"Forget it. Bond's prick enough to do that, then put the case on hold until the appeal is decided. Which would take months." Lenihan's voice became a monotone. "He knows damn well that Fasano's fast-tracked the Civil Justice Reform Act. And that Fasano's got a better chance of passing it if Bond keeps us under wraps."
This sounded right. Effectively, Gardner Bond had hijacked the case, correctly assuming that, in the need for haste brought on by Fasano's political maneuvers, there was nothing Sarah and Lenihan could do.
"Going forward," Sarah said at last, "we can only hope that Bond won't feel free to be as bad as he was today. A high-profile case can make or break a judge, and Mary Costello's sympathetic . . ."
"Not to him," Lenihan said with quiet fury. "If Bond wants the next Republican President to promote him, he has to tilt to the SSA. Without their support, he's over with."
"True," Sarah allowed. "But he has to screw us without looking like he's gone in the tank."
"Subtlety, Sarah, is not Bond's problem. He's as diabolical as Nolan." Lenihan seemed to brace himself. "I've dealt with fascists before. Like it or not, we've gotten a hearing in ten days' time, and this particular fascist is our judge. I just can't wait to see what he does next."
EIGHTEEN
Amidst the ornate trappings of the Old Senate Caucus Room, Lara Costello Kilcannon faced the Senate Commerce Committee.
Seated to her right was Mary Costello, looking overwhelmed and yet, Lara suspected, feeling resentful at her renewed dependence on her older sister. To her left sat Henry Serrano's widow, Felice. Behind them were Felice's son and daughters, the parents of Laura Blanchard, and Kara Johnson—the slight young woman who, by now, would have been the wife of David Walsh. The room was bright; angled toward them were the cameras which broadcast Lara's testimony on CNN, MSNBC and Fox. From a raised platform, seventeen senators peered down at them, aides hovering at their shoulders. As Chairman, Chad Palmer sat in the middle, with eight Republican senators to his right, eight Democrats to his left. Though she was tense, to Lara nothing was unfamiliar—not the hearings, any number of which she had covered for the New York Times; nor the necessity of speaking live and under pressure, a staple of her life in television news. The only new element was the outrage she felt.
For his part, Senator Palmer looked as though he wished to be elsewhere. He listened to her statement with grave courtesy, deferring to the senior Democrat, Frank Ayala of New Mexico. Senator Ayala's questions— pre-scripted with the White House—were designed to elicit sympathy without contention. Only when Senator Paul Harshman commenced asking questions did the atmosphere change.
Even now, Lara thought, it was difficult for Harshman to conceal how deeply he despised both Kilcannons. For the hard right wing, which Harshman embodied, they were a nontraditional marriage in a permissive society that had discarded the roles, and the rules, which had once made life in America so decent and predictable. After a perfunctory expression of sympathy, Harshman said, "As I recall, Mrs. Kilcannon, you're not a lawyer. So you're not claiming firsthand knowledge of the many excesses which the Civil Justice Reform Act seeks to correct."
Taking her time, Lara fixed Harshman's gaunt face and bald pate with a gaze as level as she forced her voice to be. "No, Senator. The 'excess' of which I have firsthand knowledge is this new language in the bill, which I understand you support, the effect of which is to destroy— retroactively—the right of those whose loved ones have been killed by guns to their day in court, a jury of their peers, and whatever protections state law now affords them . . ."
Harshman leaned forward. In a condescending tone, he interrupted, "As an attorney and a legislator, I cannot agree with your interpretation of this law . . ."
"Surely," Lara cut in, "you're not suggesting to Mrs. Serrano that your 'reform' doesn't eradicate her right to seek recovery from Lexington Arms. You're not saying that, are you, Senator Harshman? Unless you are, please let me finish . . ."
* * *
Watching CNN in his office, Fasano said to Gage, "I told Paul to let her go."
