Hardy 05 - Mercy Rule, The

by John Lescroart

  He must have betrayed a little of his disappointment. The judge gave him a manly pat on the shoulder. ‘I don’t know if you’re going to need any suspects. I’ve been following the trial pretty closely. It seems to me it’s going pretty well.’

  ‘It’d go better if I could produce a killer.’

  Giotti appreciated the sentiment. ‘Well, that, sure. But you kept the struggle out pretty good, I thought.’

  ‘I meant to thank you for that. The idea.’

  The judge shrugged. ‘I just told the truth. There was no physical proof of any struggle. Since I know your strategy, I’ve got an inside track, but I get the feeling Soma and Drysdale don’t have a clue what you’re up to.’

  Hardy allowed himself a small smile. ‘Well, wouldn’t it be pretty to think so?’

  Giotti broke a true grin. ‘Hemingway allusions, yet. You’re a well-rounded human being for an attorney, Mr Hardy. When this is all over, if you don’t appeal’ — again, the reminder — ‘we ought to have a drink sometime.’

  ‘You could probably twist my arm.’

  The judge nodded. ‘I might do that.’ A kind of wistful look came over him. ‘I just remembered how I miss Sal. Isn’t that funny?’

  ‘How is that?’

  Perhaps he shouldn’t say. His mouth tightened, his body language briefly saying ‘No, never mind,’ but then that pose broke and he smiled sheepishly. ‘Do you have a lot of good friends, Mr Hardy?’

  Hardy shrugged. ‘A few. I’m lucky with that, I suppose.’

  ‘I used to be too. That’s what they don’t tell you about this job.’

  ‘What’s that?’

  ‘Well, to get it — and don’t get me wrong, it’s all I’ve ever wanted. But to get it you’ve got to — how can I put it? — develop friendships. You make real friends when you’re on the rise, some would say on the make. You give parties, go to them, hobnob. You impress people with your brains — your legal knowledge and learned opinions and quick wit. It’s heady.’

  ‘I’d imagine it would be.’ Though Hardy had no idea where Giotti was going with this, or why he was divulging these intimacies to him.

  ‘Then you get appointed.’ Giotti’s expression said a lot about disappointment, the alternate roads not taken. ‘It all ends. You’re cut off. Some of the more cerebral judges, they do fine. Others miss the friendships, but friendships aren’t on the docket. Too much opportunity for conflict of interest, see? And these are the very people who put you here. Suddenly you can’t fraternize anymore, certainly not the same way. You wind up pretty much alone.’

  Hardy suddenly understood. ‘Except Sal?’

  ‘The last one of my old friends. I could go up and just’ — he instinctively looked around for other people, other ears — ‘and just bullshit with him. I think it must have been you digging up that Hemingway just now. That was Sal. He knew a lot, he was funny, I could be who I was around him.’

  Hardy motioned behind him, toward the federal courthouse. ‘You brethren don’t play a lot of practical jokes on each other in there, huh?’

  The judge’s voice rasped. ‘It’s a serious life, Mr Hardy. Don’t let ’em tell you different.‘ Giotti gave himself a last beat of reflection, then put it behind him. He was too busy for any more of this. ’So someday maybe you and I, we’ll go have a drink somewhere. I’ll call you Dismas, how’s that sound?‘

  ‘I’ll still call you “Your Honor.” ’

  Giotti laughed out loud. ‘That’s what I mean,’ he said. ‘That’s just what I mean.’

  * * * * *

  Hardy handed his directed-verdict motion over to Salter in his chambers and sat in exquisite suspense while the judge read over the five pages.

  This was a murder case. Discussion of Hardy’s motion would be on the record. So over by the judge’s window, Soma, Drysdale, and Freeman quietly kept up the flow in the mighty stream of law gossip. They’d all previously read Hardy’s motion out in the hall and made informal small talk about it before the judge had them come into his chambers.

  The court reporter sat in the chair next to Hardy, ready to catch any precious pearl, should one fall.

