The Mercy Rule

by John Lescroart

  But Helen was firm. ‘There was no need, Leland. We did inform the social agencies. They would be getting around to him. This wasn’t a continual stalking, just an episode-’

  ‘Several actually.’

  ‘Three. Only three. But the point is that there wasn’t really any urgency. And these things always take time. There was no further danger – in fact, there hadn’t been any danger all along. Sal would just flip into the past. I know George realized that.’

  ‘I hope so,’ Leland said. ‘But I’m not at all so sure.’

  13

  On Monday morning, early, Hardy was in his office with Michelle, one of them on either end of the couch, folders and copies of briefs on the low table in front of them. ‘You know where we get the term straight from the horse’s mouth?’ Michelle looked up from some paper she’d been reading as though Hardy had broken into Sanskrit. ‘It relates, it relates.’

  Small talk wasn’t Michelle’s long suit, but she had already learned that this was how her new boss liked to break up his work, so she sat back and listened.

  ‘No, this is important. We’re talking one of the major philosophical questions that plagued the early Middle Ages – right up there with “How many angels can dance on the head of a pin?” ’

  ‘What was?’

  ‘How many teeth a horse had.’

  ‘You’re kidding me.’

  Hardy was having a difficult time believing that Michelle – with the possible exception of David Freeman the most highly developed brain in the office – was ignorant of this fact. But then, he’d seen enough intellectual myopia that it didn’t shock him anymore. Here in the Age of Specialization if you held a double major in law and accounting, you weren’t expected to master any context. Any history. That was irrelevant junk for the most part.

  But Hardy thought it wouldn’t kill her to know an oddball fact or two that wasn’t strictly related to the case at hand. ‘I’m not kidding. They argued about it all the time.’

  ‘Who would argue about that?’

  ‘Philosophers and theologians, most of whom, I think, would have been lawyers in today’s world.’

  ‘So why didn’t they just count them?’ She made a face at him, wondering if he was teasing her. ‘Are you making this up?’

  ‘No, I swear I’m not. It’s true. Okay, Michelle, you got the right answer, but you’re ahead of my story. Listen. These guys would sit around the old monastery, convinced that there was a Platonic ideal number of teeth in the perfect horse. They evidently debated this thorny problem for decades.’

  ‘These were not rocket scientists,’ Michelle said.

  Hardy wondered if she realized they were talking about a time before there were rockets, or scientists, for that matter. ‘No, but these were intelligent men.’

  ‘No women?’

  ‘I doubt it. I’d be surprised. This was a guy thing.’

  ‘No wonder,’ Michelle said.

  ‘Well, anyway,’ Hardy continued, ‘one day a monk who was far ahead of his time decided on the revolutionary approach of going out, finding a horse, and counting the teeth in its mouth.’

  ‘And that settled it.’

  ‘Well, not exactly. I gather it took maybe a hundred years or so before everybody agreed that this was an acceptable way to get an answer to a question like this. Anyway,’ he pressed on in the face of Michelle’s sublime tolerance, ‘that’s where we get the expression.’

  ‘Great,’ she said dryly. ‘That’s fascinating. Really.’

  The judge in the Tryptech case had just taken on the modern role of the monk who’d counted all those teeth. First thing this morning, Michelle had called Hardy at home with the news that they had been served with a cross-complaint. The Port of Oakland had evidently decided to press the charge that Tryptech had overloaded their container. Further, a judge had decided that Tryptech had the burden of proof as to how many computers were actally in the container. An affidavit from some shipping guy wasn’t going to do it.

  Tryptech – through Hardy – had been making the argument that the container hadn’t been overloaded. He had presented the bill of lading, which, in theory, ‘proved’ the actual number of computers inside the container. Additionally, the computers were insured and therefore it would obviously be counterproductive for the company to claim fewer than had actually been there, since they were being paid for every one that had been lost.

  Of course, Hardy knew it wouldn’t take a genius to realize that the monetary difference between say, two hundred extra computers at a thousand dollars each, and the millions the company stood to lose if the Port of Oakland won the lawsuit, was fabulously insignificant. Now the thing would have to be lifted from the bottom of the Bay, so that the computers within could be counted.

