Carlo sat back. "How'd it go?"
"If you're going to ask who won, I don't know. But by seven o'clock, we will. The Court's promised to fax their opinion." She picked up a section of his brief, preparing to read it. "In the meanwhile, we can kill some time by working . . ."
* * *
Shortly after five o'clock, as Terri and Carlo revised the draft of their Supreme Court petition, Chris arrived.
"How are the kids?" Terri asked.
Chris unknotted his tie. "Kit's fine," he said tiredly. "Elena's not so fine but won't say why. My guess is that she disapproves of our afternoon activities. I'm wondering if you shouldn't go home and let Carlo and me finish up here."
Terri felt trapped between her duties as a mother and her responsibilities as a lawyer for a man who aroused such loathing in her daughter—both for his supposed crime and for the way it had consumed Terri's life. "I can't leave before seven," she answered. "And only if we've won."
Chris shook his head. "Climb down off the cross," he said gently. "Let me take your place for a while."
He looked tired, Terri realized, and she then thought of how he had been the night before, too fretful about his argument to sleep, a different man from the collected and self-assured advocate she had witnessed in court. "I like it up here," she answered. "Take your son to dinner. If you're back by seven, we can sort out what we have to do."
* * *
Bright and airy, the North Beach restaurant had begun filling up with families who, like Chris and Carlo, had come for generations to banter with the same waiters and eat an early dinner on a Sunday afternoon. Chris contemplated the chill martini which Manfred, their waiter, had known to bring without a word.
He savored a first sip and put it down again. "I'm fried," he confessed to Carlo. "This job wears me out more than it used to. The price of getting older, I guess."
It was a rare admission, his son reflected, especially from this man who appeared to have aged little in the eighteen years since Carlo, at seven, had come to live with him. Then it struck Carlo that what burdened his father was the knowledge, born of hard experience, that failure meant not only the certain death of another human being but the quiet suffering of his own wife.
"Terri says you were magnificent," Carlo assured him dryly.
Chris did not smile. "I did all I could," he answered. "Maybe too much. If we lose, Rennell Price will die. But if we win because the Ninth Circuit bought the wrong argument, the Supreme Court may require that he die anyhow—just later rather than sooner. That may be what I did in arguing freestanding innocence.
"You'd think it a simple proposition: that even if Rennell Price's original trial was 'fair,' if new evidence proving him innocent emerges at any time before his execution, then he should go free. That's all 'freestanding innocence' means. But under the law, merely being innocent may not be enough."
Carlo took his first swallow of beer. "Tell me about it," he requested.
* * *
All of them—the lawyers, the media, the three judges of the Ninth Circuit, and Thuy Sen's family—were assembled in the grandeur of Courtroom One, a lavish mélange of carved Corinthian columns, plaster cupids and flowers, and stained-glass windows filtering a golden light which augmented the intended sense of awe. In Terri's mind, this opulence, an expression of Gilded Age extravagance, was a curious setting in which to determine whether Rennell's life, the product of the most squalid and harrowing circumstances, would come to a premature end.
The three men who would decide his fate looked down from a burnished mahogany bench. In the middle presided Blair Montgomery, a small, white-haired man with a keen expression and sharp blue eyes, by turns wintry and amused. To his right sat Judge Sanders, whose excess weight lent his face and body a look as amorphous as his judicial philosophy, undefined by any clear principle save caution. Judge Viet Nhu was Sanders's opposite—an elfin man with salt and pepper hair and a slightly puckish expression.
Sitting at the prosecution table, Larry Pell and Janice Terrell had looked surprised when Chris, not Terri, advanced to the podium to argue for Rennell Price. Chris, dressed in a dark blue pin-striped suit made for him by a Savile Row tailor, effused a sense of entitlement and ease that one either had from childhood, or not at all.
"What the Attorney General is asking you to rule," Chris had told the panel, "is that guilt or innocence no longer counts. If you accept Mr. Pell's argument on waiver, or due diligence, or on Yancey James's conflict, you will never have to consider whether we're executing an innocent man." Chris's voice was tinged with disdain. "It's death by technicality, a heartless joke. And it's wrong. Killing the innocent is immoral, even when it's cloaked in legal niceties."
