The Mercy Rule

by John Lescroart

  ‘Sure. Guys get hurt playing ball, Graham and I were the two medical people. It’s how we got to know each other.’

  ‘And to your personal knowledge, did he give his father morphine injections?’

  ‘Yes. The first time or two during visits. It makes a big difference with drugs whether you give them into the muscle, which is called IM, or the vein, which is IV. Initially, I recommended higher doses to be given IM. These could be lethal if injected IV. Later, Sal began to have breakthrough pain, so I instructed Graham on IV dosing guidelines. I wanted him to be especially clear on it.’

  The jury had already heard this, but Hardy didn’t think it would hurt them to be reminded. Graham had known what they knew.

  ‘So Graham could have given these injections IV or IM without Sal’s knowledge that he was doing anything unusual or different?’

  Hardy heard Drysdale’s voice. ‘Your Honor. Objection. Relevance?’

  ‘Mr Hardy?’ In spite of himself Salter seemed to have gotten interested and was giving him wide leeway with Dr Cutler, but he thought Drysdale might have a point here. Where was this going?

  Hardy was delighted with the objection, since it gave him a chance to explain. ‘Your Honor, Mr Drysdale and Mr Soma have gone to some lengths to try to leave the impression that Graham hit his father behind the ear with the bottle of Old Crow so he could administer this shot without his father objecting. Though they haven’t proven it, my question to Dr Cutler clarifies whether Graham would have had to do that in any event.’

  Salter considered and then overruled the objection. The question was relevant. Cutler had it read back to him, and then told the jury that an experienced person such as Graham could have injected Sal IV or IM with complete impunity.

  Which made clear to the jury, Hardy hoped, that Sal would never have had to suspect a thing. There would have been no struggle or need of one, not if Graham had been there.

  Which he hadn’t been, of course. But that was no longer the point.

  Tactically, Hardy thought Soma and Drysdale made a mistake letting the younger man take Cutler’s cross-examination. The two men were polar opposites, and Graham’s friend the doctor was far more likable than the strident prosecutor.

  Of course, both the men were fast-track urban professionals and almost by definition had to possess Type-A personalities to have gotten where they were. They probably were – deep down inside – more similar than not. It was a matter of style more than anything, but style counted here, and played into Graham’s hands. At least at first.

  ‘Dr Cutler, you’ve said that you consider yourself a friend of the defendant. Have you known him for a long time?’

  Cutler shrugged. ‘About two years.’

  ‘And you play baseball with him, is that correct?’

  ‘Softball, but yes.’

  ‘Outside of softball, do you see each other socially?’

  This struck Cutler as funny. ‘Outside of softball I don’t have a social life.’

  Humorless, Soma clucked. ‘That would be no, Doctor, wouldn’t it? You didn’t see defendant socially?’

  ‘Right,’ Cutler agreed.

  This answer, simple as it was, frustrated Soma. ‘Your Honor,’ he said to Salter, ‘the question calls for a negative and Dr Cutler has answered in the affirmative.’

  Salter huffed, ‘So ask clearer questions, Mr Soma. Let’s move along.’

  Obviously swallowing his bile, Soma turned back to the witness box. ‘Doctor, one more time, outside of softball, did you see defendant socially?’

  Hardy wondered what Soma hoped to accomplish by this display. He was coming across as unusually petty and foolish, and to get what? That Cutler and Graham didn’t party together? Who cared?

  But the doctor just smiled, unruffled, and answered as bidden.

  ‘No.’

  Stiffly, Soma intoned, ‘Thank you.’

  ‘Don’t mention it.’

  A ripple of laughter in the gallery. Even Salter seemed to be suppressing some amusement. Soma finally seemed to get it. He forced a little smile of his own. ‘Did defendant share with you any of his motives for accompanying his father?’

  ‘Yes, of course. The obvious ones. I thought they were pretty obvious, anyway.’

  ‘You did?’ Soma raised his eyebrows and brought in the jury.

  He’d started roughly, but had picked up a scent. He knew what trail he was going to follow now. ‘You thought it was obvious why Graham brought his father down?’

  ‘Yes, that’s right.’