  But pulling up the container would cost a bundle, and their client had told them he didn’t have a bundle on hand in cash just now.

  The name of the game was delay, and Hardy had been successful in putting off this problem for nearly five months.

  However, now that the judge had decided, it was going to happen.

  The dredging fee of one hundred and sixty-five thousand dollars might not be unreasonable in light of the potential size of the damage award, but Brunei was saying it was blood from a turnip.

  Hardy didn’t know how he could delay any longer. Tryptech would have to figure out some way to come up with the money.

  ‘Actually’ – Michelle was more comfortable now that they were back to business – ‘I see a way that we can use this to our advantage. We should be able to string this along for a while.’

  ‘Okay, hit me,’ Hardy said.

  ‘Take it out to bid. We’ll of course comply with the ruling, but unless the Port wants to take on some – no, all - of the expense, I think we can argue that it’s only fair that we solicit bids from competing dredging firms, get the best possible price. Who could argue with that?’

  Hardy had to admire her. Say what he would about the values of his own classical training, he had to admit that in the here and now Michelle was a godsend. Competing bids would buy them another few months at least, and anything could happen in a couple of months.

  Maybe, Hardy fantasized, he could convince Brunei to hire a team of scuba divers to locate the container in deep secrecy by night and put in some extra units, the presence of which Brunei continued to assert.

  ‘How would you like to handle the details?’ he asked her. She had already gathered the paperwork and put it atop the stack of briefs they still had to discuss.

  ‘That’s what I’m here for.’

  Before the ‘horse’s mouth’ issue had intervened, the morning routine at home had been anything but. Today’s drama was the mystery of how every toothbrush in the house had disappeared.

  Upon some pretty hefty cross-examination, Rebecca and Vincent had confessed that maybe they remembered that yesterday Orel Glitsky might have thought of another use for them and they’d played some game in the backyard, or mostly in the backyard, they thought. There were fences and forts involved.

  And Jason, their little nephew – ‘and he’s still a baby, Dad,’ Rebecca reminded him – had played with the toothbrushes too. But both of his kids were sure, they were positive, that if somehow they had taken all the toothbrushes, which wasn’t very likely, but if they had, then they had put them back right afterward.

  After finishing up the morning’s strategy-and-review session with Michelle, he’d walked three blocks in the breezy forenoon and picked up half a dozen fresh bao - sticky buns filled with hoisin and plum and barbecued sauces and stuffed with various roasted meats – pork, chicken, duck. All by itself, he thought, the ready availability of hot-out-of-the-oven bao was reason enough to live in San Francisco.

  He was in the greenhouse Solarium, alone, the bao a still-fragrant and comforting memory, the morning Chronicle open on the table in front of him. He hadn’t forgotten anything about his talk last night with Abe Glitsky. (Maybe Glitsky had stolen the toothbrushes! Ah
a! That was it. Even if it wasn’t, he could accuse him of it and have some fun.)

  It had become pretty clear in the talk at the table that Glitsky thought Sal had been killed and, more, that Graham had murdered him. And if that was the case, then Glitsky knew more than Hardy did.

  He scanned the paper, but there was nothing particularly new and exciting there. The weekend hadn’t provided any startling revelations. Even DA Pratt and AG Powell had maintained what one article called a ‘wary silence.’ Thirty-one doctors took out a full-page advertisement announcing that they had helped patients kill themselves, but this, Hardy knew, wasn’t going to have any direct impact on the Graham Russo case.

  So what did Glitsky know?

  Pulling the ten-button conference-room phone over to him, he started to call the homicide detail, but hung up. If the lieutenant hadn’t talked to him sixteen hours ago, he wasn’t going to start now. Nothing had changed on that front.

  Suddenly, that old horse’s mouth yawed open before him again. ‘Idiot,’ he said to himself, shaking his head.

  A miracle, Graham was home and picked up his telephone. But the first words out of his mouth – that he’d spent more time chatting with Sarah Evans – cut short Hardy’s happiness that he’d reached his client. ‘You’re making this up, aren’t you, Graham?’ he said. ‘Please tell me you’re making this up.’

