'Yes,' Montgomery said dryly, 'we're aware of Justice Fini's views. I'm sure you're also aware of Justice Blackmun's: 'The execution of a person who can show that he is innocent comes perilously close to simple murder.' '
'But that's not this case,' Pell countered promptly. 'Payton Price's confession falls well short of establishing his brother's innocence. In Burton v. Dormire, the Eighth Circuit opinion addressed this situation in light of Herrera. A quotation from the Court's opinion makes it clear that AEDPA bars a claim of freestanding innocence: 'One cannot read the record without developing a nagging suspicion that the wrong man may have been convicted of capital murder in a Missouri courtroom. But Burton's claims of innocence run headlong into the thicket of impediments erected by courts and Congress.
' 'Burton's legal claims permit him no relief, even as the facts suggest he may well be innocent. We express the hope that the Governor can provide a forum in which to consider any such evidence.' '
Montgomery answered in withering tones. 'Let's inject a note of realism into this rather theoretical argument. Since the reinstitution of capital punishment in 1978, when was the last time this Governor—or any governor of California—commuted a sentence of death?'
'That's not the question—'
'It's my question, Mr. Pell. Have the good grace to answer it.'
Pell spread his hands. 'I'm not aware of any commutations.'
'That's because there haven't been any.' Montgomery leaned forward. 'Which is why this Court has in the past allowed us to consider evidence of innocence, in order to avert a 'fundamental miscarriage of justice.' Doesn't that fairly describe a case where you ask us to require the execution of a man who—by your own admission—would go free if we forced you to retry him?'
'No,' Pell answered quietly. 'It would spare this Court a collision course with the Court whose precedent binds it, the Supreme Court of the United States. That Court commends the avenue of clemency. It is not the role of this Court to prejudge the result but to deny Mr. Price's petition, and direct his counsel to the Governor of California.'
'Please respond,' Judge Sanders requested, 'to petitioner's argument that—absent a forum for freestanding claims of innocence—the death penalty itself violates the Constitution.'
'It's nonsense,' Pell retorted tersely. 'A lifetime right to prove one's innocence is not guaranteed by the Constitution—'
'What about Mr. Paget's list of exonerations?' Sanders interrupted. 'Shouldn't that at least induce some degree of disquiet?'
'To the contrary, Your Honor. The sheer number of exonerations proves that the system works.'
Glancing at Judge Nhu, Pell gave a shrug of helplessness. 'With all due respect,' he said to Judge Montgomery, 'there is no evidence whatsoever that here, in the State of California, we've ever executed an innocent man—'
'Has anyone ever tried to find out?' Montgomery asked. 'Or have we literally buried our mistakes?'
Pell stiffened with resistance. 'It takes all the resources we have, Your Honor, just to defend against petitions like this one. Which we do as honorably as we know how.' His voice took on the weight of admonition. 'The Supreme Court requires this Court to apply the law, not reconfigure it as it pleases. And what the law requires is clear: that Rennell Price's sentence of death be upheld.'
* * *
Pensive, Chris finished his drink. 'One purpose of making novel arguments is to encourage the Court to avoid deciding them. On its face, AEDPA doesn't allow Rennell to go free simply because he's innocent: if possible, we want to win under AEDPA, not outside it. The last thing we want to do is free Rennell by means of an argument which the United States Supreme Court thinks, however wrongheadedly, is another case of Ninth Circuit extremism.'
Carlo's cell phone rang. Retrieving it from the pocket of his sport coat, he saw Terri's number flash across the screen. 'Maybe the opinion's come in early,' he said, quickly stabbing the call button to ask, 'What's up?'
'Nothing.' Terri's voice was tense but weary. 'Montgomery's law clerk called—their new deadline is ten o'clock, and that's if we're lucky.'
'Did he say why they're having trouble?' Carlo inquired.
'No. But take your time and meet me at home. I gave the Court our fax number.'
Carlo hit the off button.
'What's happening?' Chris asked.
'A long, leisurely meal for us,' Carlo answered. 'Maybe some cognac. Seems like you've tied the Court in knots.'
NINETEEN
BY A LITTLE PAST NINE O'CLOCK, CHRIS HAD FINISHED READING to Kit from the latest Lemony Snicket, and a temporarily amicable Elena had kissed Carlo on the cheek before proceeding upstairs. 'I promised to do anything she wanted next Saturday afternoon,' Terri explained to Chris as they encountered each other in the kitchen.
'And what will that be?'
'Getting our nails done. Lunch at Neiman Marcus—Elena loves the popovers. A movie, the newest teen horror film, something with a slasher. Believe it or not.'
Imagining his wife soldiering through this teenage program of self-indulgence and frivolity, Chris began to laugh, mostly from relief that Terri might be allowed—at whatever cost—to assuage her guilt and make peace with Elena, however tentative and temporary, escaping for a moment the shadow of Eddie Fleet. 'Mercifully, Carlo liked baseball.'
'Oh,' Terri continued imperturbably, 'and we want your convertible. Sometimes Elena and I like to put the top
