The Mercy Rule

by John Lescroart

  ‘You son of a-’

  ‘Look, Diz.’ This was Drysdale, serious now, cutting Hardy off before he talked himself into a contempt fine. ‘Technical inadmissibility aside, your tapes are supposed to cover three working days, right? Twenty-four hours.’

  ‘We all know this,’ Hardy said.

  ‘Except they’re only a little over twenty-two and a half hours long. There’s an hour and a half missing.’

  Hardy well remembered his day of fast-forwarding the videos to the good parts. Evidently Soma hadn’t let his own boredom make him sloppy.

  Drysdale went on. ‘This guy Gonzalez not only erased the originals. He couldn’t have given you full copies.’ He turned to Salter. ‘There’s no foundation, Judge, and more to the point, these tapes don’t prove a thing.’ Drysdale didn’t have the gloating tone, but the words alone were enough.

  Unnoticed by Hardy, Freeman had pulled himself out of his chair. Hardy felt a hand on his shoulder, reassuring.

  Salter had heard enough. The tapes were inadmissible.

  Gil Soma started on each witness with an enthusiasm that Hardy found daunting, especially so after the defeat he’d just suffered in chambers. No videotapes! After all of his effort to procure them. What a fool he was.

  Now, on Thursday afternoon, Soma was approaching the end of his case in chief. From his self-confident demeanor it was clear that he barely, if at all, felt any of the wounds that Hardy had inflicted.

  Alison Li started out as nervous as she’d been at the bank on the day Hardy had first interviewed her. Soma was gentle with her, leading her through the standard witness questions – name, place of business, and so on – gradually getting to the meat. ‘Ms Li, do you recognize the defendant here’ – pointing – ‘Graham Russo?’

  ‘Yes, I do. He’s a customer at the bank where I work.’

  Pleased out of all proportion, Soma slowly walked back to his table and picked up a piece of paper, and entered it into evidence. ‘Now, Ms Li, I’d like you to look at People’s Fourteen here and tell us if you recognize this document.’

  She took the paper and scanned it quickly. ‘Yes, this is a sign-in form for customers holding safe-deposit boxes.’

  ‘And did you see Graham Russo, the defendant, sign this document?’

  ‘Yes, I did.’

  Now Soma put his enthusiasm to good use. ‘Ms Li, aren’t customers supposed to sign in and date this form?’

  ‘Yes.’

  ‘But, as we see here, Mr Russo didn’t do that, did he?’

  ‘No.’

  ‘Did you ask him to do it?’

  ‘Yes.’

  ‘And yet he didn’t?’

  Hardy wanted to break up the rhythm, so he stood up. ‘Asked and answered, Your Honor.’

  Perhaps Salter was sympathetic to Hardy’s despair. This wasn’t much of an objection. Still, the judge nodded. ‘True enough. Sustained. Move along, Mr Soma.’

  But Soma had a knack for the small and telling variation. ‘Did the defendant give a reason why he wouldn’t put the date on this form?’

  ‘No. I didn’t notice. He said he would and I thought he did, but he didn’t.’

  And so it went.

  By the time Hardy stood to begin his cross-examination, Alison Li had drawn the picture clearly. Graham Russo had come in sometime that Friday afternoon and deposited something in his safe deposit box. He appeared nervous. He was in a hurry.

  They thought they’d have the videotapes to fall back upon, and without them Hardy was forced to bring David Freeman’s argument into play. The defense team had prepared extensively for it, and Hardy was possessed of a near ethereal, desperate calm as he walked to the center of the courtroom.

  He brought a smile forth and showed it to the witness. ‘Ms Li. You have testified that Graham Russo brought a briefcase with him on the afternoon in question. At any time, did you see the contents of the briefcase?’

  Alison’s nerves were back in play. She shifted in her chair, looked at the jury, then at Soma, finally back to Hardy. ‘I never said I did.’

  ‘I didn’t say you did either.’ Hardy kept any threat out of his voice. They were having a conversation, that was all. ‘But I am asking you now. Did you see what was in the briefcase?’

  ‘No.’

  ‘Not at any time?’

  ‘No, never.’

