Balance of Power

by Richard North Patterson

  Adjusting his glasses, Gardner Bond coughed. To Sarah, nervous herself, these tics suggested that the judge also felt the tension of the moment. Across the courtroom, Nolan and Fancher were stiff, attentive.

  "The Court," Bond gravely pronounced, "wishes to add its own expression of sorrow regarding the events which have brought us to this day. That we must view them through the prism of law should not be taken, in any way, as an effort to minimize this tragedy.

  "But this is a court of law. The task before us is limited to deciding a legal issue: whether the facts alleged in plaintiff's complaint constitute, under the laws of California, claims which the Court must allow to go forward."

  Apprehensive, Sarah glanced at Lenihan. His stillness suggested that he, like Sarah, sensed that Bond's self-exculpatory statement was his prelude to dismissal.

  "To be plain," Bond continued, "plaintiff 's accusations against these defendants exist at the margins of the law, and rest on 'facts' which will be extremely difficult to prove.

  "At the least, Ms. Costello must prove that Lexington's actions caused John Bowden to act.

  "That Lexington's actions in Nevada are a public nuisance in California.

  "That the SSA controlled these actions in a manner which violates the law of antitrust, or is otherwise cognizable as law.

  "And that this Court should—or even can—issue an injunction of almost unprecedented breadth . . ."

  Where, Sarah wondered, is Bond going? Her fingers gripped the edges of her chair.

  On the bench, Bond sat upright. "That said," he continued, "what the Court cannot say—at least prior to discovery—is that, under the law, there is no conceivable set of facts through which plaintiff can support these claims."

  Lenihan drew a breath. Eyes closed, Sarah heard Bond conclude, "For these reasons, the Court must deny defendants' motion to dismiss . . ."

  * * *

  With Senator Ayala scowling beside him, Senator Chad Palmer asked the Senate Commerce Committee to vote on the Civil Justice Reform Act. Watching the proceedings on CNN, Kerry murmured to Clayton, "Vic Coletti's the one who's still shaky. And now I can't reach him."

  "Then he doesn't want you to. With Lexington's headquarters in his home state, plus all those insurance companies, he must be feeling the pressure."

  One by one, the vote proceeded; one senator after another, including the Republican moderates, voted with their party—"yes" for the Republicans; "no" for the Democrats—on a bill which would wipe out Mary Costello's lawsuit. Kerry's tension focused on Coletti.

  Senator Coletti?

  Sitting amidst his Democratic colleagues, Vic Coletti fidgeted. But he cast his vote in a flat, businesslike voice that, to Kerry, hinted at defiance.

  Yes.

  "I hope," Clayton murmured, "that Vic's not expecting any favors."

  The President did not answer. He was already thinking ahead, weighing the motives of one hundred men and women.

  By a vote of ten to seven, Chad Palmer announced, this committee recommends that the Civil Justice Reform Act be considered by the Senate.

  * * *

  "The next business," Bond told Lenihan and Sarah, "is to shape discovery. How will plaintiff attempt to prove her case?"

  Seemingly heartened, Lenihan stood. "Our proposed discovery is quite straightforward. We need any and all documents and witnesses relating to the design and marketing of the Patriot-2 and Eagle's Claw bullets; to the sales of the P-2 in states adjacent to California; to the use of the P-2 in crimes; and to Lexington's negotiations with the Kilcannon administration . . ."

  "What about discovery from the SSA?"

  "Among other things," Lenihan answered carefully, "all communications by the SSA regarding the contacts between Lexington and President Kilcannon—or between the President and the gun industry . . ."

  "Which," Bond objected, "might well be an intrusion on legitimate political activities—such as lobbying and advocacy—protected by the First Amendment."

  "Not necessarily," Lenihan responded. "And it's the only way we can prove that the SSA was at the hub of a conspiracy."

  "I expect that defendants may have another view. In the meanwhile, whom do you plan to depose?"

