The Mercy Rule

by John Lescroart

But the prosecutors realized that perhaps, for all their fawning, Giotti was not exactly in their pocket, and they passed the witness.

  As soon as the judge had left the stand, before he was through the bar back into the gallery, Salter pointed down at Soma with his gavel. ‘Your next witness?’

  ‘The People call John Strout.’

  The tall man with the Deep South accent moved from the gallery into the bullpen, took the oath, and went around to the witness chair. Strout testified about once a week in one case or another and was a recognized forensic expert throughout the country. He often traveled to other jurisdictions to render second opinions on ambiguous causes of death. So he sat back, legs crossed, languidly at home on the stand, while Soma got his name, occupation, experience, on the record, asked the first few predictable questions.

  Then, ‘In other words, Dr Strout, are you saying that twelve milligrams of morphine injected directly into the vein is sufficient to cause death?’

  Hardy thought if Strout were any more relaxed up there, he’d be dead. Which didn’t mean he wasn’t paying attention. He corrected Soma. ‘Twelve milligrams intravenous could be sufficient to cause death, especially if there were other factors such as alcohol.’

  ‘And was there alcohol in the case of Salvatore Russo?’

  ‘Yes.’

  ‘How much?’

  ‘Well, his blood alcohol level was point one oh.’

  ‘And is that a lot, Doctor? Was Sal Russo drunk?’

  ‘In California he was legally drunk, yes.’

  Hardy didn’t have any idea where Soma was going with all these questions about Sal and drinking, and that worried him. So what if Sal had been drunk? How did it relate to Graham? How could it hurt him?

  ‘Now, Doctor, could the alcohol level in the victim’s blood contribute to the effect the morphine might have?’

  Strout took his time, wanting to be precise. After a moment he uncrossed his legs and leaned forward in the witness box. ‘Yes, it could have.’

  ‘In what way?’

  ‘With that much alcohol aboard, the morphine would have caused his blood pressure to drop rapidly.’

  ‘Almost instantaneously?’

  Strout nodded. ‘Almost.’

  ‘And then what would happen?’

  ‘Well, with no blood pressure, you get no blood to your head and you pass out.’

  This was the answer Soma expected, and he nodded, pleased. ‘But if Sal Russo injected himself and went unconscious, he would not have had time to remove the needle from his arm, is that correct?’

  ‘Yes.’

  ‘And in this photo’ – Soma entered the Polaroid print into evidence – ‘can you see the syringe on a table near the body with the cap in place over it, Doctor?’

  ‘Yes.’

  ‘Then, assuming that the needle was found as shown in the photo, and assuming further that Mr Russo did fall unconscious from the combined effect of alcohol and morphine, it is true, is it not, that this scenario is not consistent with Sal Russo having administered the morphine himself?’

  ‘Yes,’ Strout replied. ‘Assuming those facts as true, this morphine was not self-administered.’

  Hardy scribbled a note. He would hammer Strout with all of this ‘consistent’ and ‘inconsistent’ in his cross-examination, but he understood Soma’s point, and he thought the jury would too. Soma made it sound as though Strout were saying that someone had killed Sal Russo. It wasn’t a suicide.

  But Soma, well on his way to establishing that, had more, and not in the category of maybe. ‘Dr Strout, was there any evidence of trauma on the victim’s body?’

  Strout nodded, going on about the bruise to the head, behind the ear.

  ‘Could this bruise have knocked the victim out?’

  ‘Briefly. Yes, I think so.’

  ‘Do you know what could have caused this bruise?’ Hardy objected, citing speculation, but was overruled. This fell well within the doctor’s realm of expertise. ‘Well, whatever it was didn’t cause a concussion and left no imprint on the skull. I can say only that it was a relatively heavy blunt object without sharp edges.’

  ‘Such as a whiskey bottle?’

  ‘Objection. This is speculation, Your Honor.’

  ‘Overruled.’

  ‘Yes,’ Strout answered. ‘This would be consistent with the whiskey bottle at the scene.’

  Soma kept at it, staccato style, barely taking time to draw breath between questions. ‘How about the injection site? How did that look?’

  ‘Well, there was trauma there too.’

  ‘What do you mean by trauma?’

