The Great Defenders
How did natty, flashy Dick DeGuerin and his quiet, determined brother, Mike, become two of the best lawyers in Texas? By learning everything they could from their mentor, the legendary Percy Foreman.
“Man, does he ever need a lawyer.” Dick DeGuerin thought this last March as he stared at the image of David Koresh on the television screen: a 33-year-old misfit holed up in a compound known as Ranch Apocalypse, surrounded by an army of federal agents. To DeGuerin, a man comfortable with his reputation as Texas’ best criminal defense attorney, that first notion led quite naturally to a second: “He needs me.”
Unbeknownst to DeGuerin, the same thought occurred to another great lawyer thirty years ago, prompted by the misdeeds of another Texas misfit. After witnessing Lee Harvey Oswald’s murder on television, Percy Foreman announced to the press, “I go where I’m needed most. And right now, I can’t think of anyone who needs my services more than Jack Ruby.”
That DeGuerin would echo Foreman was fitting. Foreman had been his mentor, and since Foreman’s death in 1988, DeGuerin has made it a habit to ask himself, “What would Percy do?” whenever a new case crosses his path. DeGuerin does not doubt for a second that Foreman would have offered his services to David Koresh—and, for that matter, to Kay Bailey Hutchison, who has hired DeGuerin in the face of felony ethics indictments. The Hutchison trial stands to be one of the two most sensational courtroom spectacles in Texas this year. Competing with it for drama and headlines will be the trial of the Branch Davidian lieutenants, who happen to be represented by another Foreman protégé: Mike DeGeurin, Dick’s brother. (As a college student, Dick DeGuerin changed the spelling of his surname to the original French spelling.) Like his older brother, Mike DeGeurin is regarded as one of the state’s finest lawyers; like Dick, he habitually invokes the mentor’s wisdom. From 1976 until 1982, the old man and the brothers worked together under the same roof in downtown Houston. Inevitably, Dick, the rebellious prodigal son, left the demanding father figure in 1982 to seek out his own fame. Just as inevitably, Mike stayed behind and today still tends to the business and the honor of Foreman, DeGeurin, and Nugent.
Their apprenticeship is long behind them. Yet the state’s most famous sibling lawyers, in their distinctly separate ways, reflect the legacy of Percy Foreman, perhaps the greatest trial lawyer in Texas history and one of the very best who ever lived. By practicing The Law According to Foreman, the brothers have maintained a continuum spanning nearly seventy years of brilliant, often controversial criminal defense work in Houston. In the coming months, Dick DeGuerin’s representation of Kay Bailey Hutchison and Mike DeGeurin’s handling of the Branch Davidian case will underscore the differences in their styles and personalities. Yet beneath the strategy of each, one can expect to hear the Foreman credo: “You should never allow the defendant to be tried. Try someone else—the husband, the lover, the police or, if the case has social implications, society generally. But never the defendant.”
Seated at the conference room table in the Austin office of Kay Bailey Hutchison’s husband, Dick DeGuerin talks while eating his lunch, which today consists of Dots candy and coffee. (Tomorrow’s lunch will be popcorn and coffee.) His well-proportioned frame and youthful face suggest an imperviousness to long hours and dietary abuse. Both in appearance and conversation, the 52-year-old lawyer is engaging but always a little cool and loath to show his hand, even when the game is over. Today, however, he freely discusses his legal strategy for the defense of the embattled Senator Hutchison. “If [Travis County district attorney] Ronnie Earle is correct in his interpretation of what an officeholder cannot do,” he concludes in a rising voice, “then everybody who holds office is subject to being indicted. How do you decide whether speaking at a Republican women’s club is or is not state business? To try to enforce that kind of morality in the jury box, as opposed to the ballot box, is just improper. Even though Kay’s a very powerful person, she’s been terribly abused by those in power in the Travis County DA’s office.”
DeGuerin smiles. “And that’s my forte,” he says. “I like to help people who are being beat up on. I remember one time when I was eight and Mike was four and we were living in Austin and swimming in the West Enfield swimming pool, there was this big kid who stood on top of the pool ladder and wouldn’t let Mike get out. I went up to the big kid. And I held up my fist and I said, ‘You leave him alone.’ I see somebody get picked on, and that gets my juices flowing.”
