Balance of Power

    "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 . . ."

    "You're not claiming," Bond persisted, "that these ads are in any way misleading?"

    "Far from it," Lenihan answered sardonically. "That's my point."

    Bond leaned forward. "Then aren't they—however objectionable you may find them—commercial speech protected by the First Amendment?"

    "No, Your Honor—for two reasons. First, commercial speech is less protected than pure political speech. Second, freedom of speech is not absolute, as Justice Holmes recognized in saying, 'There is no right to shout "fire" in a crowded theatre.' Freedom of speech must be balanced against the harm of speech such as this . . ."

    "And yet," Bond retorted, "one can shout 'fire' if it's true. If selling the P-2 should not be legal, isn't that a matter for Congress? And isn't this lawsuit, as Mr. Nolan suggests, an effort to usurp the role of Congress?"

    "Not at all," Lenihan countered. "As our brief details, this lawsuit is grounded in the California law of torts . . ."

    "I've read your brief," Bond interrupted brusquely, "and comprehend your argument. It's time to hear from the SSA regarding the claims against it. Such as they may be."

    Disheartened, Sarah picked up her pen.

* * *

    Everything that Lenihan was, Sarah thought, Harrison Fancher was not. His voice was thin but harsh, and his demeanor suggested a man who preferred dark corners, the nooks and crannies of concealed strategy, to the messiness of dealing with humanity at large. His skills were those of a tactician gifted with a first-class mind, a monomaniacal persistence and an inexhaustible sourness of spirit. In the law, Sarah had noticed, such persons tended to go far.