Richard Patterson - Conviction

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.

Turning to the reporter, Terri nodded.

The man raised his right hand, inviting Fleet to emulate him. The breadth of Fleet's smile diminished to a play of lips.

"Do you solemnly swear," the reporter intoned, "to tell the truth, the whole truth, and nothing but the truth?"

"Yeah, sure."

"Please state your name for the record," Terri said.

"Eddie Fleet."

"What is your occupation?"

The twitch of a smile reappeared. "Handyman."

At once, Terri decided to bypass further background questions. In the same businesslike tone, she inquired, "Do you know a woman named Betty Sims?"

The smile vanished abruptly. Though Fleet did not move, a tensile alertness seemed to seize his body. "Knew her," he corrected.

"In what way did you know Betty Sims?"

Fleet glanced toward his lawyer. "She was my girlfriend."

"When was the last time you saw her?"

"Long time ago," Fleet answered with a shrug. "Don't remember exactly."

"Maybe I can jog your memory," Terri said. "Did Betty Sims have a daughter?"

Fleet's eyes narrowed. "Yeah."

"What was the daughter's name?"

"Can't remember."

"Was it Lacy?"

As Fleet hesitated, Terri watched him try to calculate how she knew this. "Yeah," he allowed. "Guess that's right. Been a long time since I seen her, too."

"How long?"

Hall placed a cautionary hand on Fleet's wrist. "What's the relevance of this?" he interjected.

Terri kept staring at Fleet. "Bear with me for another couple of questions. Unless you think Mr. Fleet's knowledge of Lacy Sims is somehow incriminating."

"No," Hall snapped. "Just irrelevant."

"Not your call. When you last saw Lacy Sims, Mr. Fleet, how old was she?"

Down the table, two heads—Pell's and Terrell's—leaned forward for a better view. Slowly, Hall pulled back his hand. With a shrug of calculated boredom, Fleet answered, "Maybe twelve."

"Thank you," Terri said amiably. "Ever put your penis in Lacy's mouth?"

Almost imperceptibly, Fleet's shoulders twitched. His eyes on Terri's were like burn holes. "What the hell is this?" Hall demanded.

"A question." Barely pausing, Terri asked of Fleet, "Do you need it read back to you, or do you still have it in mind?"

Fleet glared at her. Once again, Terri imagined him wondering if she had found Betty or her daughter—or both. Without looking at the reporter, Terri requested, "Please read back the pending question."

At the corner of her vision, the reporter held up his steno tape to read it, repeating in a monotone, " 'Ever put your penis in Lacy's mouth?' "

Larry Pell put down his pen. Briefly, Fleet looked in Pell's direction, a decision forming in his eyes. "Why'd I do that?" he demanded.

"So if Betty and Lacy say you forced Lacy to give you oral sex, they'd be lying?"