  ‘So you don’t know what was in the briefcase, or in fact if anything was in the briefcase, isn’t that true?’

  Hardy took the moment to get a read on the jury. Obvious as this question was, it did what Freeman had predicted: poked a hole into one of the prosecution’s main assumptions, its scenario of the day of Sal’s death. He saw several members of the jury sit up, digesting this.

  Alison Li nodded her head and told him that yes, it was true. She didn’t know what was in the briefcase.

  Hardy was making the point that Graham had not necessarily taken the money and baseball cards from Sal’s apartment and essentially hidden them in his safe deposit box. There was no proof that Graham had deposited the money or anything else within months of Sal’s death.

  In fact, Hardy believed Graham’s version completely, he had had the money and the baseball cards in the briefcase, and he’d put them into his safe deposit box on Thursday. But the truth here did not serve the ends of justice – Hardy was beginning to wonder if it ever would in this case – so he jettisoned the truth without a backward glance.

  Hardy continued. He was going to nail this down. ‘Did you, personally, Ms Li, ever get a chance to see the contents of Graham Russo’s safe deposit box?’

  ‘No. Customers generally go into a private room.’

  ‘So to your own personal knowledge, do you know how long the baseball cards and money were in Mr Russo’s box?’

  This slowed her to a stop. Her mouth opened and closed a couple of times and she looked at the jury as though asking for help. ‘I don’t know.’

  ‘Could it have been weeks?’

  ‘Yes, possibly.’

  ‘Months?’

  ‘I don’t think so.’

  Hardy had gotten what he wanted. To the jury, he’d gotten to reasonable doubt about whether Graham had killed Sal and then taken the money and run it to the bank to hide it.

  His own confidence was beginning to come back, and he still had another point to make. ‘Do you remember talking to me at your bank last May sometime?’

  At this line of questioning Alison’s eyes took on a defiant glow. ‘Of course.’

  ‘And during our discussion, didn’t you tell me you thought that Graham Russo had come in to make his deposit on Thursday?’

  ‘No. I said I wasn’t sure. I thought it might be Thursday or Friday.’

  Hardy tried again. This was either an outright lie or a faulty memory. ‘You don’t remember telling me it was Thursday?’

  ‘No.’

  He took a breath, pausing. ‘All right, Ms Li, so you say it was Friday that Graham came in, is that right?’

  ‘Yes. It was Friday.’ Evidently she’d spent enough time repeating it to the police that she’d come to believe it.

  ‘Do you remember that clearly?’

  ‘Yes.’

  ‘All right, then, Ms Li, since you remember it so clearly, perhaps you can remember what time it was on Friday. Can you tell us that?’

  She thought a couple of seconds. ‘It was the afternoon.’

  ‘The late afternoon? Early afternoon? When?’

  He didn’t much like to do it, but she was defensive and still defiant and he could play that against her. She was starting to snap her answers out at him. ‘Later.’

  ‘After three? After four?’

  ‘It seemed like it was near the end of the day.’

  That’s because it was, Hardy thought. But it was Thursday, not Friday. He had her. The jury would know that Graham had been working on Friday afternoon.

  ‘You’re sure it was near the end of the day?’

  ‘I just said that. Yes, I’m sure.�
�

  ‘After three?’

  ‘Definitely, at least.’

  ‘After four?’

  ‘It seemed like it. Maybe. Yes.’

  ‘On Friday, was it?’

  She almost screamed in her anger. ‘Yes, on Friday. That’s what I said, didn’t I?’

  Hardy smiled at her now, a genuine smile. ‘Yes, you did, Ms Li. Friday, late in the afternoon. After four. Thank you, no further questions.’

  Salter nodded, pointed to the prosecution table, whose inhabitants looked a little glum, asked for redirect.

  Soma stood up. ‘No redirect for this witness.’ He leaned over and conferred a moment with Drysdale. ‘The prosecution rests, Your Honor.’

  Hardy had shown them. His adrenaline had kicked in after losing his videotapes, and he’d turned it on them. He dared half a grin at Soma, flashing on a sign he’d seen affixed to a motorcycle outside a bar someplace: This Harley belongs to a Hell’s Angel. Fuck with it and find out.

