"You go too far," Bond remonstrated. "What about Flora Lewis?"
"At seventy-two years old, she was looking at two men from over ninety feet away—too far to make out faces. So she 'saw' what she expected to see, Payton Price with Rennell, instead of what Payton swore she really saw: a man in a bulky sweatshirt who's the same height as Rennell, Eddie Fleet—"
Holding up his hand for silence, Bond riffled some legal pleadings in front of him. "According to the record, the police put Eddie Fleet in the same lineup with Rennell Price. Flora Lewis still picked out Rennell."
Terri nodded. "In support of our petition, we submitted school photographs of Rennell and Eddie Fleet, showing that their general features were quite similar. We've also submitted the declaration of Dr. Libby Holt, an expert on cross-racial identification, whom we've offered to call as a witness—so that the Court can see her, and Mr. Pell may cross-examine her. Dr. Holt makes two points: that eyewitness identifications are frequently driven by emotions and the witnesses' need for certainty. And that cross-racial identifications—especially those of blacks by whites—are particularly unreliable—"
"Even in a lineup?"
"Of course Flora Lewis 'identified' Rennell. She knew him." Terri paused, attempting to drain the exasperation from her voice. "At ninety feet, it's doubtful she could make out faces. All the lineup proved is that Flora Lewis could identify her neighbor, Rennell Price, from a distance of ten feet.
"Rennell's death sentence resulted from a tragic combination of Fleet's lies, Payton's self-serving silence, an old lady's mistake, and the incompetence of a lawyer who neither knew nor cared that Rennell Price is retarded—"
"If he is," Bond countered. "We can't assume Mr. Price's retardation for purposes of determining whether you've offered persuasive proof of innocence."
"But we know a lot," Terri countered. "As Yancey James spelled out in his declaration—and as he would tell this Court if asked—he believed Rennell guilty because Payton tacitly admitted that he, Payton, was guilty. James never developed a separate defense for Rennell, refused to believe Rennell's protestation of innocence, never investigated Eddie Fleet, and never raised the possibility that Fleet, not Rennell, was guilty—"
"Why would he?" Bond inquired sharply. "Payton Price was busy insisting that James put on the perjured testimony of Tasha Bramwell. As you point out, Payton Price didn't offer his alternative vision of the truth, admitting guilt and naming Fleet, until roughly three weeks ago. So why should we blame James's failure to attack Fleet on his supposed ineffectiveness—as required under AEDPA?"
Terri gathered her thoughts. "Mr. James's inaction offers no insight into what a competent lawyer would have done. In effect, Rennell Price had no lawyer—James didn't hear his claim of innocence, let alone try to corroborate it. This Court should not bless a death penalty imposed on a man for whom nothing was said or done—"
"Even one who waived Mr. James's supposed conflict?"
"Rennell Price is retarded, Your Honor. He couldn't comprehend the question asked him by Judge Warner."
"So your expert claims. But this Court has not heard from your client on that question, or any other."
Terri drew a breath. "With respect, Your Honor, Yancey James admits that he did nothing for Rennell. We've spelled out Rennell's intellectual deficiencies. We've set out the weakness in the State's evidence of guilt, and offered substantial new evidence of his innocence." She paused again, trying to subdue her impatience and anxiety, as well as to buttress her argument with precedent this judge might accept. "In Rios v. Rocha, the Ninth Circuit held that the weakness of the prosecution case is an important measure of whether a lawyer's failings resulted in a wrongful conviction. And the Ninth Circuit has previously found James constitutionally ineffective in People v. Coolman—"
"And rejected such a claim in four others of James's cases. I don't assume that makes him competent here. So don't ask me to assume the opposite because of Coolman." Pausing, Bond glanced at the papers spread in front of him. "Let me quote you the one presumption that AEDPA requires me to make: 'The factual findings of state courts are presumed to be correct, and the applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.'
"Ten days ago, the California Supreme Court found that your evidence of retardation, and your new evidence of innocence, did not justify vacating your client's death sentence. Why should this Court not defer to that finding as AEDPA directs?"
"Because it could have been written on a postcard," Terri answered promptly. "Because the opinion contained no findings, only conclusions. Because it gave this Court no basis for those conclusions. Because, in short, the California Supreme Court tells us that Rennell Price must die without condescending to tell us why—"
"Very well," Bond said coldly. "You've made your argument clear. It's time to hear from Mr. Pell."
FIFTEEN
LARRY PELL ADOPTED THE CALM BUT DISMISSIVE MANNER OF A lawyer confronting a frivolous claim. "This petition," he began, "is Payton Price's last laugh, an eleventh-hour attempt to avenge himself on Eddie Fleet.
"There is not one scrap of evidence behind his incredible story. Flora Lewis contradicts it. The forensics do not support it. And AEDPA requires this Court to reject it. Indeed," he added in a tone of comfortable confidence, "the Court's questions to Ms. Paget almost obviate the need for any argument from me.
"So I'll briefly state my case by answering those questions.
"First, because Yancey James did not have the dubious benefit of Payton Price's story, his failure to offer it was not a failure of effective lawyering." Pell jabbed the podium for emphasis. "Right there, Your Honor, this petition must fail. Because there is no constitutional defect in the trial—in this case, ineffective assistance of counsel—as required by AEDPA before this Court can even consider Payton's dubious 'confession.' "
Bond listened serenely, showing no desire to interrupt. "Second," Pell told him, "and quite obviously, Payton's story is not the 'clear and convincing' evidence of innocence demanded by AEDPA before the Court can grant Rennell's petition."
"Third, the California Supreme Court has given Rennell Price three separate hearings. AEDPA does not require that Court to invest yet more time in rejecting his latest petition with the fulsomeness required to satisfy his counsel."
The wisp of a smile played at one corner of Bond's mouth.
"As for retardation," Pell continued, "it is a wholly separate issue from that of innocence. But its shortfall is the same: the evidence offered to support it is hardly sufficient to show that the California Supreme Court's decision was unreasonable. Which is why that Court should be sustained on this ground, too."
Pell stood back, hands spread on the rostrum. "AEDPA exists to bring finality to those for whom, like the family of Thuy Sen, this process must surely seem unending." Briefly, he swiveled his body toward the Sens, watching tautly from their seats in front of the assembled media. "Fifteen years after her death, their child deserves justice. That is the purpose of AEDPA. I respectfully submit that it is this Court's purpose to fulfill it."
With the ease of an athlete not required to break a sweat, Pell glided back to his chair. Quickly, Terri stood. "May I be heard in rebuttal, Your Honor?"
Even as she spoke, she saw the strain in her voice reflected in the impatience with which Bond snapped his neck to look at her. But a man's life was at stake: after the briefest hesitation, Bond said in an uninviting tone, "If you think it can illuminate what's already been said."
"Rennell Price is retarded," Terri insisted. "His entire life tells us that, and tells us why. And retardation is not separate from the question of innocence—it explains why a man whom the evidence now suggests is innocent has come within two days of execution.