'But luck is a talent, as Somerset Maugham once said. Perhaps by accident, the Price brothers had committed one truly revolting crime, and then solicited another deliberate one from the soon to be late Jamal Harrison. When Thuy Sen's father and mother said they wanted us to seek the death penalty, there wasn't much to say against it.'
Mauriani paused to taste the newly poured wine, rolling it on his tongue, then spoke more softly. 'When they came to my office, they brought flowers—to get on my good side, I thought, and maybe to signal me they were too impoverished for me to extract a bribe. Flowers, to propitiate the Price brothers' deaths in exchange for their daughter's. It made me think of where they'd come from—a country so murderous and venal that executions occurred at the whim of the authorities and the only conceivable way to stop them was with money.' Abruptly, Mauriani switched to a sardonic undertone. 'Unfortunately for the brothers, Thuy Sen's parents were Catholic, not Buddhist—after all they'd seen, executing her murderer must have seemed completely unremarkable.
'The flowers were a cluster of bright colors from a grocery or a flower shop. Holding them, I wanted to tell this little girl's parents that the brothers would never be dead enough to bring them real solace, and that our 'system of justice' would make them wait for years before they found that out. But they might have taken it as a bureaucrat's indifference.'
He stopped abruptly, turning to gaze out at his vista, softened by a mistlike fog backlit by rays of sun.
'So you don't believe in the death penalty?' Terri asked.
His eyes narrowed before he spoke again; in that moment, Terri realized that he looked more ponderous than the man she recalled. 'Do I love it?' Mauriani asked rhetorically. 'No—I'm not from the school of 'they're going to hell, and all I'm doing is speeding up the delivery.' But I do think there are at least some moral absolutes in the world, and that making a nine-year-old choke to death on semen affronts them.
'In this job, you learn all the horrible ways in which the truly guilty murder the truly innocent—like the two guys who robbed an old lady's home, kidnapped her, put her in the trunk, stopped at a corner store to buy gasoline, took her to the desert, and then burned her alive so she wouldn't be a witness. Or the handyman who raped, tortured, and sexually mutilated an eleven-year-old girl, before he decided just to watch her bleed to death to see how long it took.' Pausing, Mauriani faced her. 'To me, some criminals are so dangerous, and some crimes so terrible, that it's hard to envision anything short of execution as being sufficient punishment.
'That's how I wound up feeling about the murder of Thuy Sen. Perhaps I suspected that executing the Price brothers, years too late, wouldn't heal the hole in her parents' hearts.' Mauriani's gaze at Terri grew pointed. 'But, perhaps unlike you, I could allow myself to contemplate how Thuy had died, and still believe that I was doing good. So let me propose something which may offend your professional sensibilities—if someone forces sex on a little girl, that's not his tragedy. It's hers.'
Once more, Terri envisioned with painful vividness what had happened to Elena. Softly, she answered, 'But you don't really know what happened, do you. What you allowed yourself to contemplate was Thuy Sen's death as you imagined it.'
'No. As Liz Shelton's autopsy showed it to be.'
'That may have shown how she died,' Terri retorted. 'But not who killed her. Suppose Payton forced Thuy Sen into oral copulation but Rennell didn't. Under the law, to seek the death penalty for Rennell, you'd have to argue that he aided and abetted Payton with the intent to kill Thuy Sen. You didn't know that, and don't now.'
Lazily, Mauriani shrugged. 'If that were true, Rennell could have said so—or Payton could have. Neither testified. Their choice, not mine.'
'Or Yancey James's choice.'
'Then that was the tactical decision of their 'chosen counsel.' Tell me, would you have put Rennell Price on the stand?'
In truth, Terri could not be sure. 'It's not just about testifying,' she answered. 'Like any competent lawyer in any other capital case, James could have tried to cut Rennell a deal.'
'On what basis? They both pled innocent. Neither chose to share with us why we should believe that or, conversely, to tell us what really happened.' With exaggerated care, Mauriani lowered himself into the seat across the table. 'So let's examine all the ways in which their silence left them eligible for execution.
'Any death occurring in the commitment of a felony is chargeable as a capital crime. That leaves both brothers open to a charge of capital murder on at least five statutory grounds: kidnapping, rape, sodomy, oral copulation, and the performance of a lewd and lascivious act on a child under fourteen. In the absence of contrary evidence— like testimony from Payton or Rennell—we could let the jury pick whatever they liked.' Mauriani settled back, regarding her with bleak amusement. 'That,' he enunciated with care, 'is where your client's tragedy reaches its apotheosis. You know about the Carlos window?'
'A little. But I've never had to deal with it.'
Mauriani nodded. 'Back in 1983, our highly inventive California Supreme Court—Rose Bird and her cabal of death penalty abolitionists—ruled in the Carlos case that a felony murder charge required the prosecution to prove intent to kill. When Thuy Sen died, Carlos was still the law. Needless to say,' Mauriani added dryly, 'oral copulation with intent to kill would have been hard for me to prove. Odds are I wouldn't have asked for the death penalty, and maybe Rennell and you would be asking for parole, instead of trying to stave off an all-too-certain execution.'
As Mauriani paused to sip more wine, savoring the vagaries of fate, Terri felt him becoming more digressive; there was a flush to his forehead, and the veins in his face had begun dissecting his cheeks. 'Sadly for Rennell,' he pronounced, 'the law, you might say, devolved. The voters sent Chief Justice Bird and her soul mates back to private practice—they were, it turned out, a bit too visionary. And two weeks before Thuy Sen was murdered, the new conservative majority reversed the Carlos rule. It was the final piece of ill luck for Payton and Rennell—they were the first defendants in a felony murder trial after Carlos was abolished, and they'll be the last to die at the hands of the City and County of San Francisco.
'If Rennell Price wanted to tell the jury why they shouldn't have sentenced him to death, that was up to him. But he chose not to.'
'And you chose to seek the death penalty,' Terri rejoined. 'Would you have done that if Thuy Sen were the daughter of a black crack addict?'
Instantly alert, Mauriani sat straighter, regarding her with level blue eyes. 'If so,' he answered succinctly, 'then I acted with exquisite fairness. If not, we're about to execute two men who are among the truly deserving. Either way I'll sleep tonight.' He paused, as though hearing himself, then continued in a softer tone. 'What you're complaining about is that, as a prosecutor, I had almost complete discretion over life and death decisions. Which was no joy to me at all.
