

* * *

"And so," Caroline said to Justice Glynn.

They sat across from each other over a candlelit dinner in the formal dining room of the Chief Justice's Georgetown town house—poached salmon in a white wine cream sauce, prepared by Caroline herself, accompanied by a chill bottle of Chassagne-Montrachet.

Justice Glynn dabbed his lips. "Delicious," he answered. "Or do you mean the Price case?"

Caroline smiled. "Both, I suppose. But now I'm in suspense about only one."

Glynn put down his napkin. "As so often, Tony went too far in framing bold—and, to me, unnecessary—principles of law. I've told him as much. The problem with your approach is that—in the guise of caution—it, too, is revolutionary."

Genuinely surprised, Caroline asked, "How so?"

"It reorders the relationship between the Ninth Circuit and the State Supreme Court, not so subtly concluding that the latter is constituted of seven intellectual and moral ciphers, whose sole concern is not justice but their own reelection."

Caroline tried to stifle her alarm. "What a perfectly formed sentence, McGeorge. It sounds like you've been doing a little drafting of your own."

Justice Glynn looked vaguely guilty. "I have," he conceded. "But only as a way of trying out one theory."

Once more, Caroline was struck by the degree to which Rennell Price had become a pawn, prey to legal abstractions and competing agendas. "Then I hope you'll try another," she answered softly. "What about this? We don't decide retardation at all. Instead you and I craft a narrow ruling on innocence that doesn't address the adequacy of the California Supreme Court's performance. We simply find that the evidence—in this one case—satisfies AEDPA's requirement of 'clear and convincing' evidence."

"How do we do that?"

"By stressing that the Attorney General conceded that a retrial would result in Price's acquittal. That circumstance is so unusual it has no broad implications for the law."

"No adverse implications, you mean. Because then I haven't signed off on any of Tony's theories, and you're reserving the subject of deference for another day."

Caroline smiled. "It's like the Hippocratic oath, McGeorge. First do no harm—to the law, to this Court, or to Rennell Price."

But Justice Glynn did not return her smile. "It's a way out," he said at last. "There's just so much to think about."