Behind the fingers curled to his lips, Chris smiled faintly. With unusual bluntness, Pell answered, "What the California Supreme Court owed Mr. Price is due consideration of his claims, followed by a ruling. AEDPA requires that the federal courts respect that ruling absent a clear showing of error, which Judge Bond did. This Court should do the same—"
"What about innocence?" Sanders cut in. "In his papers, Mr. Price says quite plainly that—regardless of whether his counsel was ineffective—he's entitled to a new trial, or even his freedom, based on his brother's confession. Is that the law?"
"Absolutely not," Pell replied with real vehemence. "Under AEDPA, it is not this Court's role to conduct a second trial but to determine whether the original trial was fair. And it was."
"What say you to that, Ms. Paget?"
Terri read the warning in Chris's eyes. "Are we deciding, Your Honor, whether a fifteen-year-old trial was good enough to justify the wrong results—in which case, it's permissible to execute a man who now appears to be innocent? Or is it this Court's duty, when faced with compelling new evidence of a condemned man's innocence, to consider whether it is still appropriate to execute him—"
"What about AEDPA?" Sanders interjected sharply. "It's very clear that its wording sets forth a precondition to considering new evidence of innocence—that the original trial denied Mr. Price a constitutional right, such as the effective assistance of counsel."
"Let me pose a hypothetical," Terri replied. "Suppose this Court was absolutely certain that new evidence showed Rennell Price to be innocent but that Mr. Pell insisted the Court ignore that evidence unless Mr. James's deficiencies kept Rennell's innocence from coming to light at the original trial. I do not believe that AEDPA can—or should—be read to require execution of the innocent—"
"That's not this case," Sanders retorted. "Your client's innocence is hardly certain."
"Then the difference is only a matter of degree. The evidence of Rennell Price's innocence is at least as compelling as the evidence of his guilt." Terri paused, to emphasize her final point. "But the evidence of Mr. James's ineffectiveness—beginning with his own admission—is also compelling. So this Court need not resolve the vexing question of freestanding innocence."
Her invisible audience fell momentarily silent. "It is a vexing question," Sanders concurred in more contemplative tone. "Your petition raises a number of them. Please give us a moment to confer."
Terri's hopeful glance toward Chris was met by a reflective and, she thought, somewhat worried frown. Across from her, Larry Pell's expression was opaque, Janice Terrell's dubious.
"All right." This time the disembodied voice was Judge Montgomery's. "All of us wish to make very clear that we have not prejudged the merits. But we unanimously conclude that this appeal raises issues which meet our standard for review: 'debatable among jurists of reason.' Which all of us like to think we are.
"Therefore, we are staying the execution of Rennell Price, and granting permission to appeal all claims." Montgomery's voice became peremptory. "Petitioner will file his brief tomorrow; the State will respond by the close of business two days after; we'll hear oral argument two days after that. A written order will follow."
In sheer relief, Terri glanced at Chris. But his expression showed no elation. At once she grasped his reason: the suspicion that Viet Nhu, a judicial gamesman of the first order, was giving his more liberal colleagues enough rope to hang themselves and, with it, Rennell Price—if not soon then in the far less hospitable environs of the United States Supreme Court. But that was tomorrow's problem.
"Thank you," Terri told the panel.
* * *
Returning home, Terri found Elena waiting in the living room with her arms folded, a hostile expression on her face.
"There's a strange man in my bedroom," she said with an edge Terri found hard to define.
Startled, Terri stared at her daughter and then—hearing the echo of pointed sarcasm—realized who Elena meant.
"It's someone from the security firm," Terri said.
"I know. He's putting in a camera so I can push a button and see who's at the front door. I can't wait to show my friends the present my mom gave me. They already think this case is really cool."
Terri studied her. "Sit down," she said.
Elena stared at her, resistant, and then read something in her mother's face. With a show of reluctance, she sat down beside Terri in the matching overstuffed chair.
"A few nights ago," Terri began, "I got a phone call, I think from someone in the Price case. He made some threats—"
"Like what?"
"Just threats—he wasn't specific." Terri's voice softened. "Then he asked if I had kids. It's probably nothing. But that's why we hired a security firm and why you've got a video receiver in your room."
Elena's shoulders hunched; perhaps it was an illusion caused by the overstuffed chair, but to Terri, her daughter suddenly seemed smaller and more vulnerable. "Who is he?" Elena asked.
Terri hesitated and then, though torn, chose to speak the truth. "The second man, Elena—the one I think caused Thuy Sen's death."
Elena blanched, and then outrage overcame her fear, propelling her from the chair. "So now you're afraid he'll do that to me. There's no place I'm safe from what you do, is there? Not even my own room." Tears filled her eyes. "Maybe this time I'll die, and then he can be your client."
Terri stood.
"Don't touch me," her daughter screamed. "I just want to be alone."
Turning, Elena ran from the room.
EIGHTEEN
ON SUNDAY AFTERNOON, WHILE THE NINTH CIRCUIT HEARD oral argument in the case of Rennell Price, Carlo Paget worked in his cramped office, drafting a petition to the U.S. Supreme Court to be filed if Judges Montgomery, Nhu, and Sanders affirmed Rennell's sentence of death. The argument had commenced at one o'clock; every fifteen minutes or so, Carlo would glance at the digital clock on his desk and imagine the course of the arguments presented by his father and Larry Pell.
"Why is Dad doing the hearing?" he had asked Terri with genuine puzzlement.
"Watching is going to be hard for me," she had acknowledged. "But he knows the law backward and forward, and he's the best I've ever seen at oral argument on appeal. And who better to argue on behalf of a retarded black man than a white establishment lawyer who doesn't come off like an antideath fanatic?"
This was said without apparent rancor. But it impressed Carlo, once again, with the complexity of the partnership—personal and professional—between his father, on the surface the prototype of a WASP, and the younger Latina to whom little had come easily and whose passions were fueled, despite her current access to privilege, by an outsider's sensibility. He imagined her now as she watched Rennell's fate being determined by others, her anxiety intensified by her inability to speak, and hoped for both Terri's and his father's sakes that Chris's argument was flawless.
At five minutes past two, Carlo glanced at the clock again and realized the argument was now over.
He willed himself to keep writing, undistracted. He was revising the introduction when Terri rushed through his door. "How's it going?" she asked hurriedly.
The question implied to Carlo that his work would be needed. "Close to final," he answered tersely. "Where's Dad?"
"He went home to check on Elena and Kit. I'm all the help you've got."
Carlo sat back. "How'd it go?"
"If you're going to ask who won, I don't know. But by seven o'clock, we will. The Court's promised to fax their opinion." She picked up a section of his brief, preparing to read it. "In the meanwhile, we can kill some time by working . . ."