* * *
Shortly after five o'clock, as Terri and Carlo revised the draft of their Supreme Court petition, Chris arrived.
"How are the kids?" Terri asked.
Chris unknotted his tie. "Kit's fine," he said tiredly. "Elena's not so fine but won't say why. My guess is that she disapproves of our afternoon activities. I'm wondering if you shouldn't go home and let Carlo and me finish up here."
Terri felt trapped between her duties as a mother and her responsibilities as a lawyer for a man who aroused such loathing in her daughter—both for his supposed crime and for the way it had consumed Terri's life. "I can't leave before seven," she answered. "And only if we've won."
Chris shook his head. "Climb down off the cross," he said gently. "Let me take your place for a while."
He looked tired, Terri realized, and she then thought of how he had been the night before, too fretful about his argument to sleep, a different man from the collected and self-assured advocate she had witnessed in court. "I like it up here," she answered. "Take your son to dinner. If you're back by seven, we can sort out what we have to do."
* * *
Bright and airy, the North Beach restaurant had begun filling up with families who, like Chris and Carlo, had come for generations to banter with the same waiters and eat an early dinner on a Sunday afternoon. Chris contemplated the chill martini which Manfred, their waiter, had known to bring without a word.
He savored a first sip and put it down again. "I'm fried," he confessed to Carlo. "This job wears me out more than it used to. The price of getting older, I guess."
It was a rare admission, his son reflected, especially from this man who appeared to have aged little in the eighteen years since Carlo, at seven, had come to live with him. Then it struck Carlo that what burdened his father was the knowledge, born of hard experience, that failure meant not only the certain death of another human being but the quiet suffering of his own wife.
"Terri says you were magnificent," Carlo assured him dryly.
Chris did not smile. "I did all I could," he answered. "Maybe too much. If we lose, Rennell Price will die. But if we win because the Ninth Circuit bought the wrong argument, the Supreme Court may require that he die anyhow—just later rather than sooner. That may be what I did in arguing freestanding innocence.
"You'd think it a simple proposition: that even if Rennell Price's original trial was 'fair,' if new evidence proving him innocent emerges at any time before his execution, then he should go free. That's all 'freestanding innocence' means. But under the law, merely being innocent may not be enough."
Carlo took his first swallow of beer. "Tell me about it," he requested.
* * *
All of them—the lawyers, the media, the three judges of the Ninth Circuit, and Thuy Sen's family—were assembled in the grandeur of Courtroom One, a lavish mélange of carved Corinthian columns, plaster cupids and flowers, and stained-glass windows filtering a golden light which augmented the intended sense of awe. In Terri's mind, this opulence, an expression of Gilded Age extravagance, was a curious setting in which to determine whether Rennell's life, the product of the most squalid and harrowing circumstances, would come to a premature end.
The three men who would decide his fate looked down from a burnished mahogany bench. In the middle presided Blair Montgomery, a small, white-haired man with a keen expression and sharp blue eyes, by turns wintry and amused. To his right sat Judge Sanders, whose excess weight lent his face and body a look as amorphous as his judicial philosophy, undefined by any clear principle save caution. Judge Viet Nhu was Sanders's opposite—an elfin man with salt and pepper hair and a slightly puckish expression.
Sitting at the prosecution table, Larry Pell and Janice Terrell had looked surprised when Chris, not Terri, advanced to the podium to argue for Rennell Price. Chris, dressed in a dark blue pin-striped suit made for him by a Savile Row tailor, effused a sense of entitlement and ease that one either had from childhood, or not at all.
"What the Attorney General is asking you to rule," Chris had told the panel, "is that guilt or innocence no longer counts. If you accept Mr. Pell's argument on waiver, or due diligence, or on Yancey James's conflict, you will never have to consider whether we're executing an innocent man." Chris's voice was tinged with disdain. "It's death by technicality, a heartless joke. And it's wrong. Killing the innocent is immoral, even when it's cloaked in legal niceties."
"Fine words," Nhu interrupted in arid tones. "But the purpose of AEDPA is to bring finality to proceedings such as these—which to Thuy Sen's family must seem infinite indeed."
Chris hesitated. Then, believing Viet Nhu a lost cause, he framed his answer as bluntly as Terri would have, hoping to engage Judge Sanders. "If AEDPA renders innocence irrelevant, then it violates at least two provisions of the Bill of Rights. 'Due process of law' does not permit us to execute a man for a crime which he did not commit. And there can be no more 'cruel and unusual punishment' than to execute Rennell Price for the perversion inflicted on Thuy Sen by Eddie Fleet."
The last, unvarnished sentence seemed to take Judge Sanders aback. "Isn't such a claim a matter for the Governor?" he asked. "If the evidence of someone's innocence is clear, then clemency provides a remedy."
Chris forced himself to answer softly and respectfully. "I'll pass over the state of politics which makes clemency so meaningless. The bottom line is this: the theoretical availability of clemency does not absolve this Court—or any court—of its duties. The Constitution does not allow us to pass the buck for death."
* * *
"Mr. Paget's argument," Pell said with quiet scorn, "is a venture in fantasy unmoored from law. To allow a federal court to grant habeas corpus relief would in fact require a new trial, not because of any constitutional violation of the first trial but simply because of a belief that, based on newfound evidence, a jury might not find the defendant guilty at a second trial. However, it is far from clear that another jury would produce a more reliable determination of guilt or innocence, since the passage of time has only diminished the reliability of criminal convictions." Briefly glancing up at Montgomery, Pell pressed his point. "To quote Justice Fini, 'If the process is free of error, there is no constitutional argument, and the question of guilt or innocence is not before the Court.' "
"Yes," Montgomery said dryly, "we're aware of Justice Fini's views. I'm sure you're also aware of Justice Blackmun's: 'The execution of a person who can show that he is innocent comes perilously close to simple murder.' "
"But that's not this case," Pell countered promptly. "Payton Price's confession falls well short of establishing his brother's innocence. In Burton v. Dormire, the Eighth Circuit opinion addressed this situation in light of Herrera. A quotation from the Court's opinion makes it clear that AEDPA bars a claim of freestanding innocence: 'One cannot read the record without developing a nagging suspicion that the wrong man may have been convicted of capital murder in a Missouri courtroom. But Burton's claims of innocence run headlong into the thicket of impediments erected by courts and Congress.
" 'Burton's legal claims permit him no relief, even as the facts suggest he may well be innocent. We express the hope that the Governor can provide a forum in which to consider any such evidence.' "
Montgomery answered in withering tones. "Let's inject a note of realism into this rather theoretical argument. Since the reinstitution of capital punishment in 1978, when was the last time this Governor—or any governor of California—commuted a sentence of death?"
"That's not the question—"
"It's my question, Mr. Pell. Have the good grace to answer it."
Pell spread his hands. "I'm not aware of any commutations."
"That's because there haven't been any." Montgomery leaned forward. "Which is why this Court has in the past allowed us to consider evidence of innocence, in order to avert a 'fundamental miscarriage of justice.' Doesn't that fairly describe a case where you ask us to require the execution of a man who—by your own admission—would go free if we forced you to retry him?"