Hardy 05 - Mercy Rule, The

by John Lescroart

  ‘So how long has Tryptech known about this?’ He whirled with nowhere to go. ‘I’ve got to call Michelle. Why didn’t she call me?’

  Although he knew at least one reason why: he hadn’t been there for her over these last months.

  ‘Well, that’s the other thing,’ Freeman said. He took in a breath. ‘The tender offer’s at fifteen a share. She’d been getting paid now for four months in discounted shares, as you knew.’

  ‘Yeah, I knew.’ Hardy’s head was going light. He’d turned down the same offer, but Michelle didn’t have a family to support. She could afford to take the risk. He found himself sitting down finally on the concrete bench.

  Freeman was going on. ‘One and a half,’ he said.

  ‘One and a half what?’

  ‘The discounted share price. The original talk was two, you remember, but it finally went out at one and a half. Michelle’s got over forty thousand shares.’

  Hardy was still trying to make sense of this. Sluggishly, his brain tried to compute the numbers, but the zeroes slowed him up and Graham had him by several seconds. ‘That’s six hundred thousand dollars,’ he said.

  Never looking more like Yoda, the infinitely kind, infinitely wise, infinitely sad Freeman met Hardy’s eyes. ‘She feels really bad about this, Diz. She wanted me to break it to you.’

  * * * * *

  A sense of unreality hung over the afternoon. One part of Hardy realized that of course he was standing in the middle of the courtroom in Department 27, asking Parini questions. Most of him, though, felt as if it were floating somewhere in the ozone, disembodied, the precious silver astral cord snapped forever.

  Six hundred thousand dollars for four months’ work!

  ‘Sergeant, does the fact that you found Graham Russo’s fingerprints on many surfaces in the room mean that he had been there on that day?’

  ‘No.’ Parini remained an eloquent robot. Although police inspectors tended to be witnesses for the prosecution, he was answering the defense counsel with the same cooperative efficiency. ‘Fingerprints are oil based. There’s no real time limit. A fingerprint on something only means that sometime the finger came in contact with it.’

  ‘So are you saying that Graham might not have been in his father’s apartment on that day at all?’

  ‘Yes. There would be no way to tell.’

  ‘All right.’

  Nothing’s all right! He could have had that money! He’d be free!

  ‘I’d like to ask you a question about this whiskey bottle, if I may. Dr Strout has already testified that Sal Russo was legally drunk at the time of the injection. Was the bottle under the table within reach of his arm?’

  ‘Yes, I’d say so.’

  ‘So that, as Sal was lying there, he could have reached for the bottle and knocked it over? Would that have been possible?’

  ‘Yes.’

  ‘And yet didn’t you tell Mr Soma that the bottle had probably been kicked over or knocked over during a fight?’

  ‘That was a surmise,’ Parini said.

  ‘There might not have been a struggle at all, is that what you’re saying?’

  ‘That conclusion isn’t inescapable from the whiskey bottle, yes, that’s what I’m saying.’

  Hardy put on a smile. Who could smile at a time like this? He included the jury. ‘Good. A last question about the bottle. Did you find anything on it that indicated it had been used as a weapon of any kind? To hit Sal behind the ear, for example?’

  ‘No, we didn’t.’

  ‘None of his hairs? No blood?’

  ‘No. Neither.’

  ‘Any fingerprints that weren’t Sal’s?’

  ‘No.’

  ‘But you did find Graham’s fingerprints, did you not, on the vial of morphine and on the syringe?’

  ‘Yes, we did.’

  Hardy thought this was clear enough. Certainly it would be absurd to believe that Graham had come in wearing gloves against leaving his fingerprints, picked up the bottle and knocked his father out with it, then taken off his gloves to administer the shot.

  It was time to move to the next point. ‘Now I’d like to ask you about the kitchen, where the chair was on its side. How wide is this room?’

  ‘Not wide at all. Eight feet or so.’

  ‘And where are the stove and refrigerator?’

  ‘They’re both against the right wall.’

  ‘And is there a sink and counter?’

  ‘Yes, a sink at the end and a wraparound counter against the opposite wall.’

