The Mercy Rule

by John Lescroart

  ‘Also the patron saint of murderers, if I’m not mistaken?’ Hardy nodded. ‘You’re not, although Graham Russo’s not been convicted.’

  ‘No, of course not. I didn’t mean to imply that.’ ‘And, perhaps more to the point, I’m no saint.’

  A wider smile. ‘Then we ought to get along just fine. I’m not much of a saint either. Cup of coffee? Would you like to sit down?’

  Hardy said that coffee would be fine and chose the seating arrangement closest to the fireplace, with its space heater turned up. ‘I know,’ Giotti said, ‘these enormous rooms. You can’t heat them. With all these fireplaces – all of us judges have them, you know – and in this entire building only one of them is functional.’

  ‘How did you decide among you who got it?’

  ‘The same way we decide anything. Seniority.’

  Hardy clucked. ‘And we’re always hearing how federal judges get anything they want.’

  ‘We get eighteen percent more than average mortals, but that’s the limit.’

  ‘Another illusion shattered.’

  ‘May it rest in peace,’ Giotti intoned as the door opened and the secretary brought in a coffee service. After she’d gone, the judge sipped and sat back, balancing his cup and saucer on his knee. After making sure Hardy was comfortable, he moved along.

  ‘You want to know about the fire at the Grotto? I’d be curious to know how it even came up.’

  Hardy explained the admittedly tenuous connection. Out loud, it sounded lame.

  ‘You’re saying Sal had a great deal of cash…’

  ‘Fifty thousand dollars,’ Hardy said.

  Giotti waved that off; the exact figure didn’t matter to him. ‘All of it bank-wrapped and dated, so you went through the Chronicle’s archives and ran across the Grotto fire five months before that date?’

  ‘Yes, Your Honor, that’s what I did.’

  ‘And you surmise that there’s a connection of some kind between these two elements?’

  ‘I don’t know,’ Hardy said. ‘This is the third time your name has appeared in this case.’

  ‘The third?’

  A nod. ‘You found Sal, then the bomb scare earlier that same day, the day he was killed-’

  ‘How did my name appear there?’

  ‘Not your name precisely, Your Honor. Some connection to the courthouse here.’

  ‘But then back to my name, my father’s name in any event, with the Grotto fire?’

  Hardy could understand it if Giotti grew impatient with this, although he didn’t show any sign of it. He sipped his coffee again, a benign expression on his face, waiting for Hardy to tie together at least some part of these strings.

  Which he couldn’t do. Spreading his palms, he smiled sheepishly. ‘I don’t even know what I came to ask, specifically,’ he said. ‘There seemed to be some… some…’

  ‘Connection?’

  ‘Yes. I suppose so.’

  ‘To what?’

  ‘I don’t know.’ Hardy carefully placed his cup into his saucer, feeling very much a fool. ‘I’m sorry, Your Honor. I’m wasting your time. Quite often I actually think before I roll into gear. Evidently this wasn’t one of those times.’

  Giotti didn’t seem to mind. He gestured expansively. ‘Don’t feel like you have to leave, Mr Hardy. This might not be a waste of anyone’s time. I’m curious as to how you plan to approach the overriding legal issue in the case.’

  ‘Assisted suicide?’

  The judge nodded. ‘You know that here in the Ninth Circuit we expect to be in a bit of a war with the Supreme Court over this whole right-to-die question? It’s not unlike what seems to be going on between Sharron Pratt and Dean Powell.’ He leaned forward, placing bis cup and saucer on the coffee table. ‘We’ve already come down in Glucksberg on the side of the angels, but we’re going to be overturned. At least that’s my prediction. It’s my hope the Court doesn’t compel a blanket prohibition by the states, but they might.’

  ‘On assisted suicide, you mean?’

  ‘Yes.’

  Hardy was extremely surprised – stunned even – that a federal judge would discuss such an issue with someone who might someday appear in his court as a litigant. He took his time framing an appropriate response. ‘Are you among the judges in favor of it?’

  Giotti smiled in a weary way. ‘Let’s say I’m against prohibiting it for terminal patients. In legal terms, and Casey agrees with me, it’s a liberty interest issue, -not too dissimilar to abortion. Provided, of course, you’ve got cruise control.’

