The Mercy Rule

by John Lescroart

  Hardy apologized. Soma sat down. Drysdale put a restraining hand on his arm and Hardy heard him whisper, ‘Just listen!’

  ‘All right, Mr Hardy, go ahead.’

  Hardy made his case. ‘Mr Russo will surrender his passport, Your Honor. There is no risk of flight. As I’ve already said, he voluntarily turned himself in just yesterday, as soon as he’d returned to the city after a few days away.’

  Manion appeared to be giving his argument some thought. ‘On the other hand,’ he said, ‘special circumstances precludes the possibility for bail. That’s the law.’

  ‘Yes, Your Honor, I realize that.’ Hardy took a deep breath, glanced at Graham, nodded, and waited. This was more argument than he’d expected. He suddenly wondered if Manion subscribed to Time.

  People started coughing as time stopped for a while.

  At last the judge invited counsel up to the bench. Hardy got there first and to his surprise found that Soma had remained back at his table. Drysdale was standing next to him. ‘The kid’s a little excited, Judge,’ he said quietly, referring to Soma.

  ‘No sweat, Art, don’t worry about it. But this bail thing.’

  Drysdale nodded. ‘There’s no bail allowed. That’s the law, Judge.’ Apologetic. Really nothing Drysdale could do about it.

  ‘I know the law. But it seems to me what Mr Hardy says here is true. There’s very little if any flight risk, right?’

  This was starting to make Drysdale uncomfortable. ‘There’s no bail allowed on specials, Your Honor,’ he repeated feebly.

  ‘But you do admit that this defendant is no danger to the community?’

  ‘We can’t be sure of that, Your Honor.’

  But Manion was running out of patience. ‘So there is no public policy reason to deny bail to Mr Russo? There’s no risk of flight and he poses no danger to anybody?’

  Drysdale didn’t even try to answer this time.

  ‘I don’t suppose the People want to drop the specials?’ Manion was giving Drysdale every opportunity to save face. Bail was permitted for non-special-circumstances murder. All Drysdale had to do was lower the charge; it would still be a murder case. But he was shaking his head. ‘I can’t do that, Your Honor.’

  ‘In other words, your office is simply making me deny bail to Mr Russo because it can? Is that what I’m hearing?’ The judge, disgusted, shook his head. ‘Next time you see Mr Powell, Art, I want you to tell him he makes me proud to be an American. Would you do that?’

  He turned to Hardy and offered a sympathetic smile. ‘I guess we’ll be denying bail, Diz.’

  Hardy hadn’t planned to have lunch with the Taylors – maybe a little snack at Lou the Greek’s. But the arraignment had begun later than he’d thought and then dragged on. Getting his case called had consumed an entire hour, and before they’d finished, getting a trial date three months hence, another twenty minutes had gone away. After that it had taken Hardy the rest of the morning to see Graham in jail, where they had conferred for another twenty minutes or so.

  In that time the bailiff had come up and conveyed the good news that the sheriff (no doubt at Manion’s urging) was moving Graham to an AdSeg cell for the duration of his confinement. AdSeg, short for ‘administrative segregation,’ was most often used when an inmate was in danger of being hurt among the general population of the jail. In Graham’s case, Hardy was sure, it was a courtesy.

  So Hardy finally got back to the hallway outside Department 22 at a little after noon. Helen and Leland were sitting like statues, sharing a wooden bench with an Hispanic teenager who was breast-feeding her baby. As Hardy approached, they stood and made their introductions and then Leland, with the force of edict, had suggested lunch. His office was up on Market, top floor of the bank. He had his own private dining room, his own chef. They’d just take the limo.

  It was not a particularly large room, but it was beautiful, with its hardwood floor, the antique sideboard with its stunning floral arrangement of iris and gladioli. The wall covering was a soothing green silk. Water had been poured.

  Hardy was seated in an amazingly comfortable upholstered armchair with a view to the northeast – Alcatraz and Angel Island. There was chop on the Bay, a high covering of cirrus. In front of him the table had been set for three: white linen, crystal, china, silver.

  The setting was meant to intimidate, although of course not obviously. It simply made clear the line of command.

