"Impossible." Her old friend's tone brooked no doubt. "Your problem is about far more than AEDPA. It's about Justice Anthony Fini, and his desire to control the Court."
"Don't be condescending, Blair. I fully appreciate that Tony Fini and I occupy different moral universes, and that he sees himself as Chief Justice Bannon's heir. But I put together the majority which barred executing the retarded—"
"Provoking the nastiest dissent from Fini I've read in years." Montgomery's tone mixed admonition with concern. "You haven't had a death penalty case which directly confronts what AEDPA does to narrow death penalty appeals, and sanction executions, no matter what the facts. You can bet Fini is looking for one. Knowing how his mind works, he'll use it to try to place his stamp on death penalty jurisprudence, and stake his claim to leadership of the Court."
"And how might he do that?"
"He'll fight for an unequivocal ruling that, under AEDPA, guilt or innocence no longer matters as long as—by Fini's extremely elastic standards—the defendant's trial was 'fair.' " Montgomery stood, as though made restless by his own words. "That it's the role of the state courts to determine guilt, and the role of the Supreme Court to assure finality—that a state court sentence of death, if 'fairly' imposed, is carried out. You may have no illusions, Caroline. But unlike you or me, state court judges are elected. In a number of states, the right wing has defeated state supreme court judges who reverse death sentences, no matter how justified. So state supreme courts don't reverse them anymore. Look at California—"
"California," Caroline objected, "makes my point about judges who follow their own beliefs, and not the law. Until the mid-1980s, Rose Bird and her colleagues on the Court practiced abolition by judicial fiat, reversing death sentence after death sentence on grounds so flimsy that they gave death penalty proponents all they needed to defeat them at the polls. It was worse than stupid—it was intellectually dishonest—"
"Perhaps so. But what replaced them was a California Supreme Court afraid to reverse death sentences no matter how egregious the case. Which means my Court has to review with extreme care everything they do—"
"Setting off a vicious cycle," Caroline interposed. "Your Court began reversing the California Supreme Court, and then the Bannon Court began reversing your reversals. That's where Tony Fini cut his teeth on death penalty cases—on you."
They started walking again, though Montgomery's gaze, while nominally directed at the meandering path before them, was distant and troubled. "You missed the worst one," he said at length. "An execution that happened while you were tied up in your confirmation hearings. It was my most terrible experience as a judge, and one which undermined any notion that the death penalty isn't poison for us all."
Side by side, he and Caroline picked their way across a rock-strewn stretch of growth, the spill of water serving as background to his narrative. "The victim," he continued, "was stabbed to death in her apartment. There was substantial reason to believe that she was killed by her ex-husband, the roommate of the man about to be executed for the murder. But the District Attorney chose to prosecute both men, in separate trials, based on two conflicting theories.
"The first theory was that the ex-husband had recruited the condemned to help murder the ex-wife. That culminated in the ex-husband's imprisonment for life. The prosecution's second theory, based on jailhouse snitches of dubious honesty, was that the condemned was the sole murderer and that his motive was to cover up his rape of the victim. This time the defendant was sentenced to death." Montgomery's tone, though quiet, was laden with anger. "Both theories could not be true. Indeed, the two conflicting prosecutions were so blatantly unethical that seven former prosecutors spoke out on behalf of the condemned man. None of which prevented the California Supreme Court from upholding both convictions, and affirming the man's sentence of death."
"What was their reasoning?"
"They gave none." Montgomery shook his head in remembered disbelief. "Both opinions were one-pagers.
"But that was only the beginning. A federal district judge reversed the condemned man's conviction, ruling that his spectacularly inept lawyer had, by failing to contest the prosecution's dubious evidence, denied him effective assistance of counsel. Three of my conservative colleagues reversed that. So the man's new lawyers filed a petition for rehearing to be ruled upon by the Ninth Circuit as a whole."
"Which, I assume, was granted."
"Not quite. As you know, a vote for a rehearing requires, as a first step, that one of us suggest it be reheard in such a fashion." Montgomery's speech became weary, drained of all vigor. "Through an administrative error by a law clerk, none of us—including me—did so in the time required by our circuit's rules.
"I requested my three conservative colleagues to grant an extension. Shockingly, they refused. But our Chief Judge ordered the extension granted. A week before the defendant was to die, eleven judges voted seven to four to reverse the conviction and set aside the condemned man's execution.
"The California Attorney General petitioned the Bannon Court for review." Montgomery paused, breathing more heavily. "The sole ground for review, the United States Supreme Court decided, was not whether the man had received a fair trial but whether our Court had the authority to act—"
"Just because you'd violated your own internal rules?"
Montgomery stopped walking. He stood, appearing stooped and old, looking not at Caroline but at the patch of earth beside her. "It never occurred to me that a procedural error, committed not by a defendant's lawyer but by our own Court, would condemn a man to death. And I'll never forget Justice Fini's opinion for the majority." Montgomery looked up at her. "I can give you the last two sentences verbatim. 'A mishandled law clerk transaction in one judge's chambers constitutes the slightest of grounds for setting aside the deep-rooted policy in favor of the finality of justice. And it would be the rarest of cases where the negligent delay of that single judge in expressing his views is sufficient grounds to frustrate the interests of a state of some thirty-four million persons in enforcing a final judgment in its favor.'
"I was the judge, Caroline. The man died eight days later."
In that moment, Caroline understood the weight Montgomery carried, and the passion of his warnings. "It's the world we live in," he continued. "Clemency's become a joke. State supreme court judges are frightened or indifferent. The Ninth Circuit is a target. And Tony Fini and his allies are armed with a law that safeguards unfair convictions, and guarantees that innocent people will be executed.
"That's the world you preside over, Caroline. Counting his own, Tony Fini's got four votes out of nine for any interpretation of AEDPA he desires. All he needs is the right case, and a single vote, and the Masters Court will turn its back on judicial murder for at least another generation, and perhaps for good."
Caroline faced him. "All I can tell you," she said finally, "is that I don't intend to preside over a Court which sanctions the execution of the innocent."
Montgomery laughed softly. "You already do," he answered. "The only question is how many, and who they'll turn out to be."
TWO
TWO DAYS AFTER PAYTON'S DEATH, TERRI AND CARLO PREPARED a habeas corpus petition for the California Supreme Court, asking the Court to set aside Rennell's death sentence because he was retarded, and to order a new trial on the question of guilt.
Sitting at the conference table, Terri reviewed their final draft. "They'll turn us down, of course. But we're required by AEDPA to 'exhaust' Rennell's state court remedies before we can go to federal court."
"What's the point?" Carlo asked.
"In Rennell's case? None. But Pell won't agree to let us skip that step, and the federal courts won't consider our petition until the California Supreme Court denies it."