'Ten days ago, the California Supreme Court found that your evidence of retardation, and your new evidence of innocence, did not justify vacating your client's death sentence. Why should this Court not defer to that finding as AEDPA directs?'
'Because it could have been written on a postcard,' Terri answered promptly. 'Because the opinion contained no findings, only conclusions. Because it gave this Court no basis for those conclusions. Because, in short, the California Supreme Court tells us that Rennell Price must die without condescending to tell us why—'
'Very well,' Bond said coldly. 'You've made your argument clear. It's time to hear from Mr. Pell.'
FIFTEEN
LARRY PELL ADOPTED THE CALM BUT DISMISSIVE MANNER OF A lawyer confronting a frivolous claim. 'This petition,' he began, 'is Payton Price's last laugh, an eleventh-hour attempt to avenge himself on Eddie Fleet.
'There is not one scrap of evidence behind his incredible story. Flora Lewis contradicts it. The forensics do not support it. And AEDPA requires this Court to reject it. Indeed,' he added in a tone of comfortable confidence, 'the Court's questions to Ms. Paget almost obviate the need for any argument from me.
'So I'll briefly state my case by answering those questions.
'First, because Yancey James did not have the dubious benefit of Payton Price's story, his failure to offer it was not a failure of effective lawyering.' Pell jabbed the podium for emphasis. 'Right there, Your Honor, this petition must fail. Because there is no constitutional defect in the trial—in this case, ineffective assistance of counsel—as required by AEDPA before this Court can even consider Payton's dubious 'confession.' '
Bond listened serenely, showing no desire to interrupt. 'Second,' Pell told him, 'and quite obviously, Payton's story is not the 'clear and convincing' evidence of innocence demanded by AEDPA before the Court can grant Rennell's petition.'
'Third, the California Supreme Court has given Rennell Price three separate hearings. AEDPA does not require that Court to invest yet more time in rejecting his latest petition with the fulsomeness required to satisfy his counsel.'
The wisp of a smile played at one corner of Bond's mouth.
'As for retardation,' Pell continued, 'it is a wholly separate issue from that of innocence. But its shortfall is the same: the evidence offered to support it is hardly sufficient to show that the California Supreme Court's decision was unreasonable. Which is why that Court should be sustained on this ground, too.'
Pell stood back, hands spread on the rostrum. 'AEDPA exists to bring finality to those for whom, like the family of Thuy Sen, this process must surely seem unending.' Briefly, he swiveled his body toward the Sens, watching tautly from their seats in front of the assembled media. 'Fifteen years after her death, their child deserves justice. That is the purpose of AEDPA. I respectfully submit that it is this Court's purpose to fulfill it.'
With the ease of an athlete not required to break a sweat, Pell glided back to his chair. Quickly, Terri stood. 'May I be heard in rebuttal, Your Honor?'
Even as she spoke, she saw the strain in her voice reflected in the impatience with which Bond snapped his neck to look at her. But a man's life was at stake: after the briefest hesitation, Bond said in an uninviting tone, 'If you think it can illuminate what's already been said.'
'Rennell Price is retarded,' Terri insisted. 'His entire life tells us that, and tells us why. And retardation is not separate from the question of innocence—it explains why a man whom the evidence now suggests is innocent has come within two days of execution.
'It explains why Rennell Price was his brother's shadow; why he could not help himself at trial; why the jury thought him a callous accomplice to Payton's every act, before and after the murder; and why he was convicted for a crime in which Eddie Fleet—even then—was far more obviously complicit than was Rennell.' Terri's voice rose in anger. 'Now Rennell is ensnared in a Byzantine, procedure-ridden legal system which allows the State to smugly claim that who Rennell Price is, and what they cannot prove he did, no longer matters at all.'
Beneath Bond's silent stare she felt the deeper silence of the courtroom. 'The last laugh,' she continued, 'doesn't belong to Payton Price. It belongs to the State, which insisted on Payton's execution, and now insists that a dead man is unworthy of belief, while inviting this Court to ignore the inconvenient fact that his brother may well be innocent. You don't need to think about innocence, they say, because you can 'presume' that the California Supreme Court has done the thinking for you.
'So let's be very clear about what Mr. Pell is really asking this Court to do.' Terri turned to Pell. 'There is no way—no way at all—that if Mr. Pell brought this case today, a jury would convict Rennell, let alone require his death.
'Eddie Fleet won't repeat his story. Payton Price refutes it. The State won't make Fleet tell it. There's no evidence to support it—'
'Because Flora Lewis is dead,' Bond interrupted. 'That's why a jury verdict rendered a year after the crime should not be endlessly relitigated until memories fade and witnesses die. At some point, we're entitled to presume that a jury verdict is reliable absent a compelling reason to doubt it.'
'But this verdict?' Terri asked. 'I wonder if even Flora Lewis would be so certain now. But I'm certain of this much—a case based on Flora Lewis alone would not convict Rennell. And that's all the State has left.' Terri forced herself to finish calmly yet emphatically. 'This Court cannot condemn Rennell Price to death without saying more than Congress ever intended in passing AEDPA, or the Constitution has ever allowed—that on the eve of execution, concepts like truth, or innocence, or justice have become irrelevant to the taking of this man's life.
'Thank you, Your Honor.'
Walking back to the defense table, Terri felt the stone-faced stare of Thuy Sen's father.
'That was good,' Chris told her softly, and she heard beneath his words the judgment, and the sympathy, of a man who loved her, and a lawyer who was certain that she had lost.
From the bench, Gardner Bond surveyed the parties, the media, and last of all, the Sens. 'This Court,' he announced, 'is prepared to rule.'
Looking down, the judge began reading, and Terri realized, with deep foreboding, that Bond had written his opinion the night before. 'With respect to the issue of mental retardation,' he began, 'the question is not whether Rennell Price is of below average intelligence. Rather, even assuming that Atkins applies to Mr. Price's petition, the