  ‘Did you think it was obvious that he was being the dutiful son?’

  ‘Yes.’

  ‘And do you know for how long he had been this loving son?’

  Hardy stood up. ‘Objection, Your Honor.’

  ‘Sustained.’

  ‘We’ve heard testimony in this trial that the defendant hadn’t seen his father for the previous fifteen years. Is that what you’d call being a loving son, Doctor?’

  Again, Hardy was on his feet, objecting.

  Soma fought back. ‘Your Honor, the jury doesn’t have to buy the defendant’s late attack of altruism.’

  The judge sustained Hardy, but Soma’s attack continued. ‘On any of these visits, was Sal Russo difficult to attend to?’

  ‘What do you mean, difficult?’

  ‘Well, doctor, here is a man with Alzheimer’s disease, sometimes he doesn’t know where he is, he doesn’t know who you are, he’s got a tremendously painful cancer in his brain. Surely he was a little cranky from time to time. Would you say that was the case?’

  ‘Yes, sometimes.’

  ‘And did the defendant ever mention to you that his father was being burdensome or difficult to take care of?’

  ‘Well, he was-’

  ‘Yes or no, Doctor?’

  ‘Yes.’

  ‘And maybe he was getting a little tired of it?’

  ‘Objection! Hearsay. Speculation. Badgering the witness.’

  But Soma whirled, flashed a malevolent glance at Hardy, spun back to Salter. ‘I’m asking the witness what he heard with his own ears, Your Honor. It’s neither hearsay nor speculation. And I’m not badgering. I’m trying to get straight exactly what he heard.’

  Salter allowed the question, overruling Hardy, and was about to ask the recorder to read it out again, when Soma delivered it word for word. ‘And maybe he was getting a little tired of it? Did Graham Russo ever say that?’

  ‘All right, maybe he did.’

  ‘Maybe he did. Yes. Now, let’s move to these medical bills and doctor’s bills and so on that the defendant was paying. They must have been expensive. Were they expensive?’

  ‘Yes.’

  ‘Very expensive? In the hundreds? Thousands? Ten thousands?’

  ‘Say the high thousands.’

  ‘All right, let’s say the high thousands. Did the defendant ever mention to you that this was becoming difficult? This was a financial burden he could do without?’

  ‘No.’

  ‘No? He was paying thousands of dollars to keep alive a man who was near death anyhow, and he never mentioned any frustration about that?’

  ‘No. That never came up.’

  ‘It never came up. Perhaps that’s because he wasn’t spending his own money.’

  Hardy stood again. ‘Your Honor-’

  But Soma stepped in again. ‘Your Honor, Dr Cutler has told us he received money from Graham for these bills after Softball games, and now we learn it was thousands of dollars.’

  ‘Proceed,’ Salter intoned.

  ‘Are we to believe, Doctor, that the defendant makes thousands of dollars playing softball and that every time he paid you for medical services you witnessed the source of the money?’

  ‘Not every time-’

  ‘Ah, so the defendant would sometimes bring money from, apparently, another source?’

  Cutler threw an apologetic look across the courtroom to Graham and Hardy. What could he do? ‘Yes, sometimes,’ he said.

>   ‘And that source was his father, isn’t that so?’

  ‘Objection! Speculation.’

  But Soma kept right on, his voice rising in pitch and volume. ‘And maybe that source was drying up, wasn’t it, Doctor? And there wasn’t as much money anymore as defendant-’

  ‘Your Honor! I object.’ Hardy was forced to raise his own voice.

  For nearly the first time in the entire trial Salter banged his gavel. ‘Mr Soma, please! Get yourself under control. Another outburst like that and I’ll find you in contempt. You hear me?’

  ‘Yes, Your Honor, I’m sorry.’ But he looked neither diminished by the rebuke nor sorry for what had caused it. He was drawing some rich blood.

  ‘Doctor,’ he continued, ‘did the defendant ever indicate to you that he was entitled to something for all the trouble he was going through?’

  ‘No. He was-’

  ‘Did Sal Russo, defendant’s father, did Sal ever complain about how much these visits were costing?’

  ‘Yes, sometimes he would-’

  ‘Did it ever occur to you that he meant to ask how much it was costing him, not Graham?’

