'Reality never is, is it, Tony?' Rothbard returned his smile with a killer smile of her own. 'Only the most arid kind of abstraction could turn a drug-addicted hack into an excuse for executing a retarded black man who might as well have been representing himself.'
Suppressing a smile of her own, Caroline bit her lip. 'If this lawyer isn't bad enough to satisfy you,' Justice Rothbard concluded, 'no one is. I vote to affirm.'
Caroline fixed her gaze on Justice Millar, hopeful, despite his vote to grant the State's petition, that Justice Raymond or Justice Rothbard might have caused him second thoughts. 'Dennis?'
Millar, the court's ascetic, regarded her with a wistful air. 'If I may say so, I find this whole discussion melancholy.
'There seem to be two very different versions of the Court—one that places trust in state courts, one that sees us as their keeper. The latter course, it seems to me, will embroil us in more contention. I vote to reverse.'
So much for Rennell Price, Caroline thought caustically—the purpose of this Court is to keep its own docket tidy. The vote stood at four to four.
With deep misgivings, she faced Justice Glynn, saying gently, 'The buck is passed, McGeorge.'
Turning his entire body, Fini stared at his wavering colleague, willing his acquiescence. Caroline's mouth felt dry.
Glynn folded his hands, turning to the Chief Justice. 'I have two concerns, and they're in conflict.
'The first is Miriam's: that a lackadaisical lawyer contributed to this man's conviction—though I'm stymied, I'll admit, by the fact that his deficiencies have nothing to do with Payton Price's failure to confess. But I'm also troubled that, by ruling for Mr. Price, we're going to encourage Ninth Circuit judges, some of them de facto death penalty abolitionists, to second-guess judges and juries who were closer to the facts.'
'Suppose,' Caroline swiftly proposed, 'that I assign you the task of drafting a majority opinion affirming the Ninth Circuit. That way you can write it to accommodate your concerns, confining its scope to the particulars concerning Mr. Price.'
Fearing her sudden effort to co-opt the fifth vote, Fini interjected, 'I'm not sure that's giving due credit to his ambivalence—'
'For which,' she cut in, 'I'm offering a cure. In the process, perhaps McGeorge can find us all a way out of this mess.'
'Assuming that we want one.' Again facing Justice Glynn, Fini added incisively, 'I, for one, don't.'
As though cornered, Glynn turned to Caroline for relief. 'At this point, I'm not sure I'm prepared to pick up the laboring oar.'
'Then let's do this,' she responded easily. 'I'll draft a majority opinion addressing your qualms—'
'There is no majority,' Fini retorted. 'We're split four to four, with McGeorge still undecided.
'Let me suggest this: you draft your proposed majority opinion, and I, as senior justice among the opposing four, will draft ours. Then we can circulate them to the others, while giving McGeorge a basis for comparison and, I would hope, a resting place that pleases him.' Before Caroline could respond, Fini turned to Glynn. 'Would that be helpful, McGeorge?'
Glynn accorded him a look of genuine gratitude. 'Yes. It would.'
Fini flashed a grin. 'Excellent. What say you, Madam Chief?'
Finessed, Caroline silently cursed McGeorge Glynn for his dithering. Of Fini, she inquired, 'Is ten days enough time for an exchange of drafts?'
'Ample.'
'Good. Then that's what we'll do.' Checking her notes, the Chief Justice said evenly, 'The next case is City of Cincinnati v. Roberts.'
TWELVE
THE DRAFTS PREPARED BY THE CHIEF JUSTICE AND JUSTICE FINI were written for an audience of one, Justice Glynn. Caroline's instructions to Callista Hill were clear: apply Atkins, find Rennell Price innocent within the parameters of AEDPA, and avoid resolving the question of freestanding innocence. 'Ground it in the specific facts,' she ordered. 'No broad rulings, no sharp edges.'
Fini's directions were the opposite. 'Hit all the issues, both on the facts and on the law,' he told Adam Wendt. 'If Justice Glynn signs off on a broad ruling, we've hamstrung the Ninth Circuit and changed the face of the law. If he won't, then we've still got room to narrow the opinion in a way that pleases him.
'One thing needs to be clear. If his brother's death row confession is enough to exonerate Rennell Price, there'll be no end to exonerations.'
And so, exchanging drafts, the two chambers took one case and fashioned two different realities for the benefit of Justice Glynn.
'Amazing,' Conor Farrell said to his colleague Elizabeth Burke. 'Fini's written a broadside on the subject of capital punishment.'
Closeted in Justice Glynn's conference room, they compared the two drafts. 'I think the Chief's outsmarted him,' Elizabeth said. 'Our justice will never buy off on saying Atkins doesn't apply to Price.'
Nodding, Conor read aloud from the Chief Justice's opinion: 'To execute a retarded man for the crime of being convicted before Atkins is anomalous. If that be our ruling, then capital punishment is to the rest of all law what surrealism is to realism. It destroys the logic of our judicial system.'
Elizabeth smiled. 'You can tell where Callista leaves off,' she opined. 'That paragraph has Caroline Masters all over it.'
