The Mercy Rule

by John Lescroart

  Hardy took a beat, realizing as he did that his legs were now firm under him. It was a relief. He looked up and down the panel, making some eye contact where it seemed natural.

  ‘So, yes, Graham had his father’s money. We will show you that it was on that day, May eighth, that Graham took this money and the baseball cards to his safety deposit box.

  ‘On May ninth his father called him again. Twice. The pain was terrible. Could Graham come right over when he got the message? The dutiful and caring son, he did go to his father’s apartment one last time.’

  And, Hardy thought, here is where it gets tricky.

  He took a deep breath. ‘You’re going to learn that Sal Russo died of an intravenous morphine injection. He had had a few drinks. Dr Strout, our city and county coroner, is going to tell you that his death was quick and relatively, if not completely, painless. Sal’s doctor had earlier prescribed for him a form called a “DNR.” It stands for “do not resuscitate.” It’s kind of like a “Medic Alert” bracelet that instructs paramedics to let a person die if that is nature’s course. Sal had his DNR sticker out when he was found. He was a very sick man, in great pain every day, terrified that he was losing the last of his mind, afraid of being sent to a home. This was the man who died. The victim. His son Graham loved him.

  ‘No murder for money was done here, no murder at all. The prosecution cannot and will not prove to you that Graham Russo killed his father. The evidence will not show that Graham is guilty, because despite all the prosecution’s desperate rhetoric and their urge to make headlines, he is innocent.’

  Hardy paused, nodded at the empaneled jurors, and realized that he was done.

  ‘That little fucker’s pretty good.’ Freeman contentedly chewed his lo mein, his chopsticks poised for the next attack. They were sitting in the holding cell, the only place they could talk to Graham privately during recesses and lunch breaks. The cell was ‘furnished’ with two concrete shelves that served as benches built into the walls, and an open toilet. There was nothing for an inmate to steal or vandalize.

  The place was littered with cardboard cartons from the takeout that Freeman had ordered up earlier in the day, as a special treat, from Chinatown. There were also containers of vinegar, Mongolian fire oil, packets of soy and other sauces, extra chopsticks, paper plates and napkins.

  ‘Gil’s not dumb. He was the star at Draper’s.’ Graham was dipping a duck leg into some plum sauce.

  Hardy’s own appetite had disappeared. Even without the stink of the holding cell, ripe and cloying, his opening statement had left his stomach hollow, unsettled. He couldn’t imagine putting any food in it. Freeman noticed; he raised his eyes from his lunch. ‘You all right, Diz?’

  Standing at the bars, arms crossed over his chest, looking back toward the courtroom, Hardy lifted his shoulders. ‘Nerves.’

  ‘You did fine, laid out the boundaries, drew the lines.’ Freeman popped a pot sticker, whole, into his mouth, chewed a moment. ‘It’s all Alison Li. There is no evidence that Graham put the money in the bank within months of Sal’s death. That’s it. We don’t have to prove anything except that. They’ve got to prove what they’ve got no evidence for. And they can’t do that.’

  ‘Right.’ Graham was all agreement, back to a carton he’d missed on his first pass. ‘Can’t be done.’

  Hardy gave them both a weary smile. ‘Well, then, that’s settled. I think I’ll go say hi to my wife.’

  ‘Bring her in here,’ Freeman said.

  Hardy threw a quick glance around at the depressing cell. Shaking his head, Hardy was moving toward the door. ‘I don’t think so.’

  She’d waited in the gallery, now nearly deserted during the lunch hour. Greeting him with a kiss on the cheek, she read his mood. ‘Dismas, it wasn’t that bad.’

  He pulled down the seat next to her and sat. ‘I can see the Chronicle headline tomorrow: “Russo Defense Not That Bad.” ’

  ‘It was better than that.’ She put a hand on his knee and squeezed it. ‘You’ll do fine. You’re doing fine. But I notice our friend Abe isn’t hanging around.’

  Frannie knew about the original disagreement, of course, but the summer had intervened – the kids home all day, classes and camps and soccer and baseball – and she’d been assuming it had more or less blown over. ‘Are you still in a fight?’