  Leland Taylor was in touch with his inner self. He knew who he was, what he wanted, how to get it, and didn’t unduly concern himself with internal doubts or how his actions might appear to others. Hardy thought this might be one of the perks of being born to, and living a life insulated by, great wealth. Leland was in charge, an immutable fact of nature. His time was more valuable than Hardy’s, his opinions more valid. His stepson’s lawyer was, essentially, staff – a servant to do his bidding.

  Evidently some unspoken rule dictated that chitchat precede business. Mrs Taylor – Helen – had been carrying the conversational ball for twenty minutes. She was good at it, but Hardy was relieved when they got down to tacks. ‘My wife was gratified to see you’d never lost a case,’ Leland said in his reedy voice.

  Hardy sat back in his chair. ‘I’ve only done two murder trials. I’ve been lucky,’ he said modestly.

  A dry chuckle. ‘Let’s hope it’s not that. You seemed very sure of yourself in the courtroom. That bail business, what I heard. Is the judge a friend of yours? I gather that would be to our advantage, hmm?’

  Hardy explained a little about the system. Normally, cases stayed in Department 22 until the day of trial, when they were sent at random to other courtrooms and the judges who would actually preside over the case. This one was important, however, and got assigned now for trial in three months to Judge Jordan Salter in Department 27. That way the judge, who knew it was coming – as well as the lawyers – could prepare for unusual or unique issues that might arise.

  Hardy did not view the choice of Salter, a Republican appointee and an old buddy of Dean Powell, as propitious.

  Taylor put a hand over his wife’s. ‘Do we know him?’

  Helen shook her head prettily. Everything she did was done prettily. She was very attractive, Hardy thought, nothing like what he’d imagined a wife of Sal Russo could have been. Not that he imagined Graham’s mother would be unattractive. It was more a matter of style. This woman fit her husband, Leland, to a T. Poised, confident, insincere.

  ‘Anyway,’ Hardy said, ‘the judge can have some influence, of course, but it boils down to the case against Graham, which fortunately has a lot of holes.’

  There was no immediate response to this, although glances were exchanged, some message conveyed. Finally, Helen spoke. ‘Do you think Graham did this, Mr Hardy?’

  ‘Killed Sal for money? No, I don’t.’

  ‘It’s absurd,’ Leland said. ‘He could have all the money he wants by simply asking for it.’

  ‘Which of course he won’t do,’ Helen added. ‘I’m afraid he doesn’t want to feel in our debt, which is I suppose noble enough, but I’m his mother. It would not be debt. Leland and I have discussed this.’

  ‘But the fact remains,’ Hardy said, ‘he didn’t feel comfortable asking, did he?’ The dynamic, he saw, was transparent enough. There might not be monetary payback, but there would be strings. Lots and lots of strings. Behavior issues, how one acted. And if Hardy knew anything at all about Graham, he wasn’t a string kind of guy.

  ‘We did help him with law school.’ These petty details seemed distasteful to Leland, but he wanted them on the table. ‘Although that would appear to have been money ill spent.’ A tepid smile. ‘Well’ – he brought his hands together – ‘but that’s not the point, either, is it? We were just rather wondering how Graham was intending to pay you. You’re not doing this, what’s the word, pro bono, I assume?’

  Hardy smiled. ‘No. Graham’s paying me. But I can’t really talk about those arrangements without his consent.’


  ‘Of course not,’ Leland said. ‘I wouldn’t suggest-’

  A discreet knock on the door was immediately followed by a waiter bearing a tureen, from which he ladled a dark, clear consommé into their bowls.

  After the waiter had gone, Leland tasted the soup to no comment or reaction. It was perfect – dark, intense, rich, perfectly balanced – perhaps the best soup Hardy had ever tasted in his life, and he had to say something.

  ‘Thank you,’ Leland said in response to the compliment. ‘Yes, it’s quite nice.’ Conveying an air of ‘What else could it be?’ Then he went back to Graham, precisely where they had left off, on the money. ‘But Helen would like to’ – another glance at his wife – ‘actually, we’d like to help out, monetarily.’

  ‘I don’t know,’ Hardy began, only to have Leland cut him off.

  ‘I have spoken to some of our attorneys here at the bank,’ he said, ‘and they tell me there’s no ethical question. My understanding is that you would be free to accept remuneration from any source, so long as it was understood that Graham was your client, that you represented his interests, not ours. Is that correct?’