"Fine words," Nhu interrupted in arid tones. "But the purpose of AEDPA is to bring finality to proceedings such as these—which to Thuy Sen's family must seem infinite indeed."
Chris hesitated. Then, believing Viet Nhu a lost cause, he framed his answer as bluntly as Terri would have, hoping to engage Judge Sanders. "If AEDPA renders innocence irrelevant, then it violates at least two provisions of the Bill of Rights. 'Due process of law' does not permit us to execute a man for a crime which he did not commit. And there can be no more 'cruel and unusual punishment' than to execute Rennell Price for the perversion inflicted on Thuy Sen by Eddie Fleet."
The last, unvarnished sentence seemed to take Judge Sanders aback. "Isn't such a claim a matter for the Governor?" he asked. "If the evidence of someone's innocence is clear, then clemency provides a remedy."
Chris forced himself to answer softly and respectfully. "I'll pass over the state of politics which makes clemency so meaningless. The bottom line is this: the theoretical availability of clemency does not absolve this Court—or any court—of its duties. The Constitution does not allow us to pass the buck for death."
* * *
"Mr. Paget's argument," Pell said with quiet scorn, "is a venture in fantasy unmoored from law. To allow a federal court to grant habeas corpus relief would in fact require a new trial, not because of any constitutional violation of the first trial but simply because of a belief that, based on newfound evidence, a jury might not find the defendant guilty at a second trial. However, it is far from clear that another jury would produce a more reliable determination of guilt or innocence, since the passage of time has only diminished the reliability of criminal convictions." Briefly glancing up at Montgomery, Pell pressed his point. "To quote Justice Fini, 'If the process is free of error, there is no constitutional argument, and the question of guilt or innocence is not before the Court.' "
"Yes," Montgomery said dryly, "we're aware of Justice Fini's views. I'm sure you're also aware of Justice Blackmun's: 'The execution of a person who can show that he is innocent comes perilously close to simple murder.' "
"But that's not this case," Pell countered promptly. "Payton Price's confession falls well short of establishing his brother's innocence. In Burton v. Dormire, the Eighth Circuit opinion addressed this situation in light of Herrera. A quotation from the Court's opinion makes it clear that AEDPA bars a claim of freestanding innocence: 'One cannot read the record without developing a nagging suspicion that the wrong man may have been convicted of capital murder in a Missouri courtroom. But Burton's claims of innocence run headlong into the thicket of impediments erected by courts and Congress.
" 'Burton's legal claims permit him no relief, even as the facts suggest he may well be innocent. We express the hope that the Governor can provide a forum in which to consider any such evidence.' "
Montgomery answered in withering tones. "Let's inject a note of realism into this rather theoretical argument. Since the reinstitution of capital punishment in 1978, when was the last time this Governor—or any governor of California—commuted a sentence of death?"
"That's not the question—"
"It's my question, Mr. Pell. Have the good grace to answer it."
Pell spread his hands. "I'm not aware of any commutations."
"That'
s because there haven't been any." Montgomery leaned forward. "Which is why this Court has in the past allowed us to consider evidence of innocence, in order to avert a 'fundamental miscarriage of justice.' Doesn't that fairly describe a case where you ask us to require the execution of a man who—by your own admission—would go free if we forced you to retry him?"
"No," Pell answered quietly. "It would spare this Court a collision course with the Court whose precedent binds it, the Supreme Court of the United States. That Court commends the avenue of clemency. It is not the role of this Court to prejudge the result but to deny Mr. Price's petition, and direct his counsel to the Governor of California."
"Please respond," Judge Sanders requested, "to petitioner's argument that—absent a forum for freestanding claims of innocence—the death penalty itself violates the Constitution."
"It's nonsense," Pell retorted tersely. "A lifetime right to prove one's innocence is not guaranteed by the Constitution—"
"What about Mr. Paget's list of exonerations?" Sanders interrupted. "Shouldn't that at least induce some degree of disquiet?"
