"We have to show the 'substantial denial of a constitutional right,' " Chris argued. "If it were up to me, I'd focus exclusively on innocence and retardation. The other marginal issues we crammed into our papers before Bond will only dissipate their impact."
Still haunted by the telephone call, Terri rubbed her temples. "We should use it all. We've got Montgomery, so we've got at least one sympathetic ear. Throwing away any ground which could save Rennell could be throwing away his life."
"Throwing in the kitchen sink," Chris answered tartly, "is too easy. We'll look desperate instead of credible." He waved his hand at the papers. "What do we really believe in here?"
"Everything," Terri snapped. "I don't have a favorite reason Rennell Price ought to live. We can't let this ridiculous statute keep us from making every argument we can. Don't you think there's a constitutional problem if a statute, like AEDPA, can be used to justify executing Rennell for a crime it appears he didn't commit?"
"Are you asking me how I want the world to be? Or what I think this statute says?" Chris glanced at Carlo. "If it looks like we got the Ninth Circuit to turn AEDPA inside out, the Supreme Court will jump all over this case."
"And Rennell will still be alive," Terri answered coolly. "That's a problem I can live with." She paused, speaking with quiet force. "You've never even met Rennell. He's only an abstraction to you. I'm not going to face him tomorrow without having done everything we can to keep the State from killing him."
Softly, Chris asked, "Isn't that the problem, Terri? This isn't about how you feel . . ."
Stung, Terri was momentarily speechless. "Not fair," Carlo said to his father. "I've met Rennell, too. Does caring about him disqualify me from having an opinion?"
"Not unless it keeps you from functioning as a lawyer."
"As a lawyer, Dad, I think there's a more than decent constitutional argument that AEDPA can't be applied to render innocence irrelevant. Call me sentimental, but I'm with Terri on this."
Chris studied his son in silence, and then—despite the hour and the emotion of the evening—Terri detected a faint hint of amusement in his eyes, perhaps commingled with pride. "I guess that makes it two to one," he answered, "in favor of the kitchen sink." Turning to Terri, he said calmly, "About Fleet, Terri, we'll hire a security firm. This case is hard enough."
* * *
"We lost," Terri told Rennell. "The judge just didn't believe me."
He stared at the table, lips moving wordlessly. It was as though he were seeing something too awesome and enormous to articulate.
Terri took his hand. "There's still a chance, Rennell. There are three more judges who have power over this judge. If they don't think he did right, they can change it."
Rennell did not seem to hear. "They be comin' for me soon," he said softly. "Like Payton. Lock this whole place down till I be dead."
Terri felt a tremor pass through her, a brief flashback to Payton's death. She did not know whether it was fair, or cruel, to plead with Rennell to maintain hope, or to imbue him, despite his loss of Payton and their grandmother, with the wish to keep on living. We're so close, she wanted to say. If we can make our case for innocence, you can just walk out of here.
And then what? her conscience asked her. And her heart responded, I'll help you find a new life, one better than you had.
"Whatever happens," Terri promised, "I'll be with you."
* * *
It was a good thing she liked her office, Callista Hill reflected for perhaps the hundredth time, casting a weary eye at the eighteen-foot ceiling and the elegant brass chandelier. If you clerked for Chief Justice Caroline Clark Masters, you worked fourteen-hour days Monday through Saturday, easing off to half that most Sundays. The dirty clothes hamper in one corner of Callista's bedroom was filling up again; she hadn't eaten a civilized dinner in three weeks; and her sex life felt like the waste of a formerly terrific body suffering from too little exercise of any kind. But she would not trade her year with the brilliant woman who was Chief Justice for any job on earth.
Of Chief Justice Masters's four clerks, Callista knew that she stood out—not only as an African American with the look and carriage of a runway model but for her swiftness of speech and thought, along with an arid and somewhat lacerating wit most like Caroline Masters's own. Though brisk and businesslike, the Chief Justice found amusement in the foibles of law and personality that permeated the Court and, on occasion, would let this slip out in her comments when she and Callista were alone. Callista's mother, Janie, a divorced English teacher at an inner-city school in Philadelphia, had treated her gifted only child as the intelligent being she was, encouraging her freedom of thought and action, and had been rewarded with a loyal daughter who was also a good companion. Caroline Masters, Callista sometimes thought, was Janie Hill transformed into a WASP aristocrat but ironically deprived of Janie's freedom to express her sometimes caustic opinions. "The death penalty," Janie had once told Callista, "is like a war film or a monster movie. The black man always gets it first."
With a profound lack of anticipation, Callista sipped her third cup of coffee and reached into her in-box for the death list.
This was her least favorite aspect of the job: once a week, the Court's death penalty clerk circulated to the justices a photocopied sheet listing every execution pending in the United States, noting their status. In addition to her other responsibilities, Caroline Masters was the Circuit Justice for the most contentious Federal Court of Appeals in America, the Ninth Circuit, and it was Callista's business to maintain a watch list of cases which might land on the Chief's desk in the form of a last-minute request for a stay of execution. This week, Callista saw, the prisoner named Rennell Price had made it to the top of the list. From the description of its status, by next week Rennell Price might no longer be listed, and the absence of his name would give Callista goose bumps.
She picked up the telephone and called Caroline Masters's secretary.
* * *
"Okay," the Chief Justice requested, "tell me about this one."
They sat in Caroline's front office, graced with the same high ceilings and chandeliers, as well as group photos of the Court from various terms. "Man's on the bubble," Callista said flatly. "The district court judge dissolved the stay, and Price's lawyers have gone to the Ninth Circuit panel looking for a certificate of appealability. Only way they can come here for a stay of execution is if Price gets the COA, but then loses the appeal."
"What are the issues?"
"Any issue you can imagine, some of them pretty inventive. The one that jumps out at me is that AEDPA allows a claim of freestanding innocence."
The Chief raised her eyebrows. "You mean the idea we're still empowered to notice things like an innocent man being wrongly convicted? That could get some of my colleagues pretty excited. I assume his lawyers also try to couple this claim of innocence with a constitutional defect in the trial."
"Uh-huh. The usual ineffective assistance of counsel claim."
Caroline Masters stood, arching her back to relieve the tightness which came from too much sitting. "Usual," she amended, "and often legitimate. I'd bet that behind at least half of the names on your death list lurks a terrible lawyer. It's the single biggest reason people get executed. Aside from the fact that—we can only hope—the condemned actually committed the murder in question." The Chief Justice stopped herself abruptly, as though feeling she had said too much. "Who's on the panel?"
"Judges Montgomery, Nhu, and Sanders."
The Chief Justice allowed herself a faint, ambiguous smile. "That should be an adventure."
"What do you want me to do?"
"Nothing yet—if the COA's not granted, you'd be wasting your time."