"That's the problem," Gage answered sardonically, "with having deeply held beliefs. But the real problem's Palmer."
Fasano shook his head. "What could he do? Stiff the First Lady of the United States? Or cross-examine her? We all know that the Kilcannons must be mixed up in Mary Costello's lawsuit. But all of us—even Paul, I hope—know that there'll be a better time and place to raise that."
Felice Serrano, Lara Costello continued, has a twelve-year-old son, two daughters aged seven and four, and the modest insurance policy which was all that she and her late husband could afford.
The grief they feel at Henry Serrano's death is terrible enough. But the loss of a husband and father blights their future in yet another respect—their financial security died with him. Now, Senator, you propose legislation which would kill their sole remaining hope of replacing the only thing which can be replaced: enough money to keep their home and secure the college education Henry Serrano never had, but was determined to provide them . . .
Some would say, Senator Harshman interjected, that John Bowden killed it when he killed their father.
That will surely be true, Senator, if you pass this legislation. Lara's gaze swept the other senators, and then returned to Harshman. You question my qualifications to speak to this issue. In one sense, my qualifications are no different than those of Felice Serrano, my sister Mary, the Blanchard family or Kara Johnson. None of us are lawyers. Our expertise is in grief and loss . . .
"Why does Harshman bother?" Fasano murmured. "Has he totally forgotten who she is?"
But I do have one other credential, Lara continued. In my former life as a reporter, I covered the Congress. And so, rather early in my career, I immersed myself in the phenomenon known as "special interest legislation."
This provision, to be plain, is a particularly squalid piece of special interest legislation, which revictimizes victims and insults the memory of those they loved.
"What you've just witnessed," Fasano told Macdonald Gage, "is the sound bite which heads the evening news. Paul Harshman's finest hour."
* * *
"In fairness to Palmer," Clayton told the President, "he handed her this moment. He could have tried to sneak this through without you knowing."
On the screen, Lara continued, If this Committee cares about their loss, and shares their grief, it will protect them from this injustice.
Kerry shrugged. "Chad chose to do Fasano's bidding, then tried to maintain his 'honor.' So now he's about to pay for both."
* * *
Propelled by her sense of outrage, Lara turned to Palmer.
"Accordingly, Senator Palmer, we request that before this committee votes on whether to send the bill to the full Senate, you hold a separate vote on whether it should immunize gun manufacturers from victims seeking justice.
"If you do, I cannot help but believe that this shameful provision will never reach the Senate floor."
From the platform, Palmer held her gaze. A month ago he had been in her wedding party. Now, in her imaginings, he felt too much shame to look away.
Beneath the table, Mary, who had danced with Chad at the wedding, touched her sister's hand.
* * *
"It's so tangled," Lara said to Kerry.
The time was close to midnight. Lara had stayed up late, listening to Mary's fears about the lawsuit, trying to ease the strain beneath the surface of their truce. Now Lara could not sleep.
"You and Mary?" Kerry asked.
"That. All of it, really. Facing Chad today, wondering why he's doing this, and how he could. Speaking for Felice Serrano, when I'm also speaking for you in a power struggle with Fasano. It's like our fam ily was murdered, and somehow Mary and I—and you and I—got sucked down the rabbit hole."
Lying beside her in the dark, Kerry pondered what to say. "A rabbit hole," he answered softly, "where we make up the rules as we go, and real becomes unreal. Until no one knows what's real any
more."
Lara was quiet. "Are we real?" she asked.
Kerry drew her closer. "I want to be. Again."
After a moment, to his surprise, she kissed him. The surprise was not in the kiss itself, but the nature of it, and what this told him without words.
Gently, for the first time since the murders, Kerry and Lara made love.