"To the contrary, Your Honor. The sheer number of exonerations proves that the system works."
Glancing at Judge Nhu, Pell gave a shrug of helplessness. "With all due respect," he said to Judge Montgomery, "there is no evidence whatsoever that here, in the State of California, we've ever executed an innocent man—"
"Has anyone ever tried to find out?" Montgomery asked. "Or have we literally buried our mistakes?"
Pell stiffened with resistance. "It takes all the resources we have, Your Honor, just to defend against petitions like this one. Which we do as honorably as we know how." His voice took on the weight of admonition. "The Supreme Court requires this Court to apply the law, not reconfigure it as it pleases. And what the law requires is clear: that Rennell Price's sentence of death be upheld."
* * *
Pensive, Chris finished his drink. "One purpose of making novel arguments is to encourage the Court to avoid deciding them. On its face, AEDPA doesn't allow Rennell to go free simply because he's innocent: if possible, we want to win under AEDPA, not outside it. The last thing we want to do is free Rennell by means of an argument which the United States Supreme Court thinks, however wrongheadedly, is another case of Ninth Circuit extremism."
Carlo's cell phone rang. Retrieving it from the pocket of his sport coat, he saw Terri's number flash across the screen. "Maybe the opinion's come in early," he said, quickly stabbing the call button to ask, "What's up?"
"Nothing." Terri's voice was tense but weary. "Montgomery's law clerk called—their new deadline is ten o'clock, and that's if we're lucky."
"Did he say why they're having trouble?" Carlo inquired.
"No. But take your time and meet me at home. I gave the Court our fax number."
Carlo hit the off button.
"What's happening?" Chris asked.
"A long, leisurely meal for us," Carlo answered. "Maybe some cognac. Seems like you've tied the Court in knots."
NINETEEN
BY A LITTLE PAST NINE O'CLOCK, CHRIS HAD FINISHED READING to Kit from the latest Lemony Snicket, and a temporarily amicable Elena had kissed Carlo on the cheek before proceeding upstairs. "I promised to do anything she wanted next Saturday afternoon," Terri explained to Chris as they encountered each other in the kitchen.
"And what will that be?"
"Getting our nails done. Lunch at Neiman Marcus—Elena loves the popovers. A movie, the newest teen horror film, something with a slasher. Believe it or not."
Imagining his wife soldiering through this teenage program of self-indulgence and frivolity, Chris began to laugh, mostly from relief that Terri might be allowed—at whatever cost—to assuage her guilt and make peace with Elena, however tentative and temporary, escaping for a moment the shadow of Eddie Fleet. "Mercifully, Carlo liked baseball."
"Oh," Terri continued imperturbably, "and we want your convertible. Sometimes Elena and I like to put the top down and drive around listening to CDs. Her CDs, of course. That way she can be with me without actually speaking to me—"
"Makes perfect sense," Carlo interjected, entering the room. "I always thought that Dad was best experienced as a presence."
This had been far less true of Carlo, Terri knew, than of Elena. As she often did, Terri envied Chris the generally unruffled amiability of his relationship with Carlo, a painful contrast to the tension she felt with Elena, the worry and rejection inflicted by her daughter's silences and ever-shifting moods, her hatred of Terri's work, the mercurial anger which Elena could not, or would not, discuss, the fresh wounds symbolized by the security video screen in her room. With quiet determination, Terri told Chris and Carlo, "I can't screw up our plans. Whatever happens, you two will have to cover for me. Unless there's an execution."
Chris studied her. "Even then, Terri."
"No, not then," she answered and went upstairs to Elena's room.
Checking the wall clock, Chris saw that it was almost nine-thirty. "I wonder what's holding them up," he said.
"Maybe freestanding innocence," Chris speculated. "Maybe other issues. The last moments of argument—mine and Pell's—left even Viet Nhu looking troubled."
* * *
Steeling himself, Chris had said with quiet composure, "There is, Your Honors, a final question: Does the law provide a rational standard under which Rennell Price—as opposed to all the other defendants who may be charged with a capital crime—can be executed by the State of California?"
