"No," Pell answered quietly. "It would spare this Court a collision course with the Court whose precedent binds it, the Supreme Court of the United States. That Court commends the avenue of clemency. It is not the role of this Court to prejudge the result but to deny Mr. Price's petition, and direct his counsel to the Governor of California."
"Please respond," Judge Sanders requested, "to petitioner's argument that—absent a forum for freestanding claims of innocence—the death penalty itself violates the Constitution."
"It's nonsense," Pell retorted tersely. "A lifetime right to prove one's innocence is not guaranteed by the Constitution—"
"What about Mr. Paget's list of exonerations?" Sanders interrupted. "Shouldn't that at least induce some degree of disquiet?"
"To the contrary, Your Honor. The sheer number of exonerations proves that the system works."
Glancing at Judge Nhu, Pell gave a shrug of helplessness. "With all due respect," he said to Judge Montgomery, "there is no evidence whatsoever that here, in the State of California, we've ever executed an innocent man—"
"Has anyone ever tried to find out?" Montgomery asked. "Or have we literally buried our mistakes?"
Pell stiffened with resistance. "It takes all the resources we have, Your Honor, just to defend against petitions like this one. Which we do as honorably as we know how." His voice took on the weight of admonition. "The Supreme Court requires this Court to apply the law, not reconfigure it as it pleases. And what the law requires is clear: that Rennell Price's sentence of death be upheld."
* * *
Pensive, Chris finished his drink. "One purpose of making novel arguments is to encourage the Court to avoid deciding them. On its face, AEDPA doesn't allow Rennell to go free simply because he's innocent: if possible, we want to win under AEDPA, not outside it. The last thing we want to do is free Rennell by means of an argument which the United States Supreme Court thinks, however wrongheadedly, is another case of Ninth Circuit extremism."
Carlo's cell phone rang. Retrieving it from the pocket of his sport coat, he saw Terri's number flash across the screen. "Maybe the opinion's come in early," he said, quickly stabbing the call button to ask, "What's up?"
"Nothing." Terri's voice was tense but weary. "Montgomery's law clerk called—their new deadline is ten o'clock, and that's if we're lucky."
"Did he say why they're having trouble?" Carlo inquired.
"No. But take your time and meet me at home. I gave the Court our fax number."
Carlo hit the off button.
"What's happening?" Chris asked.
"A long, leisurely meal for us," Carlo answered. "Maybe some cognac. Seems like you've tied the Court in knots."
NINETEEN
BY A LITTLE PAST NINE O'CLOCK, CHRIS HAD FINISHED READING to Kit from the latest Lemony Snicket, and a temporarily amicable Elena had kissed Carlo on the cheek before proceeding upstairs. "I promised to do anything she wanted next Saturday afternoon," Terri explained to Chris as they encountered each other in the kitchen.
"And what will that be?"
"Getting our nails done. Lunch at Neiman Marcus—Elena loves the popovers. A movie, the newest teen horror film, something with a slasher. Believe it or not."
Imagining his wife soldiering through this teenage program of self-indulgence and frivolity, Chris began to laugh, mostly from relief that Terri might be allowed—at whatever cost—to assuage her guilt and make peace with Elena, however tentative and temporary, escaping for a moment the shadow of Eddie Fleet. "Mercifully, Carlo liked baseball."
"Oh," Terri continued imperturbably, "and we want your convertible. Sometimes Elena and I like to put the top down and drive around listening to CDs. Her CDs, of course. That way she can be with me without actually speaking to me—"
"Makes perfect sense," Carlo interjected, entering the room. "I always thought that Dad was best experienced as a presence."
This had been far less true of Carlo, Terri knew, than of Elena. As she often did, Terri envied Chris the generally unruffled amiability of his relationship with Carlo, a painful contrast to the tension she felt with Elena, the worry and rejection inflicted by her daughter's silences and ever-shifting moods, her hatred of Terri's work, the mercurial anger which Elena could not, or would not, discuss, the fresh wounds symbolized by the security video screen in her room. With quiet determination, Terri told Chris and Carlo, "I can't screw up our plans. Whatever happens, you two will have to cover for me. Unless there's an execution."
Chris studied her. "Even then, Terri."
"No, not then," she answered and went upstairs to Elena's room.
Checking the wall clock, Chris saw that it was almost nine-thirty. "I wonder what's holding them up," he said.
"Maybe freestanding innocence," Chris speculated. "Maybe other issues. The last moments of argument—mine and Pell's—left even Viet Nhu looking troubled."
* * *
Steeling himself, Chris had said with quiet composure, "There is, Your Honors, a final question: Does the law provide a rational standard under which Rennell Price—as opposed to all the other defendants who may be charged with a capital crime—can be executed by the State of California?"
Judge Nhu regarded Chris with a quizzical smile. "Are you suggesting, Mr. Paget, that the thirty years spent crafting California's death penalty statute have been a waste of time?"
"Worse than that, Your Honor. I'm suggesting that they've created a delusion: that Rennell Price's sentence of death is any more rational than those which the United States Supreme Court previously described as 'cruel and unusual in the same way that being struck by lightning is cruel and unusual.' "
"But hasn't the Supreme Court since provided standards under which the death penalty may fairly be imposed?"
"General standards." Chris glanced at his notes. "Principally, that the death-eligible class of murderers must be narrow enough to ensure that a substantial percentage of them are actually sentenced to death. As the data in our brief reveals, only ten percent of death-eligible defendants in California actually receive a sentence of death. Truly, Rennell Price has been struck by lightning."
Nhu cocked his head. "And you blame this lamentably meager yield on the legislature of this great state."
"And the voters." Chris returned to his notes. "California now has the broadest death penalty statute in the country. Close to ninety percent of all defendants charged with first degree murder are death-eligible, yet only one in ten are sentenced to death.
"Who are these unlucky folks? Thirty-four percent are black. Another nineteen percent are Hispanic. And the average IQ of California's death row population is roughly eighty-five—"
"In other words," Viet Nhu observed with wisp of a smile, "the only way for California's death penalty regime to be valid under current law would be to expressly confine its application to minorities of substandard intelligence. Which, of course, might create certain other constitutional problems."
Bemused, Chris could only nod. "You just summarized my argument, Your Honor. The lightning which struck Rennell Price is not, after all, an accident. It sought him out for who he is. Therefore, this Court must strike down this statute."
* * *
"What do you say," Nhu asked Pell, "to Mr. Paget's argument that the only consistency in California's death penalty regime is that it targets the disadvantaged?" Pausing, he added pointedly, "African Americans, for example. At least those like Mr. Price."
This tacit reference to Pell's own ethnicity seemed to stun him into silence. "The short answer," he said after a moment, "is that the Court should not entertain this contention at all. In a second habeas corpus petition, Mr. Price is confined to challenging his individual guilt—"