The Mercy Rule

by John Lescroart

  Sarah had spent a lot of time at Hunter’s Point in the course of her career. It was a rough place where over eighty-five percent of the adult population had either committed or witnessed a violent crime. At the McDonald’s she suddenly realized that if they cruised the streets for a while in the neighborhood, she could find some somebody here she could break. And sure enough, there was Yolanda, coming out of one of the boarded-up establishments.

  Marcel pulled up and Sarah was out of the car, badge out.

  ‘Hey, I didn’t do nothing. What you comin’ at me for?‘

  ‘Just get in, Yolanda. We’re going to talk.’

  Now she had the twenty-year-old woman in the backseat of their unmarked car. Marcel was in plain sight on the corner, not fifteen feet away, but they weren’t going to good-cop, bad-cop this witness. Sarah was going to get some answers herself.

  ‘I saw you at the jail the other day, didn’t I, Yolanda? You were visiting Damon down there again, weren’t you? How is Damon?’

  Damon Frazee was a goateed weight-lifter who occasionally did some mayhem on citizens, as he had a couple of weekends before – a friendly little bar fight with a knife or two. Unfortunately, Damon was looking at life in prison now under California’s three-strikes law. If convicted it would be his third violent offense and he would be gone from Yolanda forever. Sarah figured she could work this to her advantage.

  ‘Framed,’ Yolanda mumbled. ‘Damon got hissef framed.’

  ‘One of the brothers plant that knife on him, did they?’

  A sullen nod. ‘But I ain’t do nothing. You got no business taking me in.’

  ‘I’m not taking you in. I’m talking to you, that’s all. I’m thinking maybe you can help Damon.’

  ‘Ain’t nothing gonna help Damon. You lyin’ if you think so.‘ The poor mixed-up girl was shaking, biting at her nails. Her eyes were glistening with unshed tears.

  Suddenly, Sarah leaned in close, snapping out her words like a drill sergeant. ‘Get your fingers out of your mouth, child, and don’t you dare call me a liar, you hear me?’

  A sullen nod. Sarah slapped at the window by Yolanda’s head. ‘I said DO YOU HEAR ME?’

  ‘I hear you.’

  Sarah hated this kind of interview, but she’d done it many times before and knew she would again. Too bad – she was doing Yolanda a favor. But she was going to get what she came for.

  ‘Now, listen, we got this shooting down here last Thursday, maybe you heard something about it.’ She waited. ‘That’s a question, Yolanda. Maybe you heard something about it?’

  Silence.

  ‘What I’m thinking, see, if you remembered anything important, anything I can use, like who might have been in the car, something like that, who set it up, what you heard about it, anything, maybe I can do something about Damon.’

  The eyes, almost more scared of hope than of anything else, came up. ‘What you mean?’

  ‘I mean we don’t go for the strike, the third strike. He does some county time, he’s back home for Thanksgiving.’

  ‘If what?’

  ‘What I said.’

  Yolanda huddled down into herself. ‘I give them brothers up, they come kill me.’

  ‘What boys, Yolanda? You give me a name, one name, we start looking, maybe get enough evidence on ’em – hardware in the car’s trunk, like that – we don’t even need you to testify at the trial.‘

  This last was complete fabrication and Sarah knew it, but she wasn’t lying about cutting a deal involving Damon. The cops would trade a third-striker for a gangbanger any day. As for Yolanda, she was right. If she did someday have to testify, she might very well end up dead. But Sarah was willing to take that risk for her.

  It was a tough profession.

  Yolanda looked up, waited as though for further guidance. It wasn’t coming. People here in the projects knew that if they didn’t take help when it was offered, it tended to disappear. And Sarah was right here, nodding at her. ‘Just give me a name, Yolanda. One name.’

  ‘Lionel Borden. He hang the World Gym most days. He was drivin’.‘

  Freeman was on the couch, thumbing through one of the Russo folders. Hardy, at his desk, had another half hour of work – he’d decided to try to leave the office at five-thirty so he could see his family - but he was glad enough for the silent company.