  ‘No, it wasn’t-’

  ‘Do you know it wasn’t his father’s money?’

  ‘No, but-’

  ‘Do you know his father didn’t pay back even the softball money as soon as they got back to his apartment?’

  ‘No, but I-’

  ‘Your Honor.’ Hardy had to try to break up this rhythm. ‘The witness is entitled to explain his answers.’

  ‘They’re all yes-and-no questions, Your Honor.’ Soma was really on a roll. He didn’t want to give the judge time to make any ruling on the objection. The jury would remember what he’d gotten, not how. ‘I’ll watch it, Your Honor.’ Which was easy to say – he was finished. He’d gotten what he’d come for. ‘No further questions.’

  ‘I have one.’ Freeman the wild card came up and around the defense table for redirect. He hadn’t even cleared it with Hardy, so he must have been sure he was on to something. ‘Dr Cutler, at any time in all of your treatments of Sal Russo, did you, Sal, and Graham ever frankly and fully discuss the possibility of assisted suicide?’

  There was a collective gasp in the gallery. This was the kind of question Soma might have asked. To hear it from the defense table was shocking.

  But Freeman had done it and it was now on the record. Cutler, shell shocked anyway from Soma’s assault, now looked stunned. ‘Yes, many times. He asked me if I’d help kill him if he got too far gone. I said I couldn’t.’

  ‘And was Sal Russo lucid during at least some of these discussions?’

  ‘Yes. Many of them. Most.’

  ‘It was brilliant, if I do say so myself, and I do.’ Freeman was in the holding cell defending himself. Hardy and Graham were both having trouble appreciating his genius. ‘We got assisted suicide in the front of everybody’s brains now.’

  ‘We did before, David. It was more subtle was all.’

  ‘Subtle schmuttle.’ Unwrapping his Reuben sandwich, Freeman scoffed at the idea. He took a juicy bite, leaned over so the bag would catch his drippings, swabbed his thick lips with a napkin. ‘Listen up. Graham didn’t say that he was thinking of killing his dad, for any reason. Remember, we’re loving this assisted suicide defense, but it’s still illegal, my sons.’ He pointed at Graham. ‘Even if it’s going to get you off.’

  Graham was unconvinced. ‘Yoda better that clearer make.’ Freeman motioned over to Hardy. ‘That’s for this silver-tongued devil in closing.’

  ‘How can I thank you enough?’ Hardy asked.

  Freeman grinned and took another bite. ‘No charge.’

  33

  Thursday afternoon, all day Friday, Monday and Tuesday of the next week, was a long, slow waltz for the defense. Hardy had to get the jury to hear about the progress of Alzheimer’s disease, about Sal’s relations with the rest of the estranged family, about the places and times Sal and Graham had been together in public. So he called Helen and George and Debra and the young Dr Finer, who’d first examined Sal at the county clinic. He called the owner of the U.S. Restaurant, where they had frequently eaten.

  Keeping up on the motive issue, he brought up many of Graham’s past co-workers and associates. One at a time Hardy called as witnesses several EMTs – three male, two female – who’d crewed with him over the past two years, all of whom had nothing but good to say about his compassion, bedside manner, cooperative spirit, medical knowledge, punctuality, and general competence. He’d made no enemies within his ambulance company.

  Besides Russ Cutler, three other members of Graham’s softball team, the Hornets, testified that he’d brought his father to games, introduced him around, went out for food afterward. He was a solicitous and dutiful son.

  Especially effective was Roger Stamps, who’d been with them in Fremont after a game a year or more ago when Sal had wandered away from the softball field. He and Graham had driven the darkened streets for over an hour before locating Sal in the coffee shop of a bowling alley.

  Graham had paid his father’s tab, got him belted into the car, and drove him home. He’d never shown impatience or anger. Stamps hoped that when he got old he could have a son as devoted as Graham.

  Craig Ising was a guy’s guy and hence a good call for this jury, but there was a risk to calling him as well. In Hardy’s mind there was a very real legal question as to whether Graham’s knowing participation in the high-stakes softball games, even leaving aside the question of claiming his income from it, constituted a felony.

