'True. In forming your opinion, Dr. Kuhl, did Mr. Pell give you any instructions regarding how to view the testimony of Eddie Fleet?'
'I was instructed to assume its truth.'
Though questioning the witness, Terri directed her gaze at Bond. 'In other words, your 'forensic behavioral analysis' rests primarily on the testimony of Mr. Fleet.'
'In some measure, yes.'
'Aren't you at least curious about whether he's telling the truth?'
'Of course. But trying to second-guess the 'truth' of facts established at the trial is beyond the scope of my assignment and—frankly—the proper purview of an expert in psychology.'
'I see. Were you also asked to assume by implication that Payton Price was lying?'
'I suppose so.'
'Wouldn't you like to see and hear Payton Price tell his story?'
Kuhl gave her a trapped, impatient look. 'Payton Price is dead.'
Terri glanced at Bond again. 'Oh, I know. That leaves Eddie Fleet, doesn't it? Are you aware that since Mr. Pell sought your opinion and told you to rely on Fleet's testimony, Mr. Fleet has invoked the Fifth Amendment?'
'I am.'
'How does that affect your reliance on Mr. Fleet in asserting that Rennell Price is not retarded?'
Kuhl glanced at Larry Pell. 'My instructions are the same.'
'Doesn't that bother you, Dr. Kuhl? Maybe just a little? After all, if the Court accepts your opinion, Rennell Price may well die.'
'Objection,' Pell said in a disdainful monotone. 'Argumentative.'
'Argumentative?' Terri echoed. 'Forgive me, Dr. Kuhl. Let me ask the question another way. Would you now, knowing that Mr. Fleet has taken the Fifth, prefer to see and hear him before standing on your opinion?'
From Pell's expression, he saw, perhaps too late, where Terri had taken his witness. Defensively, Kuhl answered. 'That's not my decision.'
'No,' Terri answered, looking toward Gardner Bond. 'It's Mr. Pell's.'
THIRTEEN
WHEN TERRI HAD FINISHED WITH DAVIS KUHL, LARRY PELL STOOD at once.
'I realize,' he told Judge Bond, 'that the Court has heard all the witnesses it cares to with respect to Rennell Price's state of mental functioning.' Here Pell darted a look at Terri. 'Absent,' he added pointedly, 'Mr. Price himself. But I wanted to address why the State did not feel the need to ask Dr. Kuhl to opine on the 'new' issue raised by Ms. Paget: whether Rennell's purported dependence on his brother, Payton, mitigates against a sentence of death for his role in the murder of Thuy Sen.'
Bond nodded curtly. 'Go ahead.'
Pell rested one hand on the prosecution table, the other on his hip, a portrait of confidence. 'Set aside that this argument conflicts with the assertion that Mr. Price is innocent. Set aside that Dr. Lane's testimony is another exercise in the dark autobiographical style so common to habeas corpus cases, wherein a murderer's hard childhood is offered to mitigate the murder of a child.' Pell's voice became mordant. 'Set aside that many abused children do not commit crimes; that the 'new' evidence of Rennell Price's childhood emerged at the eleventh hour; or that none of the supposed horrors—new or old—cited by Dr. Lane outweigh the horror of the crime itself.
'We simply rely on the law: because this 'new' evidence in mitigation supports an old argument, it is barred by AEDPA. This Court should not—and, I respectfully submit—cannot entertain it—'
'According to Ms. Paget,' the judge rejoined, 'the 'new' evidence is, indeed, new. Because Payton Price alone controlled whether he chose to speak.'
'Is Rennell Price mute?' Pell countered. 'Nothing in the last fifteen years barred him from discussing his own childhood . . .'
'He's retarded,' Carlo whispered in disgust.
'Where was his grandmother?' Pell went on. 'Where were his lawyers, the respected firm of Kenyon and Walker? Right here—in this Court.' Pell drew himself to his full height, hands clasped in front of him. 'For new evidence to be accepted on a second petition, there are two predicates: that original counsel must have failed to offer it because he was 'ineffective'; and that subsequent counsel could not have offered it because—despite their exercise of due diligence—they could not find it. Neither is true. The question of mitigation is closed.'
Bond assumed an attitude of gravity. 'You anticipate me,' he said after a moment. 'This Court will not accept any further argument in mitigation of the death penalty.'
Terri felt her stomach clench. Beneath the table, Chris's fingers briefly grazed her wrist. 'But Ms. Paget's more pertinent issue,' Bond told Pell, 'is with whether your office—or this Court—can compel Eddie Fleet to testify through a grant of 'use immunity,' barring the state from using such testimony against him in connection with the murder of Thuy Sen.'
At this mention of his daughter's name, Meng Sen leaned forward in the front row. 'Your Honor,' Pell said in a dispassionate manner, 'after due consideration, the Attorney General's Office does not believe that attempting to compel Mr. Fleet to testify again—when he already did so at the trial—serves the interests of justice.
'It is true that, in his deposition, Mr. Fleet declined to repeat that testimony . . .'
'And ran like a thief,' Carlo murmured. 'Or a child molester . . .'
'But little wonder.' Pell gestured toward Terri with an outstretched hand, his gaze still focused on the judge.