  "Representatives of the other manufacturers. The decision-makers at the SSA—in particular, Charles Dane. The key personnel at Lexington— including in design and marketing. Certainly George Callister, its CEO."

  Bond turned to the defense table. "And whom might you depose, Mr. Nolan?"

  Nolan stood at once. "To start, all witnesses plaintiff intends to call at trial. We request that the Court order counsel to submit a witness list, in sufficient time for us to schedule depositions."

  This, Sarah knew, implicated Martin Bresler; as his exposure neared, Bresler might become even more anxious. "That's only reasonable," Bond said to Nolan. "What other depositions do you want?"

  "The obvious ones—Mary Costello; the police inspector, Charles Monk; Dr. Callie Hines, who operated on Marie Costello." After a pause, Nolan added, "Also, anyone involved in the relationship between Joan Bowden and her estranged husband. Including the President and First Lady."

  Stunned, Sarah absorbed this. Despite Nolan's protestations that she and Lenihan were abusing the lawsuit for political purposes, questioning both Kilcannons under oath was an intensely political act, and a unique opportunity for the SSA. But this seemed to leave Gardner Bond unfazed. "As to the President and Mrs. Kilcannon," he answered, "they may wish to be heard. At least regarding the time and manner of deposition."

  "Of course," Nolan agreed. "Indeed, all discovery—including depositions—should be subject to stringent rules set out by this Court. For example, we ask the Court to bar discovery regarding lobbying, political strategy, or other activities protected by the First Amendment—including communications between Lexington and the SSA."

  "That," Bond remarked with veiled irony, "seems to be the lynchpin of plaintiff's alleged conspiracy."

  Nolan spread his hands. "Would the Kilcannon Center want Lexington or the SSA to probe its lobbying, its political strategy, its contacts with politicians? Plaintiff 's supposed discovery is nothing more than political espionage."

  "What do you propose, counsel?"

  "The appointment of a Special Discovery Master. Before we give plaintiff any document which implicates legitimate political activities— whether they relate to plaintiff 's highly suspect antitrust claim, or to the industry's response to President Kilcannon—the Special Master should determine their relevance to an 'unlawful activity.' "

  "Your Honor," Lenihan called out in protest. "A discovery master should not be able to decide what documents or witnesses are relevant to our case . . ."

  "And you," Bond said abruptly, "should not use this complaint as a hunting license." Turning to Nolan, Bond said, "I'm granting your request. Is there anything else?"

  "There is. Specifically, we believe that the purpose of this case is political, not legal—to develop 'evidence' of so-called wrongdoing which plaintiff's counsel can siphon to the media." With an accusatory glance at Lenihan, Nolan finished, "We therefore ask this Court to ban the parties from sharing the fruits of discovery with any outside person other than expert witnesses, and to order that any documents or depositions filed with the Court will be sealed until trial."

  "So ordered," Bond said promptly.

  With one stroke, Sarah realized, the judge had just walled off discovery from public view. In protest, Lenihan rose again. "Plaintiff's counsel," Nolan continued calmly, "mentioned deposing Mr. Callister, Lexington's Chief Executive Officer. We believe any such deposition is an effort to take up valuable executive time, when the plaintiff can get the exact same information from other witnesses . . ."

  "The plaintiff," Lenihan objected, "is entitled to question all relevant witnesses."

  "But who determines relevance?" Nolan inquired in his most reasonable tone. "We request that the Court bar Mr. Callister's deposition until plaintiff has examined all oth
er prospective witnesses, and only if counsel then can demonstrate that Mr. Callister has information unavailable from any other source."

  In anger, Sarah stood. "May I be heard, Your Honor?"

  Turning, Bond gave her a perfunctory nod. "Go ahead, counsel."

  "It's preposterous that Mr. Nolan proposes to take up the time of the President of the United States, but claims that the president of Lexington Arms is too important for us to bother . . ."

