"Evidence regarding Rennell Price's childhood and adolescence," Terri answered. "Including his mental capacity—"
"According to a lunatic?" Bond shot back. "Let's hope you have someone more edifying than that."
"To see Rennell's mother," Terri said firmly, "is to be edified. Including, if she's willing to share it, the true identity of Rennell's father."
Bond raised his eyebrows. "Who might he be?"
"A boy from the neighborhood who she describes as 'slow.' But she won't give his name, and we haven't been able to track him down."
"Ms. Paget," Bond remonstrated, "I cannot imagine listening to an insane woman testify regarding her liaison with a nameless, and perhaps apocryphal, boyfriend. Spare me, please—except by affidavit."
Leaning forward, Terri tried to keep the anger she felt from showing in her eyes. "Rennell Price," she said, "grew up in the Bayview, the presumed son of a psychotic and abusive father and a deeply troubled mother. His environment was brutal and chaotic. The witnesses to his life will be found not among the friends and acquaintances of those sitting at this table but among people who are—and whom we like to keep—invisible to us. Either we can bring them here or we can have an expert like Dr. Mattox integrate what they told her.
"What Mr. Pell wants is to reduce this case to a jumble of paper, a dry record to which he can apply the 'presumptions' of AEDPA and the presumptive wisdom of the California Supreme Court. It's a way of sanitizing Rennell's death without ever looking at his life. We believe that the most critical evidence of Rennell Price's retardation can be found not in tests but in his life. Which can be knit together only through the narrative of an expert . . ."
"Is your Dr. Mattox a psychiatrist or psychologist?"
"No. She's a Ph.D. in anthropology, which enables her to interpret the impact of Rennell's family and environment—"
"But not his mental condition, I would think."
"What she has to say," Terri parried, "bears on his mental condition. We also have Dr. Anthony Lane, both a psychiatrist and a neuropsychologist, who examined Rennell extensively and whom we wish to call as an expert witness."
"Then isn't he enough?" Turning to Pell, Bond inquired wryly, "What say you, Mr. Pell?"
"That the Court's reservations about Dr. Mattox are well taken, and that it can hear Dr. Lane by means of affidavit. And that the Court is correct in observing that this hearing is not a second trial." Briefly, Pell paused, listening as Janice Terrell murmured a few brief words. "We do, however, request leave to conduct our own mental examination of Rennell Price, so that Dr. Lane's affidavit is not the only evidence before the Court. In particular, we'd like to administer a second IQ test."
"Which won't be accurate," Terri protested. "It's called the 'practice effect.' Even the retarded do better with repeated testing."
Pell leaned forward, offering her a sardonic smile before he turned to Bond. "Which is no doubt why Ms. Paget seems to have given her client every test of mental functioning known to man. So that when our tests prove him not to be retarded, she can claim it's the result of her personal Head Start program."
Though Terri could not acknowledge it, the accusation was true. "Since when is thoroughness merely a ploy?" she objected. "The State's prison clinicians are hardly objective—they're notorious for cookiecutter findings."
This, as Pell well knew, was also true. " 'Sauce for the goose,' " he quoted easily to Bond.
"Agreed. You may have your examination of Mr. Price."
"May we be present?" Terri asked quickly.
"Why?" Pell shot back. "We weren't." Facing Bond, he said, "To make Ms. Paget more comfortable, we'll record our examination on videotape, and make it available to her and to the Court."
Larry Pell, Terri conceded, was even more clever than she had thought: in a videotape, Rennell Price would appear to be a dull but normal man, unremarkable in appearance, plodding through his tests—sullen, perhaps, but not retarded. "So ordered," Bond said quickly. "Anything else, Ms. Paget?"
"Yes. The Court should permit us to call Dr. Lane as a witness, and to cross-examine whomever Mr. Pell selects to administer the tests."
"Very well." The judge's tone became faintly arid. "Judge Montgomery has expressed his preference for a hearing, and we must take cognizance of that."
This gratuitous remark, with its intimation of distaste for Blair Montgomery, unsettled Terri further. "In that case," Pell interposed, "we'd like the chance to cross-examine Rennell Price himself. Nothing can be more pertinent to retardation than for this Court to see him."
Startled, Terri shot back, "He's retarded, Larry. That's the whole point."
With veiled amusement, Bond remonstrated. "There are also Fifth Amendment considerations, Mr. Pell. Retarded or not, the Court cannot force Mr. Price to incriminate himself." Once more he turned to Terri. "I'll leave it to your discretion, Ms. Paget, as to whether Mr. Price will testify. Either to confirm his innocence or to exemplify his mental retardation."
Bond's tone, insinuating and faintly accusatory, drove home to Terri that Pell had trapped her in a painful choice: to call Rennell Price, or to leave the implication in this judge's mind that her petition was a sham. "Thank you, Your Honor. We'll advise the Court of our decision."
"All right then." Folding his hands, Bond surveyed each lawyer. "Rennell Price was sentenced fifteen years ago, and this Court has no desire to attenuate that sorry record. Therefore, the parties will complete their discovery within five days, and the hearing will commence in seven. Anything else?"
Startled, Terri considered whether to protest, then decided that, in light of her next request, further straining Bond's patience was ill-advised. "Yes, Your Honor. It concerns the standard of proof under which this Court will determine whether Rennell Price is retarded and, therefore, quite possibly, whether he lives or dies.
"The Supreme Court did not bar executing the retarded until after the federal courts denied Mr. Price's first habeas corpus petition. The fact that we must raise it on a second petition, for the first time, should not facilitate his execution—"
"I don't understand your point."
Terri stared directly at Larry Pell. "At the Ninth Circuit hearing, Judge Nhu suggested that Atkins was not retroactive, and therefore that Rennell Price could not avoid execution by demonstrating mental retardation. Mr. Pell agreed, albeit tentatively." She softened her voice. "Executing Rennell Price because Atkins came down three days after the Supreme Court denied his first petition is something out of Kafka. Atkins is a new case. On the issue of retardation, Rennell Price deserves a fresh start, as he would have at a new trial."
"Mr. Pell?" the Court inquired.
Pell glanced at Janice Terrell. "We'll have to take it under advisement," Pell temporized.
"In that case," Terri said promptly, "we ask the Court to rule that Atkins applies, and that we are required only to prove retardation by the preponderance of the evidence." Facing Bond, she spoke firmly and emphatically. "Denying Rennell Price the benefit of Atkins cannot be called justice. This Court has choices."
"Then we'll make them," Bond answered crisply. "But not until after the hearing. We'll rule on Atkins when we rule on Mr. Price's petition."
Once again, Terri felt herself caught between Pell and Bond, under pressure—as Pell surely intended—to demonstrate retardation by calling Rennell as a witness. But there was no more Terri could do. With a feeling of foreboding, she uttered the formulaic "Thank you, Your Honor," and the first hearing before Gardner Bond was at an end.
SIX
BRIGHT-EYED, EDDIE FLEET STARED AT TERRI, HIS SMILE SLOWLY widening to expose the gold in his teeth.
Meeting Fleet's eyes, Terri tried to calm her nerves. It was nine-thirty, and the sunlight through her law firm's conference room window cast a sheen across the cherry table. Beside Fleet sat Brian Hall, a gray-haired public defender with a curt manner and a cynical air. To Terri's right, at the end of the conference table, an elderly court reporter with his sleeves rolled up waited to transcribe the questions and answers. Carlo sat at Terri's left, between her and the representatives of the State, Laurence Pell and Janice Terrell.