  Hardy shrugged. ‘I guess so.’

  ‘You ought to go see him.’

  ‘I’ve tried. I don’t know what else I can do. He thinks I’ve sold out somehow, that I’m not the same person.’

  ‘But you are.’

  ‘No. I’m defending somebody he arrested not once, but twice. He really believes Graham’s a killer, and not some kind of a mercy killer either. A bona-fide stone murderer. Which is, of course, how cops are supposed to think.’

  ‘But he’s always been a cop.’

  ‘I know, and I’ve always gotten the benefit of the doubt. But now Abe thinks I’ve sold myself a bill of goods too – that Graham suckered me and I’m an idiot for believing him.’

  Frannie crossed her arms and looked away.

  ‘What?’

  ‘Nothing. Just that I hope you didn’t. You’re not.’

  Hardy shook his head. ‘No way, I’m not.’ He checked the courtroom, making sure it was otherwise empty. ‘Look at Evans, she’s a cop too.’

  ‘But she’s in love with him.’

  ‘She wouldn’t have let herself get there if she didn’t think he was innocent.’ He took in his wife’s expression. ‘I love that thing you do with your eyes when you think I’m full of it.’

  Frannie smiled at him. ‘All I’m saying is that she could have found herself attracted to him and because of that convinced herself that he couldn’t have done it. That kind of thing has been known to happen. I fell in love with you, for example, before I knew everything about you.’

  He grinned back at her. ‘And now that you know? If you’d known back then?’

  ‘It probably wouldn’t have made any difference.’

  ‘Which is my point,’ Hardy said.

  ‘No,’ Frannie countered. ‘It’s my point. Sarah Evans is a cop and she loves him. She doesn’t care if he’s a murderer or not.’

  ‘He’s not.’

  ‘I hope not, Dismas. I hope you’re both right. But listening to Mr Soma, I have to tell you I’m not so sure.’

  There it was, Hardy thought – an honest take on the respective opening statements, and from his own wife no less, who might have been expected to give Hardy’s side the benefit of the doubt. If Frannie’s reaction was anything like the jury’s – and he had to assume it was close – he was in more trouble than he’d realized.

  And he’d thought he’d been in it up to his eyeballs.

  27

  From his days as a prosecutor Hardy knew that one of the first orders of business in a murder trial, prosaic as it might seem, was to establish the fact that a murder had taken place. For this reason he predicted that Dr John Strout, the coroner for the city and county of San Francisco, would be the first witness Soma would call. But he was wrong.

  It was the first workday of the week. It was directly after the lunch recess. Drysdale and Soma’s first witness was Mario Giotti. Apparently, even Salter had known of this arrangement; the two jurists entered the courtroom from Salter’s chambers. Maybe they’d even had lunch together.

  Hardy surmised that this timing had been arranged entirely for Giotti’s convenience. He could come down to the Hall from the federal courthouse during his lunch break, testify immediately, say his piece for the record, endure a (hopefully) brief cross-examination, and be back in his chambers by two o’clock. What galled Hardy was that he and Freeman had been kept ignorant while every other principal in the trial had known about this arrangement. But there wasn’t anything he could do about it now. Giotti was on the stand, taking the oath.

  Judge Salter had restricted the attorneys’ access to the witness box. He didn’t want either Hardy or Soma to
intimidate any witnesses by getting too close to them physically. They were to ask their questions from the center of the courtroom. Soma stood there now.

  ‘Mr Giotti,’ Soma began, ‘can you tell us your full name and occupation please?’

  When he got to ‘federal judge,’ there was an audible buzz in the courtroom. Several members of the jury glanced at one another – a lot of juice up there. Soma, shamelessly obsequious, asked Salter’s permission to address the witness either as ‘Judge’ or ‘Your Honor.’ Trying to make a gracious joke, Salter said he would allow it if the court reporter had no objection. He leaned over the podium and asked her approval. She wouldn’t get confused? Everybody had a chuckle, the universe bending over backwards to be nice to the federal judge.

  Hardy dared not object. What would he object to? It would alienate Salter and possibly Giotti, and it was better luck to be hit by a truck than to get a judge mad at you.