  Hardy thought he had done a more than competent job on his motion, clearly laying out each factual allegation made by the prosecution, and then demonstrating in turn how they had failed to prove any of them: they hadn’t placed Graham at the apartment, they couldn’t prove a struggle, they couldn’t even get the coroner to state unequivocally that it had been a homicide. There was no temporal connection or relevance to the money or the baseball cards. Alison Li’s testimony was meaningless.

  The prosecution had nothing.

  By contrast, Judge Salter had a lot. He had a multi-photo-op hot-potato case of the very first order, hand-delivered to his courtroom by his good friend and political crony Dean Powell. He had an indictment by the grand jury that had brought things to this pass. He was privy to the backstage maneuverings of the attorneys, the motions here in his chambers, the lies of the defendant. He also had social relations with Federal Judge Harold Draper, Graham’s old boss — not quite enough to compel him to recuse himself from the case for conflict, although Hardy would make that argument should it come to an appeal.

  None of these were matters of law. All of them, taken together, mattered more than the law.

  Hardy had no doubt that one day Salter would leave the bench to pursue a political career. He had the bland good looks, the social connections, the inoffensive public personality. He was unfailingly polite, even friendly in an impersonal way.

  Now he had finished reading Hardy’s motion and he took off his glasses, squared the pages on his desk, and laid them there. The frown that meant ‘I’m in deep thought’ gave way to the smile that said, ‘We’re friends here.’

  ‘Gentlemen,’ He motioned the other attorneys over, then gave his attention to Hardy. ‘This is one hell of a well-written motion, Diz. I mean it. You make a very colorable argument.’

  Colorable, Hardy thought. Uh-oh. He exchanged a look with Freeman, who shrugged. It was expected, and it was over.

  But Salter was observing the niceties. ‘Do you want to add any oral argument?’

  ‘They’ve failed to prove anything, Judge. Certainly not robbery, which is why we’ve got the specials. There’s no causal relation between the money and the death. There’s no paper showing when Graham got the money or the cards. The boy was taking care of his dad. He loved him.’

  Out of the corner of his eyes Hardy could see that Soma was moved to comment, but Drysdale laid a hand on his sleeve, cutting him off before he began.

  Salter let a small silence build. It wouldn’t do to reject such a well-written, colorable motion out of hand. An important ruling such as this one, although almost foreordained by its very nature, demanded at least some minutes of cogitation.

  La politesse.

  ‘I don’t know, though,’ Salter finally admitted. ‘I’m still very concerned about all the lies.’

  ‘I think I’ve covered them, Judge. He panicked and then had to backfill.’

  ‘But why did he panic if he had done nothing?’

  ‘Homicide coming to his door. He freaked. It happens all the time.’

  This was all pablum, totally irrelevant, and everybody knew it. Salter was going to turn him down because Hardy didn’t have enough to compel him not to. He didn’t have the murderer. He didn’t have Strout saying it was definitely a suicide. Anything less wouldn’t get it done.

  Salter paused again, then drew in a lungful of air and let it out. Another smile among friends. ‘I think we’re going to have to let the jury decide, Diz. I’m going to deny the motion.’

  * * * * *

  ‘I want you to visualize something,’ Freeman said. They were waiting for Salter to enter the courtroom. Graham sat between them at their defense table. Behind them the gallery was its usual din before court was called to order, although the noise was so familiar by now that no one noticed it. ‘No, I mean it. Close your eyes.’r />
  ‘If I close my eyes I will be asleep when the judge comes in. I guarantee it. I’ve done experiments.’

  Graham looked back and forth between them, settled on Hardy. ‘Better what Yoda says do. Otherwise he use Force. You die.’

  Part of Hardy was relieved by Graham’s tendency to keep things light. He rolled his eyes, then closed them. ‘See, what did I tell you? I’m asleep.’

  ‘You’re talking,’ Graham said.

  ‘In my sleep. Happens all the time.’

  ‘Diz.’ He heard Freeman’s voice. ‘You’re on a diving board, a high one. You’re going to try a one and a half forward flip. You with me?’

  ‘I’m there,’ Hardy said.

  Freeman kept on. ‘Think the dive through. Commit to it. You’re going all the way around and then halfway around again, a long time in the air. All right?’

