The Mercy Rule

by John Lescroart

  ‘At the time Graham was having troubles of his own, troubles that I’m sure many of you have experienced as you’ve tried to get settled in your jobs and your life’s work.’

  Hardy had to get this jury, and in particular these men, to recognize the common ground they shared with his client.

  ‘He had quit the prestigious appointment he got after law school to pursue his dream of playing major-league baseball, but then that dream, too, had fallen apart.’ Hardy humanized it a little more. ‘He just couldn’t hit the curveball. I’m sure many of us know how that feels.’ He got a chuckle or two.

  ‘When he came back to San Francisco, resigned now finally to being a lawyer, he found that he couldn’t find any work, that the people he’d thought were his friends in the yuppie world of the law had abandoned him.’ These were calculated words, designed to move these mostly working-class men into Graham’s corner.

  Hardy continued. ‘This is when he reconnected with Sal. We’ve also heard the members of his family – his mother and brother and sister – testify that it’s also when Graham discovered that his father was having problems with his memory. He was in the first stages of Alzheimer’s disease. Occasionally he would forget where he was, what he needed to do. Graham was the only one who would help.

  ‘But he did more than simply help. He became his father’s companion and friend. They went out to dinners together, to ball games. They drove around the city, talking, laughing together, reconnecting. Until finally, as we learned from Dr Cutler, Sal began getting these terrible, unbearable headaches.’

  Hardy paused for a moment. He was going to change his direction now and confront the prosecution. ‘You’ve heard Mr Soma and Mr Drysdale make assertions that Graham resented his father, the time he spent with him, the money he spent for his treatment. Let me remind you that no one in this trial has ever, not once, presented any evidence in support of these assertions. And you know why that is? Because they aren’t true.

  ‘Graham never got tired of helping his father, of nursing his father. Judge Giotti told you that Graham visited Sal several times a week to make sure he was comfortable, was taking his shots, right up until the end. Blue, Sal’s downstairs neighbor – a witness for the prosecution – told us the same thing. Graham never wavered in his devotion. He loved Sal.’

  Another pause. Hardy walked over to his table for a sip of water. He glanced at the yellow pad on his desk, on which were written only three words: Love. Evidence. Close. He’d barely touched on evidence yet, the burden of proof, the usual smorgasbord. He had to give it its due now. Tearing a page from Soma’s book, he came right to the jury rail, talking to them now not in a speech, but human to human.

  ‘Some of you may have noticed that I’ve spent very little time trying to rebut the evidence that the prosecution has presented. That’s because there is precious little evidence. No one ever saw or even said they saw Graham treat his father other than as a friend and companion. The famous fifty thousand dollars? The baseball cards? Did Mr Soma or Mr Drysdale prove anything to you about them, other than that they once were in Sal’s possession, and later they were in Graham’s?

  ‘Isn’t it more reasonable to assume that Sal knew he was losing his reason and wanted his son, who was his caretaker and friend anyway, to hold his valuables so that, at the least, they wouldn’t get lost or misplaced? Or so that Graham could use the money and proceeds from the cards to help defray some of the costs of Sal’s treatment? From what you’ve heard about Graham Russo, doesn’t that make a lot more sense than that suddenly, one day, Graham struggled with his father and stole his money? It’s ridiculous. It didn’t happen.

  ‘Similarly, there was no proof of any struggle. Let me tell you something, and Judge Salter will repeat it to you when he gives you his jury instructions: the prosecution has to prove Graham’s guilt to you beyond a reasonable doubt, and I don’t have to prove anything. The burden of proof never shifts; it is always on the prosecution, and unless they can prove something, as far as you must be concerned, it just didn’t happen.’

  Salter cleared his throat and interrupted. ‘Mr Hardy, I’ll be instructing them on the law when you’re finished.’

  Hardy took it calmly. Salter was right. But it wouldn’t hurt for the jury to see his passion. He turned back to the panel with an apologetic smile.