  ‘In layperson’s terms the skin and muscles were slightly torn as the needle was coming out. Like a deep scratch.’

  ‘Not as the needle was going in?’

  ‘No. Definitely not.’ A small but important point, since a skilled shot-giver like Graham wouldn’t have botched the injection itself, whereas a jerk or a struggle after the needle was in could happen to anyone.

  Soma thanked Strout and walked back to the prosecution table, where he glanced at some papers on the desk. Hardy was ready to pounce with objections should Soma, as he expected, try to wrap it up.

  The picture, Hardy thought, was clear enough. Somebody loaded the victim up with alcohol, then hit him on the head, knocking him out long enough to get the shot in the vein, in the middle of which Sal jerked, either in spasm or waking up.

  All of that would be speculation on Strout’s part, and not admissible.

  But Hardy didn’t get his opportunity to object. Soma simply turned to him, amicable and professional for the jury’s benefit. ‘Your witness.’

  Hardy took it right to him. ‘Dr Strout, did Sal Russo kill himself or did somebody kill him?’

  Crossing his legs to get more comfortable, Strout settled in the witness chair. ‘Well, from the pure forensic evidence, it could have been either.’

  ‘Are you saying there is no way to tell, from a strictly medical standpoint, whether Sal Russo killed himself or someone else killed him?’

  ‘Yes, that’s what I’m saying.’ Strout waited. An experienced witness, he wasn’t about to lead an attorney so he could be interrupted and made to look unprofessional.

  Hardy nodded, apparently intrigued with these unearthed truths. ‘Is there anything in the forensic evidence, Doctor, that would lead you to think one is more likely than the other?’

  Strout thought this over briefly. ‘No.’

  ‘What about this bruise on the head we’ve heard about? Did that contribute to Sal Russo’s death in a medical sense?’

  ‘No.’

  ‘Not at all?’

  ‘No, not at all. It was possibly enough to knock out Mr Russo, but it had nothing to do with his death.’

  Hardy feigned a small surprise, bringing in the jury. ‘Doctor, did you just say that this bruise was possibly enough to knock out Mr Russo?’

  ‘Yes. It could have.’

  ‘And are you saying it might not have?’

  ‘That’s right too.’ Strout was showing a hint of impatience. ‘I said it wasn’t very serious.’

  ‘Yes, you did, thank you, Doctor. Essentially it was just a bump on the head, isn’t that right?’

  ‘Yes.’

  ‘Now, was the head trauma suffered before or after the injection?’

  ‘I can’t say.’

  ‘So Sal Russo might have injected himself, fallen over, and hit his head?’

  ‘Yes.’

  ‘And if the head injury happened before the injection, can you tell how long before could it have happened?’

  Strout thought for a moment. ‘Only from the bruising, within a day or two.’

  Hardy feigned shock and disbelief. ‘Doctor, do you mean you can’t even say that Sal Russo got the bump on his head on the same day as his death?’

  ‘Not for sure.’

  ‘Not for sure. Well, then, Doctor, is it correct to say you don’t know if this bump on the head has any connection at all to
Sal Russo’s death?’

  ‘Yes, that would be correct.’

  ‘Good.’ Soma had wanted to use Strout’s testimony to prove that a murder had taken place, but Hardy didn’t think it was going to work. He started hammering at another nail. ‘You’ve also told us about a trauma at the injection site. You said it was consistent with someone injecting Sal with the morphine. Yes?’

  ‘Correct.’

  ‘But it’s also consistent with Sal Russo injecting himself, isn’t it?’

  ‘Yes, that’s true too.’

  ‘Sal Russo might have jerked as he was injecting himself, mightn’t he?’

  ‘Objection!’ Soma stood, which Hardy took as a good sign. The trial had barely begun, and already the younger attorney’s placid demeanor was showing signs of turbulence. ‘Speculation, Your Honor.’

  This was overruled. Hardy tried to keep his face neutral. Strout said he was correct: Sal might have jerked as he was injecting himself.

  Hardy nodded genially and pressed on. ‘Doctor, there’s one last point I’d like you to clarify. Didn’t you tell Mr Soma that Sal Russo had a blood alcohol level of point one oh, and that because of this, he might have become unconscious while the needle was still in his vein, and therefore not have been able to withdraw it?’