Thirty years ago, as a University of Texas law student, DeGuerin watched Percy Foreman come to the rescue of a man the legal system was picking on. The defendant was a thoracic surgeon whose wife and two brothers sought to institutionalize him. Only Foreman stood between his client and the mental ward. The young law student could not take his eyes off the 61-year-old lawyer. Foreman was in every way a giant: six feet five, close to three hundred pounds, with hands like catchers’ mitts and a head one Houston lawyer described as “simply monstrous, the biggest in town.” The surgeon’s wife had hired two hotshot special prosecutors: Les Proctor, the former Travis County district attorney, and Frank Maloney, today a judge on the Court of Criminal Appeals. Foreman made them look like amateurs. Flaunting a giant horse syringe, the Houston lawyer declared that if the surgeon’s wife and brothers had their way, one of the great minds of medical science would, in the nuthouse, be reduced to gelatin. The jury found in favor of the surgeon, who left the courthouse with Foreman, along with several of Foreman’s attractive female admirers, in a long black Cadillac. Young Dick DeGuerin stood on the steps and watched them go, holding in his hands a Parade magazine cover story on Foreman, which the lawyer had autographed for him.
By that time, Percy Foreman had been defending accused criminals for 35 years. Soon he would take on the appeal of Jack Ruby’s case—though he later walked away from it in protest of Ruby’s meddlesome family. In 1966, in Florida’s Dade County Courthouse, he would successfully defend Candace Mossler and her nephew Melvin Lane Powers, who were accused of murdering Mossler’s multimillionaire husband. Through the Mossler case, and his later defense of Martin Luther King’s assassin, James Earl Ray, Percy Foreman would become a national figure. But the man 22-year-old Dick DeGuerin beheld was already a legend in Texas. Like every other dreamy-eyed law student, DeGuerin had read about Foreman’s rise from the East Texas obscurity of Bold Springs, a few miles down the road from Livingston. He knew that since Foreman began practicing law in 1927, he had defended hundreds of accused murderers (more than a thousand by the time of his death) and only one of those was executed by the state.
Foreman was an imposing presence, a massive figure in natty customized attire, his slicked-back hair spilling down into his fist of a face, his Zeus-like voice clapping off the courtroom walls. “The first time I saw him,” recalls Houston attorney Joe Jamail, “I thought, ‘My God, that’s what a lawyer’s supposed to look like.’ “ No one knew more about how to select a jury; former associate John Cutler says, “I used to hire a court reporter to take down his voir dire questions to prospective jurors just so I could study the transcript later and see how Percy did it.” (In addition to his instincts, Foreman relied on a few rules of thumb in jury selection: Blacks, Jews, and other groups who had faced oppression were often sympathetic; Germans and Scandinavians “have little understanding of mistakes”; and exacting professionals like accountants and engineers were similarly unforgiving.) Foreman, according to a former colleague, “was one of the few defense lawyers to realize that the DA was the enemy.” No one bullied him; on the contrary, some assistant DAs did anything to avoid facing him in the courtroom, while the more ambitious ones happily got trounced just for the learning experience. During one trial, when a prosecutor became overly emphatic about the location of a gunshot wound to the head, Foreman stood up and, with a red Magic Marker, drew a large circle in the prosecutor’s white hair, where it remained for the duration of the day.
In front of jurors, Foreman would sob, scream, or do whatever else it took to sway them. Above all, however, he prepared, briefing each criminal case as if were an intricate civil proceeding. He knew the law, and he did the investigations himself. Sometimes a case required more courage than anything else, and Foreman had that as well. In the 1952 trial of an alleged gangland murderer, Foreman argued that the defendant’s confession had been beaten out of him by Harris County sheriff Buster Kern and Texas Ranger Johnny Klevenhagen, and was witnessed by a deputy named Kain. In his closing argument, Foreman brazenly pointed to Kern and Klevenhagen, who sat in the front row of the courtroom, and shouted, “Kern, Klevenhagen, and Kain! KKK! They ku-kluxed this defendant! They tortured him to make him confess! Who among you can say you, too, would not have confessed to this killing—innocent though you be—if these pistol-packing, blackjack-wearing, handcuff-carrying, booted and spurred officers of the so-called law had predetermined you guilty and decided you were going to confess?” As soon as the jury declared the defendant not guilty, the sheriff and the Ranger leapt over the railing and proceeded to maul Foreman, who was already using a crutch because of a sprained left knee. Upon his release from the hospital, the bruised and hobbled lawyer grinned and said to the press, “I harbor no malice toward these poor, misguided minions of the law.”
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