'Any issue you can imagine, some of them pretty inventive. The one that jumps out at me is that AEDPA allows a claim of freestanding innocence.'
The Chief raised her eyebrows. 'You mean the idea we're still empowered to notice things like an innocent man being wrongly convicted? That could get some of my colleagues pretty excited. I assume his lawyers also try to couple this claim of innocence with a constitutional defect in the trial.'
'Uh-huh. The usual ineffective assistance of counsel claim.'
Caroline Masters stood, arching her back to relieve the tightness which came from too much sitting. 'Usual,' she amended, 'and often legitimate. I'd bet that behind at least half of the names on your death list lurks a terrible lawyer. It's the single biggest reason people get executed. Aside from the fact that—we can only hope—the condemned actually committed the murder in question.' The Chief Justice stopped herself abruptly, as though feeling she had said too much. 'Who's on the panel?'
'Judges Montgomery, Nhu, and Sanders.'
The Chief Justice allowed herself a faint, ambiguous smile. 'That should be an adventure.'
'What do you want me to do?'
'Nothing yet—if the COA's not granted, you'd be wasting your time.'
'And if it is?'
'Then one of two things happens. If Price loses, he's on my doorstep within twenty-four hours, asking for a stay while we consider his petition. If Price wins, the State of California will try to persuade us that the Ninth Circuit has distorted the law so grievously we're obliged to correct its errors.' Caroline sat down again, no longer looking amused. 'Either way, it may be fairly unpleasant. If he loses, I'll need a memo from you immediately, recommending whether or not I should grant a stay and vote to hear his case. And if you think I should grant a stay, the memo needs to be good enough to persuade four other justices to extend my stay rather than dissolve it.'
A certain grimness of tone put Callista on edge. 'Will it really be that difficult? The real worry would be not granting a stay until we can have time to look at the merits.'
The Chief Justice shook her head. 'Stays of execution can occasion a particular bitterness. While it takes only four of us to decide to hear a case, it takes five to grant a stay. Which creates the not-so-theoretical possibility that our Court would vote to grant a hearing to a dead man.'
'What about judicial courtesy, if four of you feel that strongly?'
Caroline's smile was sour. 'A good question. A few years ago, Justice Powell would step in, voting for a stay to ensure that the petitioner didn't die—at least prematurely. But we have no Lewis Powells now. Justice Fini's a stickler for the rules, and he believes that our internal rules shouldn't permit a minority of us to stave off executions. His viewpoint seems to have spread. Capital punishment,' she finished wryly, 'has been the death of courtesy.'
* * *
Late that night, Terri sat in the Pagets' upstairs library, outlining on four-by-six note cards the argument upon which Rennell Price's life depended. When it came to the simple concept of innocence—whether the State could insist on executing Rennell despite the indisputable possibility that Eddie Fleet was guilty of Thuy Sen's death—Terri could not quite find the phrase she wanted. Note cards with words scratched out lay on the desk in front of her.
Staring at the latest card, Terri felt a tingle in the back of her neck, the slow awareness of the presence of another. Turning, she saw Elena in the doorway.
Her daughter, whom Terri had thought was sleeping, studied her as if she were a stranger. The clinical coolness in Elena's eyes cut through Terri like a knife.
'I thought you were asleep,' Terri managed to say.
'How would you know?' the girl inquired coldly. 'You didn't come to my room.'
'It was late, Elena. I didn't want to wake you.'
Elena ignored this. Walking to the desk, she picked up a note card with Terri's futile scratchings, scanning it with narrow eyes.
'I'm writing out my argument,' Terri said. 'If we don't win tomorrow, a man's going to die.'
'No,' Elena answered tersely. 'A creep is going to die.'
Terri expelled a breath. 'You don't know him.'
'I knew my father,' Elena answered. 'If you weren't my mother, would you have been his lawyer? Or maybe you would be anyhow.'
Terri felt too heartsick to respond. Silently, she shook her head, less in answer than in a vain wish to banish all she felt. 'You can't even look at me,' she heard Elena say, and then realized that she was staring at her note cards through a film of dampness.
At length, she gazed up at her daughter. 'I don't understand what your father did to you,' she said softly. 'I don't want to. But I understand what happened to this man, and I don't think it's right for us to kill him.'
Elena folded her arms. 'You think that about everyone. That's all your life's about.'
What my life is about, Terri wanted to say, is too complicated for you to know. And so is Rennell Price's. But she could not explain her own childhood, the painful duality of wishing her father dead and yet knowing how defenseless a child could be against the damage inflicted by those who, themselves, had once been damaged children.
'Elena,' she said quietly, 'I don't think we can ever know enough about someone to execute him. I don't think we're that wise, or that fair. I don't even think we're wise enough to keep from killing innocent men.
'This man could be innocent. I think he is, that another man was the one who killed Thuy Sen. How can I know that and not do everything in my power to save him?'
