'James admitted as much,' the Chief Justice repeated with weary patience. 'That means we don't have to decide freestanding innocence, doesn't it? Because the trial of Mr. Price was constitutionally defective under AEDPA.'
Silently, Chris blessed the Chief Justice: with forensic skill, she had placed Rennell Price on the narrowest, and least contentious, path to freedom.
'Nothing Mr. James did or didn't do,' Pell replied, 'could have affected Payton Price's decision to confess. Therefore, his conflict did not affect the outcome of the trial, and Mr. Price cannot offer new evidence of innocence under AEDPA.'
Caroline Masters summoned a smile of incredulity. 'Let's grant—for the moment—your argument that a lawyer who assumes one client's guilt because he believes the other client guilty is good enough for both of them. Are you saying that even if new DNA evidence excluded Mr. Price as the murderer, you still can execute him as long as his original trial was okay?'
Pell hesitated. 'In theory, yes. But our office would never do so. And, if we tried, the Governor would grant clemency—'
'Really? Because of DNA?'
'Yes.'
The Chief Justice smiled thinly. 'So it's okay to execute someone we're just pretty sure is innocent if his trial— however dubious its outcome—was 'fair.' '
With this, Chris thought, the Chief Justice cut to the heart of Pell's argument. Sitting to her right, Justice Glynn regarded Pell with a dubious frown.
'What I'd say,' Pell answered slowly, 'is that—under AEDPA—that decision should rest with the Supreme Court of California. This Court should not become the court of second guesses.'
From the bench, Justice Fini nodded, briefly eyeing Justice Glynn. 'Enough of hypotheticals,' he said to Pell. 'In reality, isn't the entirety of Mr. Price's affirmative evidence of innocence his own brother's extremely belated—and wholly unsupported—confession?'
'That's right.'
'Does that 'confession' negate AEDPA's requirement of 'clear and convincing' evidence?'
Heartened, Pell spoke more firmly. 'It does not.'
'And even if you fabricate a claim of freestanding innocence, the standard for innocence should hardly be less than that of AEDPA, correct?'
'I agree.'
Briskly, Chris saw, Fini had both rescued Pell and reduced him to a prop. 'Therefore,' Fini prodded, 'under any theory of innocence, Mr. Price must fail?'
'That's correct.'
'All right,' Fini said with obvious satisfaction. 'So, according to Judges Sanders and Montgomery, the one remaining impediment to Rennell Price's execution is his claim of mental retardation under Atkins?'
'That's also correct.'
'Which Judge Bond, Judge Nhu, and all seven justices on the California Supreme Court found unsupported by the evidence.'
'Yes.'
Fini cast an eye toward Justice Raymond—by Chris's calculation, the swing vote of the Court along with Justice Glynn. 'And so,' Fini continued, 'as is the case with innocence, Judges Montgomery and Sanders stand alone in finding Mr. Price retarded.'
'Yes.'
'Of course,' Fini interjected smoothly, 'all of their singular reasoning is irrelevant unless Atkins applies to habeas corpus petitioners like Mr. Price. Does it?'
This invitation to controversy, however tempting, seemed to give Pell pause. Carefully, he answered, 'I do not believe that it does. To me, the rule of law is clear—a new principle of constitutional law doesn't apply to habeas corpus petitions unless this Court expressly says so. In Atkins, the Court did not say so.'
Chris felt Terri tense—if he could, Fini clearly intended to use Rennell Price to construct a landmark in the law of capital punishment, imposing the death penalty more frequently and with greater stringency. 'And therefore,' Fini concluded, 'Atkins does not ban the execution of Mr. Price, or of any habeas corpus petitioner—even if the petitioner is supposedly retarded.'
'That's correct,' Pell said to Fini.
To Chris Paget, three justices formed their own frieze of conflicting attitudes: Fini satisfied, Masters antagonized, Glynn torn and deeply troubled. And then the red light flashed on, and Pell's time was up.
NINE
ADVANCING TO THE LECTERN, CHRISTOPHER PAGET FELT THE PROXIMITY of the justices, seated so close to him on both sides that he could not see them all at once. Experience had taught him that their questions, carried through speakers high above him, could seem disembodied from the justices who asked them, identifiable only by voice. But Justice Fini was squarely in front of him.
Turning slightly, Chris spoke to Justice Glynn. 'The State of California seeks to execute a man,' he began, 'in a case where they executed the key witness to his innocence before the witness could be heard in court.
'Where the State's principal witness now invokes the Fifth Amendment.
'Where it refused to immunize this witness so that we could seek the truth.
