Richard Patterson - Conviction

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."

"Very well." Montgomery paused, his tone soft and grave. "We've reached our decision."

Briefly, Terri closed her eyes. "By a vote of two to one," Montgomery continued, "Judge Viet Nhu dissenting, this Court stays the execution of Rennell Price and grants his counsel permission to file a petition for habeas corpus—on all issues—before United States District Judge Gardner Bond."

Carlo bent forward, hands covering his face. But Terri kept herself from showing any emotion. Pell, too, remained impassive, making notations on his legal pad.

"A written order will follow," Montgomery finished. "Thank you, all."

The phone clicked off.

"The Ninth Circuit's done it again," Terri heard Janice Terrell murmur in disgust.

Scraping up his papers, Pell mustered a fatalistic smile. "Congratulations, 'all,' " he said across the table. "See you in court, as they say."

* * *

It was not until the next morning—two days before what would have been his date of execution—that Terri was able to see Rennell.

She gazed into his eyes, encouraging him to take heart. "Your execution's been put off," she told him. "At least for now. The judges heard what Payton said. Payton saved you, Rennell, just like he wanted to."

Rennell's eyes widened. With painful slowness, he struggled to comprehend. In a tentative voice, he asked, "You mean I can leave here?"

Heartsick, Terri shook her head. "Not yet. What it means is that you should take care of yourself, do what Payton asked." She took his hand, speaking softly. "The important thing is that no one's going to take you from here on Friday. You're safe from that, okay?"

The first light seemed to seep through his depression and with it, Terri hoped, renewed appreciation of the chance to live. "What they gonna do to me?"

"Keep you here, for now." Terri forced herself to sound confident. "I'm going to see another judge, tomorrow morning. I'll do my best to make him understand who you really are."

FIVE

GARDNER BOND SAT AT THE HEAD OF HIS CONFERENCE TABLE, for once in shirtsleeves, as though prepared to grapple with a distasteful task. On one side of him, Terri and Carlo sat, facing Larry Pell and Janice Terrell on the other. "The Ninth Circuit has permitted you to file," he told Terri. "But how we resolve your petition remains a matter for this Court.

"You've moved for discovery, and to be allowed to present evidence at a hearing with live witnesses. Let's talk about discovery first. Tell me what you want."

"To be able to put the circumstances of Rennell Price's life, and of his conviction, before this Court." Terri nodded toward Pell. "In terms of documents, we request the D.A.'s files regarding Eddie Fleet—"

"That's fine," Bond said in a clipped manner. "Who do you wish to depose?"

"The players in Rennell's conviction." Terri ticked them off on her fingers. "Charles Monk, Lou Mauriani, Dr. Elizabeth Shelton, and—critically—Eddie Fleet."

Bond turned to Pell. "Mr. Pell?"

"We'll scrape up whatever we have on Eddie Fleet. But there's no automatic right to any depositions, and no need to depose Monk, Mauriani, or Shelton. As for Fleet, he's beyond our control . . ."

"Not quite," Terri snapped. "You told him about Payton's accusation, which prevented me from talking to him any further. That's a de facto cover-up, with you protecting Fleet at Rennell's expense."

"That's nonsense," Pell told Bond briskly. "Payton Price made certain accusations. On behalf of the State, I was required to ask Fleet if they were true. He denied them. Whether he kept talking to Ms. Paget was wholly up to him." Turning to Terri, he added, "You have the transcript of Fleet's original testimony. That should be enough."