Judge Nhu regarded Chris with a quizzical smile. "Are you suggesting, Mr. Paget, that the thirty years spent crafting California's death penalty statute have been a waste of time?"
"Worse than that, Your Honor. I'm suggesting that they've created a delusion: that Rennell Price's sentence of death is any more rational than those which the United States Supreme Court previously described as 'cruel and unusual in the same way that being struck by lightning is cruel and unusual.' "
"But hasn't the Supreme Court since provided standards under which the death penalty may fairly be imposed?"
"General standards." Chris glanced at his notes. "Principally, that the death-eligible class of murderers must be narrow enough to ensure that a substantial percentage of them are actually sentenced to death. As the data in our brief reveals, only ten percent of death-eligible defendants in California actually receive a sentence of death. Truly, Rennell Price has been struck by lightning."
Nhu cocked his head. "And you blame this lamentably meager yield on the legislature of this great state."
"And the voters." Chris returned to his notes. "California now has the broadest death penalty statute in the country. Close to ninety percent of all defendants charged with first degree murder are death-eligible, yet only one in ten are sentenced to death.
"Who are these unlucky folks? Thirty-four percent are black. Another nineteen percent are Hispanic. And the average IQ of California's death row population is roughly eighty-five—"
"In other words," Viet Nhu observed with wisp of a smile, "the only way for California's death penalty regime to be valid under current law would be to expressly confine its application to minorities of substandard intelligence. Which, of course, might create certain other constitutional problems."
Bemused, Chris could only nod. "You just summarized my argument, Your Honor. The lightning which struck Rennell Price is not, after all, an accident. It sought him out for who he is. Therefore, this Court must strike down this statute."
* * *
"What do you say," Nhu asked Pell, "to Mr. Paget's argument that the only consistency in California's death penalty regime is that it targets the disadvantaged?" Pausing, he added pointedly, "African Americans, for example. At least those like Mr. Price."
This tacit reference to Pell's own ethnicity seemed to stun him into silence. "The short answer," he said after a moment, "is that the Court should not entertain this contention at all. In a second habeas corpus petition, Mr. Price is c
onfined to challenging his individual guilt—"
"Skip AEDPA, Mr. Pell. I was looking for a substantive response."
Pell shook his head. "Mr. Paget's argument is entirely novel—"
"Novel," Nhu interrupted yet again, "may mean 'newly discovered.' I've never seen these statistics before. Doesn't that take this case outside the scope of AEDPA?"
"Even without AEDPA," Pell said in a strained voice, "in Teague v. Lane, the Supreme Court held that a decision announcing a new rule of constitutional law does not apply to habeas corpus petitioners, like Rennell Price, unless the decision says it does. The imaginary rule proposed by Mr. Paget—that California's entire death penalty statute is unconstitutional—doesn't even exist."
"So you refuse to satisfy my curiosity. On procedural grounds."
"On principle," Pell rejoined. "If Mr. Paget wishes to invalidate our entire death penalty statute, he'll have to find a newer case. Rennell Price's time has passed."
Judge Nhu contemplated Pell with a smile which did not convey amusement. "Perhaps," he said.
* * *
"So what was Nhu up to?" Carlo asked his father now.
Chris looked at his watch and saw that its face read ten-fifteen. "I can't figure Nhu at all," he answered. "I don't even want to win on that argument—not with the U.S. Supreme Court waiting for us. It would throw our entire death penalty statute on the scrap heap."
"Maybe Nhu believes it should be. He's nothing if not rigorous—"
"Come on up," Terri called from the staircase. "Our fax machine just rang."
TWENTY
WITH AGONIZING SLOWNESS, THE FIRST PAGE OF THE NINTH Circuit ruling slid from the fax machine in the Pagets' upstairs library. Terri snatched it, summarizing as Chris and Carlo peered over her shoulder.
"Sanders wrote the opinion," she noted.
Carlo felt a spurt of anxiety and hope. "At least it's not Judge Nhu."
"The first issue is retardation," Terri announced, then shook her head, unable to speak.
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