  ‘So are you saying there is a kind of corridor between the sink’s counter and the stove and refrigerator?’

  ‘Yes, that’s the way it was set up. With a window at the end, over the sink.’

  ‘It must be a narrow corridor, isn’t it?’

  Parini knew that narrow was open to interpretation. He clarified it. ‘Four feet, maybe less.’

  ‘But wasn’t there a table in the kitchen, too, set into this corridor?’

  ‘Yes, there was.’

  ‘And did it appear to be in its normal position in the room?’

  Parini gave this question a bit of thought, as though the idea hadn’t occurred to him. Perhaps it hadn’t. ‘Yes, it was centered, about where I’d expect it to have been.’

  ‘So are you saying that it didn’t appear to have been knocked sideways or in any way out of position in this purported struggle in the kitchen that was so violent, it knocked over the chair and scratched the cabinets?’

  ‘No. It was in the center of the corridor.’

  ‘And besides the chair and the scratches in the cabinetry, were there any other signs of struggle in the kitchen?’

  ‘No.’

  ‘Just a chair lying on its side?’

  ‘That’s all.’

  ‘Were there dishes on the drain? Cups, glasses, plates?’

  ‘Yes there were.’

  ‘And had any of these been knocked over by this supposedly violent struggle between two large men in the relatively tiny enclosure of the kitchen?’

  Soma was up behind him, objecting. ‘Leading the witness, Your Honor.’

  But on cross-examination the defense attorney is allowed to do just that. Salter knew this and correctly overruled Soma.

  ‘Was there anything you saw in the kitchen, Sergeant Parini, that would rule out the possibility that Sal Russo, drunk as he was, could just as easily have staggered against the chair, knocked it over, and simply left it there?’

  This was the crux and Soma knew it. He objected again on grounds of speculation, and Hardy waited in suspension for Salter to rule.

  Hardy was coming back to the present, though still sick in his heart. Walking an invisible tightrope between very close interpretations of the same evidence, he thought he’d phrased the question well. For his purposes all he needed was doubt about the struggle. Someone else could have been with Sal, could have helped him die, but there must not appear in the minds of the jurors that there had been any fight.

  The judge finally spoke. ‘No, the question stands. I’ll overrule the objection. Sergeant, you may answer.’

  The reporter read it back, and Parini gave it a reasonable amount of time. ‘No,’ he said. ‘He could have stumbled against it just as easily. Nothing ruled it out.’

  All at once his frustration over Michelle’s Tryptech treasure gave way to enthusiasm to plumb the vein he’d hit with Parini. In the midst of these emotions Hardy made a cardinal mistake. Forgetting one of the first precepts of cross-examination, which is never to ask a question for which you don’t know the answer, he said, ‘In fact, Sergeant, isn’t it true that there was nothing in the apartment that pointed to a struggle between Sal Russo and some purported assailant?’

  ‘Well, no, that isn’t true. There was the position of the body.’

  Covering quickly, Hardy strolled back to his table and, stalling, took a drink of water. ‘That’s right, Sergeant, the position of the body. You said earlier that it looked like Sal Russo
got dropped, do I have that right?’

  ‘That’s right.’

  Hardy was moving to the exhibit table. Having dug himself this hole, he remembered that the Chinese used the same word for disaster and opportunity. He picked up People’s One. ‘Do you mean that the victim was not in the same position as shown here?’

  Parini glanced at the photo. ‘No. That’s how he was.’

  ‘And to your mind, does that look like he was dropped?’

  ‘Yes.’

  ‘Or fell after being hit? Knocked out?’

  ‘Yes. He was sort of crumpled.’

  Hardy knew where he was going and he picked up the pace. ‘Looking now at People’s One, Sergeant, where the victim is lying sort of crumpled as you put it. By this do you mean his legs are curled up under him? Not stretched out?’

  ‘Yes.’

  ‘As they might have been, say, if he’d been sitting on the floor and then collapsed with loss of consciousness?’

  Parini did not answer. The unflappable witness darted a quick glance toward the prosecution table. Hardy didn’t wait for him. ‘Isn’t it true, Sergeant Parini, that Sal Russo’s position is exactly consistent with a collapse from a sitting position?’