  ‘Judge Giotti,’ Soma began, ‘on the night of Friday, May ninth, of this year, can you tell us what you did?’

  Giotti knew a thing or two about how to give testimony, and he looked at Soma, then the jury, then sat back and told his story. Although technically witnesses weren’t permitted to give long answers – the lawyer was supposed to ask a series of questions – Giotti evidently wasn’t inclined to do it that way, and Soma let him go on.

  ‘I went out to dinner with my wife, Pat, to Lulu’s. After we finished, she took her car back home. She’d been downtown earlier in the day and I decided to pick up some papers that I’d left at my office so I could review them over the weekend. My office is at the federal courthouse on Seventh Street, which happens to abut the alley where Sal Russo had his apartment.

  ‘Mr Russo and I had been friends for many years and I’d made it a habit to buy fish from the back of his truck on Fridays, put it in a cooler in the trunk of my car, take it home for the weekend. On this Friday, Sal hadn’t shown up so I thought I’d go check and see if he was all right. I knew he’d been sick. I was in the neighborhood anyway.’

  ‘And what did you do then?’ Soma prodded.

  The heavy brow clouded. Giotti didn’t appreciate getting prompted. He knew what he had to say and he’d get to it. The scowl faded slowly as he went on. ‘I walked up and knocked on his door. There was a light on inside, but no one answered, so I tried the doorknob and it opened and I saw him – Sal – lying on the floor in his living room.’

  ‘He was lying on the floor?’ Soma asked.

  Giotti’s eyes narrowed. Soma wasn’t scoring points with the judge. ‘I said that, didn’t I?’

  Trying to recover, Soma stammered. ‘Yes, you did. I’m sorry, Your Honor. So Sal Russo was lying on the floor? What did you do next?’

  Giotti had delivered his message to Soma. Hardy wasn’t about to object. The judge went on without interruption for another couple of minutes. He’d called 911, waited for the paramedics and the police – first two uniformed officers and then the inspectors – noticed the DNR sticker on the table, the syringe and vial, the bottle of whiskey. He didn’t touch anything; he knew the drill. So he just waited, then answered the police questions and went home.

  Though he’d guessed wrong on the timing, Hardy had assumed that Soma would call Giotti as a witness at some point, not because of any real strategic reason but simply because it was natural that the person who first came upon the body would be a necessary step in drawing the picture of what had happened. Giotti would fill in that blank.

  But that was not Soma’s only rationale. After asking Giotti one or two innocuous questions – a chair had been knocked over in the kitchen; the syringe and empty vial were on the low coffee table – he got to some meat.

  ‘Your Honor, you’ve testified that Sal Russo was lying on the floor, is that right?’

  ‘Yes.’

  ‘Was there a chair or something nearby he could have been sitting on?’

  Giotti closed his eyes, visualizing. ‘His chair. He had an old recliner he liked. He was on the floor in front of that.’

  ‘In other words, between the recliner and the coffee table?’

  ‘Yes.’

  Soma went back to his table, grabbed a photograph passed to him by Drysdale, had it entered as People’s Exhibit One, and asked Giotti if the picture captured the reality he’d witnessed upon entered the apartment.

  ‘That’s the way it looked,’ he agreed. ‘Sal was on the floor, on his side, just like here.’

  The image was clear and damaging, its message undeniable.

  If something benign had happened, wouldn’t Sal have been sitting in his favorite recliner, at least? Wouldn’t his deliverer have tried to make him comfortable in his last moments? Instead, the victim lay on his side, in a hump on the floor. As though he’d been poleaxed.

  Soma left the jury to ponder all of these things. He’d gotten what he wanted, so he thanked the judge and sat down.

  Hardy felt that he and the federal judge were basically on the same side, although Giotti was, technically, a witness for the prosecution. His testimony in a fair world – ha! – should have come a little later in the trial, and Hardy had been almost looking forward to it; he thought he’d be able to put some points on the board. But first, now, he’d have to undo some of Soma’s damage.

  ‘Judge Giotti,’ he began, ‘you were good friends with Sal Russo, weren’t you?’