  ‘Cruise control?’ Suddenly they were talking about cars?

  Giotti laughed. ‘Sorry. Jargon. Acronyms. CRUIS – competent, rational, uncoerced, informed, stable. You got a terminal patient on cruise control, he’s got the right to take his life.’

  Hardy ran through the litany and a question rose. ‘Did Sal Russo fit your definition?’

  ‘I think so, when he formed the original intent. Recently, no, I’d say not.’

  ‘So you knew him pretty well?’

  ‘Both for a long time and pretty well, and those are not the same things at all.’ Giotti sat back and crossed his legs, comfortable. ‘I talked with him at least twice a month, sometimes more often’ – he pointed vaguely – ‘out there in the alley. Once in a while in his apartment.’

  ‘Selling fish?’

  Giotti nodded. ‘That’s what he did. He was a great guy. Did you know him?’

  ‘I met him a few times.’

  Hardy wasn’t sure where to take this. Giotti seemed to want to talk, perhaps reminisce, although it could be he was simply taking his lunch break and enjoyed talking to somebody. Hardy thought that his daily life here must be fairly isolated, proscribed. ‘I know Graham a lot better.’

  This brought a frown, quickly suppressed. ‘Yes,’ the judge said, ‘I suppose you do. He’s not the most popular man in this building.’

  Hardy smiled. ‘I’d heard some rumor like that.’

  ‘You don’t walk away from a clerkship. I don’t think it’s ever been done. It raised some hackles.’

  ‘Yours?’

  Giotti considered this. ‘To be honest with you, yes. I had a lot of hopes for him. Through Sal. You know what I’m saying? Your friend’s kids? You hate to see a terrible cycle repeating itself. I didn’t want to see Graham turn out the way Sal had.’

  ‘Although he was your friend – Sal, I mean?’

  ‘Well, not like when we were younger.’ Giotti let out a deep sigh. ‘Sal failed. In life. I’d hate to see that happen with Graham, though that’s the way it looks like it’s going.’

  ‘So what happened with Sal? He wasn’t always a failure, was he?’

  ‘No. When he married Helen… have you met Helen?’

  Hardy nodded.

  ‘Gorgeous woman, wouldn’t you agree? Well, that needs no discussion. When Sal married her, the whole town envied him. He was a gifted athlete, had this wonderful personality, ran his own business, had three beautiful kids…’

  ‘So what happened?’

  ‘I don’t know. Maybe he was living a lie, doing some high-wire act and pretending he could keep his balance until something gave him a good knock and he went over. On the other hand, Helen married Leland pretty quick – she might have cut his heart out. He disappeared for a few years. After he came back, he wasn’t ever the same. He was beaten.’

  With no idea what possessed him, Hardy played a hunch. ‘And you helped set him up as Salmon Sal?’

  Giotti shifted in his chair. His eyes sharpened. Then he broke a grin. ‘Say what you will about lawyers, I love how their minds work. Yes, well, Sal was my friend. I felt sorry for what had happened to him. Although set up is perhaps a little too strong. Perhaps people were more willing to know Sal because I did.’

  ‘And he never talked to you about the money?’

  A cock of the head. ‘What money?’

  ‘Remember? He had fifty thousand dollars, so he didn’t have to work. He had all this ca
sh.’

  ‘How do you know he had it back then? I know it’s dated back then, but that doesn’t mean it was in his possession.’

  ‘You know, that’s a good point.’ Suddenly.

  The bills had been wrapped and dated, but that said nothing about their history over the past seventeen years. In fact, maybe this was the money that Sarah Evans had suspected Sal had been delivering for one of her gamblers. Would Graham know anything about that? Did he suspect as much himself? Hardy would have to ask him.

  And then, the horrible thought: Graham’s retainer money. Where had that come from?

  Meanwhile, he felt the judge’s eyes on him, was pulled back by a comment. ‘He was very sick by the end, you know. In a lot of pain.’

  ‘But no longer, as you say, on cruise control?’

  ‘That’s true. The Alzheimer’s was getting pretty severe. You couldn’t miss it. He couldn’t make his own decisions.’

  ‘But you say that sometime earlier he might have told Graham he wanted to die, to take his own life when it got bad enough?’

  The judge ventured another smile. ‘Did I say that?’

