The Mercy Rule

by John Lescroart

  They came to the door of Stagnola’s and stopped. Sal’s face dropped and he reached a hand out to Graham, as though he needed to be steadied. ‘What’s going on?’ he asked. ‘This isn’t the Grotto!

  ‘I know, Dad. The Grotto’s closed.’

  ‘Well, that’s just bullshit! I was here last night. Mario was in the kitchen in his suit cutting tomatoes.’

  Graham said nothing. He put his arm around Sal, but the old man twisted away and walked out into the street, turning back to look at the building. He stood there a long time, squinting in the bright sunlight.

  Graham walked out to him and put his arm around him again. This time his father leaned into him. ‘This ain’t the Grotto,’ he whispered hoarsely, his voice skirting the edges of panic. ‘What the hell’s going on?’

  Graham shot up in his cot, breathing hard. He’d almost been asleep, almost been dreaming, wasn’t sure which.

  In the jail most lights were out, but even here in his AdSeg unit there were always noises, always shadows.

  Sal had slept in the cab again – another nap – and when he woke up he’d pulled out of it that day. Graham knew he should have done something right then. Sal had told him he would be going by the Manor, looking up Helen. He should have believed him. He should have done everything differently.

  But he didn’t want to believe it. It was too hard. It was easier to deny the progress of the disease, to believe that Sal wasn’t quite gone yet mentally. He had more time. Graham had more time with him.

  He lay flat on his back, his arm thrown over his eyes. He missed him horribly. This was the only time he had with Sal anymore.

  Memories.

  PART FOUR

  26

  Dismas Hardy checked his watch. Where was the judge? He was five minutes late. The bailiff had even pulled Graham from the holding cell and sat him next to Hardy, unshackled and in his trial clothes rather than the jail jumpsuit.

  David Freeman was sitting at the defense table with Hardy and Graham, and doing it for free. He had joined the defense team – wheedling his way in. Hardy was grateful, not only for the legal assistance, but for the company.

  They in were Department 27 in the Hall of Justice on a Monday, the third week of September. As in all of the courtrooms at the Hall, there was no hint of the weather outside, but the morning had been warm and still – unusual in the city for most of the year, but relatively normal in the weeks after Labor Day.

  Graham’s trial clothes were a pair of slacks and a sport coat. Freeman and Hardy had decided that a business suit would strike too formal a tone for the jury. They wanted to play up Graham’s ‘regular guy’ image, so for the past week during jury selection, the defendant had appeared in court in a respectful coat and tie, anything but a stuffy three-piece lawyer’s uniform.

  Hardy was fighting his nerves. Freeman and Graham were talking quietly to his left. He was half turned away from them, peripherally aware of Drysdale and Soma at the prosecution table across from him on the other side of the courtroom.

  He swiveled further to check out the gallery, now filled to bursting for the opening fireworks. Jury selection had taken nearly ten days, with the final juror selected last Friday, just before the evening adjournment. The trial proper was beginning any moment, with opening statements, the first evidence.

  Hardy was damned if he was going to spend these last seconds reviewing his notes one last time. When his moment arrived, after he’d listened to Soma’s opening statement, he was reasonably confident that the right words would come in for him. His notes were just that: key phrases, high points, several don’t forgets. He never wanted to see the damn things again.

  His eyes raked the gallery, rested for a second on Frannie, who’d surprised and delighted him by saying she wanted to come down to root for him, at least for his opening statement. The kids were back in school. She might bring him some luck. He gave her an imperceptible nod, touching hand to heart as though he were straightening his tie. She saw it and nodded back.

  In front of Frannie, Graham’s mother, Helen, who’d come to court for every day of jury selection, imitated a trompe 1’oeil statue. Hardy stared at her for several seconds, during which time she did not so much as blink. Her ash-colored hair was off her face, hands clasped on her lap. A general murmur hovered over the courtroom – people talking, speculating, arguing – but Graham’s mother was by herself, alone, self-sufficient. Neither her husband nor her other son was there, nor had they appeared last week.