  ‘Ready.’

  ‘Think it!’

  Hardy forced the image.

  ‘All right, now jump! Tuck hard, spin, you feel it? Don’t pull out. Don’t pull out.’

  Hardy rolled with the dive. It was a long way around, but he held his tuck, entered the water cleanly, opened his eyes. ‘Okay.’

  ‘You get around?’

  ‘No splash,’ Hardy said. ‘Cut it like a knife.’

  Graham looked from one to the other again. ‘You guys are crazy,’ he said.

  But Freeman had a valid point. This morning Hardy would open the case-in-chief for the defense. He would be calling his defense witnesses, and this was where their strategy could not waver. It would seem that they were hanging in the air, spinning, for a good deal of the time.

  They weren’t going to try to get the judge to instruct on lesser included offenses; the jury would have no option to convict Graham of manslaughter as a compromise. Graham wouldn’t take the stand to appear sympathetic and likable. There was going to be no chance for a couple of years in prison and a life resumed. It was to be murder or nothing — life or freedom.

  This was the agonizing crux of it. As it stood now, some members of the jury might still believe that Graham had had no part in his father’s death. After Hardy presented his case-in-chief, however, no one would doubt Graham had done it, an ‘it’ that the law defined as murder: the deliberate taking of a human life. What the defense needed to do was to polarize the jury to convince them that if they did not believe Graham had killed his father for money, then they should acquit rather than convict on a lesser offense.

  The prosecution had emphasized the financial motive for the killing to bolster their charges of a first-degree murder conviction. Hardy’s gambit was going to make the game winner take all —first or nothing.

  This course was fraught with tremendous risk, although they all agreed that it was their best chance for acquittal.

  But it would destroy the defense if Hardy forgot even for a moment and began to pull out of the spin before he reached the end. He could not allow himself the luxury of bringing up his possible ‘other dudes.’ He had one and only one story and he had to commit to it now, before he began, or they would lose.

  * * * * *

  Dr Russ Cutler was the young man Hardy had met and questioned for the first time at the Little Shamrock. Back then he’d been unshaven and exhausted, draped in his medical scrubs and his guilt over not having come forward about prescribing the morphine. Now he had finished his residency and gone into private practice. He had also spent a good deal of time rehearsing his proposed testimony with Freeman and Hardy.

  In a tan linen suit and maroon tie, well rested and confident, he took the stand and swore to tell the whole truth and nothing but.

  ‘Dr Cutler, would you please tell the court your relationship to Graham?’

  ‘We play softball together on the same team. I consider myself his friend. I was his father’s doctor.’

  At these last words the white noise in the courtroom went away. Hardy’s voice cut into the silence. ‘Now, Doctor, as Sal Russo’s physician, did you examine him in the last six months before his death?’

  ‘Yes, I did. Graham told me that he had a sick father, and asked if I would look at him.’

  ‘And would you tell the jury what you found?’

  Cutler was happy to. Hardy thought him the perfect witness for his male-dominated jury. First, he was a guy himself, neither too young nor too old. He was dressed neatly enough for authority, but not much more. With solid features, he wasn’t quite handsome, though he showed a lot of teeth when he smiled. Easy and approachable, that’s what Cutler was.

  Even better, Hardy realized. He cut nearly the same figure as Judge Salter, except that he was twenty years younger, and he was sincere.

  ‘And when you discovered what you thought was a brain tumor on the CAT scan, what did you do?’

  ‘Well, then I went to an MRI.’ With Hardy’s nudging, Cutler explained a little about magnetic resonance imaging.

  ‘And what did that reveal?’

  ‘What I had suspected and feared — that the cancer had advanced beyond any ability to treat it. It was terminal.’

  Behind him Hardy heard Drysdale’s voice. ‘Your Honor, excuse me, may we request a sidebar?’

  Hardy didn’t like this at all. ‘Your Honor, I’m in the middle of something here.’

  ‘It relates to what Mr Hardy is doing, Your Honor.’

  Salter gave it about three seconds, then motioned the attorneys forward to the bench.