  After getting back from dropping Graham at the jail, he’d put in two hours on Tryptech. Good work, too, he thought. Tedious as hell, but God was in the details. Checking his newly arrived records of past transom and conveyor failures at the Port of Oakland, he’d hit a vein in which there might be some pay dirt. It seemed that only seven months before the accident with Tryptech, the Port itself had sued the manufacturer who had produced the couplings for its transoms, alleging irregularities in their holding capacities.

  It didn’t exactly get him up and dancing, but he did call Dyson Brunei with the news, and spent another forty minutes with Michelle, outlining their follow-up.

  Now – more necessary tedium – he was preparing the first of the binders he’d be living with for the duration of Graham’s trial. It was mindless and pleasant work, labeling his tabs: Police Report. Inspector’s Notes. Inspector’s Chronological. Autopsy. Coroner. Witnesses. Beginning to organize the discovery he’d been given for Graham’s defense.

  By the time he got to trial, he’d have a dozen binders jammed with everything even remotely connected to his client, the victim, the trial. What he found scary was that he’d have memorized most of it. He looked up. ‘I’m getting to Publicity, David. I’m going to need that folder.’

  Freeman had his post-workday glass of wine at his elbow. He spoke calmly. ‘You can’t be considering change of venue?’

  Hardy had to give it to his landlord – he was joined at the hip to the issues. But Hardy thought if anyone would want a change of venue in this case, it would be the prosecution. San Francisco, after all, was the town that had elected Sharron Pratt, possibly the only prosecutor in the entire world who was more interested in helping and understanding lawbreakers than in punishing them.

  This was still the city that had accepted the notorious diminished-capacity ‘Twinkie’ defense when a supervisor had sneaked into a basement window in City Hall, shot the mayor to death, reloaded, walked down the hallway, and then slain another supervisor.

  The jury’s decision in that case? Boy! That shooter must have been pretty upset, and besides, he was on a sugar rush from all those Twinkies and couldn’t really be held responsible for his actions.

  So, as Freeman loved to say, it was a banner town for defense attorneys at any time, and now under Pratt even more so. Reasonable doubt had transmogrified here to any doubt at all. The slightest doubt about any issue in the trial would likely result in acquittal.

  This was good news for Graham Russo, who would benefit from the city’s knee-jerk liberal bias, so Hardy wanted the trial here. And Graham had an absolute right to be tried where the alleged crime occurred. Here they’d stay.

  But Hardy resisted any tendency to feel complacent. The stakes were too high to take anything for granted in a murder case. ‘No,’ he told Freeman, ‘I’m not going to ask for change of venue, but I’d like to file all that stuff and head on home, if you’re finished reading it.’

  The accordion folder bulged with newspapers, magazines, Nexis and Lexis printouts, everything Hardy had found in print to date about the case. ‘I’ve got to just cut out the stuff about the case,’ he said. ‘It’s going to be unmanageable if I throw in whole newspapers every day.’

  Freeman was only half listening, back with another article. ‘I wouldn’t do that. I’d save it all. You never know.’

  ‘You never know what?’ Hardy didn’t always agree with the old man, but he was always interested in his opinion. Freeman had forgotten more than many attorneys ever learned, and if he wanted to talk theories, Hardy would listen.

  ‘Context.’

  Hardy repeated the word. ‘Meaning what?’


  ‘Here’s Time, right, your boy on the cover.’ He started flipping the pages. ‘I count at least eight related stories: assisted suicide, Kevorkian, Supreme Court, Ninth Circuit, states opposed and in favor. Here’s a guy with Lou Gehrig’s disease, wants to live forever. Pulling the plug.’ He closed the magazine. ‘It just goes on and on. Here’s all your research for closing, if you decide to go that way.’

  He reached up to the coffee table and grabbed a newspaper. ‘Okay, forget that obvious stuff. Here’s the paper reporting Sal’s death for the first time. I myself noticed something in there, apparently unrelated to your client, that would arouse my curiosity. If you cut out the Graham articles, you’d never run across it.’

  Hardy, intrigued, stepped over to the couch. Freeman handed him the newspaper, his eyes challenging. Could Hardy find it?

  In a couple of minutes he’d scanned the entire first section. The story on Sal’s death was near the back, but there was nothing remotely relevant there. A follow-up story on the enduring legacy of Hale-Bopp and the Heaven’s Gate crusaders. A painter on the Bay Bridge had fallen to his death. Hardy closed the paper. ‘I give up.’