NINETEEN
On the morning of the hearing before Judge Gardner Bond, Sarah and Lenihan were greeted by reporters, satellite trucks, and angry demonstrators on both sides, yelling at each other across a pathway to the federal building maintained by two lines of uniformed police. United States Marshals guarded the door to Bond's courtroom, and the wooden benches overflowed with more reporters and partisans. But at least the starkly modern courtroom was quieter, its sounds muted by decorum and dissipated by the majestic ceilings which distinguished the Federal District Court. Perhaps, Sarah reflected, justice, like mercy, was best hoped for in airy spaces.
But her own hopes diminished within moments of Judge Bond's appearance on the bench. After curtly noting Lenihan and Sarah's presence, and that of John Nolan and Harrison Fancher, Bond said, "The Court will begin by denying plaintiff's motion for a preliminary injunction."
No discussion, Sarah thought bitterly. In a clipped, relentless cadence, Bond continued, "The next matter before the Court is defendants' motions to dismiss plaintiff's wrongful death, antitrust and public nuisance claims. We will take them each in turn, by defendant." Facing Nolan, he concluded, "Mr. Nolan, you have ten minutes to argue for the dismissal of Mary Costello's cause of action against Lexington Arms for the alleged wrongful deaths of her mother, sister and niece."
With that, Nolan stepped briskly to the podium. "Let me begin," he told Judge Bond, "by acknowledging two principles.
"First, on a motion to dismiss, this Court must assume that the facts alleged by Mary Costello are true. Second, if the facts alleged—even if true—do not state a cause of action under California law, which this Court must still apply, it must dismiss Miss Costello's claims for wrongful death."
Hands flat on the podium, Nolan paused, his voice resonant, his gaze up at Bond respectful but serene. "This case," he continued, "began with a monstrous rampage in which John Bowden wounded the survivors beyond all hope of recompense. In our hearts, we hope for some way of healing what so many of us found very close to unbearable. But the law acknowledges what reason tells us—that the terrible scene at San Francisco International was the work of a single demented mind."
It was an elegant beginning, Sarah thought, Nolan at his most statesmanlike. Stone-faced, Lenihan began scribbling notes for his refutation.
"Reason," Nolan said abruptly, "also tells us a harsher truth: that this lawsuit is nothing more than a publicity stunt—brought contrary to settled law—in the service of power politics . . ."
"Mr. Nolan," Bond admonished in his patrician manner, "leave the 'power politics' to politicians. It's the 'contrary to settled law' which is the business of this Court."
"Of course, Your Honor." Unfazed, Nolan continued as though the mild rebuke had been instructive, even agreeable. "Plaintiff asks this Court to hold the maker of a legal firearm liable for its criminal misuse by a murderer it never heard of, and whose actions were beyond its control. That, we submit, is not—and cannot be—the law.
"On this point, Congress has spoken. Guns are a legal product. The sale of a Patriot-2 and Eagle's Claw bullets in Nevada—if that's what happened here—is perfectly legal. And even if John Bowden purchased his P-2 at a gun show—a guess which we must, for the moment, accept as truth—not even plaintiff's highly creative counsel can allege that Lexington had anything to do with that.
"Your Honor, we don't punish the maker of Ferraris because some driver breaks the speed limit. We don't sue the distiller of a single-malt Scotch because the driver was inebriated. California law recognizes that responsibility resides in the individual: in the reckless driver, the alcoholic—and in John Bowden, the murderer . . ."
"And your authority?" Bond inquired.
The hearing had begun to resemble a minuet, Sarah observed, in which both partners, Bond and Nolan, executed their steps with precision. "Richards versus Stanley," Nolan responded promptly, "held that the owner of a stolen car is not liable for the reckless driving of a car thief, even though he carelessly left the keys in the ignition. That core principle is still the case."
Bond held up a hand. "The difference, Mr. Nolan, is this so-called 'inflammatory advertising.' According to plaintiff 's complaint, Lexington's ad in the SSA magazine was a positive incentive to purchase and misuse by the demented."