  In the end they decided to call Ising as a witness anyway. He, better than anyone else, could put a positive spin on Graham’s apparently irresponsible defection from Harold Draper’s courtroom, as well as explain the intricacies of his motivation to be a replacement player: that Graham had correctly predicted the end of the baseball strike, had wanted another look from the major league clubs, wouldn’t play as a scab, and so on.

  If Graham wasn’t going to testify, somebody else had to make the jury aware of his state of mind, and Ising was the best choice. Graham hadn’t acted like a selfish flake – he was a man in pursuit of a dream.

  Soma and Drysdale kept a low profile. The occasional objection would come up over a witness’s characterization of one of Graham’s actions, but generally the prosecution seemed happy to let Hardy call his people and let them talk.

  None of the witnesses were rebutting the evidence that had been presented. What could there be to worry about?

  On Wednesday morning at seven-thirty Hardy sat behind the closed door of Abe Glitsky’s office with David Freeman and Sarah Evans. They were reviewing all the leads that, as Sarah had independently discovered over the past four months, had gone nowhere. Hardy and Freeman were contemplating calling one more witness and then they were going to wrap up the defense, Hardy getting to tie the pieces of his story – Graham’s story -together at last.

  The early confidence he felt in their strategy had completely disappeared by now. Not that the trial hadn’t gone as well as he’d hoped, but a jury was always a crapshoot, and this one particularly. Hardy had been in the air with his dive now for most of four court days, and it was all he could do to hold his tuck for the next hours.

  He hadn’t rebutted any prosecution evidence in his own case in chief. Oh, yes, he’d done his best to discredit witnesses on the issue of whether there had been a struggle, but that had been about the extent of his arguments. He had presented an affirmative defense that was simply an alternative explanation of the same facts that the prosecution had used.

  It was going to come down to a matter of what the jury believed. Or whom they believed. In that sense it was good that no one had found any ‘other dudes’ to point at.

  And now they were all committed. Hardy’s defense was really the only possible one left. But he couldn’t shake his intense discomfort over the fact that it was, basically, a cynical lie. A lie that served justice, he believed, but still a lie.

/>   Freeman was not being his most endearing self. He appeared to have slept in his suit and certainly hadn’t showered – obvious in the cramped room. He had consumed a healthy, well-rounded breakfast of peanuts and had piled the shells in front of him on Glitsky’s desk. ‘Look, Lieutenant, we can go down to Judge Salter right now and get ourselves a month continuance, and I think we ought to do it and investigate the hell out of this gambling connection.’

  Hardy tried to rein his partner in. ‘He’d never do that to the jury, David. Not at this stage. And it’s not about any gambling, anyway.’

  Freeman paid no mind, breezing along, jawing at Glitsky, ‘We know that Craig Ising is in cahoots with at least two dozen other gamblers downtown, most of whom used Sal Russo to run their money around-’

  ‘A long time ago,’ Hardy put in.

  ‘- some of which might have been the wrapped bills in this case.’

  ‘There’s no evidence of that,’ Sarah said.

  Freeman snapped, ‘None that you’ve found.’

  Sarah’s eyes flashed at him. ‘That’s right. None that anybody could have found.’

  Glitsky sat up. ‘Hey, hey, nobody has to get accusatory. Getting mad isn’t going to help anything.’

  ‘I’m not mad.’ Freeman appeared genuinely surprised. He was simply arguing his position, for him a function of drawing breath. How could it offend?

  Evans, however, had some color in her cheeks. ‘I interviewed Craig Ising twice, Mr Freeman.’ Actually it had been four times, but Glitsky had only known and approved of the last two of them, so she went with that. ‘I told him we weren’t interested in his gambling, only in Sal. He said to his knowledge no one had used Sal in at least two full years.’

  Freeman scoffed at that. ‘He says…’

  ‘Graham corroborates it,’ Hardy said.

  Freeman looked from one of them to the other. ‘Here’s the deal,’ he said. ‘Sal had memory problems. This ring a bell, Pavlovs? He might have stumbled upon this opportunity to deliver a bag of cash and forgot he even did it.’

  ‘To who? From who?’ Glitsky asked.