  ‘As it turns out, you have heard quite a lot of testimony about Graham’s character, about his relationship with Sal, about the kind of person he is. But even if you had none of that or didn’t believe it, even if Graham sat there friendless and alone with no one to speak up for him, the prosecution has presented nothing to support their theory. That’s all it is – a misguided theory with no facts, no evidence, no proof, to support it.

  ‘Then how did it get to here, all the way to trial? I know you’re all asking yourselves that question, and I don’t blame you. So I’ll tell you.

  ‘It got here for one reason, and one reason only.’

  Really there were two, and he hoped the jury had read the newspapers or talked to family members or somehow had discovered the personal connection between Gil Soma and Graham Russo. Freeman had bitched about Soma’s involvement to the press on many occasions early on in the proceedings, and then Hardy had alluded to it in a couple of discussions with his reporter friend Jeff Elliot, who printed it in his ‘CityTalk’ column. It couldn’t be admitted at trial, of course, but sometimes you got things to juries any way you could.

  But Hardy, now, had to get to the lies. It was unpleasant and dicey, but he had to address the issue. ‘Graham panicked when the police came to talk to him. He didn’t panic because he thought he’d done anything morally wrong’ – and here his phraseology had to be precise – ‘but because he’d been close to someone who had taken his own life. He’d shown him how to use the syringe. He’d even on occasion administered the drug himself. He’d comforted and counseled him when nobody else would. And he knew he might be condemned for it. He knew his kindness and compassion might be twisted by those more interested in politics than in justice, more eager to exact a pound of flesh than to do the right thing.

  ‘Graham Russo knew the world was full of bureaucrats, small men and women who live to control the lives of others. Men and women who like nothing more than to tell men like Dr Cutler what medical advice to give and tell us all what medicine we can and cannot take to ease our pain.

  ‘Graham knew that these petty people weren’t content to control only our lives; they seek even to control our deaths as well. Sal Russo finally was beyond their control now, but Graham Russo was not, and he was afraid. That is why he lied.’

  Another pause to let it all sink in.

  ‘As a licensed attorney in the state of California, Graham was faced with the very real possibility that, guilty or innocent, he would lose his ability to practice law. He might be disbarred. He could then never work in the profession for which he’d spent three grueling years in school and thousands of dollars in tuition. He couldn’t let that happen.

  ‘So he lied to police, and then he lied to cover his earlier lies. I wish this weren’t the case, and believe me, so does he. But he did, and it’s put him here. And let me add that even Sergeant Evans, who heard all of Graham’s falsehoods firsthand, has told you she thinks Graham is a trustworthy person, not a liar.’

  Hardy took a breath, relieved. He’d expected to be interrupted by objections at every second, but the closing argument was just that, an argument. He was making his case and evidently keeping within the bounds of specificity. That was going to change in a minute, but for the moment he was on safe ground.

  ‘Graham knew that it looked like Sal had committed suicide. Indeed, Dr Strout, the coroner, is still not able to say it wasn’t suicide. Perhaps Graham knew better. Perhaps he knew about the DNR sticker that was out for the paramedics when they arrived. Perhaps he knew that his father’s pain had become unceasing, that life had become truly unbearable, that Sal was ready to die. That death itself, when it came, woul
d be a peaceful and blessed relief.’

  Hardy scanned the jury box, resting on several jurors. He wasn’t offering any challenge, just telling them what he believed, what they had to believe.

  He lowered his voice to a near whisper. ‘Graham is a trained paramedic. He got two calls from his father on the morning of his death. He went to the apartment, where his father was in blinding pain. Perhaps Sal, sitting on the floor by his coffee table, had a last drink or two for courage. An intravenous morphine shot is – as Dr Strout has told you – instantaneous and painless. There was no struggle at any time. And for Sal Russo, there would be no more pain, no more confusion as the past inexorably slipped away from him, no loss of dignity. There would, finally, be peace.’

  He met the eyes of every juror, one by one. It seemed to take forever.

  ‘I tell you that Graham Russo has committed no crime. No murder was done here, no injury to society that requires retribution. This is an innocent man. Legally, factually, and, above all, morally innocent. You must find him not guilty – for all of our sakes.’