  ‘Well, it would—’

  ‘Yes or no, Sergeant. Isn’t that true?’

  ‘Yes, I suppose so.’

  ‘And having collapsed in this unnatural position with his legs under him, might his arm have fallen in such a way to knock over the whiskey bottle we’ve heard about that was under the table?’

  ‘It might have, but—’

  ‘Is that a yes, Sergeant? Yes, it might have?’

  Parini hated it, but he nodded. ‘Yes.’

  Hardy took a breath. ‘All right, one last point. You’ve testified that the syringe and vial were left sitting on the coffee table. Would you describe for the jury in what way, if any, these implements show any evidence of a struggle, or haste, or violence?’

  Parini studied his lap for a moment, then met Hardy’s eyes.

  ‘There was none.’

  ‘And the lamp in the room, Sergeant, had it been knocked over?’

  ‘No.’

  ‘Had the glass been knocked off the table?’

  ‘No.’

  ‘Was the table itself knocked over?’

  ‘No.’

  Hardy nodded, walked over to the exhibit table, and picked up a handful of Polaroids. ‘Sergeant Parini, as we’ve seen, these photos show dozens of objects in this room, do they not? Was any one of them broken, or out of place, or disturbed in any fashion that you could tell?’

  Parini’s scowl was profound. ‘No.’

  ‘So would it be fair to say that your opinion that this scene shows a struggle is based entirely on the position of the body and a whiskey bottle out of the place on the floor?’

  Parini hesitated, but couldn’t think of anything else to bolster his testimony. ‘That’s right, I suppose.’

  ‘You suppose, I see. And you’ve already said that both the position of the body and the whiskey bottle can be explained without reference to any alleged struggle, isn’t that true?’

  Hardy felt he couldn’t have scripted Parini’s reaction any more perfectly. The sergeant crossed his arms over his chest and leaned back in the witness chair. Intransigence incarnate. Or, Hardy thought, bullheaded stupidity.

  ‘Well, counselor, it’s my opinion there was a struggle.’

  ‘Precisely,’ Hardy said. ‘That’s your opinion.’ Hardy hadn’t said a word about the safe, about all the evidence of Graham’s presence. There were a dozen areas into which he could have wandered, but only one that did his client any good. He’d damned well rebutted the argument that two grown men had left any sign of a struggle in the apartment.

  This didn’t mean that Sal Russo hadn’t been cold-cocked from behind with the whiskey bottle and fallen like a lump — which Hardy believed was what had transpired — but that there was no evidence to support that theory. He’d leave it at that.

  29

  Sarah was next. The prosecution might have a secretly hostile witness in the female inspector, but she couldn’t do anything about the cards she held. They were excellent for Graham’s enemies. Directly after the midafternoon recess, after stretching and coffee or cigarettes, the men on the jury were especially unlikely to lose interest with a pretty woman on the stand.

  She wasn’t in one of her cop suits, which were purposely formless and without style. Knowing that she’d be testifying, Sarah thought she should look as good as she could. So she was wearing a red silk blouse that showed no skin but shimmered tantalizingly over her breasts with each breath, with the beating of her heart. A short combed woolen skirt and low pumps flattered her good legs. Her hair was off her face, falling to her shoulders.

  When she came through the bar rail, Hardy put a hand over his client’s arm, squeezed hard enough to draw blood. ‘Look down,’ he whispered. ‘She catches your eyes, you’re both done for.’

  Inexplicably, perhaps ominously, Art Drysdale rose and walked to the center of the courtroom. Hardy caught a worried glance from Sarah but, like his client, could make no sign that it meant anything. He looked across to Freeman, who shrugged again, but beneath the nonchalance Hardy detected a note of concern. Could they have found out? Would Drysdale, in his homespun way, hang Sarah out to dry?

  If so, there was no immediate sign. Drysdale quickly introduced himself to the jury and to Sarah and started in. As he was going along with it, Hardy began to see the logic behind choosing Drysdale for this witness. Endlessly affable, he would remain the same calm and reassuring inquisitor as he drove home lie after lie after lie.