  ‘Yes, that’s what I said.’

  ‘You said this scenario was consistent with your finding, didn’t you?’

  ‘Yes.’

  ‘But consistent only means it could be true, not that it is true. You can’t rule out other scenarios, can you?’

  ‘No.’

  ‘So even with Sal Russo’s elevated blood alcohol, might this just as easily not have happened?’

  ‘Yes.’

  ‘In other words, Doctor, just to be perfectly clear about this, there is nothing in your findings or testimony that indicates that Sal Russo did not kill himself. Would that be an accurate statement?’

  ‘Yes.’

  ‘This could be a simple suicide, couldn’t it?’

  ‘Yes.’

  Salter was frowning and Hardy liked the look of it. When you get a coroner saying you don’t necessarily even have a crime, an overworked judge might find himself wondering why he was presiding over a murder trial.

  Hardy thanked the witness, but before he’d gotten back to his table, Soma was up on redirect. ‘Dr Strout,’ he said, ‘you’re not saying that this was a suicide, are you?’

  ‘No.’

  ‘And why was that?’

  Strout shrugged, a drop of impatience finally leaking out. ‘There was just no way to tell, one way or the other.’

  Hardy went home for dinner, stayed for most of two hours, kissed his little darlings good-night, then headed downtown again, first to the jail to keep Graham company and discuss the day’s events and their ongoing strategy, then back to his office for a more critical postmortem with David Freeman.

  When he got back home at eleven-fifteen, he was ready to collapse and not altogether thrilled to find Sarah Evans at his dining-room table, talking with Frannie over coffee cups. ‘If that’s decaf,’ he said, ‘I’ll have some, though I’m philosophically opposed to the idea of it.’

  His wife offered a cheek for a kiss.

  In the past months Evans had become Sarah. The midnight phone calls gave way to the occasional meeting here at the house. She and Frannie, close to the same age, had interests in common. Sarah was talking about getting married, having babies; Frannie now about joining the police department. Both wanted all this to happen in the future sometime. They’d had some good discussions. Frannie said, ‘Sarah and I have decided that when the kids are gone, I should be a cop. Not a family counselor after all.’

  Hardy pulled up a chair. ‘Good idea, I mean it. Fast times, great benefits. A really swell clientele. You’d enjoy it. But do you want to hear my idea about after the kids are gone?’

  ‘Okay, what?’

  ‘You travel the world and go to exotic ports with your retired husband and be his love slave.’

  Frannie put a hand over his. ‘The reason I love him,’ she said. ‘It’s that wacky sense of humor.’ Frannie parted his hand. ‘He’s had a long day.’

  Mentioning Hardy’s day brought them all back to reality, but especially Sarah. It was why she had come over. As a witness she wasn’t allowed in the courtroom. She’d worked in the field all day and by now was a wreck, needing to know how it had gone. Hardy was honest with her. ‘It’s Soma’s turn. He gets to lay out his case first. Later I show up and slay him.’

  Not amused, Sarah sighed. ‘I just don’t feel like I’ve done enough.’

  ‘You’ve done more on this case than any cop I’ve ever heard of, Sarah.’

  ‘It still doesn’t feel like enough. If they’ve only got one suspect and that’s Graham, then all Soma’s got to do is make the murder and there’s no other option.’

  Hardy knew that this was mostly true, and it wasn’t much comfort to him either. And he didn’t even want to start on his fears about the jury. Putting a good face on it, he kept his tone light. ‘He won’t make the murder.’

  ‘But, Dismas, it was a murder. You and I both think it was a murder.’

  ‘You do?’ Frannie suddenly asked.

  Uh-oh, Hardy thought. He hadn’t consciously been trying to hide anything from Frannie, but neither had he wanted to burden his wife with all the ins and outs of the case. She had her own life she was handling here on the home front, and much more efficiently, he felt, than he was handling many parts of his.

  He had outlined for her the general theory of his defense and told her that he honestly believed that Graham hadn’t done it, but not that someone else had.

  One of Frannie’s main complaints about her husband being involved with murder trials was the fact that he would be working with someone who had killed someone on purpose and thus had a slightly better-than-average chance of doing it again, perhaps to his attorney and/or attorney’s family.

