With veiled amusement, Bond remonstrated. 'There are also Fifth Amendment considerations, Mr. Pell. Retarded or not, the Court cannot force Mr. Price to incriminate himself.' Once more he turned to Terri. 'I'll leave it to your discretion, Ms. Paget, as to whether Mr. Price will testify. Either to confirm his innocence or to exemplify his mental retardation.'
Bond's tone, insinuating and faintly accusatory, drove home to Terri that Pell had trapped her in a painful choice: to call Rennell Price, or to leave the implication in this judge's mind that her petition was a sham. 'Thank you, Your Honor. We'll advise the Court of our decision.'
'All right then.' Folding his hands, Bond surveyed each lawyer. 'Rennell Price was sentenced fifteen years ago, and this Court has no desire to attenuate that sorry record. Therefore, the parties will complete their discovery within five days, and the hearing will commence in seven. Anything else?'
Startled, Terri considered whether to protest, then decided that, in light of her next request, further straining Bond's patience was ill-advised. 'Yes, Your Honor. It concerns the standard of proof under which this Court will determine whether Rennell Price is retarded and, therefore, quite possibly, whether he lives or dies.
'The Supreme Court did not bar executing the retarded until after the federal courts denied Mr. Price's first habeas corpus petition. The fact that we must raise it on a second petition, for the first time, should not facilitate his execution—'
'I don't understand your point.'
Terri stared directly at Larry Pell. 'At the Ninth Circuit hearing, Judge Nhu suggested that Atkins was not retroactive, and therefore that Rennell Price could not avoid execution by demonstrating mental retardation. Mr. Pell agreed, albeit tentatively.' She softened her voice. 'Executing Rennell Price because Atkins came down three days after the Supreme Court denied his first petition is something out of Kafka. Atkins is a new case. On the issue of retardation, Rennell Price deserves a fresh start, as he would have at a new trial.'
'Mr. Pell?' the Court inquired.
Pell glanced at Janice Terrell. 'We'll have to take it under advisement,' Pell temporized.
'In that case,' Terri said promptly, 'we ask the Court to rule that Atkins applies, and that we are required only to prove retardation by the preponderance of the evidence.' Facing Bond, she spoke firmly and emphatically. 'Denying Rennell Price the benefit of Atkins cannot be called justice. This Court has choices.'
'Then we'll make them,' Bond answered crisply. 'But not until after the hearing. We'll rule on Atkins when we rule on Mr. Price's petition.'
Once again, Terri felt herself caught between Pell and Bond, under pressure—as Pell surely intended—to demonstrate retardation by calling Rennell as a witness. But there was no more Terri could do. With a feeling of foreboding, she uttered the formulaic 'Thank you, Your Honor,' and the first hearing before Gardner Bond was at an end.
SIX
BRIGHT-EYED, EDDIE FLEET STARED AT TERRI, HIS SMILE SLOWLY widening to expose the gold in his teeth.
Meeting Fleet's eyes, Terri tried to calm her nerves. It was nine-thirty, and the sunlight through her law firm's conference room window cast a sheen across the cherry table. Beside Fleet sat Brian Hall, a gray-haired public defender with a curt manner and a cynical air. To Terri's right, at the end of the conference table, an elderly court reporter with his sleeves rolled up waited to transcribe the questions and answers. Carlo sat at Terri's left, between her and the representatives of the State, Laurence Pell and Janice Terrell.
Turning to the reporter, Terri nodded.
The man raised his right hand, inviting Fleet to emulate him. The breadth of Fleet's smile diminished to a play of lips.
'Do you solemnly swear,' the reporter intoned, 'to tell the truth, the whole truth, and nothing but the truth?'
'Yeah, sure.'
'Please state your name for the record,' Terri said.
'Eddie Fleet.'
'What is your occupation?'
The twitch of a smile reappeared. 'Handyman.'
At once, Terri decided to bypass further background questions. In the same businesslike tone, she inquired, 'Do you know a woman named Betty Sims?'
The smile vanished abruptly. Though Fleet did not move, a tensile alertness seemed to seize his body. 'Knew her,' he corrected.
'In what way did you know Betty Sims?'
Fleet glanced toward his lawyer. 'She was my girlfriend.'
'When was the last time you saw her?'
'Long time ago,' Fleet answered with a shrug. 'Don't remember exactly.'
'Maybe I can jog your memory,' Terri said. 'Did Betty Sims have a daughter?'
Fleet's eyes narrowed. 'Yeah.'
'What was the daughter's name?'
'Can't remember.'
'Was it Lacy?'
