'Let's do that,' Nhu amended sharply, 'with respect to what AEDPA demands of you, Ms. Paget. First, whether your claim of innocence is based on facts which none of Mr. Price's prior counsel—in the exercise of due diligence— could have discovered before.'
'That's simple,' Terri answered. 'That Payton Price remained silent for fifteen years is not the fault of Mr. James, or of Kenyon and Walker—'
'Precisely.' Nhu's tone bespoke the triumph of a didactic law professor curbing a bumptious student. 'When you concede that Yancey James did not have the benefit of Payton's death row confession, how can you claim that your client was convicted because Mr. James, to use the vernacular, 'blew it'?'
'We're getting dangerously close,' Montgomery interjected with veiled sarcasm, 'to actually considering the facts—including whether the State is about to execute an innocent dupe. But perhaps the People can protect us from such a painful exercise. For example, Mr. Pell, might Mr. James—short of extracting a confession from Payton—have honored Rennell Price's claim of innocence by investigating Mr. Fleet, whose implication of both brothers may have spared him from taking Rennell's place in this somewhat baleful proceeding?'
Carlo, Terri saw, was smiling grimly at the table. But though Blair Montgomery's participation had to be viewed as a stroke of luck, the dynamic of this hearing—a battle between Montgomery and Nhu, with the opposing lawyers as their surrogates—was made even more unpredictable by the silence of Judge Sanders.
'The requirements of AEDPA,' Pell responded, 'are not a technicality but the will of Congress. If Yancey James could not have discovered Payton Price's confession, Rennell Price cannot show that James was inadequate, and therefore fails that requirement of AEDPA. Conversely, if Rennell now complains that James should have questioned Fleet's credibility, that is not 'new evidence' at all, and therefore should have been presented earlier. Because Rennell Price fails both tests under AEDPA, this Court cannot consider his claim of innocence.'
'Let's get to that,' Montgomery said crisply. 'Assuming, Ms. Paget, that you do satisfy the prerequisites outlined by Mr. Pell, why does Payton's confession entitle your client to go free? Or, at least, to receive a new trial?'
'And while you answer that,' Judge Nhu cut in, 'perhaps you can explain why that confession is 'clear and convincing' evidence of his brother's innocence.'
Terri knew that her next few words might mean Rennell's life or death. 'Your Honors,' she began, 'there is no direct evidence of Rennell Price's guilt. In fact, the only admitted witness to Thuy Sen's death, Payton Price, claims that Rennell was sleeping.' She paused, slowing her speech for emphasis. 'The key witness against Rennell was Eddie Fleet, who admitted disposing of the body. We know that he escaped prosecution by fingering Rennell Price. We believe—and there is nothing to refute us—that Fleet could testify in such persuasive detail because he was the actual murderer.
'Under this circuit's holding in Carriger v. Stewart, Rennell Price is not required to affirmatively prove his innocence but simply to present sufficient evidence of innocence to 'undermine confidence in the outcome of the trial'—'
'Or,' Nhu interrupted, 'put another way, that Mr. James's supposed failures 'probably resulted in the conviction of one who is actually innocent.' Does Ms. Paget's new evidence suggest that probability, Mr. Pell?'
'The eleventh-hour accusation,' Pell asked rhetorically, 'of an admitted murderer of a child, made against a witness he also tried to have murdered? Of course not. This is a last-ditch effort to have the State of California do to Eddie Fleet what Payton Price couldn't do himself—exact jailhouse revenge. The very kind of abuse AEDPA is meant to stop.' Pell sat back, palms on the table, speaking with renewed confidence. 'Fifteen years ago, the Superior Court of California held an utterly fair trial, after which twelve jurors condemned Rennell Price to death. Three times since—on direct appeal, on a prior petition, and now on this petition—the California Supreme Court has upheld that judgment. It is time to end this matter, today.'
'So soon?' Blair Montgomery asked. 'Carriger rested on a standard enunciated by the U.S. Supreme Court: whether, given the new evidence, 'it is more likely than not that no reasonable juror would have found the defendant guilty beyond a reasonable doubt.' On the evidence before us today—which Ms. Paget fairly described— could you, as a juror, convict Mr. Price in good conscience?'
The question, stunning in its directness, caught Pell short. He glanced at Janice Terrell, who bit her lip. 'The California Supreme Court,' Pell ventured, 'decided as a question of fact that the 'new' evidence of innocence was insufficient.'
'I know all about AEDPA,' Montgomery snapped. 'I know all about the California Supreme Court. I even took the ten seconds or so required to read its opinion—in its entirety. So please answer my question.'
Pell shrugged, a silent gesture of helplessness. 'I can't put myself in the place of a juror,' he answered. 'My answer is appropriate under AEDPA—this Court cannot say that the California Supreme Court's refusal to believe Payton Price's confession is in error, and therefore should not overrule it—'
'If it doesn't,' Terri cut in, 'then even this cursory opinion is beyond review. So it is well to ask on what basis this Court should 'defer' to the California Supreme Court.
'Its hearing on the facts? There was none.
'The reasoning of its opinion? There is none.
'Its record in death penalty cases?' Terri's voice became quietly scathing. 'There, at last, we have something to go on.
'The State Supreme Court reverses less than ten percent of all death penalty convictions. Of the other ninety percent, the federal courts—including this Court—have reversed almost two-thirds, the highest reversal rate for any state supreme court in the country.'
Terri looked at Pell directly. 'The State of California has, again and again, hidden behind the shield of AEDPA. 'We're entitled to a presumption of correctness,' the State tells us. 'So please don't look too hard at the facts. After all, we don't.' '
Though Pell's calm demeanor was unchanged, he seemed to grip his pen more tightly. Terri turned to address the plastic box. 'Fifteen years ago, an old woman—now deceased—saw two black men across the street, and thought one of them was Rennell Price. Without explanation or the inconvenience of a hearing, the California Supreme Court dismissed—in a single sentence—compelling evidence that she was wrong. That single sentence is entitled to the precise amount of 'deference' it deserves, and nothing more.'
For the first time, no immediate questions issued from the squawk box. 'Mr. Pell,' Judge Montgomery said at last, 'if this Court concludes that Mr. James's defects did not affect the outcome of the trial, are you saying that— under AEDPA—we are barred from considering whether Rennell Price is innocent?'