  Now Hardy shrugged. ‘It could have been. We knew that.’

  Frannie played with it for a while, then balled a fist and brought it down on the table. ‘Shit,’ she said. ‘Just shit.’

  ‘What?’ Sarah asked. ‘Didn’t we know it?’

  ‘We knew it,’ Hardy assured her. ‘Frannie didn’t.’

  Sarah reached a hand over the table. ‘That’s what I’ve been looking for all this time, Fran. Who killed Sal.’

  Her flat, stunned gaze went from one of them to the other. She let out a deep breath. ‘I’m going to bed.’ And she was up and out of the room.

  Sarah started to rise, to follow her. ‘Let her go,’ Hardy said ‘It’s all right. I’ll talk to her.’

  She sat back down, arms crossed. ‘I’m sorry, I thought… I should go.’

  ‘No,’ he said sharply. ‘I want you to understand that we’ve got an outstanding defense going here. Even David Freeman thinks it’s good, and he’s Mikey as far as I’m concerned. It’s going to work. I believe it will work.’

  ‘And what if it doesn’t?’

  He didn’t answer. There wasn’t an answer.

  Sarah had her elbows on the table and blew into her steepled hands. ‘I could just quit my job,’ she said. ‘I could work on it full time.’

  Hardy shook his head. ‘You’re better inside.’

  ‘I’m no good. I haven’t found anything. Sal wasn’t carrying anybody’s money that I can find. Hadn’t for years. Not even a sniff of it. Nobody killed what’s-his-name for his fish business.’

  ‘Pio,’ Hardy said, hating his damned memory.

  ‘I should go strong-arm George, Graham’s brother. Shake him down. Find out where he was.’

  ‘And get fired?’

  ‘It doesn’t matter. If he did it…’

  Hardy reached across the table and touched her elbow. ‘Slow down. Slow down. Take a breath.’ He waited. ‘Listen, this is always the worst, after you’re committed and you don’t know how it’s going to go. You just got to believe you made the right
decision, that’s how it’s going to work.’

  ‘But I can’t just sit here! I can’t!’

  ‘Graham’s just sitting there.’

  This seemed to hit home. She took a breath, let it out heavily. ‘So? What then? I can’t believe we’ve got a righteous suspect with no alibi and nobody’s even-’

  ‘No, we don’t. Who’s that?’

  ‘George.’

  Hardy shook his head. ‘George is not any kind of suspect. He doesn’t need an alibi. Nobody saw him near Sal’s, ever. There’s no prints, no medical background, no real knowledge of his father’s situation, even. If he was going to kill Sal out of rage, he would have done it differently. If he knew he was going to die soon anyway, why would he do it at all? Besides, he wouldn’t let his brother go to prison for the rest of his life.’

  ‘I bet he would if it came down to either Graham or him.’

  Hardy pondered a moment. ‘Look, Sarah, it wasn’t Graham, right?’

  ‘Of course.’

  ‘He really didn’t do it? That’s what you think?’

  She stared at him. ‘You do?’

  ‘No, as a matter of fact, I don’t. He didn’t do it, so I’m going on the assumption that they can’t prove he did. That’s the system. I’ve got to believe in it.’ In fact, Hardy had serious doubts about the system, and supposed that Sarah did, too, but this wasn’t the time to air them. ‘Look,’ he said, ‘if it makes you feel better, use some police magic and see if you can find out where George went, get some hard evidence: maybe he used a credit card, made a phone call.’

  ‘I wish Abe-’

  Hardy shook his head, stopping her. ‘Abe’s got a suspect in custody. How is he going to justify continuing an investigation?’

  Sarah sighed. ‘I know,’ she said at last. ‘I know. It’s just so frustrating.’

  ‘And you’re on the list for tomorrow, right?’ Meaning the witness list – she would probably be called the next day. ‘You ought to get some sleep. It’ll look better with a little rest.’

  She sighed a last time and stood up. ‘Do you want me to go in and talk to Frannie?’

  ‘That’s all right,’ Hardy said. ‘We’ll work it out.’

  Frannie was asleep, lying on her side facing away from his half of the bed. Her breathing was neither regular nor heavy, but she was asleep.