  ‘No. I’m not. It was really good.’

  ‘It was really good,’ Hardy repeated. ‘That’s nice. I’m happy for you.’

  ‘It wasn’t like what you’re thinking,’ Graham protested.

  Hardy could picture him, sitting framed in his splendid back window, looking out over the city, having a cup of his terrific Kona coffee, perhaps savoring a fresh croissant, bought with who knows what money. Maybe, Hardy thought, living up there in fairy-tale land colored one’s view of the rest of the world.

  In any case, Graham was in serious need of a reality check. ‘What wasn’t it like? You tell me. How it could be different from what I’m thinking? Even in the best of all worlds, what other interpretation could there possibly be?’

  ‘If Sarah was going to arrest me, Diz, she would have done it already. She just wanted to know.’

  ‘We’re talking Sergeant Evans of the homicide detail, is that right? Suddenly, she’s Sarah now? Are you guys going out together, staying in, what? It would help if I knew.’

  ‘Nothing, Diz. Nothing like that.’

  ‘She just wanted to know the truth?’

  ‘Right.’

  ‘And the Time guy, what about him?’

  ‘He was a good guy.’

  Hardy could envision the shrug, the nonchalance. He knew he was getting geared up here, and he didn’t think it would hurt his client any to realize it. ‘Graham, it’s this reporter’s job to be a good guy and get you to like him so you’ll open up and tell him the story he needs to write. It’s not personal.’

  ‘No.’ Graham was convinced. ‘This was different. Really. It was great to get to lay some of it out finally.’

  Hardy had both of his elbows on the table, the receiver cradled against one ear, his head held up with the other one. There wasn’t any sense in going further with this. It was time to shift to damage control, if that was going to be possible. He forced some modulation into his voice. ‘So what did you tell your friend Sarah this time? I hope parts of it were close to the last version.’

  He heard an amused chuckle. ‘It’s just the obvious stuff. Nothing to worry about.’

  ‘Obvious?’

  ‘You know.’

  ‘I don’t, really. Why don’t you humor me?’

  ‘Well, the truth about my dad and me. I mean, of course I helped him out. Once it was clear that we’d kind of patched things up, the rest of it just followed.’

  ‘What “rest,” though? That’s what I’m trying to get at.’

  A pause. ‘That I’d given him morphine a bunch of times. But not that day,’ he added.

  ‘You told Sergeant Evans that?’

  ‘Yeah.’ Another hesitation, longer. ‘And that I’d gone by there, on Friday. By Sal’s. But he hadn’t been home.’

  At almost precisely the same moment State Attorney General Dean Powell was reaching his own decision. He’d quietly come down from Sacramento early in the morning and spent the morning with Drysdale and Gil Soma. Now they were finishing their lunch at a back table in Jack’s – one of the city’s finest and oldest restaurants. An elderly waiter in a tuxedo was pouring coffee all round. The white linen had been cleared of crumbs.

  Powell originally hailed from San Francisco. Before his election he’d been a senior attorney in the DA’s office. His habit of combing his long white hair with his fingers had been the subject of dozens of caricatures, and he was doing this as he spoke to Soma. ‘I think we’re close to settled on the basics, but I must confess, Gil, I’ve got a reservation or two about your involvement. You ever put on a murder trial before?’

  Powell, of course, knew the answer to this. He was impressed with Soma’s credentials and, more, his passion, but if the young man couldn’t stand up to the pressure of his boss’s informal interrogation now, he’d melt in the crucible of a special-circumstances-case courtroom. Better to find out sooner.

  Soma brought a napkin to his lips, but didn’t waste any time with the motion. He wasn’t stalling. ‘No, sir, but I can win this case.’

  ‘As a murder one?’

  ‘It is a murder one. This morning’s police reports lock that up. This wasn’t any assisted suicide.’

  Powell nodded. ‘I buy that, Gil. It’s critical, though, that we have the right man.’ He leaned over the table, combed his hair back again, then pointed a finger at Soma. ‘You hate this Graham Russo, don’t you? It’s personal, isn’t it?’