  Freeman was savoring his wine, enjoying that and his little puzzle. ‘Front page.’

  Another minute. A shake of the head. ‘Nothing. I don’t see it.’

  ‘How about the bomb threat?’

  Hardy reread the article. The new federal courthouse had been evacuated a little before noon after someone had called in a threat. ‘I don’t know, David. I don’t think Sal had anything to do with that.’

  ‘I don’t either. But where is the courthouse?’

  Freeman didn’t need to explain any further. ‘That’s what I mean by context, son,’ he said. ‘You got a hundred or so people, maybe more, milling outside in the alley under your victim’s window couple of hours before he’s killed.’ He shrugged. ‘I don’t know what it means, if anything. Maybe not, probably not. It just catches my interest, that’s all.’

  21

  On its best day the third floor of the Hall of Justice was a study in controlled mayhem. Lawyers, cops, bailiffs, clerks, prospective jurors, relatives and friends of defendants or victims, the curious, law students, retirees, reporters, anyone with a legal or political ax to grind – these folks would congregate in the wide-open hallways.

  Sometimes they didn’t all get along.

  Unlike the federal courthouse, with its renovated marble-arched interiors inspiring confidence and even awe in the majesty of the law, the Hall of Justice, with its green paint and linoleum floors, inspired nothing. It was a big, loud place where bureaucrats worked and deals got cut.

  The minute Hardy arrived for Graham’s arraignment, he was noticed. ‘That’s him!’ he heard. ‘There he is!’

  The reporters were flies to his honey, shoving microphones into his face, shooting questions in their low-key and dignified manner, impeding his progress down the hall. A couple of minicams were rolling and the bright lights nearly blinded him.

  His peripheral vision had picked up some placards behind the knot of reporters. There were a lot of bystanders today, even for the Hall. The show, after all, was about to start.

  ‘No comment. Sorry. I really can’t say anything yet. Please, I’ve got to get through here.’

  He went through the special extra metal detector set up outside Department 22. He knew it was for his case, placed there to guard against the possibility that someone would try to kill his client to show the world that assisted suicide was wrong.

  In the courtroom it was less frenetic, although every seat in the gallery was taken. The presiding Calendar judge, Timothy Manion, a youthful, dark-haired leprechaun with whom Hardy had tipped several glasses back when they’d both been assistant DAs, had ascended to the bench but appeared not to have called the first ‘line’ – a reference to the computer printout listing defendants and charges.

  Walking up the center aisle and through the rail, Hardy breathed a sigh of relief. Graham hadn’t even been led out into the courtroom yet. At the jury box attorneys waiting for their lines to be called could sit when there was an overflow gallery, and Hardy took one of the chairs, next to an older courtroom regular. ‘This crowd here for you?’ the man asked.

  Hardy said he thought so and the guy passed a business card over to him. ‘You need some motion work, background checks, anything, I’m available.’

  Hardy nodded, friendly, but it bothered him. The hustling for clients, for work, it just never let up. He glanced at the card, then put it in his pocket. ‘I’ll keep it in mind, thanks.’

  Finally, he got a chance to take in the surroundings. He hadn’t been in Superior Court for four years and it hadn’t changed in any way. High ceilings, no windows; the room was large and utterly bland. In front of the bar rail the gallery held about a hundred and twenty people on uncomfortable, theater-style seats of hard blond wood. There was also standing room for another forty or so.

  Recognition was kicking in. Sharron Pratt herself was here, in the second row. At the end of the jury box Gil Soma conferred with Art Drysdale. Hardy checked for Dean Powell, but the attorney general was leaving it to his deputies.

  Then the gavel came down and all eyes went to the bench.

  To the judge’s left a door at the back of the courtroom led to the defendant’s holding tank, and as the fourth line was called this morning, that door opened and Graham Russo was brought in.

  There was an audible hum in the gallery that Manion stilled with a warning glare. Hardy got up from his seat and went to meet his client at the podium in the center of the bullpen.

