"Under this circuit's holding in Carriger v. Stewart, Rennell Price is not required to affirmatively prove his innocence but simply to present sufficient evidence of innocence to 'undermine confidence in the outcome of the trial'—"
"Or," Nhu interrupted, "put another way, that Mr. James's supposed failures 'probably resulted in the conviction of one who is actually innocent.' Does Ms. Paget's new evidence suggest that probability, Mr. Pell?"
"The eleventh-hour accusation," Pell asked rhetorically, "of an admitted murderer of a child, made against a witness he also tried to have murdered? Of course not. This is a last-ditch effort to have the State of California do to Eddie Fleet what Payton Price couldn't do himself—exact jailhouse revenge. The very kind of abuse AEDPA is meant to stop." Pell sat back, palms on the table, speaking with renewed confidence. "Fifteen years ago, the Superior Court of California held an utterly fair trial, after which twelve jurors condemned Rennell Price to death. Three times since—on direct appeal, on a prior petition, and now on this petition—the California Supreme Court has upheld that judgment. It is time to end this matter, today."
"So soon?" Blair Montgomery asked. "Carriger rested on a standard enunciated by the U.S. Supreme Court: whether, given the new evidence, 'it is more likely than not that no reasonable juror would have found the defendant guilty beyond a reasonable doubt.' On the evidence before us today—which Ms. Paget fairly described—could you, as a juror, convict Mr. Price in good conscience?"
The question, stunning in its directness, caught Pell short. He glanced at Janice Terrell, who bit her lip. "The California Supreme Court," Pell ventured, "decided as a question of fact that the 'new' evidence of innocence was insufficient."
"I know all about AEDPA," Montgomery snapped. "I know all about the California Supreme Court. I even took the ten seconds or so required to read its opinion—in its entirety. So please answer my question."
Pell shrugged, a silent gesture of helplessness. "I can't put myself in the place of a juror," he answered. "My answer is appropriate under AEDPA—this Court cannot say that the California Supreme Court's refusal to believe Payton Price's confession is in error, and therefore should not overrule it—"
"If it doesn't," Terri cut in, "then even this cursory opinion is beyond review. So it is well to ask on what basis this Court should 'defer' to the California Supreme Court.
"Its hearing on the facts? There was none.
"The reasoning of its opinion? There is none.
"Its record in death penalty cases?" Terri's voice became quietly scathing. "There, at last, we have something to go on.
"The State Supreme Court reverses less than ten percent of all death penalty convictions. Of the other ninety percent, the federal courts—including this Court—have reversed almost two-thirds, the highest reversal rate for any state supreme court in the country."
Terri looked at Pell directly. "The State of California has, again and again, hidden behind the shield of AEDPA. 'We're entitled to a presumption of correctness,' the State tells us. 'So please don't look too hard at the facts. After all, we don't.' "
Though Pell's calm demeanor was unchanged, he seemed to grip his pen more tightly. Terri turned to address the plastic box. "Fifteen years ago, an old woman—now deceased—saw two black men across the street, and thought one of them was Rennell Price. Without explanation or the inconvenience of a hearing, the California Supreme Court dismissed—in a single sentence—compelling evidence that she was wrong. That single sentence is entitled to the precise amount of 'deference' it deserves, and nothing more."
For the first time, no immediate questions issued from the squawk box. "Mr. Pell," Judge Montgomery said at last, "if this Court concludes that Mr. James's defects did not affect the outcome of the trial, are you saying that—under AEDPA—we are barred from considering whether Rennell Price is innocent?"
Briefly, Pell hesitated. "Yes," he answered without apology. "Under AEDPA, there is no right to a new determination of guilt or innocence as long as the original trial was fair. This one was."
"No exceptions?"
"If there is one," Pell said dubiously, "it would require evidence so compelling as to make clear beyond all doubt that the petitioner is innocent. That's not this case."
"Thank you," Montgomery said dryly. "That's admirably straightforward."
"So it is," Judge Nhu said in a more approving tone. "Let me ask the Attorney General to respond briefly to Rennell Price's somewhat contradictory assertion that—if he did help cause Thuy Sen's death—an abusive childhood made him so dependent on Payton that it cuts against imposing the death penalty."
"This is nothing new," Pell answered. "All the evidence cited by Ms. Paget was available in 1987. Even if Mr. James failed to present it, Kenyon and Walker presented some of it and could have presented more. AEDPA says enough is enough."
"And so it is," Montgomery said brusquely. "We can rely on the papers before us on that issue, and on the other claims raised by Mr. Price. Before we conclude, is there anything else anyone cares to say?"
For all Terri could tell, Judge Sanders had slept through the entire hearing. Nonetheless, she framed her final words for him. "Simply this. If this panel denies permission to file, Rennell Price will die on Friday.
"He'll die even though we've made a substantial showing that he's retarded.
"He'll die even though there's substantial new evidence that he's innocent.
"He'll die without any court ever giving him a hearing on those claims." Terri drew herself up. "That, Your Honors, is the nearest thing to a summary execution I can imagine. It substitutes finality for justice. Its only 'virtue' is to remove one more human being from the system which, at bottom, exists to protect him, not to erase him."
"Mr. Pell?" Montgomery asked.
Pell glanced at his notes. "According to the United States Supreme Court, in the words of Justice Fini, granting a stay of execution on a second habeas corpus petition is 'particularly egregious' unless there are 'substantial grounds' on which such relief should be granted. The California Supreme Court has already found that this petition fails.
"AEDPA exists to keep federal courts from being bogged down in endless death penalty litigation—however heartfelt." He leaned forward. "This case is no different. Fifteen years ago, a nine-year-old girl was murdered. Fifteen years is time enough for justice. For her, and for her family."
"The application is submitted," Judge Montgomery pronounced. "We expect to rule within the hour, by telephone."
The squawk box went dead.
An awkward silence descended on the room. "Well," Terri said at length, "we've got an hour to kill."
The others shifted, discomfited. "How're your kids?" Pell asked of Terri and Chris, flashing a brief smile at Carlo. "I mean the ones who haven't gone bad yet."
Let's start with Elena, Terri thought to herself, who hates me for what I've been doing here. "Oh, they're fine," she said. "And yours?"
"Good. Julie's seven and in ballet school, and so serious I can't smile at her recitals, even when the kids make me want to laugh out loud." Amiably, he turned to Carlo. "How do you like the practice of law?"
"Depends on the day." Carlo glanced at his watch, then at the squawk box. "Can't say I've laughed in a while."
Janice Terrell raised her eyebrows, as though noting a display of bad manners. Silently, Terri blessed her stepson for casting a pall on the chitchat through which lawyers pretended to rise above their differences.
The telephone rang.
Terri hit the button on the speakerphone. "Teresa Paget."
"This is Judge Montgomery. Are both sides there?"
"Yes," Terri answered in a tight voice. "We are."