  CityTalk, by Jeff Elliot

  The hottest ticket in town on Thursday was Department 27 at the Hall of Justice, the courtroom of Judge Jordan Salter. There, to an SRO crowd comprised of most of the state’s legal powerhouses, including California Attorney General Dean Powell and San Francisco District Attorney Sharron Pratt, euthanasia lobbyists, citizens’ groups, and media representatives, the murder trial of lawyer/athlete Graham Russo closed in a flurry of rhetoric from both sides.

  This reporter’s view has always been that this trial was less about the murder of Salmon Sal Russo than it was a kind of grudge matchup between Gil Soma and Graham Russo, both of whom served a few years ago as clerks for Federal Judge Harold Draper. Soma hated Russo for leaving him a big workload, and here was the chance to pay him back.

  Petty? You bet.

  Defense Attorney Dismas Hardy took a bold stance and ignored the great majority of evidence presented by Messrs Soma and Drysdale for the prosecution, and instead painted his own picture of a devoted son who found himself in the agonizing dilemma of his father’s terminal illness.

  The jury evidently believed him. After deliberating only one and a half hours, at about three-thirty yesterday afternoon, as all the country now knows, they returned with a verdict of acquittal. They didn’t say that Graham Russo assisted in his father’s suicide. The way the law is written, that’s just not an option.

  Instead, they had to say that Graham did nothing wrong.

  I think they were right.

  PART FIVE

  35

  He was halfway across the lobby at Freeman’s office – the sun was bright in the Solarium – when Phyllis called out from the reception desk. ‘Oh, Mr Hardy.’

  Turning on a dime, he marched to her desk. ‘Oh, Phyllis.’ He stared down at her as she looked up at him. ‘Someday you’re going to smile and I’m going to catch you and tell everybody.’

  This wasn’t the time, though. The phones were ringing all over the switchboard and she pointed vaguely off behind her. ‘Mr Russo’s in his office. He wants to see you.’

  Yoda figured that proximity to his own august self during the four months of the trial preparation had been proper training to turn Graham into his very own Jedi knight, and after a week off to reacclimatize to civilian life, the ex-defendant had come in to work at the Freeman Building as one of David’s associates. So much for Graham’s worries about being unhirable in the law.

  Hardy took a scintilla of pleasure from the fact that Freeman had given Graham Michelle’s old office. The usurper was gone, and with her the memory (well, most of it) of what she’d done, what he hadn’t.

  Remaining for a moment at the reception desk, Hardy was deciding if he should go upstairs first, check his answering machine. He was out hustling jobs now, had been all morning, all the past couple of weeks since the trial had ended. The endeavor had not been entirely unsuccessful.

  Since the conclusion of Graham’s trial Hardy had reacquired a bit of star status in town. He’d gotten a lot of press, and calls had come in. He was looking forward to facing some of Dean Powell’s minions again; the attorney general had decided to save face with his constituency by prosecuting some (but not all) of the doctors who’d admitted to being involved with their patients’ deaths. Two of these doctors had come to Hardy. He wasn’t sure he wanted assisted suicide to become ‘his’ issue, but on a case-by-case basis a lawyer could do worse – and at best find himself on the side of the angels.

  He was still billing far less than he needed to live on, although he had a few months’ reprieve. Hardy had a second time broken the first rule of defense law with Leland Taylor. Confident that he would win with Graham, and therefore that Leland would be favorably disposed to pay, he’d allowed him, after a generous retainer up front, to make monthly payments for Graham’s defense. His trust had been justified and the checks had been coming in every month. There was no reason to suspect that the next one wouldn’t arrive in a couple of weeks.

  Since Hardy made three times his normal hourly rate when he was in court (though he’d told Graham it was only double), it looked to be a substantial payment, able to hold him over for a while. But Leland’s payment would come to an end after that, and he’d need more steady work lined up by the time it did. Freeman would probably try to throw something his way again, but all in all he’d prefer now to go it alone, get his own practice into high gear. It was about time, and perhaps some of that work was waiting upstairs.