  "President Kilcannon," Bond interrupted, "can speak for himself. But Mr. Nolan speaks for Mr. Callister."

  "Mr. Callister," Sarah shot back, "dealt with President Kilcannon. Any pressure by the SSA or Lexington would have been on Mr. Callister."

  "Pardon me," Nolan broke in. "Are you saying, Ms. Dash, that Mr. Callister conspired with himself, or pressured himself? Under your own conspiracy theory, Mr. Callister's uniqueness as a witness is conceptually impossible."

  "Indeed," Bond said emphatically. "So I'm granting your request." Facing Sarah, the judge spoke in his most astringent tone. "Whatever this case turns out to be, counsel, it will not be a tool of harassment, a pipeline to the media, or fodder for national politicians.

  "Let me be clear. Mr. Nolan's requests are now the order of this Court. Any party or attorney who violates our order will be subject to contempt and, should the Court deem it appropriate, referred to the State Bar for disciplinary proceedings."

  Speechless, Sarah sat down. "Now let's discuss scheduling," the judge told her. "According to your complaint, defendants are perpetrating a continuing public nuisance which threatens every citizen of this state. If, indeed, this case is a matter of life and death, this Court feels compelled to expedite its resolution." Bond's voice became peremptory. "Therefore you will complete discovery—on both the injunctive relief to be decided by this Court, and the remaining claims to be decided by a jury—on the following timetable:

  "Within seven days, the parties will serve all requests for documents.

  "Within fourteen days from that, all documents will be produced.

  "Within sixty days—not one day more—the parties will conclude all depositions . . ."

  "Your Honor," Sarah objected, "for meaningful depositions we need defendants' documents. This schedule is a license for defendants to withhold them . . ."

  "That," Bond snapped, "assumes bad faith. I don't. If there's a problem, you can file a motion with the Court."

  Lenihan's face, Sarah saw, was stained with anger. "Even assuming good faith," she answered with precarious calm, "there will be many thousands of documents. An inspection by the Special Master will further limit our time to review any number of them. We can't take meaningful depositions on the schedule you've outlined, let alone prepare for trial . . ."

  "You requested an injunction, Ms. Dash. I'm giving you the benefit of your request—accelerated discovery." Folding his arms, Bond leaned forward. "Not only will I rule on your proposed injuction within two weeks after discovery, I'll rule on defendants' summary judgment motions—if any. If plaintiff lacks sufficient facts to support her claims, there will be no trial.

  "In short, the facts had better be there. Or this Court will not further waste judicial time and resources." Head snapping, Bond nodded to Nolan and Fancher and then, more curtly, to Lenihan and Sarah. "That's it. Tomorrow morning the Court will issue its written order."

  "All rise," the courtroom clerk called out, and the hearing was over.

  * * *

  The elevator doors closed. As it glided downward to the main floor, Sarah and Lenihan were alone.

  Stunned, she leaned against the metal wall. Lenihan stared at the floor. "Throwing us out," he said, "wasn't good enough for Bond. Dismissing the case might have looked arbitrary. He might even have been reversed. But this is truly elegant: he's burnished his credentials for promotion—Gardner Bond, a man so fair that he gave us the rope to hang ourselves. By fucking us with your goddammed public nuisance theory." His voice echoed in the stifling space. "Even you can see what's coming, Sarah. On this schedule, Nolan and Fancher will shaft us under the cover of a media blackout.

  "We'll never be able to prove our case, in the press or in the courts. And then Bond will grant their motions for summary judgment. Assuming, of course, that Fasano hasn't rushed the Civil Justice Reform Act past Kilcannon."

  Before Sarah could answer, the elevator shuddered to a stop.

  A fresh herd of reporters awaited them. "Ms. Dash," a woman called out, "the Senate Commerce Committee has just voted out the Civil Justice Reform Act, and President Kilcannon has denounced its action as a 'speed record for injustice.' What is your reaction?"