  Hardy recognized other faces on Graham’s ‘side’ of the gallery, several staff from his office. These were Freeman’s acolytes, here to see the show, especially the opening statements. Freeman had shamelessly pimped Hardy to these Young Turks as a master, and they’d come to see him work his magic.

  He’d never lost! Freeman had told them all, and Hardy had rushed in with the clarification that he’d only fought twice. Never losing would have a lot more punch six or eight trials down the line. But they’d come anyway.

  Conspicuously absent was Michelle, who had assumed much of the day-to-day responsibility of Tryptech. She was clearly resentful of the trial, of the way Graham Russo had come to consume her boss’s life over the past months, but Hardy thought it was actually working out very well for all concerned. Never a trial lawyer, Michelle was superb in her new role as corporate litigator. Hardy’s billings on Tryptech had dropped to about five hours a week, Brunei’s limit on cash outlay, and Michelle was taking her pay in discounted stock. Hardy hoped that she wouldn’t wind up impoverished by that decision, but she had made it on her own.

  On his side also, and it surprised him, was Sharron Pratt herself. The newspapers had it that she planned to attend as much of the trial as her schedule allowed. Barbara Brandt, too, the perhaps-lying lobbyist – a redundancy? – whose face had become familiar, talked nonstop to her contingent by the back doors.

  On the other side, behind the prosecution table, in the first row and far to the side, sat Dean Powell, the attorney general of the state of California. Like Pratt he was here to observe, to be a presence.

  Hardy glanced over at Freeman and his client, still head to head, chatting amiably. Hardy was too tightly wound up even to feign listening. He blew out heavily, then stopped midway in the breath, lest any sign of his nerves get misinterpreted by the jury. He must forever appear confident, though not too. Grave, friendly.

  Juror #4, Thomas Kenner, was looking at him, and Hardy met his gaze, nodding as if they had been acquainted for ages. Leisurely he took in the rest of the panel.

  Jury selection had not gone well. In one important sense the final panel failed to be a representative cross-section of the citizenry of San Francisco – and that had been Hardy’s primary goal. In spite of the jury experts he and Freeman had hired, they had nearly been unable to counter the prosecution’s strategy. By the (bad) luck of the draw the jury pool had contained a huge preponderance of men, and though Hardy and Freeman had used their peremptory and other challenges to eliminate as many as they could, still the final panel had eight men, six of whom were white.

  It was a generalization, but Hardy had no illusions: these working class men would not be as sympathetic as women would be. Soma and Drysdale had been shamelessly gender biased about wanting men on the jury – all men! Gender bias was okay if you won. Anything was okay if you won.

  Of the four women, Hardy had a young Asian mother, an African-American thirtiesish schoolteacher, a divorced white secretary in her fifties, and a young gum-chewer with short hair dyed a bright carmine who read meters for the gas company.

  Friday night after the adjournment, after the jury had been empaneled, Hardy and Freeman were having a consolation drink in one of the back booths at Lou the Greek’s. Soma and Drysdale had come in and sat at the bar up front. They were in high spirits, raised their glasses and toasted one another. Hardy heard them clearly enough. ‘Here’s to the best jury in America!’

  Freeman, his liver-spotted lugubrious face buried in his
bourbon, raised it enough to nod knowingly. ‘Good thing you’re motivated by a challenge,’ he’d said. ‘I’d say you got one.’

  Understatement. Freeman’s forte.

  Gil Soma’s stridency at the bail hearing, his sharp-edged ironic tone when he’d been with Drysdale and first met Hardy, his obvious, vitriolic hatred for Graham Russo – these examples had all worked to convince Hardy that Soma’s courtroom behavior would not help his case. Jurors would not warm to him.

  But this appeared now to have been wishful thinking. Soma was neither arrogant nor stupid, and his easy manner in front of the jury showed that he was aware of his personal shortcomings and had learned to harness them.

  Now, attired in his charcoal suit, his muted blue tie, his artfully scuffed shoes (for the common touch – an old Freeman trick), he stood quite close to his mostly male jury and spoke to them quietly, without histrionics, sincerely convinced of the justice of his position.

