Supreme Court of California. It's boilerplate—less an opinion than a form for approving executions, with the victim's name left blank so the Court could fill it in later. I've seen a dozen of these, and they're all alike. And worth nothing.
'I vote with the Chief Justice.'
By custom, the discussion turned to Fini. 'Well,' he said with a smile, 'it's the third inning, and I'm already trailing two to nothing.
'But I should correct some misimpressions.' Without overtly noting him, Fini leaned closer to Justice Glynn, speaking in a tone which combined regret with admonition. 'This decision is about whether innocent victims like the family of Thuy Sen—a name we seem to have forgotten—will become our victims as well.' Abruptly, his voice became biting. 'In short, whether California has a death penalty at all, or whether the Ninth Circuit is allowed to practice abolition case by case.
'This last-minute confession is not 'clear and convincing' evidence of anything but Payton Price's desire to live a few weeks longer.' Fini scanned the table. 'Is this the first death row confession we've ever seen? They're routine. How naDve can we be? How much mischief will we let inventive prisoners do to our justice system?
'The finding on innocence is an abuse. As for Atkins, our opinion did not state—as required—that it applies to all the numberless habeas corpus petitioners who will now become 'retarded.' And if it does, it requires far more compelling evidence than that presented by Mr. Price.
'This case is poison,' Fini concluded with disgust. 'Thanks to our system of 'justice,' the Sen family has served fifteen years in a purgatory of our own invention. The vote stands two to one.'
Sitting beside Fini, McGeorge Glynn looked so riven that Caroline felt a moment's pity, followed by irritation—in all likelihood, Glynn held a man's life in his hands, and it was time for him to face it. 'McGeorge?'
Gazing at the table, he rubbed his fingertips together. 'I'm reminded of that hoary cliche—'Hard cases make bad law.' I find both sides equally compelling, and equally perplexing.'
And so? Caroline thought. The silence among his colleagues conveyed the common assessment apparent in Fini's taut gaze—that Justice Glynn was about to decide the case. 'I've never seen anyone do this,' Glynn said at last, 'but I'd like to reserve my vote until I've heard more discussion.' Apologetically, he faced Caroline. 'I could cast a tentative vote for the sake of casting one, but it would only be that.'
Startled, Caroline considered the benefits of suggesting that he do so and encountered her own unwonted hesitance—she did not know which way Glynn would jump, and worried about being the one to force him. 'No need,' she said in a pleasant tone. 'If Tony, Walter, and I haven't dazzled you, there're still five of us to go.'
She turned to Justice Raymond, knowing that he, too, could become the deciding vote to condemn Rennell Price. 'Thomas?'
The rumpled and amiable Raymond—a self-styled practical man—smiled at Justice Glynn. 'I'll tread where the brighter of us fear to go. Like you, McGeorge, I can argue this thing either way. But what decides it for me is that I used to be a State Supreme Court judge.
'I wasn't impressed then,' Raymond continued dryly, 'and I'm not now. We were elected; so are these people in California. We were afraid of capital cases; so are they.
'As Walter suggests, except for the name Rennell Price, the State Supreme Court's opinion could pertain to any case, and tells us nothing about this one. Until they start doing their job, someone should—even if it's the Ninth Circuit.' Looking at his colleagues, Raymond finished serenely, 'I vote to affirm.'
Thank God for Tom, Caroline thought—a sensible man who knows his own mind and who, she felt certain, would sleep soundly tonight. But Tony Fini had clearly entertained the hope that Thomas Raymond was persuadable; it took Fini a moment to erase his scowl before he turned to his soul mate in ideology, Justice Ware.
As John Ware prepared to break his accustomed silence, Caroline pondered anew the complexities of race, the wounds sustained by John Ware in ways which she could never know. Though sometimes affable, Ware struck her as an angry man. But what made him angry was less racism than his belief that society's sporadic efforts to ameliorate it cheapened his own achievements, condemning him in others' minds—and perhaps his own—to a second-class citizenship he could no more escape than he could escape his race. Yet Ware had risen through the patronage of conservatives who, trumpeting a black man who purported to believe as they did, had taken a judge of more modest accomplishment than any number of African American judges or lawyers and put him on the Court. Knowing this, Caroline suspected, had further tied Ware in psychic knots. But there was one thing she knew for sure—for Mr. Justice Ware, Rennell Price's dilemma was far less vivid than his own.
'In my mind,' Ware said tersely, 'this is about the respect we owe state courts. This isn't nursery school—it's not our purpose to draw smiley faces on the margins of opinions with the most words in them. I vote to reverse.'
The vote stood at three to two. As he butted his head forward, Bryson Kelly's bristles of crew-cut red hair evoked the football player he once had been. Looking directly at Justice Glynn, Kelly said, 'Tony and John have spoken for me. We've reversed the Ninth Circuit in case after case, and still we have this problem. To encourage them further is weak-minded. As I used to say when I was in politics, 'Send them a message.' '
Justice Glynn pondered this, eyes fixed on the green leather pad before him. Caroline could sense the swirl of his conflicting emotions: cautious by nature and moderate by inclination, Glynn also suffered from the contradictory impulses of the sweet-souled but weak-willed—the desire to be fair without giving offense, for which he sometimes overcompensated by sudden outbursts of rigidity. How those forces would resolve themselves was as opaque as his expression.
'Miriam?' the Chief Justice said to Justice Rothbard.
Though the kindest of women, Miriam Rothbard had a look of intellectual severity; her plain wire-rim glasses and hair pulled back in a bun reminded Caroline that Justice Rothbard had been an early feminist, one of the first— and still one of the brightest—women to graduate from Harvard Law School. 'Like the Chief Justice,' she said to Glynn, 'I started out by defending criminal cases. I never saw a defendant sentenced to death who didn't have a terrible lawyer. And yet only twice—in this Court's entire history—have we found that a lawyer's poor performance violated a condemned man's right to counsel.'
Pausing, she glanced pointedly at Justice Fini. 'Something's wrong here. Either my experience is anomalous— which I very much doubt—or this Court is pretzeling itself to let terrible lawyers become corpse valets. If any of us would let Yancey James represent him with his life on the line, I'd sincerely like to understand why.'
Fini gave his friend and fellow opera buff a smile of reproof. 'That's really not the issue—'
