Hardy 05 - Mercy Rule, The (53 page)

‘And when you discovered what you thought was a brain tumor on the CAT scan, what did you do?’

‘Well, then I went to an MRI.’ With Hardy’s nudging, Cutler explained a little about magnetic resonance imaging.

‘And what did that reveal?’

‘What I had suspected and feared — that the cancer had advanced beyond any ability to treat it. It was terminal.’

Behind him Hardy heard Drysdale’s voice. ‘Your Honor, excuse me, may we request a sidebar?’

Hardy didn’t like this at all. ‘Your Honor, I’m in the middle of something here.’

‘It relates to what Mr Hardy is doing, Your Honor.’

Salter gave it about three seconds, then motioned the attorneys forward to the bench.

Once in front of the judge Drysdale wasted no time either. ‘Your Honor, the prosecution will stipulate that Sal Russo had terminal cancer and perhaps Alzheimer’s disease. He was going to die soon. All these questions by Mr Hardy aren’t addressing any evidentiary issues.’

Freeman spoke under his breath. ‘Neither did your case in chief.’

Salter glared him quiet. ‘Mr Hardy?’

‘Your Honor, it’s our intention to show how the deceased’s physical condition might have driven him to want to die.’

Soma’s high-pitched voice rang out. ‘So what? It’s still murder.’ The attorneys all turned to him at the outburst. Salter remained calm. ‘Address your remarks to the court, all of you. That’s me, Mr Soma. Mr Freeman.’ He stared to make sure his point had come across. ‘Mr Hardy, are you getting to some kind of mental defense? Are you going to be asking for manslaughter based on some theory?’

Hardy didn’t answer directly. ‘Your Honor, I’m getting to the relationship between Graham and his father. The prosecution is contending that he robbed from Sal, although they couldn’t prove it, as you yourself noted this morning.’

Salter rebuked him. ‘That’s not entirely accurate. I did deny your motion, however close I thought it was.’

But Hardy kept at him. This was crucial to his case and he couldn’t let it go. ‘Nevertheless, Your Honor, Dr Cutler’s testimony bears on the motive of the defendant. Graham Russo would not have stolen from his father. He loved him.’

The judge chewed on his cheek, slipped on his reading glasses, took them back off. ‘Motive?’

‘Yes, Your Honor.’ Hardy had to have it, but it was another huge risk.

Salter thought another moment, then delivered his judgment. ‘I’m going to allow it.’

Hardy let out a breath of relief. The attorneys returned to their tables. ‘Dr Cutler,’ he began again. ‘You’ve just told us that Sal Russo’s cancer was terminal. Did you have a prognosis on how long he would live?’

‘Yes. Six months to a year.’

‘And what about the disease itself, the tumor? Was it painful?’

‘Indirectly, from the increased pressure in his head. This produced horrible headaches and began to cause visual changes and motor weakness.’

‘And over the next six months or a year, would these symptoms grow progressively worse?’

‘Yes.’

‘There would be great pain, is that what you’re saying?’

‘Yes, unbearable pain.’

‘Unbearable.’ Hardy nodded and went back to his table to get a drink of water. There he was stunned and somewhat pleased to see his client, usually a devil-may-care wiseguy, with his jaw hard set, apparently blinking back tears. Hardy didn’t want to draw attention to the moment — it would appear staged — but he noticed some of the jury had followed him over. He could only hope that they would see and draw the proper conclusion from it.

Back at the center of the courtroom Hardy began again. ‘During this diagnostic stage, Doctor, all the tests and second opinions and so on, did Sal come to see you often?’

‘Two or three times a week for a couple of months.’

‘And did he come alone?’

‘No, never. Graham always came with him.’

‘Graham Russo came every time?’

‘Yes, sir.’

‘And these visits and tests, how did Sal pay for them? Did he have insurance?’

‘No. That was one of his main problems.’

‘And how did he solve that problem?’

‘Graham paid for everything out of his pocket.’

The defense side of the gallery came alive now, and Salter had to gavel for quiet.

‘Can you tell us more specifically what Graham paid for?’

Cutler remained completely at ease, talking to the jury, who were rapt. ‘He paid for everything. The visits, the CAT scans, the MRI, the prescription.’

‘Thank you, Doctor. We’ll get to the prescription in a minute, but how can you be sure that this was Graham paying you personally, and not just handing you his father’s money?’

Cutler crossed one knee over the other. Again, he brought it right to the jury. ‘Graham and I play softball on a semipro team. After the games we’d collect our pay and he’d hand me his money. I’d take it in and pay his bill.’

‘All right. Now referring to the prescriptions you wrote for Sal. Was one of these for the “Do Not Resuscitate” form?’

‘Yes, it was.’

‘Could you please tell us about that?’

‘Sure.’ Cutler had already been on the stand awhile, and Hardy’s questioning would go on a little longer, but the doctor was still enthusiastic and, Hardy noted, he was holding the jury. ‘It’s pretty self-explanatory’ — he had an almost apologetic tone — ‘but Sal didn’t want any extraordinary measures done to keep him alive. If the paramedics found him apparently dead, they were to leave him that way. He was pretty adamant about it. He had a lot of dignity.’

‘And did he ask for the DNR himself?’

‘Yes. Graham was there, but Sal wanted it in case he decided to kill himself.’

Hardy heard the susurrus sweep the gallery, but he kept it moving. ‘Did Sal specifically tell you he planned to kill himself?’

Cutler, bless him, chuckled. ‘Not exactly. We discussed his options. That was one of them.’ He turned to the jury, explaining. ‘That’s the way these things go.’

‘What do you mean by that, Doctor?’

‘Well, you’ve got a patient who is going to die soon in great pain. On top of that, in Sal’s case, you had his fear of the progress of Alzheimer’s disease. So there was a lot of subtext, a lot of backwards questions.’

‘Backwards questions?’

Cutler contemplated how to rephrase it. ‘Okay. On the morphine, for example, Sal asked if twelve milligrams could be a lethal dose. “I don’t want to kill myself by mistake,” he said. But what he meant was “Can I kill myself with this if I decide to?” ’

‘Your Honor! Objection. Speculation. Dr Cutler can’t know what Sal Russo meant by his question.’

Salter started to sustain, but Cutler had had enough of lawyers telling him what he, as a doctor, could or couldn’t do. ‘I know
exactly
what he meant,’ he blurted out. ‘He asked me how to kill himself, would it be more effective with alcohol, and I told him that if I answered his question I could lose my license and even go to jail. So we played this game where—’

Salter stopped him. ‘Doctor, please. Confine yourself to answering specific questions. That’s how we do it here.’

A tense silence settled over the courtroom. But Cutler had made the point and the jury would understand: terminal patients were often driven by the law to speak in code. The communication was clear on both sides.

Salter finally spoke again. ‘Go ahead, Mr Hardy.’

Hardy nodded. ‘This discussion about suicide, Doctor, was Graham there when you had it?’

‘Yes. He was always there.’

Hardy took a small break, another sip of water. Graham had recovered his composure and gave him a nod. Cutler’s testimony had clearly registered with the jury. Several of the men were taking notes. No one appeared distracted. They were waiting for his next sally. ‘Dr Cutler, you knew that Graham worked as a paramedic, did you not?’

‘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.

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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.’