  ‘Ladies and gentlemen of the jury. The defendant, Graham Russo, murdered his father for money.’

  There was a minor stir in the courtroom at the drama of the words, but it subsided before Judge Jordan Salter had to intervene. Soma’s eyes never left the jury box, calmly surveying them. ‘In this trial, in the coming days and perhaps weeks, we’ll be presenting a great deal of evidence, an overwhelming array of both direct and circumstantial evidence, that will prove to you, and prove beyond any reasonable doubt, that early on the afternoon of Friday, May ninth, the defendant, sitting right there at the table to my left’ – and here he pointed as naturally as if it had been at a lovely sunset, meeting Graham’s hard glance with a calm one of his own – ‘came to his father’s apartment, and while there, he killed his father with an injection of morphine, took money and property, and fled.

  ‘There may be evidence that Salvatore Russo – Sal, the defendant’s father – was suffering from Alzheimer’s disease and from brain cancer. No one disputes these facts. There may be evidence that on some days the defendant came to his father’s apartment to administer morphine to help Sal deal with his pain. No one disputes this either.

  ‘But on May ninth the defendant came not as a helper, but as a thief. Not as a healer, but as an assassin.

  ‘The defense may suggest that Sal Russo was in pain, that he was dying anyway, that somehow the defendant Graham Russo was entitled to decide whether he should live or die. But whether through simple greed or some twisted sense of loyalty, Graham Russo took his father’s property and his father’s life. This the law calls robbery and murder, regardless of motive.

  ‘We will introduce witnesses who will testify that the defendant was a trained paramedic, skilled in giving injections, that he had nearly constant access to and in fact provided the syringe that was used in this fatal injection, that he obtained, under his own name, a prescription for the morphine he needed to kill his father.

  ‘We will bring before you a witness, Ms Li, a teller at the defendant’s Wells Fargo Bank branch, who will testify that on the very afternoon of Sal’s death, defendant placed into his own safety deposit box’ – and here Soma paused and lowered his voice – ‘fifty thousand dollars in cash and a collection of baseball cards from the early 1950s worth another many thousands more.’

  Hardy had been worried sick about Alison Li’s testimony. But Freeman had noticed a crucial failing in everybody’s reading of Alison’s transcripts. And they had the videotapes anyway.

  But the jury wouldn’t get to Freeman’s argument, or to the tapes, for several days, and right now Soma’s monologue was casting its spell.

  Graham shifted in his chair. Subtly, Hardy moved his hand over Graham’s sleeve, giving a little squeeze – a message that this was okay, they had known it was going to sound bad at first. Graham was going to have to keep himself under control.

  Soma was smoothly proceeding. ‘Sal Russo had his own safe, underneath his bed in his apartment. We will show you a letter from Sal to defendant, on the bottom of which is written, in defendant’s own handwriting, the combination to that safe.’

  Several of the jurors made eye contact with one another. Soma’s rendering made an impressive litany of connection, Hardy had to admit. ‘We will show you that defendant was in desperate need of money. He had quit one job and lost another in the space of a couple of months. His work as a paramedic did not begin to cover his monthly costs. He drove a BMW sports car…’

  The young attorney was laying out the case in textbook fashion to the jury, who gave every indication of believing him.

  Soma paused. ‘Finally, I’m going to ask you, ladies and gentlemen, to listen to police inspectors as they will recount for you the many, many times where they gave the defendant the opportunity to explain his actions, his motives, his behavior. And time and again you will be struck, as I was, by the defendant’s absolute disregard for the truth. He has lied, and lied, and lied again. I will ask for your patience as I walk these inspectors through their interviews with the defendant, before he had even been charged with any crime, and you will hear lie upon lie upon lie.

  ‘We will prove his lies. We will prove his actions. We will prove his motive. We will prove beyond a reasonable doubt that the defendant, Graham Russo, killed his own father out of simple greed – for the money and baseball cards in his safe.’ Soma pointed to Graham one last time, his voice flat and uninflected, relating pure, rational, passionless fact: ‘There sits a murderer.’

  At the bench, in the hush that followed, Salter made a few notes, then looked up. ‘Mr Hardy?’

