down and drive around listening to CDs. Her CDs, of course. That way she can be with me without actually speaking to me—'
'Makes perfect sense,' Carlo interjected, entering the room. 'I always thought that Dad was best experienced as a presence.'
This had been far less true of Carlo, Terri knew, than of Elena. As she often did, Terri envied Chris the generally unruffled amiability of his relationship with Carlo, a painful contrast to the tension she felt with Elena, the worry and rejection inflicted by her daughter's silences and ever-shifting moods, her hatred of Terri's work, the mercurial anger which Elena could not, or would not, discuss, the fresh wounds symbolized by the security video screen in her room. With quiet determination, Terri told Chris and Carlo, 'I can't screw up our plans. Whatever happens, you two will have to cover for me. Unless there's an execution.'
Chris studied her. 'Even then, Terri.'
'No, not then,' she answered and went upstairs to Elena's room.
Checking the wall clock, Chris saw that it was almost nine-thirty. 'I wonder what's holding them up,' he said.
'Maybe freestanding innocence,' Chris speculated. 'Maybe other issues. The last moments of argument—mine and Pell's—left even Viet Nhu looking troubled.'
* * *
Steeling himself, Chris had said with quiet composure, 'There is, Your Honors, a final question: Does the law provide a rational standard under which Rennell Price—as opposed to all the other defendants who may be charged with a capital crime—can be executed by the State of California?'
Judge Nhu regarded Chris with a quizzical smile. 'Are you suggesting, Mr. Paget, that the thirty years spent crafting California's death penalty statute have been a waste of time?'
'Worse than that, Your Honor. I'm suggesting that they've created a delusion: that Rennell Price's sentence of death is any more rational than those which the United States Supreme Court previously described as 'cruel and unusual in the same way that being struck by lightning is cruel and unusual.' '
'But hasn't the Supreme Court since provided standards under which the death penalty may fairly be imposed?'
'General standards.' Chris glanced at his notes. 'Principally, that the death-eligible class of murderers must be narrow enough to ensure that a substantial percentage of them are actually sentenced to death. As the data in our brief reveals, only ten percent of death-eligible defendants in California actually receive a sentence of death. Truly, Rennell Price has been struck by lightning.'
Nhu cocked his head. 'And you blame this lamentably meager yield on the legislature of this great state.'
'And the voters.' Chris returned to his notes. 'California now has the broadest death penalty statute in the country. Close to ninety percent of all defendants charged with first degree murder are death-eligible, yet only one in ten are sentenced to death.
'Who are these unlucky folks? Thirty-four percent are black. Another nineteen percent are Hispanic. And the average IQ of California's death row population is roughly eighty-five—'
'In other words,' Viet Nhu observed with wisp of a smile, 'the only way for California's death penalty regime to be valid under current law would be to expressly confine its application to minorities of substandard intelligence. Which, of course, might create certain other constitutional problems.'
Bemused, Chris could only nod. 'You just summarized my argument, Your Honor. The lightning which struck Rennell Price is not, after all, an accident. It sought him out for who he is. Therefore, this Court must strike down this statute.'
* * *
'What do you say,' Nhu asked Pell, 'to Mr. Paget's argument that the only consistency in California's death penalty regime is that it targets the disadvantaged?' Pausing, he added pointedly, 'African Americans, for example. At least those like Mr. Price.'
This tacit reference to Pell's own ethnicity seemed to stun him into silence. 'The short answer,' he said after a moment, 'is that the Court should not entertain this contention at all. In a second habeas corpus petition, Mr. Price is confined to challenging his individual guilt—'
'Skip AEDPA, Mr. Pell. I was looking for a substantive response.'
Pell shook his head. 'Mr. Paget's argument is entirely novel—'
'Novel,' Nhu interrupted yet again, 'may mean 'newly discovered.' I've never seen these statistics before. Doesn't that take this case outside the scope of AEDPA?'
'Even without AEDPA,' Pell said in a strained voice, 'in Teague v. Lane, the Supreme Court held that a decision announcing a new rule of constitutional law does not apply to habeas corpus petitioners, like Rennell Price, unless the decision says it does. The imaginary rule proposed by Mr. Paget—that California's entire death penalty statute is unconstitutional—doesn't even exist.'
'So you refuse to satisfy my curiosity. On procedural grounds.'
'On principle,' Pell rejoined. 'If Mr. Paget wishes to invalidate our entire death penalty statute, he'll have to find a newer case. Rennell Price's time has passed.'
Judge Nhu contemplated Pell with a smile which did not convey amusement. 'Perhaps,' he said.
* * *
'So what was Nhu up to?' Carlo asked his father now.
Chris looked at his watch and saw that its face read ten-fifteen. 'I can't figure Nhu at all,' he answered. 'I don't even want to win on that argument—not with the U.S. Supreme Court waiting for us. It would throw our entire death penalty statute on the scrap heap.'
'Maybe Nhu believes it should be. He's nothing if not rigorous—'
'Come on up,' Terri called from the staircase. 'Our fax machine just rang.'