  ‘I’m his attorney. It might help to know if he did.’

  ‘So you are going with assisted suicide.’

  ‘We’ve already pled. Not guilty to murder one.’

  Giotti blew out heavily. ‘Murder one is ridiculous.’

  A grim smile. ‘That’s my position too. I hope the jury agrees with us.’

  ‘Get it in front of them and it can’t fail. Not in this town. Not that I should comment on this at all.’

  ‘I don’t hear any comment,’ Hardy said, making explicit their understanding. ‘But I’ve got a problem with Graham, who won’t admit to being there.’ He didn’t want to mention his other problem, that he was fairly certain Graham had not helped his father die at all, that he was telling the truth on that score.

  ‘He was there,’ Giotti said simply.

  ‘That day? You know that?’

  But Giotti backed away from that. ‘I can’t say that day for sure, but he came all the time. Sal told me he saw him a couple of times a week.’

  ‘Graham says this wasn’t one of the days.’

  ‘Have him change his mind and he’ll walk.’ Meaning he wouldn’t be convicted.

  Hardy leaned forward, elbows on his knees. ‘He won’t admit anything, Judge. He is one stubborn fellow. He thinks they’ll pull his bar card.’

  Giotti considered that a moment. ‘All right. So you admit it for him.’ Now the judge, too, leaned over the coffee table and lowered his voice. ‘It wouldn’t be Graham’s fault – there’d be no ethical problem with the bar – if the jury came back with “not guilty”; just bought assisted suicide and let him go. Graham himself would never have to admit anything. The bar couldn’t yank his card if it was his attorney’s argument, not his own testimony. All you’ve got to do, Mr Hardy, is keep him off the stand.’

  This was, suddenly, as strange a conversation as Hardy could ever remember having: a federal judge counseling him on his defense. And it was a strategy, he realized, that had every hope of success, not too dissimilar to Leland Taylor’s suggestion of the day before. If only he could convince his client.

  ‘That might work, Judge.’

  ‘If it doesn’t, and again I am not commenting directly here’ – Giotti waited and Hardy nodded his assent – ‘at least then you’ve based your case on the constitutional issue, and I can assure you with reasonable confidence that this circuit would tend to look favorably on any appeal.’

  The moment froze, Hardy struck with an almost surreal awareness. The white light out the window. The space heater suddenly clicking off. A portrait of some Native American chieftain on the opposite wall. If he’d heard it right, Mario Giotti had just told him that if Hardy lost Graham’s case, the judge would see to it that the conviction was overturned on appeal.

  He didn’t dare ask if he’d heard it right. He had. Any more direct confirmation would be collusive – downright indictable. Nodding like a puppet, setting the frame in his mind, he stood up. ‘Well, Your Honor, I want to thank you. It was very nice to meet you.’

  ‘My pleasure,’ the judge said. ‘It’s not every day I get any personal time. I appreciate it.’

  They were moving to the door when Hardy stopped. ‘Can I ask you one more thing? Very fast.’

  Giotti trotted out his smile again. ‘You can ask it slow if you want. What is it?’

  ‘You said Sal was unable to make a decision at the end.’

  The judge corrected him. ‘An informed decision.’

  ‘And this was obvious to anybody who did any business with him?’

  ‘Maybe not. But certainly to anyone who had known him.’

  Hardy frowned. The judge asked him what he was getting at. ‘I’m trying to get a picture of the last moments. If he was lucid one second, had made this decision, then in the middle of it changed his mind, that could account for the trauma they found around the injection site.’

  The judge’s eyes went to the corner of the room, the filigreed redwood moldings hugging the distressed drywall. Lips pursed, his eyes went dull for a long beat. ‘He knew it was getting toward the time. He used to tell his bad Alzheimer’s jokes, you know? Then lately he’d stopped doing that, which I took as a sign that he was getting serious about it.’

  ‘But suddenly this tumor was going to end things quickly.’

  Giotti waited. ‘And?’

  ‘And so he wasn’t facing the same thing. Instead of a long, slow advance into dementia where he’d lose his dignity, his new reality was about dealing with pain.’

  ‘Okay?’

  ‘Which from all I’ve heard about him, he was macho as hell. I’m just trying to get to his state of mind. He wasn’t going to let pain beat him, even great pain.’

