TWENTY
WITH AGONIZING SLOWNESS, THE FIRST PAGE OF THE NINTH Circuit ruling slid from the fax machine in the Pagets' upstairs library. Terri snatched it, summarizing as Chris and Carlo peered over her shoulder.
'Sanders wrote the opinion,' she noted.
Carlo felt a spurt of anxiety and hope. 'At least it's not Judge Nhu.'
'The first issue is retardation,' Terri announced, then shook her head, unable to speak.
Taking the page from her hand, Chris started reading aloud: 'Neither the legislature of California, nor its courts, has enumerated any standards for determining whether Mr. Price is mentally retarded. Under these circumstances, the cursory treatment accorded this issue by the California Supreme Court is due little deference from this Court . . .'
'All right,' Carlo murmured.
Chris continued reading. 'Nor, in this case of first impression, was Judge Bond correct in finding that Mr. Price failed to establish his retardation. Under the appropriate standard—'preponderance of the evidence'—he has done so . . .'
Terri sat down, covering her face. 'If this ruling holds up,' she told Carlo, 'at least Rennell's going to live.'
Another sheet slipped into the fax tray. 'They're on to innocence,' Chris said.
Terri listened to her husband read. 'As a preliminary matter, we decline to speculate on what effective counsel might have done to defend Rennell Price, when it is so painfully clear that Mr. James, effectively, did nothing . . .'
'That's the first step under AEDPA,' Carlo said quietly.
'Nor can we find a knowing waiver of Mr. James's conflict of interest. There is no sign on the record that Rennell Price comprehended the complex issue to which he gave a rote response . . .'
The words brought Terri to her feet.
'As for the question of due diligence,' Chris read, 'Payton Price's delay in speaking out cannot be blamed on prior counsel.' Taking the next page, he placed a hand on Terri's shoulder. 'They're going to consider our evidence of innocence,' he told her.
Mute, Terri stared at the paper in his hand.
'Keep reading,' Carlo urged his father.
Chris started again. 'The standard of proof was previously established by this Court: whether it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt. This does not require absolute proof of innocence but simply that there is sufficient evidence of innocence that this Court cannot have confidence in the outcome of the trial . . .'
Carlo's flesh tingled. 'I think we're going to win,' he murmured, then felt a superstitious fear that he had said too much.
'Under AEDPA,' Chris continued quoting, 'Mr. Price has satisfied the predicates which allow this Court to consider his claim of innocence. But even had he failed, the Constitution must allow him to prove—if he can—that he is, more likely than not, innocent of capital murder in the death of Thuy Sen—'
Chris stopped abruptly, reading to himself. Carlo could see his father's misgivings in the narrowing of his eyes.
'Go on,' Terri urged her husband.
Chris hesitated, then began again. 'By this, we mean innocent under the law, not innocent beyond a reasonable doubt.'
'Yes,' Carlo said.
Chris put his arm around Terri's shoulder, drawing her close. 'In this case,' he read to her, 'Payton Price's accusation of Eddie Fleet stands unrefuted by Fleet himself. Not only was Fleet unwilling to repeat his allegations but the State was unwilling to compel his testimony through a grant of use immunity.
'Thus the only evidence of Rennell's complicity is the testimony of Flora Lewis, now deceased. In light of Payton's statement, this testimony, in itself, cannot sustain the conclusion that Rennell Price is guilty. Indeed, by conceding that it would not choose to try this case on the current record, the State admits as much.'
Carlo emitted a whoop of joy. 'Nonetheless,' his father continued reading, 'we allow the State one month to determine whether to retry Mr. Price for the death of Thuy Sen or to allow him to go free.'
Abruptly, Chris fell silent.
Terri could not speak.
'You won,' Chris told her gently. But Carlo could read his fear—that by approving a freestanding innocence claim, the Court might provoke the United States Supreme Court to review the case.
Terri mustered a smile. 'We won,' she corrected her husband. 'For now, that's enough.'
* * *
Terri sat across from Laurence Pell in the bright but crowded Hayes Street Grill. Picking at his garden salad, Pell said with the slightest suggestion of a smile, 'I guess you want me to kick him loose.'
Terri marshaled her thoughts. 'You really can't retry him, Larry. You can afford to let one go. Do you honestly think he's some sort of pedophile?'
'You know that's not the point.' Pell placed a curled finger to his chin. 'Here's the problem,' he said evenly. 'It's not Rennell. It's not even Fleet. It's this: not only did the Ninth Circuit treat the California Supreme Court like it
