"Yes."
"Of course," Fini interjected smoothly, "all of their singular reasoning is irrelevant unless Atkins applies to habeas corpus petitioners like Mr. Price. Does it?"
This invitation to controversy, however tempting, seemed to give Pell pause. Carefully, he answered, "I do not believe that it does. To me, the rule of law is clear—a new principle of constitutional law doesn't apply to habeas corpus petitions unless this Court expressly says so. In Atkins, the Court did not say so."
Chris felt Terri tense—if he could, Fini clearly intended to use Rennell Price to construct a landmark in the law of capital punishment, imposing the death penalty more frequently and with greater stringency. "And therefore," Fini concluded, "Atkins does not ban the execution of Mr. Price, or of any habeas corpus petitioner—even if the petitioner is supposedly retarded."
"That's correct," Pell said to Fini.
To Chris Paget, three justices formed their own frieze of conflicting attitudes: Fini satisfied, Masters antagonized, Glynn torn and deeply troubled. And then the red light flashed on, and Pell's time was up.
NINE
ADVANCING TO THE LECTERN, CHRISTOPHER PAGET FELT THE PROXIMITY of the justices, seated so close to him on both sides that he could not see them all at once. Experience had taught him that their questions, carried through speakers high above him, could seem disembodied from the justices who asked them, identifiable only by voice. But Justice Fini was squarely in front of him.
Turning slightly, Chris spoke to Justice Glynn. "The State of California seeks to execute a man," he began, "in a case where they executed the key witness to his innocence before the witness could be heard in court.
"Where the State's principal witness now invokes the Fifth Amendment.
"Where it refused to immunize this witness so that we could seek the truth.
"And where, it seems, all that matters to the State is 'winning.' "
Magnified by thick glasses, Glynn's eyes seemed to radiate concern. "But," Chris told him quietly, "there can be no 'victory' here. This is a tragic case of human fallibility, where all the components of human error—an appalling crime, an untrustworthy witness, a guilty brother, an incompetent lawyer, an Attorney General's Office bent on 'winning'—have brought a mentally impaired scapegoat to the brink of execution. While an almost-certain pedophile, Eddie Fleet, is free to repeat his crimes."
"So you say," Fini interrupted sharply. As Chris turned to him, Fini's eyes were combative, though his voice seemed to come not from his mouth but from above. "But AEDPA requires 'clear and convincing' evidence of innocence, not proof of imperfection. Where's your evidence?"
"Had Payton Price testified against Eddie Fleet at trial," Chris answered, "Rennell would not be here. Payton's confession takes the prosecution's 'evidence' and turns it inside out: there is no way a reasonable jury—then or now—could find Rennell Price guilty in the death of Thuy Sen. The Ninth Circuit was correct: James's admission of ineffectiveness, and the Attorney General's admission that they could not now convict Rennell, satisfies AEDPA. Such a ruling has no implications for anyone but Mr. Price—"
"Until," Fini interjected sternly, "the next petitioner argues that the Ninth Circuit should once more serve as fact finders, with no regard for the California Supreme Court or—in this case—Judge Bond's careful reasoning. Or are a federal trial judge's conclusions also beneath the Ninth Circuit's notice?"
Justice Glynn, Chris noticed, pivoted from Fini back to him, seeming to second his colleague's question. "Judge Bond's ruling," he answered carefully, "relied heavily on the California Supreme Court, and therefore stands on quicksand—"
"Judge Bond," Fini snapped, "specifically found that Rennell Price's IQ was—at the least—seventy-two. Was the Ninth Circuit also justified in ignoring that?"
"That goes to retardation," Chris answered, "not innocence. As to retardation, the Ninth Circuit simply ruled that the California Supreme Court's opinion—which could have been written on a postcard—was not sacrosanct because of two IQ points." He looked toward Justice Glynn. "Indeed, this case encapsulates the reason for Atkins—a man who now appears innocent was set up by a man who appears guilty, and then fell victim to a legal process he never understood—"
"Isn't there a risk," Fini asked sardonically, "that habeas corpus petitioners like your client will start faking retardation, drowning this Court in a tidal wave of newly minted idiots?"
Despite the harshness of the question, Chris smiled. "I hope you're not referring to me, Your Honor." Interrupted by laughter, he paused. "As for the other 'idiots,' that's why the mental health profession requires evidence of retardation well before age eighteen—present in abundance here. I cannot conceive of a prisoner so fiendishly proactive that, beginning in grade school, he starts flunking standardized tests and bamboozling his way into special ed classes. Certainly not Rennell Price."
The Chief Justice, Terri saw, suppressed a smile of her own. But Fini, eyes glinting, was undaunted. "Why," he asked, "was Rennell Price—with an IQ above the threshold—incapable of knowing the difference between right and wrong?"
"He does know the difference," Chris answered easily. "That's why insisting on his innocence—as he has since he was eighteen years old—is so important to him. What his retardation impeded was his ability to keep the State of California from putting him on death row."
"The Attorney General," Fini rejoined, "points to the total absence of evidence that the State of California has ever executed an innocent man."
Chris permitted himself the briefest trace of a smile. "Proving that," he said dryly, "has never been the State's foremost priority. But the day may come when—despite their lack of interest—DNA will prove California wrong." Abruptly, his smile vanished. "Semen samples exist here. DNA technology is improving all the time. Rennell Price could be a human time bomb, Justice Fini. If this Court reverses the Ninth Circuit, this could be the case where—at last—we find out that the State of California has killed an innocent man."
At this, Justice Glynn blinked—the complicity suggested by Chris's prediction seemed to affect him physically. "The possibility of error," Fini objected, "hovers over any human process. Why should we allow that to cripple us?"
Chris stood straighter. "The proper question, with all respect, is, When do we ignore it when the consequence is death? My answer is, Not here. Not in this case, on these facts—"
"Does freestanding innocence even exist?"
Fini's questions came more swiftly now, forcing Chris to speak from instinct. "First and foremost, I rely on AEDPA—"
"But if we find that Mr. James's performance did not affect the outcome, do you then rely on freestanding innocence?"
"Yes," Chris retorted. "In this case, on these facts, before the State of California is allowed to execute this man—"
"Indeed," Fini pounced, "you also argued to the Ninth Circuit that—absent such a claim—AEDPA, and the death penalty itself, were unconstitutional."
Inwardly, Terri flinched—with one poisoned shaft of a question, Fini had attempted to paint Chris as an antideath penalty zealot, whose radical theories were designed to distort the law. "Only," Chris answered mildly, "if petitioners like Mr. Price are foreclosed from proving their innocence on the theory that the original verdict—though erroneous—was 'fairly' reached. But the Ninth Circuit did not accept this—"
"Nor did they reject it." Fini's voice became ironic. Briefly, he glanced at Glynn. "Would you say—in light of the array of inventive arguments you advanced to the Ninth Circuit, and that Court's apparent willingness to entertain them—that we owe the Ninth Circuit some guidance on this issue?"