* * *
As Chief Justice, it was Caroline's role to initiate the discussion of each case which had been argued, outlining the decision under review, explaining her views as to the applicable law, then casting her vote on whether to affirm or reverse. By now this ritual was second nature, one she performed with confidence and crispness, and she strove to treat the case of Rennell Price like any other. But the sharp attentiveness of her colleagues underscored the stakes.
"The Ninth Circuit ruling," she began, "has two distinct components:
"First, that Rennell Price met the burden of demonstrating mental retardation. The effect of that ruling is simply to bar his execution."
Anthony Fini, she saw, smiled slightly—his silent way of objecting to the assertion that Atkins applied at all. "Second," Caroline continued calmly, "the Ninth Circuit agreed with Mr. Price's assertion that new evidence of innocence entitled him to exoneration. As the State concedes that it could not now obtain a conviction, affirming the Ninth Circuit means that Price goes free.
"There are two alternative grounds for doing so. Under AEDPA, the Ninth Circuit held that Mr. Price was entitled to introduce new evidence of innocence—his brother's confession—because Yancey James's performance deprived him of the effective assistance of counsel, and because counsel's failure to offer the confession earlier was not caused by lack of diligence . . ."
Fini's eyebrows shot up, noting what, to him, was clearly a contradiction. Ignoring this, Caroline addressed herself to Justice Glynn, a silent portrait of indecision. "In the alternative," she said, "the majority held that, where the new evidence of innocence is compelling, Mr. Price was entitled to introduce it even if he could not satisfy the predicates of AEDPA—which is to say, even if Mr. James's performance was adequate and, therefore, his original trial was technically fair."
Pausing, Caroline surveyed the others—Justices Ware, Kelly, Rothbard, and Millar to her left; Justices Fini, Glynn, and Raymond to her right; and, at the other end, Justice Huddleston. Leaning forward, she rested both arms on the table. "On the Atkins claim, I vote to affirm. Mr. Price's social history establishes, by a preponderance of the evidence, that he is mentally retarded.
"On the innocence claim, I vote to affirm under AEDPA. That means we do not have to resolve whether a freestanding innocence claim exists, or what the proper standard of proof might be." Her voice became clipped. "To me, this case is hardly a landmark in the law. The only compelling question it presents relates to Mr. Price: will this Court permit the State to execute a man when it concedes that the evidence no longer even supports a conviction? And if we do, what on earth has the law—or this Court—gained? Nothing."
With that, the Chief Justice stopped abruptly, nodding to Justice Huddleston. Her senior colleague spoke slowly and deliberately. "There's been much discussion," he began, "of all the deference we owe to the ruling of the Supreme Court of California. It's boilerplate—less an opinion than a form for approving executions, with the victim's name left blank so the Court could fill it in later. I've seen a dozen of these, and they're all alike. And worth nothing.
"I vote with the Chief Justice."
By custom, the discussion turned to Fini. "Well," he said with a smile, "it's the third inning, and I'm already trailing two to nothing.
"But I should correct some misimpressions." Without overtly noting him, Fini leaned closer to Justice Glynn, speaking in a tone which combined regret with admonition. "This decision is about whether innocent victims like the family of Thuy Sen—a name we seem to have forgotten—will become our victims as well." Abruptly, his voice became biting. "In short, whether California has a death penalty at all, or whether the Ninth Circuit is allowed to practice abolition case by case.
"This last-minute confession is not 'clear and convincing' evidence of anything but Payton Price's desire to live a few weeks longer." Fini scanned the table. "Is this the first death row confession we've ever seen? They're routine. How naĎve can we be? How much mischief will we let inventive prisoners do to our justice system?
"The finding on innocence is an abuse. As for Atkins, our opinion did not state—as required—that it applies to all the numberless habeas corpus petitioners who will now become 'retarded.' And if it does, it requires far more compelling evidence than that presented by Mr. Price.
"This case is poison," Fini concluded with disgust. "Thanks to our system of 'justice,' the Sen family has served fifteen years in a purgatory of our own invention. The vote stands two to one."
Sitting beside Fini, McGeorge Glynn looked so riven that Caroline felt a moment's pity, followed by irritation—in all likelihood, Glynn held a man's life in his hands, and it was time for him to face it. "McGeorge?"
Gazing at the table, he rubbed his fingertips together. "I'm reminded of that hoary cliché—'Hard cases make bad law.' I find both sides equally compelling, and equally perplexing."
And so? Caroline thought. The silence among his colleagues conveyed the common assessment apparent in Fini's taut gaze—that Justice Glynn was about to decide the case. "I've never seen anyone do this," Glynn said at last, "but I'd like to reserve my vote until I've heard more discussion." Apologetically, he faced Caroline. "I could cast a tentative vote for the sake of casting one, but it would only be that."
Startled, Caroline considered the benefits of suggesting that he do so and encountered her own unwonted hesitance—she did not know which way Glynn would jump, and worried about being the one to force him. "No need," she said in a pleasant tone. "If Tony, Walter, and I haven't dazzled you, there're still five of us to go."
She turned to Justice Raymond, knowing that he, too, could become the deciding vote to condemn Rennell Price. "Thomas?"
The rumpled and amiable Raymond—a self-styled practical man—smiled at Justice Glynn. "I'll tread where the brighter of us fear to go. Like you, McGeorge, I can argue this thing either way. But what decides it for me is that I used to be a State Supreme Court judge.
"I wasn't impressed then," Raymond continued dryly, "and I'm not now. We were elected; so are these people in California. We were afraid of capital cases; so are they.
"As Walter suggests, except for the name Rennell Price, the State Supreme Court's opinion could pertain to any case, and tells us nothing about this one. Until they start doing their job, someone should—even if it's the Ninth Circuit." Looking at his colleagues, Raymond finished serenely, "I vote to affirm."
Thank God for Tom, Caroline thought—a sensible man who knows his own mind and who, she felt certain, would sleep soundly tonight. But Tony Fini had clearly entertained the hope that Thomas Raymond was persuadable; it took Fini a moment to erase his scowl before he turned to his soul mate in ideology, Justice Ware.
As John Ware prepared to break his accustomed silence, Caroline pondered anew the complexities of race, the wounds sustained by John Ware in ways which she could never know. Though sometimes affable, Ware struck her as an angry man. But what made him angry was less racism than his belief that society's sporadic efforts to ameliorate it cheapened his own achievements, condemning him in others' minds—and perhaps his own—to a second-class citizenship he could no more escape than he could escape his race. Yet Ware had risen through the patronage of conservatives who, trumpeting a black man who purported to believe as they did, had taken a judge of more modest accomplishment than any number of African American judges or lawyers and put him on the Court. Knowing this, Caroline suspected, had further tied Ware in psychic knots. But there was one thing she knew for sure—for Mr. Justice Ware, Rennell Price's dilemma was far less vivid than his own.