  "We'll complete discovery in sixty days," Sarah answered. "If the Congress tries to pass this law before the public sees our evidence, we're looking at a cover-up."

  The contest of law and politics, Sarah knew, had begun.

  PART FOUR

  THE

  BETRAYAL

  MID-OCTOBER–EARLY NOVEMBER

  ONE

  As a courtesy, Frank Fasano, though Majority Leader, came to visit Chuck Hampton in the Minority Leader's office.

  For a time, amidst the ornate trappings of Hampton's office suite, they chatted about personal things—Fasano's burgeoning family, Hampton's twenty-four-year-old daughter's first job as a reporter, the amusing vagaries of Fasano's adjustment to becoming leader and, as such, a manager of towering egos with conflicting ambitions. To Hampton, it was reminiscent of the more decorous and genteel time he knew only through Senate lore, when politics was more leisurely and less lethal, the veneer of professional respect a balm for partisan rancor. But no amount of civility could change what both men now would face. The murder of Lara Kilcannon's family, and the future of this President, would be resolved on the Senate floor. At length, Fasano said, "We have some business to do."

  Though instantly on guard, Hampton smiled faintly. "Scheduling a vote on the President's gun bill?"

  Fasano maintained a bland expression. "You'll have it, Chuck. Or, at least, a debate on various proposals. All in good time."

  This somewhat delphic response, Hampton knew, conveyed three things: a threat to filibuster Kilcannon's bill; a reminder that Fasano controlled the schedule on which the bill would be considered; and the reality that, through artful stalling, the Judiciary Committee had not yet reported out any gun bill to the Senate, and might well gin up an alternative. "If you delay this," Hampton answered, "the President won't sit idly by. Nor will I."

  Fasano studied him, as though to appraise the depth of his resolve. "Tort reform comes first," he answered bluntly. "You and I can get it done, or we can go to war."

  " 'War'?" Hampton said dryly. "Over tort reform? This wouldn't be about the Costello lawsuit, would it?"

  Fasano hesitated, and then discarded all pretense. "By suing the SSA, Mary Costello's lawyers have made things ten times worse—for both of us. If any vulnerable Democrat votes against our bill, Dane's going after him."

  This time Hampton's smile was quizzical. "So what do you suggest?"

  "That we both look after the Senate, and our own." Elbows resting on his knees, Fasano leaned forward with an air of candor. "Kilcannon likes wars, Chuck—it's in his nature. And, to be fair, what happened to his wife's family might cause a less combative man to go for broke. It may even be true that his appetite for combat helped him get elected. But it's also the reason your colleagues would never have made him leader . . ."

  "And the reason," Hampton interposed, "despite my exquisitely calibrated judgment—which I'm sure you're about to compliment—that I may never become President. The President's genius wasn't made for the stately rhythms of this body—he lacked the patience for it. His gifts are Presidential."

  "This President," Fasano said emphatically, "doesn't give a damn about your colleagues. If swing state Democrats support Kilcannon's gun bill, or oppose this gun immunity provision, the SSA will unload on them. And now the business community will, as well.

  "With your hel
p, maybe Kilcannon can bludgeon them into supporting him. But it'll be like handing some of them a glass of Kool-Aid laced with hemlock. Suicide in Georgia or Louisiana."

  "Then shouldn't you be encouraging me to try?" Once more, Hampton smiled. "I thought you wanted our people to lose. Can it be that you don't like this, either?"

  Fasano permitted himself a brief smile of his own. "There are those," he conceded, "who don't find immunizing the Eagle's Claw their most attractive option . . ."

  "Like Cassie Rollins," Hampton interrupted. "So before you worry about my people, spare a tear or two for Cassie.

  "Maine's a hard-core gun state, especially among Republicans. If Cassie votes against the SSA, they'll fund a primary challenge against her, maybe cost her the nomination. But if she votes with the SSA, it'll cost her votes in the middle, and maybe reelection. A painful dilemma, except for her opponent in the general election."