  ‘That was pretty sweet,’ Graham was saying. They had adjourned for the day and had gathered in the holding cell. ‘Friday I was at work after three. I can prove it. You got her.’

  ‘I think I did,’ Hardy agreed.

  ‘Not that it matters,’ Freeman grunted. He had boosted himself up onto the table and was swinging his feet.

  ‘Yoda unhappy,’ Graham said. ‘Yoda sad.’

  ‘I’m not unhappy. It was a good show, but I’m saying it doesn’t matter. If I were Soma – no, I don’t want to be Soma – if I were Drysdale, I would simply amend my story. It’s not too late if the jury’s leaning toward him anyway.’

  ‘To what?’ Hardy asked.

  ‘Oh, I don’t know, pick one. How’s this? Graham has the combination to the safe and, thinking Sal never even looks in it anymore, he waits till his dad’s out of the room and takes the money – it doesn’t matter when – and puts it in his own box at the bank. So on May ninth Sal happens to check the safe and sees it’s gone. That’s why he makes the two calls to Graham that morning. That’s why Graham rushes over. That’s why he has to kill him.’

  Hardy had had little enough to celebrate this week. He didn’t need to get his parade rained upon right now. ‘There’s no proof of any of that.’

  Freeman twinkled. ‘Exactly right. My point. There’s no proof of anything. There is no physical evidence. Soma’s just drawing you both into a pissing contest. Don’t go there. You don’t need it.’

  Graham let out a deep sigh. ‘I just enjoyed watching Mr Hardy here kicking a little butt.’

  ‘Don’t get me wrong. Nobody likes fireworks as much as I do, Graham, but that’s not what it’s about. It’s about evidence. Keep focused on that. Diz, you’ve got to write your eleven eighteen. Get it to Salter tonight, argue it tomorrow morning.’

  Freeman was referring to a motion routinely made by defense counsel after the prosecution has rested, under Section 1118.1 of, the California Penal Code. It is nearly always rejected by the trial judge. The motion – called a directed verdict of acquittal – asks the judge to dismiss all charges against the defendant on the grounds that the prosecution has failed to provide probative evidence sufficient to justify a guilty verdict.

  Hardy had considered it, of course, but it seemed a waste of time in this case. He turned to his old partner. ‘It’s not worth it, David. Salter’s going to turn me down anyway. He couldn’t direct a verdict, not with all the big guns out.’

  Freeman nodded. ‘He sure could. I don’t think he will, either, but stranger things have happened.’

  ‘When?’ Graham asked, joking.

  Freeman slid off the table. ‘We can’t get complacent. To quote the great Yogi Berra, it’s not over till it’s over, and sometimes not even then.’

  ‘That wasn’t Berra who said that, was it?’ Graham asked.

  ‘The first part, I think. Wasn’t it Berra?’

  Hardy picked up his briefcase. ‘You titans work on that one. I’m going to write the damn motion.’

  It was after five o’clock on a Thursday night and he came up through the main office, past the reception desk where Phyllis, answering telephones, ignored him. He looked in at the Solarium, hoping to see someone, but all of the associates were in their cubicles, working.

  Or maybe avoiding him. They’d have heard about Michelle’s coup, or his idiocy, and in his mind they pitied him or had decided he was a terminal loser. Either way, no one stepped out and greeted him and he trudged up the stairway to his office, carrying the briefcase that, from the feel of it, was where he kept his barbells.

  Dust had settled heavily over every smooth surface. The window hadn’t been opened in a week. He turned on the desk light – a green-shaded relic from the days when what was now Rebecca’s room had been his office at home – then turned around and threw up the sash. From Sutler Street wafted the smells of diesel and coffee and, more subtly, patchouli and crab. The city.

  The letter from Michelle was centered in the middle of his desk. Sitting in his chair, he opened the envelope and gave it a once-over. No new news. He got halfway through his second pass on it before balling and throwing it toward the wastebasket. It missed.

  Running his palm over the wide expanse of his desk, he cleared away a path of dust, then put his feet up.

  He had no idea how much time went by. He wasn’t thinking in the sense of having discrete thoughts. Nor was he relaxing, not precisely. He was on ‘charge,’ listening or feeling for something that…

  He wasn’t sure.