  Freeman leaned over around Graham at their table and whispered that they should ask for a short recess. Indeed, that’s what Hardy felt like. Actually, he wanted a long recess – say two to three weeks to rethink everything he thought he’d had clear before.

  Naturally, he and Freeman had rehearsed all the probable scenarios they could devise about Soma’s opening statement. They had, in fact, nailed down a close approximation of what they’d just heard; after all, they knew the evidence, and that was all the prosecution was allowed to talk about.

  Somehow, though, on this day, with Soma’s low-key delivery (which they hadn’t predicted), the case felt different. Suddenly the jitters gripped Hardy terribly – his stomach roiled with tension. The worst thing he could do, he realized, would be to delay. If he hesitated at all, his nerves would begin to throw off sparks, visible to the jury and his opponents. His doubts about his client and strategy would choke off his words, his throat, his breathing. Worst of all, the jury could use these precious moments to savor and digest the rich nourishment that Soma had just provided them.

  In California the defense has the option of delivering its opening statement immediately following that of the prosecution, as a form of instant rebuttal, or waiting until later, at the beginning of the introduction of its own case-in-chief. Hardy had planned all along to deliver his opening right after Soma’s, but suddenly it seemed even more crucial. He had to get up – now! To start.

  Brusquely, he shook off Freeman’s hand, not even seeing him really. He was on his feet, aware of a jelliness in his knees, a low-pitched roar in his ears.

  At the same time he mustn’t forget that this was performance. He had to appear loose, especially in front of all of these men. If they were like Hardy, and at least a few of them had to be, that’s what they would relate to and respect.

  He felt trapped in the endless psychic toll of maleness: weakness kills.

  Anger, though, was all right, and was the closest Hardy could get to anything positive. Grim lipped, he got to the jury box and turned all the way around to face Soma. The message was controlled anger mixed with derision. A shake of the head. Hardy was disgusted by the untruth of what he’d just heard.

  He was back facing the panel. He tore a page out of Soma’s book, subtly mocking his opponent’s only bit of flamboyance, pointing his own hand at his client. ‘Graham Russo,’ he began, ‘cared for his father, protected his father, and loved his father. These are the primary facts i
n this case. It is an obscenity that he has been charged with murder at all. Here is the true version of what happened on May eighth and ninth of this year.’

  In the course of the trial Hardy would call his client by his first name, much as Soma had referred to him only as the defendant. ‘It’s true that Graham was a regular visitor to his father’s apartment. He went there to administer shots for Sal’s pain, but he also went there to visit, to take his father to dinner, to organize and clean and help with the laundry. He did this regularly for nearly two years, and much more frequently in the last six months of Sal’s life, as the Alzheimer’s progressed and the cancer in Sal’s brain became more debilitating.

  ‘Over the last few weeks Sal had suffered some rather more serious bouts of forgetfulness. Sal was terrified of being placed in a nursing home. He didn’t much trust the system. Incidentally, he passed that trait along to his son.’

  Here Hardy risked an insider’s smile, confident that at least some of these jurors would share the feeling that bureaucrats were perhaps not the earth’s most exalted life form.

  ‘So what have we got here? We’ve got a simple Italian fisherman who didn’t want to end his life in lonely destitution. On May eighth he was lucid and spoke to his son. He had some money in the safe under his bed, money he’d saved for a long time. His son should take it and put it in a safe place so he could use it for pain medication, for Sal’s rent, for private nursing care in his apartment if it came to that before the cancer killed him. Anything, Sal said, just don’t leave him alone in a home to die.’

  Freeman, Graham and himself had argued for hours over the entire Singleterry question, and finally had decided that Hardy’s instincts were right. Twenty-two hundred dollars in ads all over the country had resulted in a whole lot of responses, but no Joan. Sal’s request to Graham might have been genuine – certainly Graham seemed to believe it – but it wouldn’t play here before the jury. So the defense team had reached a consensus: Joan Singleterry must have been someone in Sal’s past, dredged up by the Alzheimer’s, by now quite possibly dead. She wasn’t going to get mentioned at the trial.