  But his feet took him to Graham’s. He knocked once and tried the door; associates didn’t lock doors in the Freeman Building.

  Graham wore a light blue suit and had cut his hair so it just brushed his ears. He looked absurdly young, fit, and handsome, obviously sleeping better than he had for the past six months. The bags had disappeared from under his eyes. But close up Hardy could still discern a sallowness, leftovers from the jail pallor. And something else – a sense of lingering fatigue, or a new worry.

  Hardy closed the door behind him. ‘Our dear Phyllis said you wanted to see me.’

  ‘Oh. Yeah.’ Two separate words. He blew out sharply. ‘Sal’s stuff is ready to get picked up.’

  He gestured meaninglessly, but Hardy thought he knew what he meant. Sal’s ‘stuff,’ both from the evidence locker and the storage bin where the city had moved it, was another emotional hurdle in the marathon that was the aftermath of a murder trial.

  Picking up the last of his father’s remains, going back to the Hall of Justice, where for so long he’d been in chains.

  Hardy considered for about two seconds. It would probably take him most of the afternoon, but this personal stuff was more important than business. At least, he thought so – he was sure it was among his greatest failings. ‘Okay,’ he said. ‘Give me five minutes to check my messages.’

  His voice mail had seven calls.

  The third one was from a Jeanne Walsh, who said she was calling about the Joan Singleterry advertisement. She left her number, which Hardy tried immediately, although no one replied.

  One of Graham’s first concerns after the verdict – and it endeared him to Hardy – was the distribution of the money to Joan Singleterry’s children if they could find her with one last advertising blitz.

  George and Debra had been as skeptical as Hardy would have predicted about the existence of a Joan Singleterry, and Sal’s directive to give her his money.

  But realizing that it was probably their best chance to get their hands on Sal’s money without a legal battle, the siblings had told Graham they would let him give Joan Singleterry one last good try if he would split up the funds should it fail. Graham knew that any litigation to preserve the money after that would only eat up most of it, so he finally agreed.

  But their last run at Singleterry was to be a good one. Instead of going nationwide with a tiny classified ad in the personals column of thirty or forty publications – Hardy’s earlier strategy -they decided
to take out a three-inch box in the sports sections of five of California’s largest newspapers and, for good measure, a two-inch box in The Wall Street Journal. The advertisement, paid for by most of the money Graham had stashed with Craig Ising, would run for one full week. That week had passed on Sunday, two days before.

  For Hardy, getting a call on the Singleterry question did not automatically give rise to soaring hopes. He’d received half a dozen similar replies that had proven worthless before the trial. Nevertheless, it did get his blood going. The trial was over, but the failure to achieve any sense of closure had kept him up several nights since the verdict had come in.

  Someone had killed Sal Russo and gotten away with it. He couldn’t shake the feeling that this connected somehow to Joan Singleterry. And, of course, it didn’t escape him that if Singleterry were connected to a murderer, she herself might already be dead, murdered. The advertisement itself might, in fact, subject her to mortal danger. For this reason they had kept the ad as simple as possible. The name Joan Singleterry, Hardy’s phone number, reward. No mention of Graham, Hardy, Sal. It would either work or it wouldn’t.

  Since it was on the way to the Hall of Justice and its evidence lockup, Hardy and Graham stopped off at the facility where the city had put up the rest of Sal’s goods – what there was of them.

  Now, within the past few years, with the Moscone Center and plans for the new Giants Stadium in China Basin, the South of Market area had developed pockets of hope, change, life. But a great deal of the real estate between Market Street and the Hall of Justice, and this included the Lions Arms, remained as it had been for decades: seedy, scabrous, and sad.

  Graham punched his combination into the box by the cyclone fence and they pulled into the forlorn and soulless monthly storage rental facility. Peeling yellow stucco walls, rust-red corrugated iron doors. They drove slowly down one long row, around a corner, back up another one.