Conviction

NINETEEN

"HOW DO PRICE'S LAWYERS RATIONALIZE THIS?" THE CHIEF JUSTICE asked Callista. "Under AEDPA, Price has no right to be here."

Callista remained standing in front of Caroline's desk. "They claim that the Constitution gives this Court jurisdiction over habeas corpus petitions, including a claim of freestanding innocence, that can't be limited by Congress. In other words, AEDPA can't stop us from hearing a new claim."

"And just what is it we're supposed to hear?"

"They found a teenage girl who claims the State's key witness—Eddie Fleet—forced her to give him oral sex when she was ten years old. They also claim California's failure to immunize Fleet meant they couldn't cross-examine him about his own involvement in the victim's death." Callista paused for emphasis. "Bottom line, Price's lawyers say we're the last chance to stop the State of California from killing an innocent man."

"What about the Governor?"

"They're trying. But the Governor hasn't been heard from."

Caroline felt caught between her conscience and a wholly practical concern—that intervening would further inflame the tensions on the Court, pitting her against Justice Fini, to the discomfort and resentment of her colleagues. With an uncharacteristic sigh, she asked Callista, "What would you do?"

Without invitation, Callista sat. "I'm a black woman," she said bluntly. "You probably noticed. But a lot of white folks still barely notice me at all. And some that do couldn't pick me out of a lineup of other black women about my age and height. They've got no practice telling one of us from another—all they see is 'black.'

"Fleet has no credibility left—not after this latest thing against him. So we're going to execute Price because an old white lady thought she could differentiate him from Fleet looking through a window across the street? Come on. Anyone who's comfortable with that is way too white for words."

Despite her misgivings, Caroline smiled. "Even the Assistant Attorney General who argued the case for California?"

"Especially him," Callista answered with disdain. "Do you believe Price did it?"

The blunt question, stripping Caroline of legal hedges, gave her pause. "No," she answered. "But if you're Justice Fini, that's not the point."

Caroline saw Callista hesitate, torn between her sense of injustice and the fear of crossing the line between Chief Justice and clerk. More quietly, she said, "My mama's mouthy and opinionated, and I guess she raised another one. So I have to ask this, even though I know I'm out of line: What's the point for you?

"Can we just sit here and watch them kill this guy? Isn't Justice Glynn's penchant for worrying too much about Court politics exactly what got Price here? What greater good is the Court serving if it sacrifices Rennell Price? And do we even have the right to ask that question?" Callista lowered her voice again. "Call me stupid—any black person in America can tell you 'justice' is hit or miss. But that's no reason for us to close our eyes."

Caroline considered her. "I guess Price wants an immediate stay of execution," she said. "Until this Court, or some other Court, rules on his new evidence."

"Yes."

"How many days until his execution?"

"Five."

Caroline glanced at her calendar. "Write this one up," she ordered. "And keep close contact with the Governor's office. I want to know what happens with clemency."

* * *

Three days passed, filled with fruitless scraping for new evidence, searching for Fleet, jumping when the phone rang, checking for faxes at the office and at home. Chris looked tired; Carlo was irritable and jumpy. No one could find Fleet.

"The Court's playing chicken with the Governor," Chris opined. "No one wants to go first."

Rennell had stopped eating. "Don't need food no more," he said to Terri. The fear in his dull eyes made Terri miserable.

"Don't give up," she told him.

Two nights before the date of execution, Eddie Fleet came to Terri in a dream. Hugging her, he said quietly, "I can't let Rennell suffer anymore. Tell me what I need to do."

When she woke, reality overtaking her, only Chris was there.

* * *

Three hours later, at the office, the fax machine emitted a letter from the Governor headed "In the Matter of the Clemency Petition of Rennell Price."

Every court available, the Governor explained, had reviewed this matter—several times—including an exhaustive analysis by the United States Supreme Court. Given this meticulous and repeated judicial scrutiny, the deplorable nature of the crime, and the wishes of Thuy Sen's family, the execution of Rennell Price could not reasonably be called a miscarriage of justice. Clemency denied.

There was no time for emotion. Swiftly, Chris and Terri sent a supplemental pleading to the death penalty clerk of the United States Supreme Court, attaching the Governor's letter, for review by the Chief Justice.

Thirty-seven hours separated Rennell from death.

* * *

On receiving Governor Darrow's letter, the Chief Justice went to Justice Huddleston.

He had read Callista Hill's memo and now reviewed the letter before looking up at Caroline. "It's like some terrible conveyor belt," he said. "Rennell Price is inexorably gliding toward the jaws of death, and one keeps expecting someone else to take him off. And no one does."

"So now it's down to me, as Circuit Justice. But I'm also the Chief Justice."

"And, as such, charged with doing what you can to lessen friction within the Court. Which involves preserving your own credibility."

"What about my own conscience?"

Huddleston rubbed his eyes. "Well," he said, "there is that." Picking up the letter, he scanned it again. "If you do decide to issue a stay, at the least you may buy him a few hours—our Court's not in session, and our colleagues are scattered to the winds or, in Fini's case, a condominium in Hawaii. That should put some pressure back on the Governor." Huddleston paused. "I'll support you, of course. But no one else may. And you'll need five votes to keep the stay in place—including one from a justice who only last month condemned Price to death. So how you spend your capital as Chief really is your call."