  Giotti took that in. ‘That flies,’ he said. ‘I remember one time we were out on the Bonus. We’d just landed a salmon and he slipped on the deck and the gaff went through the palm of his hand, all the way through.’

  ‘Yow!’

  ‘No kidding. Sal gave one good yell, then just twisted the gaff back out and wrapped his hand in an old T-shirt. Didn’t even head the boat back in. We fished the whole day and he never mentioned it again.’

  That’s what I mean,‘ Hardy said. ’I don’t see him deciding to die over the pain.‘

  ‘Maybe the combination,’ the judge replied. ‘That and the Alzheimer’s. Whatever it was, something clearly got to him. It must have, don’t you think?’

  ‘Must have,’ Hardy said. ‘It must have.’

  24

  ‘He says it’s an emergency.’ Phyllis’s clipped tones came over the speakerphone, filling his office. Hardy was huddled with Michelle, catching up on the ever-fascinating world of stress tolerance in various metals. It was Wednesday afternoon, almost evening, certainly after five -at any rate, way too late for what he still had to do.

  He hadn’t even been to see Graham, who’d no doubt been languishing in his AdSeg unit all day, wondering what, if anything, his lawyer was up to. And he’d been working on Russo all day – after Giotti, over to the Hall for more discovery, a look at the actual evidence. The materials from the safe: the money, baseball cards, old belt. Then the syringes and vials with their labels stripped off.

  He had a less-than-amiable chat with Claude Clark in the hallway, when Hardy had stopped him, honestly trying to help, perhaps to make amends about the blown deal with Pratt. He told Clark that Barbara Brandt was a liar. Not true, Clark had countered, and even if it were, Hardy made deals he couldn’t keep. Clark would take a liar anytime – at least you knew where you stood.

  He really ought to go stop in and see Graham, but it was three-thirty before he gave up waiting for another opportunity to apologize to Glitsky and began to brave the abysmal traffic back uptown to Sutler. He had had a two o’clock with Michelle which he’d rescheduled to three and then four, and he was going to be late for that too.

 
Even if someone hadn’t parked in his space under his own building.

  Staring at the unfamiliar car in the spot for which he paid a fortune each month, he marveled anew that anyone could oppose capital punishment. Surely, stealing someone’s parking place was a death-penalty affront to civilization.

  Just to add a certain je ne sais quoi of tension to the equation, he had a date with Frannie in less than two hours and at least another hour here with Michelle, so he’d told Phyllis no more calls the last time she’d put one through – a reporter. If it wasn’t Dyson or Frannie, he couldn’t talk to anybody. And now she’d buzzed him back, interrupting again.

  He shook his head in frustration. ‘Sorry, Michelle.’ Then, out loud, ‘Who is it, Phyllis?’

  ‘A Dr Cutler.’

  ‘I don’t know him.’

  ‘It’s about the Russo case.’

  ‘What isn’t?’ He asked it to himself, getting up to cross to his desk, but an answer came from an unexpected quarter.

  ‘This.’

  It was a flat statement from Michelle, with a harsh finality that nearly startled him. He suddenly realized that she wasn’t thriving under his tutelage. She was doing fine with the details and strategy of the case, but since her interaction with him was constantly being subverted by Graham Russo, she was getting understandably impatient. He gave her an ambiguous gesture, picked up the phone, and said hello.

  He heard papers rustling and turned to see her going out the door, closing it behind her, so he missed his caller’s introduction. ‘I’m sorry, could you repeat that?’ He heard a sigh. Hardy wasn’t making many friends.

  ‘My name’s Russell Cutler. I play ball with Graham.’

  ‘My secretary said Dr Cutler?’

  ‘That too.’ There was a small pause, the sound of a breath being exhaled. ‘I prescribed the morphine for Sal Russo. I’ve been trying to live with it and I’m not doing very well. I thought telling somebody might help.’

  Hardy took a moment. ‘It might.’ But then another thought occurred to him, and it nearly turned his stomach. His client had lied again – to him, maybe to his lover, certainly to the police and to Time magazine. If this doctor played ball with Graham, then the medical connection to the morphine was not through Sal – as Hardy had reluctantly come to accept – but through Graham himself.