"We've got two arguments," Terri had explained to Carlo. "First, that AEDPA leaves Rennell no suitable avenue for bringing his freestanding claim of innocence. Second—and this is critical—that we should have the same right to testimony from Fleet which the State had at the original trial. That would require California to grant Fleet use immunity so that he can't invoke the Fifth Amendment."
"First, we have to find him," Carlo pointed out.
"Sure. But we've got a pretty compelling argument, I think—the State can't convict Rennell on this pervert's trial testimony and then help Fleet avoid questioning after Payton swore that Fleet was the second murderer, and that he perjured himself at trial."
Out of public view, Johnny Moore and Tammy Mattox also worked to save Rennell. Feverishly, Tammy knocked on doors in the Bayview, seeking out anyone who might have known Eddie Fleet; Moore flew to Los Angeles, where Fleet had lived for a time after Thuy Sen's death, and began working from a motel in the South Central section of the city. The Pagets set up a phone bank in the office, manned by the other investigators, soliciting tips through the media and over the Internet. And despite all this activity, every day without fail, Terri spent an hour with the frightened and confused man who, despite her reports of all the Pagets were doing, felt his life slipping away, day by day, and hour by hour.
"Next Tuesday, right after midnight," Rennell told her in a hollow voice. "That's when the warden say it gonna happen."
At ten o'clock that evening, as Terri tried to sleep, Chris found a short opinion in the tray of their fax machine. In disbelief, he read the document's conclusions: by a vote of two to one, Judge Blair Montgomery dissenting, the panel denied Rennell Price permission to file a third habeas corpus petition before Judge Bond. The reasoning of Judge Nhu and Judge Sanders, the defector, was tersely stated: as directed by the recent opinion of the United States Supreme Court in Godward v. Price, the panel would defer to the Supreme Court of California and, in light of that, could not say that the new affidavits regarding Fleet were "clear and convincing evidence" of Rennell's innocence. And even were the new evidence sufficient, it did not reflect any constitutional defect in the trial itself, and thus could not be heard.
With a leaden spirit, Chris went to the bedroom and found that Terri, aided by sleeping pills, had at last fallen asleep. Her face, for once, was so untroubled that Chris hated to awaken her. But he knew he must—both for Rennell's sake and for hers.
Gently, he touched the bare skin of her shoulder.
She started, and then her eyes flew open. "What is it?"
"The Ninth Circuit. I'm sorry, sweetheart, but Sanders flipped. They've turned us down."
In the dimly lit bedroom, Chris watched his wife struggle to comprehend what, fully awake, she knew by heart—that AEDPA barred Rennell from seeking review by the full Ninth Circuit, or by the United States Supreme Court.
"Oh, God," she said softly. "Oh, God."
* * *
Shortly after 1:00 A.M. in Washington, a call awakened Caroline Masters.
"I'm sorry be calling at this hour," Blair Montgomery told her, "but I've got some news. Our panel just denied Rennell Price's request to file a new petition."
Caroline paused, waiting for sleep to loosen its grip on her consciousness. "Callista said Price had new evidence. So what happened?"
"Your colleagues did too good a job. In Sanders's mind, further provoking Fini et al. will eviscerate our already tattered credibility. This man's life just isn't worth it."
Caroline sat up. Her bedroom, though lit by a full silver moon, felt dark and solitary. "So what can I do? Your order's not appealable."
"I know. But these lawyers will find some way to petition you. They're smart and resourceful, and they don't give up."
"That," Caroline answered with bleak humor, "would be immensely inconvenient. Why can't Price just die like he's supposed to?"
The next morning, shortly after Caroline reached her chambers, Callista Hill brought her the papers faxed by Rennell Price's lawyers.
* * *
At eleven-thirty in San Francisco, Terri passed Elena's room and saw that her light was on.
Gently, Terri pushed open the door.
Elena was lying atop the bed, an open book beside her, gazing at the ceiling. "Are you all right?" Terri asked.
"Yeah. Only I can't get to sleep."
"Neither can I."
Rolling on her side, Elena faced her mother. "They're really going to kill him, aren't they?"
"Probably." Terri hesitated. "How does that make you feel?"
"Weird."
Tentative, Terri sat on the edge of the bed. Softly, she said, "Rennell's not like your father. I'm sure he never touched that girl."
"Then the other man did. The one who followed me."
Terri could not answer.
After a moment, Elena looked away. "I'm tired now," she said at last.
Terri kissed her forehead and left, gently closing the door behind her.
NINETEEN
"HOW DO PRICE'S LAWYERS RATIONALIZE THIS?" THE CHIEF JUSTICE asked Callista. "Under AEDPA, Price has no right to be here."
Callista remained standing in front of Caroline's desk. "They claim that the Constitution gives this Court jurisdiction over habeas corpus petitions, including a claim of freestanding innocence, that can't be limited by Congress. In other words, AEDPA can't stop us from hearing a new claim."
"And just what is it we're supposed to hear?"
"They found a teenage girl who claims the State's key witness—Eddie Fleet—forced her to give him oral sex when she was ten years old. They also claim California's failure to immunize Fleet meant they couldn't cross-examine him about his own involvement in the victim's death." Callista paused for emphasis. "Bottom line, Price's lawyers say we're the last chance to stop the State of California from killing an innocent man."
"What about the Governor?"
"They're trying. But the Governor hasn't been heard from."
Caroline felt caught between her conscience and a wholly practical concern—that intervening would further inflame the tensions on the Court, pitting her against Justice Fini, to the discomfort and resentment of her colleagues. With an uncharacteristic sigh, she asked Callista, "What would you do?"
Without invitation, Callista sat. "I'm a black woman," she said bluntly. "You probably noticed. But a lot of white folks still barely notice me at all. And some that do couldn't pick me out of a lineup of other black women about my age and height. They've got no practice telling one of us from another—all they see is 'black.'
"Fleet has no credibility left—not after this latest thing against him. So we're going to execute Price because an old white lady thought she could differentiate him from Fleet looking through a window across the street? Come on. Anyone who's comfortable with that is way too white for words."
Despite her misgivings, Caroline smiled. "Even the Assistant Attorney General who argued the case for California?"
"Especially him," Callista answered with disdain. "Do you believe Price did it?"
The blunt question, stripping Caroline of legal hedges, gave her pause. "No," she answered. "But if you're Justice Fini, that's not the point."
Caroline saw Callista hesitate, torn between her sense of injustice and the fear of crossing the line between Chief Justice and clerk. More quietly, she said, "My mama's mouthy and opinionated, and I guess she raised another one. So I have to ask this, even though I know I'm out of line: What's the point for you?
"Can we just sit here and watch them kill this guy? Isn't Justice Glynn's penchant for worrying too much about Court politics exactly what got Price here? What greater good is the Court serving if it sacrifices Rennell Price? And do we even have the right to ask that question?" Callista lowered her voice again. "Call me stupid—any black person in America can tell you 'justice' is hit or miss. But that's no reason for us to close our eyes."