  Hardy had to laugh. ‘This question doesn’t exactly come up every day. What you say sounds right, though. I’ll check and make sure. I’d still want to talk to Graham about it.’

  Helen reached over and this time put her hand over Leland’s. This was evidently some preemptive-strike code they’d worked out. ‘We’d expect that, wouldn’t we, Leland?’

  ‘Of course.’ A pause. ‘Sure.’

  Leland Taylor wasn’t a man who said sure very often, and from Hardy’s perspective it came out stilted. But maybe not. Maybe everything just seemed a little bit skewed up here.

  ‘Good,’ Helen said. ‘Now, Mr Hardy, if we may, can we ask how you plan to proceed?’

  Hardy nodded. ‘You can ask,’ he said, ‘but it’s pretty early. I’ve barely begun looking at the evidence, so anything I say now wouldn’t be set in stone.’

  ‘We understand that,’ Leland said. They were definitely two-teaming him. ‘But certainly the general plan will be to play up Sal’s illness, Graham’s closeness to him, particularly at the end? You’re shaking your head. You don’t agree?’

  ‘Actually, I do. Graham doesn’t.’

  ‘What do you mean?’ Helen asked.

  ‘He tells me he wasn’t there. He wasn’t any part of it.’

  The waiter entered again during the ensuing silence, removed the tureen and the soup bowls, then set in front of each of them a little work of art featuring seared scallops, angel’s hair pasta, some zucchini blossoms. A limpid bright orange pool of sauce. A bottle of Kistler Reserve Chardonnay appeared, was poured.

  Hardy thought he might swoon from the first taste, but again, to Leland it was just grub. As soon as the door closed, he continued as though there had been no interruption. ‘But isn’t that Graham’s best defense? That the killing was out of mercy?’

  ‘It might be, sir, but he wouldn’t even plead to that last week. Legally, that’s still murder.’

  Helen spoke. ‘He’s afraid he won’t be able to practice law.’

  Hardy nodded. ‘That’s right. That’s what he tells me too.’

  ‘He wasn’t exactly tearing up the field to this point, though, was he, Helen?’

  This seemed to invite some response from Graham’s mother, and Hardy waited until it was clear none would be coming. ‘The problem is,’ he said, ‘there are certain… irregularities. Somebody else may have been there. There might have been another motive. Sal might in fact have been murdered.’

  ‘But not by Graham.’ Helen was certain about this.

  ‘No, but that’s who’s going to trial for it.’

  ‘Wait a minute,’ Leland said. ‘I’m hearing all kinds of conflicting reports here, Mr Hardy. Do you believe Graham killed his father or not?’

  Hardy thought for a minute. ‘I guess I don’t think he did.’

  ‘Even out of mercy?’

  ‘No.’

  Helen blurted out, ‘But all those articles, all this…’ Winding down, she stopped.

  Leland picked up the thread. ‘That means you think someone else did it?’

  Shaking his head, Hardy grabbed for his wineglass. A sip during the daytime wouldn’t kill him and he wanted the extra second to think. ‘I don’t think it’s out of the question Sal killed himself. The coroner didn’t even rule it out. I might go that way.’

  ‘I see.’ Leland busied himself with another bite, thinking ‘What would happen, though, if you argued for assisted suicide and the jury believed you?’

  ‘Graham wouldn’t let me do that.’

  ‘But if he would…’

  ‘No one can predict what a jury is going to do.’

  ‘I’m not trying to. I’m asking you a simple factual question. What would be the result if a jury decided Graham had assisted Sal’s suicide, or helped him die in some compassionate way?’

  This was in many ways a fascinating turn, and Hardy considered it a minute. ‘That’s not a technical defense,’ he said carefully, trying to be precise. ‘A jury that followed the law should convict on murder.’

  ‘Should?’ Helen picked up the nuance, the wrinkle.

  Hardy nodded. ‘Except that this is San Francisco. Here you never know. Even a judge like Salter might not instruct the way the prosecution wants. Any given jury – if the defense can guide them right – might do anything.’

  ‘If they concluded it was an assisted suicide?’

  ‘They might.’

