Conviction

"Yes."

"According to the school records you reviewed, what was Rennell's reading level?"

"In the seventh grade, I believe they estimated it to be roughly at the third-grade level—"

"After which," Terri cut in, "didn't his teacher recommend remedial education—specifically to help him read?"

"I believe so."

"Did he ever receive any?"

Though Terri's voice had never changed, Kuhl had begun regarding her with wary eyes, which, even more frequently, darted toward Larry Pell. "There's no record of that."

"Did your testing give you any reason to believe that Rennell Price was able to read and comprehend the contents of Sports Illustrated?"

Kuhl frowned. "Certainly, at that reading level, Rennell could pick out words."

"Did you," Terri inquired mildly, "at least ask the guard if the magazine was right side up?"

"Objection," Pell called out. "The tone and substance of the question are sheer harassment."

Before Bond could issue the reprimand his expression told her was coming, Terri said respectfully, "I'll withdraw the question, Your Honor, and make my point another way." Turning back to Kuhl, she asked, "Do you know where Rennell got the magazine?"

"No."

"According to Rennell, the guard gave it to him. In all of his time on death row, is there any record of Rennell ordering books from the prison library?"

"I don't know."

"For the record, Dr. Kuhl, there is none. So why did you offer this vignette about Sports Illustrated as evidence that Rennell Price is not retarded?"

Kuhl shook his head. "It was ancillary—"

"It was careless," Terri snapped. "So you're not suggesting to the Court that Rennell's close encounter with Sports Illustrated in any way bears on whether this Court should uphold his death sentence."

"Of course not."

"Good." Terri's voice was cool now. "You also mentioned that the evidence of Rennell Price's abuse rests 'almost entirely' on Payton's deposition. Do you remember the passage about Vernon Price forcing Rennell to sit naked on a space heater?"

"Yes."

"Do you have any information regarding the accuracy of this account?"

"No."

"Then you're not aware that the records of the physical exam given Rennell upon his arrival at San Quentin revealed symmetrical burn marks on his buttocks?"

"I am not."

Terri folded her arms. "Did Mr. Pell ask you to form any opinions regarding whether Rennell was abused, or concerning the degree of his reliance on Payton?"

"No."

"So your observation that there was no real evidence of abuse outside of Payton's testimony was just a bonus you decided to throw in?"

Kuhl folded his arms. "What I said, Ms. Paget, is that I don't believe that abuse relates to mental retardation."

"Really? So, in your opinion, even the most severe abuse won't make a retarded person even more prone to fright, or confusion?"

"I wasn't asked to form an opinion on that."

"Were you asked to consider whether abuse might contribute to the potential sleep disorder described in Payton's deposition?"

"No."

"So you have no insight to offer us on Rennell's sleep patterns, or the likelihood he was fast asleep on the day that Thuy Sen died."

"No."

"No," Terri repeated coldly. "This morning, you offered us a critique of Atkins. One of the reasons the Supreme Court gave in Atkins for barring the execution of the mentally retarded was that retarded people have a harder time comprehending the legal system. In this case, the case of Rennell Price, an allegedly retarded man about to be executed, did you try to determine whether he was capable of understanding—and waiving—his lawyer's conflict of interest in also representing Payton?"

"No, Ms. Paget. The Attorney General's Office didn't ask me to address that."

Returning to the defendants' table, Terri glanced at a piece of paper. "Having met Rennell Price, do you—as a professional—honestly believe that he got it when Judge Warner asked, 'Do you understand that, by employing Mr. James to represent you both, you assume the risk that he may not represent your individual interests as effectively as separate counsel?' "

Kuhl shook his head. "I need to know more, Ms. Paget. For example, how well did the lawyer explain to Rennell his choices—"

"He didn't," Terri snapped. "Assuming that fact, how would you evaluate Rennell's ability to comprehend the judge's admonition?"

"That's beyond the scope of my opinion."

"Isn't everything? Yet you also offered Rennell's orderly existence in prison as evidence of his adaptive skills. Precisely what skills does that existence require?"

"Conformity to rules, among other things."

"What rules are there, Dr. Kuhl? 'Stay in your cell' . . . ?"

"All right," Bond interjected. "If you have a question to ask the witness, ask it with respect."

Not so easy, Terri wanted to say. But Kuhl was shaken now, and she did not wish to give him time. "All right," she said. "Can retarded people take showers?"

"Of course."

"Can they eat meals put through the meal slot?"

"Of course."

"Can they go to the bathroom unassisted?"

"Yes."

"Can they go where they're told when they're told?"

"Yes."

"Impressive," Terri said coolly. "Isn't it true that the simplified existence of an inmate in solitary confinement presents far fewer challenges or surprises to the retarded than does the outside world?"

Kuhl regarded her with a closed expression. "It presents fewer variables . . ."

In the quiet of the courtroom, someone laughed again. Bond crisply banged his gavel. "You showed us a videotape," Terri said mildly, "in which Rennell attributed his academic failures to not trying. What role did this self-evaluation play in your opinion that Rennell is not retarded?"

Kuhl frowned again. "My primary reliance was testing, and his adaptive skills. My only point was that Rennell Price provided an alternative explanation for his poor performance—"

"Pretty dumb, wasn't it? I mean, here's the prisoner who may well die unless this Court finds him retarded, and he keeps on insisting that he's not."

"It struck me as a matter of pride, Ms. Paget. Rennell Price did not want to be taken for something which he doesn't believe he is."

Terri gave him a dubious smile. "Isn't it true, Dr. Kuhl, that retarded people often resist acknowledging their limitations?"

"They can."

Terri skipped a beat. "How do you know?"

Kuhl looked puzzled. "I don't understand . . ."

"I mean, have you actually ever met a retarded person?"

Bond—she saw from his swift glance at the witness—perceived where Terri was going. But the witness did not seem to. "I still don't understand."

"Let's break it down. You've never met one on death row, correct?"

Kuhl's shoulders twitched. "That's not what I said . . ."

"What you said, Doctor, is that none of the inmates you've examined for retardation were, in your opinion, retarded. Is that correct?"

"Yes."

"And you never met a retarded person in your practice, because you have no practice—correct?"

Kuhl hesitated. "Correct."

"How long has it been since you became a psychologist?"

"Seventeen years."

"And in all those years, you never met a single retarded person?"

"I've certainly encountered them in life . . ."

"On the street, but not on death row?" Terri summoned a tone of mock bewilderment. "How did you know they were retarded?"

"It was obvious . . . ," Kuhl began, and then his voice trailed off. "What I mean is, their conduct, combined with their appearance, clearly suggested retardation."

"But you didn't actually test them."

"Of course not."

"Well, based on your reading about retarded people, can you always determine by observation whether someone is retarded?"

"Of course not. That's why we have a regime of testing."

"And in your regime of testing, you've never found anyone you tested to be mentally retarded."

"Asked and answered," Pell called out.