  Once in front of the judge Drysdale wasted no time either. ‘Your Honor, the prosecution will stipulate that Sal Russo had terminal cancer and perhaps Alzheimer’s disease. He was going to die soon. All these questions by Mr Hardy aren’t addressing any evidentiary issues.’

  Freeman spoke under his breath. ‘Neither did your case in chief.’

  Salter glared him quiet. ‘Mr Hardy?’

  ‘Your Honor, it’s our intention to show how the deceased’s physical condition might have driven him to want to die.’

  Soma’s high-pitched voice rang out. ‘So what? It’s still murder.’ The attorneys all turned to him at the outburst. Salter remained calm. ‘Address your remarks to the court, all of you. That’s me, Mr Soma. Mr Freeman.’ He stared to make sure his point had come across. ‘Mr Hardy, are you getting to some kind of mental defense? Are you going to be asking for manslaughter based on some theory?’

  Hardy didn’t answer directly. ‘Your Honor, I’m getting to the relationship between Graham and his father. The prosecution is contending that he robbed from Sal, although they couldn’t prove it, as you yourself noted this morning.’

  Salter rebuked him. ‘That’s not entirely accurate. I did deny your motion, however close I thought it was.’

  But Hardy kept at him. This was crucial to his case and he couldn’t let it go. ‘Nevertheless, Your Honor, Dr Cutler’s testimony bears on the motive of the defendant. Graham Russo would not have stolen from his father. He loved him.’

  The judge chewed on his cheek, slipped on his reading glasses, took them back off. ‘Motive?’

  ‘Yes, Your Honor.’ Hardy had to have it, but it was another huge risk.

  Salter thought another moment, then delivered his judgment. ‘I’m going to allow it.’

  Hardy let out a breath of relief. The attorneys returned to their tables. ‘Dr Cutler,’ he began again. ‘You’ve just told us that Sal Russo’s cancer was terminal. Did you have a prognosis on how long he would live?’

  ‘Yes. Six months to a year.’

  ‘And what about the disease itself, the tumor? Was it painful?’

  ‘Indirectly, from the increased pressure in his head. This produced horrible headaches and began to cause visual changes and motor weakness.’

  ‘And over the next six months or a year, would these symptoms grow progressively worse?’

  ‘Yes.’

  ‘There would be great pain, is that what you’re saying?’

  ‘Yes, unbearable pain.’

  ‘Unbearable.’ Hardy nodded and went back to hi
s table to get a drink of water. There he was stunned and somewhat pleased to see his client, usually a devil-may-care wiseguy, with his jaw hard set, apparently blinking back tears. Hardy didn’t want to draw attention to the moment — it would appear staged — but he noticed some of the jury had followed him over. He could only hope that they would see and draw the proper conclusion from it.

  Back at the center of the courtroom Hardy began again. ‘During this diagnostic stage, Doctor, all the tests and second opinions and so on, did Sal come to see you often?’

  ‘Two or three times a week for a couple of months.’

  ‘And did he come alone?’

  ‘No, never. Graham always came with him.’

  ‘Graham Russo came every time?’

  ‘Yes, sir.’

  ‘And these visits and tests, how did Sal pay for them? Did he have insurance?’

  ‘No. That was one of his main problems.’

  ‘And how did he solve that problem?’

  ‘Graham paid for everything out of his pocket.’

  The defense side of the gallery came alive now, and Salter had to gavel for quiet.

  ‘Can you tell us more specifically what Graham paid for?’

  Cutler remained completely at ease, talking to the jury, who were rapt. ‘He paid for everything. The visits, the CAT scans, the MRI, the prescription.’

  ‘Thank you, Doctor. We’ll get to the prescription in a minute, but how can you be sure that this was Graham paying you personally, and not just handing you his father’s money?’

  Cutler crossed one knee over the other. Again, he brought it right to the jury. ‘Graham and I play softball on a semipro team. After the games we’d collect our pay and he’d hand me his money. I’d take it in and pay his bill.’

  ‘All right. Now referring to the prescriptions you wrote for Sal. Was one of these for the “Do Not Resuscitate” form?’

  ‘Yes, it was.’

  ‘Could you please tell us about that?’