  ‘You mean they’d find him simply not guilty?’ Helen wanted to be sure she understood.

  ‘Yes. Not guilty.’

  ‘Well, then,’ Leland concluded, ‘that’s your defense.’

  Hardy demurred. ‘It’s not that simple. The prosecution is going to make sure the jury knows that assisting a suicide isn’t a defense to murder, and the judge should instruct that way.’

  ‘But might not.’ Helen didn’t want to let it go.

  Hardy wanted to keep her hopes in check. ‘But probably will. It’s moot anyway – Graham won’t let me do what we’re talking about here.’

  ‘So what’s your mandate,’ Leland asked him, ‘to do what your client wants, or to get him off?’

  And that, Hardy thought, was a hell of a good question.

  They’d gotten to dessert – a cream puff stuffed with brulee, fresh blueberries, coffee.

  ‘All right’ – Hardy put his cup down – ‘now if you don’t mind, I’ve got a couple of questions for you.’ They both were listening. ‘Sal broke into your house three times in the past couple of months, didn’t he? Why didn’t you press charges?’

  The couple communicated in their wordless way, and Helen took it. ‘We thought he needed help. We did contact the social services. They were, I believe, arranging something when Sal… died.’

  ‘But it must have bothered you?’

  Leland answered. ‘It was very traumatic for Helen. We thought the best approach would be to leave it to the authorities. You can appreciate that we didn’t want to become involved with Sal again. Helen had already been through all that years ago. It was painful.’

  Hardy kept his eyes on the wife. ‘And you weren’t concerned it might happen again?’

  ‘I didn’t believe Sal would hurt me. It was more sad than anything, really. Pathetic. He just seemed so confused.’ Helen hadn’t really answered the question. He would never have accepted it from a witness, but here there wasn’t much he could do. She continued on. ‘He really seemed to believe he still lived with me. At the Manor.’

  ‘The Manor?’

  A pretty, embarrassed smile. ‘Our home.’

  ‘He was that far along? With the Alzheimer’s?’ Hardy asked.

  ‘I don’t know anything about the disease,’ she said. ‘He wasn’t malicious. He just didn’t know where he was, where he belonged. I felt sorry for him,’ she repeated.

  ‘I didn’t,’ Leland interjected. ‘I want
ed him arrested. It’s all right, Helen, I’m on the record with this. I thought he was a grave danger to my wife.’

  ‘And George, your other son,’ Hardy said to Leland, ‘I gather he agreed with you?’

  This question appeared to stun both of them. Their magic code seemed to fail. Finally, Leland took a sip of coffee, wiped his lips with his napkin. ‘George isn’t any part of this,’ he said with finality. ‘To answer your question, yes. What dutiful son wouldn’t object to the father who’d deserted him coming back to harass his mother? But this is not a Taylor family matter. This is about Graham, not George.’

  As if on cue – perhaps some button had been pushed under the table – the waiter reappeared. ‘It’s two o’clock, sir.’

  Leland looked at his watch and made a face. ‘Some oil leases,’ he said apologetically. ‘I’ve really got to run. Mr Hardy, you’ll contact us after you’ve spoken to Graham, about what we discussed, helping him out? Good, then. Helen?’ He reached out a hand to help his wife up from her seat. Lunch was over.

  22

  When Leland Taylor’s limo dropped him back at his office, Hardy had a message from David Freeman asking him to come down. Something had come up with Dyson Brunei and Tryptech, and they needed to talk.

  What now? Hardy thought.

  But Freeman was – no surprise – in court for the afternoon. In the meanwhile a messenger delivered another box of discovery documents on Graham. This stuff kept pulling him along until nearly five o’clock, when he realized he had better try again to see what Freeman wanted.

  The old man was buried in some legal text in the law library off the Solarium. He was chewing contentedly on the butt of a thick cigar. Three half-finished china cups of coffee told Hardy he’d been back in from court for at least an hour. But he showed no sign of impatience. Time didn’t exist for Freeman – only the beautiful law.

  Hardy pulled up a chair next to him. ‘Dyson Brunei,’ he said. ‘What’s happening?’

  Freeman finished his paragraph, made a notation in ink in the margin of the book, marked his place with his cigar, and closed it. ‘This dredging fee.’