  A nod, genial. ‘I’d known him for years, although we didn’t socialize much anymore. We were close acquaintances.’

  ‘And as his close acquaintance, did you see him often?’

  Giotti considered this. ‘As I said, almost every Friday I’d pick up some fish when I wasn’t traveling. Once or twice I’d gone up to his apartment and had a drink with him. End of the day, end of the week.’

  ‘On your visits to Sal’s apartment for drinks, did he sit in his recliner?’

  ‘Sure. Yes.’ Then Giotti threw him a bone. ‘Sometimes.’

  ‘But not always?’

  ‘No.’

  ‘Where did he sit other times?’

  ‘Your Honor!’ Soma spoke quietly, reluctant to intrude upon Giotti’s testimony. ‘This is irrelevant.’

  But Salter didn’t think so. ‘Overruled.’

  Hardy repeated his question about where Sal sat. ‘He’d sit anywhere,’ Giotti said. ‘Sal was a free spirit. He’d sit on the coffee table, on the recliner, the couch, the floor. He’d move around.’

  ‘So he could have been sitting on the floor when he received this injection and-’

  ‘Objection!’ This was Drysdale, citing speculation, and this time Salter sustained him.

  Hardy turned back to his table, and Freeman was surreptitiously motioning him over, so he pretended he was getting a drink of water. ‘What?’

  Armed with Freeman’s quick advice and the photograph, he returned to the witness. ‘Judge Giotti,’ he said, ‘looking here at People’s One, is the reclining chair in a reclining position?’

  Freeman, of course, had spotted that it wasn’t. In the picture it appeared to be straight up, and Giotti said as much. ‘Now, to the best of your recollection, was it like this when you entered the room?’

  Giotti closed his eyes again briefly. ‘I’d say yes. I don’t remember it being down. I would have had to push it up to walk around it, and I didn’t do that.’

  This was good enough and Hardy would take it. He could later argue that Sal’s body had simply either fallen out of its chair or, better, that he’d been seated on the floor when the injection was given. In all, he was heartened. Giotti had helped him. The jury would at least have some possible alternatives to consider. He considered it was time to move to the other point he’d originally intended to bring up.

  ‘Judge Giotti, you’ve testified that you were aware that Sal was sick. Did you know he had Alzheimer’s disease?’

  ‘Not for sure, no.’

  ‘Did you know he had cancer?’

  ‘Your Honor!’ Soma was behind Hardy, objecting, his voice de
veloping its telltale shrillness. ‘I fail to see relevance.’

  And of course, in a legal sense, there wasn’t much. But Hardy felt he had to get some human feeling for Sal’s pain into the proceedings. He had a sense Giotti would cooperate.

  First, though, Salter had to be gotten around. And the trial judge seemed to agree with Soma; Hardy’s questions were irrelevant and unnecessary. But Giotti’s authority cut both ways in the courtroom, and when he looked up at Salter and told him he didn’t mind answering – though this was beside the point – Salter acquiesced and overruled the objection.

  Giotti turned back to Hardy. ‘The headaches were evidently pretty horrible. Sal told me’ – now Giotti looked over to the jury, speaking to them – ‘half kidding, but you knew he meant it, that if I didn’t see him for a few days, I should check his apartment. He might be dead. If he didn’t die from the pain, he might just kill himself.’

  ‘And is that why you did just that on May ninth? Stop by his apartment?’

  ‘Essentially, yes. I think he’d planted that seed.’

  Hardy nodded, pleased that he’d gotten it in. ‘He knew he was going to die soon, is that what you’re saying?’

  Drysdale: ‘Objection, speculation.’

  ‘Sustained.’

  Hardy: ‘I’ll rephrase, Your Honor. Judge Giotti, did Sal Russo ever seriously tell you he thought he was near death?’

  Drysdale again: ‘Objection.’

  But Salter overruled this one, and Giotti nodded. ‘Yes. He told me he’d be dead within a couple of months.’

  ‘He knew that?’

  ‘He thought he did, yes.’

  ‘Thank you, Your Honor. That’s all.’ He turned to Soma.

  ‘Redirect?’