  Soma glanced over at his mentor, Art Drysdale, who was stirring his coffee. No help there. ‘I don’t like him, sir, that’s true.’

  ‘And you’re sure you’re not seeing what you want to see here? You’ve thought about this a lot?’

  Now Soma did reach for his coffee. Powell thought this a well-rehearsed move. The question appeared to call for thought and even if Soma had considered every possible ramification of it, he would take a formulaic pause. Placing the cup carefully into the center of its saucer, Soma brought in Drysdale for a beat, then proceeded. ‘The original case – the DA’s here in the city – had several holes. The money alone wasn’t really enough, and we knew that, which was why we waited. Since then we’ve discovered that there was a fight, that Graham Russo was there – he’s admitted it…’

  Drysdale finally spoke up. ‘That’s a little squirrely.’

  But Soma didn’t think so. ‘It’s evidently not on the tape, but Glitsky guarantees we’ve got Evans’s testimony. She’ll swear to it.’

  ‘Then we’re back to “he said, but she said.” ’

  Powell interrupted. ‘Art, play devil’s advocate a little later. I want to hear what we’ve got altogether.’ He gestured back to Soma.

  ‘Okay, we’ve got the fight. We put Graham there. We’ve got the morphine, plus syringes from a box traced to his ambulance company. We got a fistful of his lies on the record. We’ve got his financial position, which is horrible, and which leads us back to the money. We’ve got means, opportunity, and motive. It’s classic, sir. He did it and we can prove it.’

  On Soma’s left Drysdale cleared his throat. He wanted in.

  ‘Art?’ Powell asked.

  ‘I agree with everything Gil’s said here, but if we’re talking specials…’

  ‘We are.’ Powell was solid with this decision.

  ‘Okay, then the options we’ve got are LWOP’ – this was life in prison without the possibility of parole – ‘or death. Gil, you’re telling me you’re comfortable asking the state to put your old office mate to death?’

  This, finally, stopped the posturing. Some of Soma’s spark went away. ‘I don’t know,’ he said, taking in both of his superiors. ‘To be honest, I don’
t think so. I don’t think we should ask for death.’

  Powell nodded. This was the right answer. Soma was passionate, but not blinded by hatred, a critical distinction.

  ‘I wouldn’t either,’ Drysdale said, ‘but we might wave it around early on, see if something shakes loose.’

  Soma shrugged. ‘I can do that.’

  ‘And no other suspects? Real? Imagined? Implied?’ Powell wasn’t getting into this without having it locked up. He hadn’t gotten where he was by going high profile and losing. Drysdale passed the question over to Soma with a look. ‘We’re still checking some of his fisherman contacts. He poached for a living, but the volumes are tiny. A hundred, two hundred bucks. I don’t see anyone killing him for it.’

  ‘The family,’ Drysdale prompted.

  ‘Oh, yeah. Sal – the victim – he broke into the family house three times in the past few months. Nobody seemed to get too upset, though. They didn’t file criminal charges. Just wanted to help him get some assistance.’

  Okay, Powell was thinking. The loopholes are closing up. ‘And it was definitely not a suicide? I don’t want to have that come back and bite us.’

  Drydale took this one. ‘I don’t think they’ll even make the argument, but Strout’s got some pretty good stuff for us. Nobody thinks Sal killed himself. That didn’t happen.’

  A silence descended for a moment. Powell raised his eyes, ‘Dismas Hardy’s doing the defense?’

  ‘Yes, sir.’ Soma knew the story as well as he knew his name. Three years before, in the last major case Powell had prosecuted before moving to the state capital, Dismas Hardy had pulled a rabbit from a hat and beaten him after a jury had both convicted his suspect and sentenced her to death. It was no secret that the AG longed for payback.

  ‘All right,’ Powell said at last. ‘Let’s go get him.’

  Drysdale tapped the table with a fingertip, getting their attention one last time. ‘I suggest, with all respect, Dean, it might be wiser to wait another couple of days. Graham’s not going anywhere. Make it fat.’