  Soma, on the other hand, by about the fifth lie, would have his adrenaline running. Unable to stop himself, he would speed up. And this was evidence to be savored, lingered over.

  This was a lovely young woman putting stake after stake into the heart of a handsome man. It would have been a very difficult Q & A, even if she’d had no feelings for him, and no one would suspect that she did. The more her answers seemed wrung from her, the more devastating they would be.

  ‘Inspector Evans, you’ve had a great number of opportunities to interview the defendant personally, have you not?’

  Sarah nodded, then spoke, her voice a tempered contralto. ‘Yes, sir, I have.’

  ‘When did you first speak with him?’

  ‘At his home, on the day after’ — she paused and searched for a neutral phraseology — ‘the victim’s death.’

  ‘That was a Saturday, was it not?’

  ‘Yes.’

  ‘And did you ask the defendant if he’d seen or talked to his father the day before?’

  ‘Yes, I did.’

  ‘And what did he say?’

  Sarah looked over at Graham. Hardy thought he saw a flush creeping into her complexion, but in a moment she was back at Drysdale. ‘He said no. He hadn’t seen or talked to his father the day before.’

  And so it began. To get to most of the answers Drysdale had to use the same approach he’d used on the first question. ‘Did you ask?’ ‘What did he say?’

  Throughout, Sarah managed to retain her composure. Hardy had coached her that her testimony would not ultimately affect the verdict. She should tell the truth, and he’d explain the falsehoods in his closing statement.

  But Hardy had to admit that listening to this almost unbelievable litany of lies was more than disheartening. He prayed that the jury would buy his version of why Graham had lied, but perhaps he’d underestimated how much people valued the truth. He saw it in the eyes of almost all the jurors.

  Say what one will about evidence, juries were often helped along in their deliberations by a perception of the kind of person who was charged with the crime. And Graham, with this testimony, looked very, very bad.

  Under Drysdale’s patient and meticulous examination, the jury learned that Graham had lied to the police about being close to his father, about knowing what was causing Sal’s pain, about
the number of phone calls he’d received from Sal, about the morphine supply and the doctor who’d supplied it. He’d lied about giving the shots themselves.

  He’d lied to his own brother about the existence of the money, to his sister about the baseball cards.

  He’d denied knowing about his father’s safe, professed ignorance of his own bank, to say nothing of his safe deposit box, denied that he and Sal had ever talked about money to pay for doctor bills.

  It was four-twenty and Drysdale had to be getting to the end. Hardy couldn’t even remember any more lies that Graham had told him, although he was sure that given time he could come up with some. Finally he heard those magic words, ‘Your witness.’

  Freeman reached over, around Graham, and touched Hardy’s sleeve. ‘Let me take her,’ he whispered.

  Graham, joking, poked him with an elbow. ‘She’s mine,’ he said, and Hardy told him to shut up again.

  Freeman didn’t let go. ‘I can undo it. Soma sat down for her and let Drysdale do it. You can sit down and let me.’

  Hardy wasn’t sure what Freeman had in mind, but the old man had a well-deserved reputation in the courtroom. He shook things up, often with great success. Indeed, this was precisely the reason Hardy had agreed to let him sit in with them. And now he wanted to play.

  Hardy nodded. ‘Go for it.’

  Freeman wasted no time. He stood up at his place at the table and, as Drysdale had done, introduced himself and began. ‘Inspector Evans,’ he asked, ‘in your opinion, and based on your training and experience as a law-enforcement officer, is the defendant here, Graham Russo, a man that you can trust?’

  There was a long, dead pause of shock in the courtroom.

  Freeman had obviously given this question a lot of thought during the ninety minutes or so that Drysdale had kept Sarah on the stand and Hardy thought it was perfect — pure Freeman. He would never had thought of it.

  Of course it was inadmissible. It was speculation. It wasn’t based on evidence. It was, from any legal perspective, a just plain dumb question.

  But Hardy had a sense — and Freeman probably knew — that neither Drysdale nor Soma would object. After all, they had a police officer up on the stand who had just recounted what seemed like a million lies the defendant had personally told her. What was she going to say? How could she possibly say that, yes, she trusted him?