Caroline glanced at her watch. It was close to three in the afternoon, 10:00 A.M. in Hawaii. "Let's hope Fini's up and out already," she said. "If Price is extra lucky, Tony's surfing the Devil's Pipeline."

* * *

A little after one o'clock in San Francisco, the death penalty clerk advised Christopher Paget that Chief Justice Caroline Masters had entered a stay of execution in the matter of Rennell Price.

Chris felt little jubilation. Before informing Terri and Carlo, he called the Governor's office. To his surprise, the Chief Justice had already sent the Governor a copy of her order staying execution.

"She's playing hardball," Chris told Terri and Carlo. "Now it's up to Fini and Darrow."

* * *

At six o'clock that evening in Washington, an e-mail from Justice Fini appeared on Caroline Masters's home computer.

Fini's analysis was terse. Skirting the thornier legal questions, he called the new evidence of Fleet's pedophilia "woefully deficient" and "irrelevant to the crime of which Price stands convicted."

Immediately, the Chief Justice began typing a response. "Tomorrow," she began, "Rennell Price is scheduled to die. We must ask ourselves whether this latest evidence should give us pause before sanctioning such a dubious execution . . ."

* * *

At five o'clock in the afternoon Pacific time, the telephone in Terri's office rang.

It was the Supreme Court's death penalty clerk. "There's been a new order in the Price case," the man told Terri somberly. "By a vote of five to four, the Court has dissolved its stay in the matter of Rennell Price."

Mechanically, Terri thanked him for calling and put down the phone. Thirty-one hours from now, at 12:01 A.M., the State of California was scheduled to carry out the death warrant.

Frenziedly, Chris started trying to track down the Governor's scheduler.

* * *

At close to midnight, Terri was still in her office, preparing yet another petition in case new evidence was found. When her telephone rang, she started. Turning, she saw Johnny Moore's cell phone number.

"I've got some news," he said tersely.

Terri hesitated, suspended between hope and the grimness of his tone. "About Fleet?"

"About Fleet, Terri. He's dead."

Terri felt herself go numb, disbelief warring with relief, followed by a lawyer's sense of foreboding. "How?" she asked in a hollow voice.

"It happened yesterday morning, in East L.A. Fleet was hiding out with some woman he'd met, using a false name. According to the cops, he beat her up, then forced her to go down on him. When he fell asleep, she stuck a gun in his mouth and pulled the trigger." Moore's voice was soft. "There's a touch of poetry in that. I like to think he woke up first, if only for a moment."

Terri forced herself to think. "Dead," she repeated. "Somehow I kept hoping we could force him to confess. Trap him, some way."

"It never would have happened," Moore answered. "You had no leverage—other than Fleet, if you believe he was there, Payton was the only witness to Thuy Sen's death."

"Fleet was there," Terri answered. "And now they're all dead, the three people in Eula Price's living room."

A sense of tragedy overcame her and then, by reflex, a lawyer's logic. There was no more evidence to be had in Thuy Sen's death, or any hope of evidence. Only whatever inference could be gleaned from the reason for Fleet's own death. "This is part of the pattern," she said. "We can use it in a new petition."

By rote, Terri dictated the bare bones of an affidavit for Moore to execute and fax. Only then did she permit herself to be a mother, not a lawyer, and thank whatever God existed that Elena would be safe.

* * *

As soon as she could, Terri took her work home and went to Elena. It was nearly two o'clock in the morning, but what Terri had to tell her could not wait.

Restless, the girl stirred, lips parted as if to speak, and Terri wondered if her nightmare of Richie had come again. When Terri touched her shoulder, Elena started awake.

"It's only me," Terri said softly. "Just your mom."

Her daughter gazed back at her, too newly awake, and perhaps frightened, not to appear vulnerable instead of guarded. Anxiously, the girl demanded, "Is something wrong?"

"Something happened," Terri answered. "Something I want to tell you. But nothing's wrong."

Taking Elena's hand, Terri waited for her daughter to collect herself. "What is it?" Elena asked.

"The man who may have followed you, the one I believe killed Thuy Sen all those years ago. He's dead."

Elena's eyes fluttered, then studied Terri with a look of hope and disbelief. "How did he die?"

Terri hesitated, remembering Elena's tortured outcry, "Maybe I'll kill a man for forcing me to do things." But nothing but truth could come to Terri's lips. "He beat a woman, Elena, then forced her to give him oral sex. So she shot him in his sleep."

Elena covered her face. After a moment, she murmured, "Will the woman be all right?"

"I don't know."

Elena sat up again. "I wanted him dead," she said after a time, "and now some other woman will pay for it. Why wouldn't it be better if they'd sentenced him to death?"

At first, Terri had no answer. Then she said, "It would have been better, Elena, if they'd sentenced him to life. You'd still be safe now, and so would Rennell."

Elena did not answer.

"You are safe," Terri said softly. "Just sit with it for a while, and know I love you."

Mute, the girl nodded, and then Terri returned to the library, to try to save Rennell Price from a dead man, and the State of California.

* * *

In the morning, Elena appeared in the library.

It was six o'clock, and Terri was revising her petition. To her surprise, Elena stood behind her, silently rubbing her shoulders. Terri did not ask why, and Elena gave no reason. But when Elena was finished, she kissed her mother softly on the crown of her head, a brush of lips, and then went back to bed.