"So we don't know who the third judge will be."
"No. And won't until the day they rule." Swiftly, Terri signed her name to the original pleading to be filed with the Court, feeling, as she did, the weight these papers carried, Rennell's last chance at life. "Believe it or not, whether Rennell lives or dies this Friday will be settled by computer. That's how they pick the final judge."
Carlo shook his head, silent again.
FOUR
ON THE MORNING OF THE HEARING WHICH WOULD DETERMINE whether Rennell Price died in three days' time, Terri, Carlo, and Chris gathered around a speakerphone in the Pagets' conference room. Across the table were Laurence Pell and his cocounsel, Janice Terrell, a cool, angular blonde in her early thirties whom Terri had come to think of as death's understudy.
All five lawyers gazed at the speakerphone, waiting for the three-judge panel of the Ninth Circuit Court of Appeals—hastily assembled in their own conference room in Pasadena—to announce themselves. There was no time for a formal hearing. But the prospect of pleading with disembodied voices struck Terri as the judicial equivalent of imploring three Wizards of Oz, hidden behind the screen of the squawk box. Perhaps they found the distance prophylactic, she thought sardonically—a safe execution, where no one saw Rennell, or even the faces of his lawyers. She still did not know who would replace Judge Olinger.
"Good morning." The voice abruptly issuing from the box was rough with age. "Are the lawyers for the parties there?"
Swiftly, Terri glanced at Chris and Carlo. The man speaking was clearly older than either Judge Nhu or Judge Sanders. Eyes narrowing, Larry Pell stared at the box.
"We are," he answered.
"This is Judge Blair Montgomery," the aged voice responded. "With me are Judges Harry Sanders and Viet Nhu. As fate and random selection would have it, I've replaced Judge Olinger as the presiding member of the panel."
Pell shot Janice Terrell a look of concern. "We've read your papers," Montgomery continued, "as well as the ruling of the California Supreme Court. The first issue we'd like to hear about is mental retardation. In light of the United States Supreme Court's recent decision in Atkins, barring execution of the retarded, why should this man die on Friday?"
"The answer is that he shouldn't," Terri said swiftly. "If shown, mental retardation now bars his execution. The California legislature has adopted no definition for retardation. The California Supreme Court offers none."
Pell began furiously scribbling notes. "At most," Terri continued, "the Court seems to accept that an IQ of seventy-two—despite a standard deviation of plus or minus five—means that Rennell Price is fit to execute. If so, the Court is measuring retardation as though Rennell were taking the college boards—by applying an arbitrary numerical standard of seventy IQ points, which ignores all the evidence of his lifelong inability to learn or cope on his own."
Pell shook his head. "Mr. Price's IQ is above seventy. Under AEDPA, state court rulings are presumptively correct, and the petitioner must rebut this presumption by clear and convincing evidence." Pell leaned toward the box, as if to speak past Montgomery to Judges Nhu and Sanders. "Plainly, the Court did not find the evidence convincing. AEDPA does not allow this Court to second-guess them."
"Indeed." The Asian-accented voice, sibilant and precise, was Judge Nhu's. "But does Atkins even apply to Mr. Price? For a new ruling such as Atkins to be retroactive—that is, applicable to defendants on habeas corpus, like Mr. Price—the Supreme Court must expressly say so in the ruling itself. Atkins contains no such statement. Why then, Mr. Pell, should this Court even allow Mr. Price to raise it?"
Though pleased, Pell seemed as startled as Terri. "Because in the Penry case," she interjected, "the Supreme Court said that if the Court later barred executing the retarded—as they did subsequently in Atkins—that ruling would be retroactive . . ."
"True enough." Montgomery's tone was deceptively benign. "Perhaps, Mr. Pell, you can explain to Judge Nhu—and certainly to me—why the Supreme Court didn't mean what it said in Penry, and therefore why this Court should allow the State to execute Mr. Price without a more thorough review of his intellectual capacities."
Pell hesitated, caught between the chance of victory offered him by Judge Nhu and the risk of antagonizing Montgomery with an argument that, but for Nhu's encouragement, he would never have dared to make. On either side of her, Terri saw Chris and Carlo looking anxiously toward Pell.
"The Supreme Court," Pell ventured at last, "cannot be deemed guilty of an oversight. Judge Nhu is correct—their silence in Atkins speaks for itself."
"I might sleep a little better," Montgomery observed dryly, "if they'd spoken about Penry. Or if the California Supreme Court had so much as mentioned it in the single sentence they devoted to condemning Rennell Price. But let's move to another matter—whether Mr. Price's new evidence creates a serious doubt that he's guilty of anything but being slow."
"Let's do that," Nhu amended sharply, "with respect to what AEDPA demands of you, Ms. Paget. First, whether your claim of innocence is based on facts which none of Mr. Price's prior counsel—in the exercise of due diligence—could have discovered before."
"That's simple," Terri answered. "That Payton Price remained silent for fifteen years is not the fault of Mr. James, or of Kenyon and Walker—"
"Precisely." Nhu's tone bespoke the triumph of a didactic law professor curbing a bumptious student. "When you concede that Yancey James did not have the benefit of Payton's death row confession, how can you claim that your client was convicted because Mr. James, to use the vernacular, 'blew it'?"
"We're getting dangerously close," Montgomery interjected with veiled sarcasm, "to actually considering the facts—including whether the State is about to execute an innocent dupe. But perhaps the People can protect us from such a painful exercise. For example, Mr. Pell, might Mr. James—short of extracting a confession from Payton—have honored Rennell Price's claim of innocence by investigating Mr. Fleet, whose implication of both brothers may have spared him from taking Rennell's place in this somewhat baleful proceeding?"
Carlo, Terri saw, was smiling grimly at the table. But though Blair Montgomery's participation had to be viewed as a stroke of luck, the dynamic of this hearing—a battle between Montgomery and Nhu, with the opposing lawyers as their surrogates—was made even more unpredictable by the silence of Judge Sanders.
"The requirements of AEDPA," Pell responded, "are not a technicality but the will of Congress. If Yancey James could not have discovered Payton Price's confession, Rennell Price cannot show that James was inadequate, and therefore fails that requirement of AEDPA. Conversely, if Rennell now complains that James should have questioned Fleet's credibility, that is not 'new evidence' at all, and therefore should have been presented earlier. Because Rennell Price fails both tests under AEDPA, this Court cannot consider his claim of innocence."
"Let's get to that," Montgomery said crisply. "Assuming, Ms. Paget, that you do satisfy the prerequisites outlined by Mr. Pell, why does Payton's confession entitle your client to go free? Or, at least, to receive a new trial?"
"And while you answer that," Judge Nhu cut in, "perhaps you can explain why that confession is 'clear and convincing' evidence of his brother's innocence."
Terri knew that her next few words might mean Rennell's life or death. "Your Honors," she began, "there is no direct evidence of Rennell Price's guilt. In fact, the only admitted witness to Thuy Sen's death, Payton Price, claims that Rennell was sleeping." She paused, slowing her speech for emphasis. "The key witness against Rennell was Eddie Fleet, who admitted disposing of the body. We know that he escaped prosecution by fingering Rennell Price. We believe—and there is nothing to refute us—that Fleet could testify in such persuasive detail because he was the actual murderer.