"Damn right," Lenihan murmured. At the podium, Nolan gathered himself. "All that we really know, Your Honor, is that Bowden had the SSA magazine. We don't know—and I expect will never know—why or where or even when he bought it, who sold it to him or even what he was doing in Las Vegas. Without such proof, plaintiff has no case."
"That may well prove right," Bond interrupted. "And plaintiff's complaint may well be based on speculation . . ."
"Sure," Lenihan whispered to Sarah, "Bowden picked up The Defender, then flew off to play the slot machines . . ."
"But," Bond continued, after a brief, sharp glance at Lenihan, "at this point, as you conceded, this Court must accept plaintiff 's allegations that the advertisement led to Mr. Bowden's purchase. Given that, couldn't Lexington foresee that its ad copy might enhance the prospects of criminal misuse?"
Nolan spread his arms in an elegant shrug. "Certainly," he said in the same placid tone, "it may be possible for a manufacturer to foresee— or at least imagine—that at an unknown place, at an unknown time, some unknown person may perpetrate a tragedy. But foreseeability is merely one element of an action for wrongful death. The most essential element is causation—that Lexington caused this man to kill these victims.
"Lexington did not tell him, let alone cause him, to murder Mary Costello's family—any more than it caused him to abuse his wife or hate the President and First Lady for their apparent, though insufficient, acts of intervention on his wife's behalf."
This, Sarah thought, was artful: the first suggestion, stated as an afterthought, that Mary Costello's lawsuit was designed to expiate the Kilcannons for their own neglect. "This lawsuit," Nolan continued, "is legislation by litigation. Because the plaintiff dislikes the gun laws as written by the Congress, she asks this Court to invent some. But it is the role of this Court to interpret existing laws, not make up new ones. That job belongs to the House and Senate . . ."
And Fasano and the SSA, Sarah thought, were working overtime on that. But Bond appeared content. With a brisk nod, he told Nolan, "I understand your argument, Mr. Nolan," and then turned to Lenihan and Sarah. "Who will speak for the plaintiff?"
* * *
"A Ferrari," Robert Lenihan opened bluntly, "is not a killing machine. Nor is a bottle of Scotch. But load up a Lexington P-2 with forty Eagle's Claw bullets, and that's exactly what you have—a weapon whose only use is to shoot a lot of people quickly, at very short range, with the maximum assurance that all of them will die."
In style, Sarah thought, Lenihan could not be more different than John Nolan—staccato, impassioned, contemptuous of legal niceties. Immediately, Bond shot back, "Mr. Nolan's point is that under California law, Lexington Arms—like the makers of a Ferrari or Glenfiddich Scotch—cannot be liable if their product is not defective."
"On that point," Lenihan said with scorn, "I can't agree more with Mr. Nolan. John Bowden's P-2 was certainly not defective. It worked exactly as advertised.
"What else is the P-2 good for but killing humans? Not for hunting deer, unless the deer approaches you—after which there wouldn't be enough left of him to hang up on the wall. And the Eagle's Claw bullet? That was good for only one thing: ensuring that Marie Bowden did not outlive her family.
"That's why it was designed to become the six deadly knife points which shredded Marie's vena cava. That's why the
P-2 was designed to accommodate forty such bullets. And that, Your Honor, is the manner in which Lexington chose to market them."
Already, Sarah understood why Robert Lenihan excelled with juries. But it was far from clear that Gardner Bond would let this case reach a jury. In contrast to his demeanor with Nolan, Bond scrutinized Lenihan with the clinical disdain of a pathologist examining a cancer through a microscope. "Not foreseeable?" Lenihan asked rhetorically. "What Lexington's defense comes down to is this: 'We may be marketing to murderers and criminals, but we didn't cause these murders because we didn't know this murderer by name . . .' "
"What about the Richards case?" Bond snapped.
"Irrelevant. There's no profit in leaving keys in an unlocked car. Lexington profited by marketing death to people like John Bowden . . ."
Balance of Power Page 35