  Maybe just letting the mass of facts settle: the stratagems, issues, distractions. Something, the weight of all of it, had simply stopped him. Was he missing something?

  Of course, you always did. He couldn’t see the killer of Sal Russo, and someday he would need that. This he knew on a level beyond reason – he was kidding himself if he denied it.

  He would need the closure.

  Even if it didn’t help Graham’s verdict, and in spite of the mass of detail he had internalized, he knew he needed more facts. And worse, some sense told him he already had access to what he needed to know; he just didn’t recognize it.

  So he shut down, the cogs locked. He wouldn’t be able to move until one of them shifted slightly.

  It had gotten measurably darker and he hadn’t noticed. He spun his chair so he could see out the window. Above the street, through the canyons of the buildings, the sky burned a dark turquoise. The line of traffic below had disappeared.

  His green banker’s lamp threw a pool of light onto his desk, the only light in the room. He stood and walked around to the dartboard, pulled the three darts, and began throwing in the semidarkness.

  Sarah always prided herself on being far too tough to cry, but the past two days – since she’d told the world she believed in Graham – she’d felt like it often enough.

  It wasn’t just her partner. She’d worked hard for some grudging acceptance among the men in the detail and thought she’d made inroads. Now all of that had vanished.

  After ‘The “Yes” Heard Round the City,’ as Jeff Elliot had called it in ‘CityTalk,’ Sarah got called into Glitsky’s office. He appeared to listen to everything she had to say, though it ran counter to the company line.

  She told him she’d come to the conclusion that while Sal had been murdered, it hadn’t been his son who’d done it. She admitted that she had talked to him personally – the softball connection, the Time magazine moment in his apartment – and thought she had some sense of who he was.

  All of Graham’s lies, she explained, misguided as they might have been, were reducible to one impulse and then, as lies will, they’d had to multiply to cover each other. He hadn’t killed Sal. Somebody else had.

  Glitsky had sat back slumped, elbows resting on the arms of his chair. He spoke so quietly, she could barely hear him. ‘If this turns personal, Sergeant, or is personal, and anybody finds out, you realize you screw your partner, me, the whole department. You know that?’

  Sarah had felt
sick. Glitsky knew. She was dead meat. But he didn’t go that way. Instead, he drew a deep breath and sat himself up. ‘Okay, you want to find your killer?’

  If she did, he’d turn her loose on it.

  Glitsky had approved hours for Sarah on the Russo case, though they would be billed to administration. Now at least she was getting paid for what she’d been doing anyway.

  But her lieutenant had severely restricted her movements. Glitsky wasn’t about to get his rear end put in a wringer by Dean Powell’s troops if word got out that now, with the trial almost concluded, the police were checking witnesses, maybe looking for another suspect.

  She started with George Russo. When she’d first revealed herself to Hardy and begun helping him, she’d gone to George’s Bush Street Victorian half a dozen times, on random nights. George, she’d concluded, had no life. It might be that he was genetically wired for rage at his natural father. He could have rushed out at lunch one day and killed Sal over the imagined slight to the honor or peace of mind of his mother. That, Sarah thought, was in the realm of the possible.

  But whatever else might be going on, George kept his nose clean. He was the heir apparent to a banking empire, and his role transcribed his life. He did not party with anyone outside of his ordered little universe. Stalking him, she was convinced, was a waste of time, and she’d stopped.

  But tonight, with nothing else substantive to pursue, she was going to try again. Marcel had been only too happy to dump her off early at the Hall, and she’d taken her own car up to Baywest Bank on Market Street and waited.

  As always, George was a dream to tail. He was big and dressed handsomely. In spite of the relative warmth of these September evenings, he sported what she thought was an enormously affected homburg over a cashmere overcoat.

  At a little after six he had left the bank on foot. Hands in pockets, he’d strolled purposefully a few blocks, never slowing or looking behind him, through the Tenderloin district – pimps and whores and derelicts. She wondered about the route – this wasn’t George’s turf by any stretch – but the question resolved itself when he turned into a small, expensive French restaurant on Polk, where he sat in the window and ate his dinner, alone.