  After his night in jail Graham looked wan and tired, and the orange jumpsuit reinforced that impression, but when Hardy asked him how he was doing, he said okay. Then, leaning across his attorney, he whispered at the prosecution table, ‘Hey, Gil.’

  When Soma looked over, Graham smiled at him. Keeping his hand behind the podium so the judge couldn’t see, his body blocking it from the gallery’s view, he flipped him off. Hardy, of course, saw it. He immediately covered Graham’s hand with his own. But not in time.

  ‘Your Honor.’ Soma was up out of his chair. ‘The defendant just made an obscene gesture to me.’

  ‘Not obscene enough,’ Graham whispered.

  ‘Shut up,’ Hardy ordered him. He didn’t know what Soma hoped to achieve by bringing this little contretemps to the judge’s attention, but Hardy knew Manion, and he wasn’t going to react well to any grandstanding, particularly if it involved whining.

  He’d been rearranging his papers, and now he raised his eyes. ‘Mr Hardy,’ he said simply, ‘control your client. I don’t want any shenanigans in here, is that understood? This is a court of law.’

  ‘Yes, Your Honor,’ Hardy said, and decided then and there to take a gamble, ‘but for the record, Mr Soma may be mistaken.’

  The judge, sensing a pissing contest, wanted to keep his busy day moving. He bobbed his head and said, ‘Noted.’

  Keeping his own expression under tight control, Hardy threw a look at Soma. The message, he was sure, got delivered. From now on every word counted. To every play Soma made, no matter how small, Hardy would fashion a defense. Best let Soma know he had a fight on his hands. Hardy would kick his ass in this courtroom if he could, every time he could. That knowledge might make the boy reckless. It might make him scared. If nothing else, Hardy had rattled his cage.

  But the moment was just that, a moment. Hardy knew – indeed, most of the courtroom knew – what was coming next, and a stillness settled as the judge looked straight at Graham and intoned his name. ‘Graham Russo,’ he began, ‘you are charged by indictment with a felony filed herein.’

  The words were pro forma but they always had an effect on the gallery. There was a stir behind Hardy. Manion glared for quiet, but it didn’t work this time. Some members of the gallery had come to make a stand.

  ‘This wasn’t any felony!’

  ‘It wasn’t even wrong!’

  ‘Sal
Russo had a right to die!’

  The gavel. When relative quiet had resumed, the judge raised his voice so he could be heard all the way to the back of the room, but his tone was mild. ‘I know a lot of you people have gone to some trouble to get down to this courtroom today, but I’m not going to tolerate this kind of disturbance. So all of you do yourselves a favor and do not interrupt these proceedings again. I will remove every one of you all the hell out of here. Is that clear?’

  Apparently it was.

  ‘Mr Russo.’ Manion repeated the formula, continuing, ‘… to wit, a violation of section 187 of the Penal Code in that you did, in the City and County of San Francisco, State of California, on or about the ninth of May, 1997, willfully, unlawfully, and with malice aforethought’ – and here the judge paused again, as if he himself were questioning the language. But he took a heavy breath and went ahead with it – ‘murder Salvatore Russo, a human being.’

  Manion then had the clerk read the special circumstances alleged by the prosecution: murder in the course of a robbery. When he’d done, the judge nodded. ‘How do you plead, Mr Russo?’

  Graham spoke right up. ‘Not guilty, Your Honor.’

  ‘All right.’ This wasn’t any surprise. Manion consulted his computer sheet again. ‘This being a special-circumstances case, bail will be denied. Mr Hardy, do you have a comment?’

  ‘Yes, Your Honor. There is no way the prosecution can justify this as a special-circumstances case. My client should be allowed to post bail. Mr Russo voluntarily turned himself in to the authorities yesterday-’

  Soma was on his feet. ‘After hiding out for four days.’

  Hardy turned to him. ‘He left town before he knew there was in indictment against him.’

  ‘So he says.’

  The gavel came down. Manion wasn’t yet angry – sometimes Calendar was so boring that these peccadilloes in courtroom etiquette were almost a relief to a judge who had to sit through eight hours of procedure – but he didn’t want to lose any more control. ‘Gentlemen,’ he reminded them, ‘all remarks get directed to me. That’s how we do it.’