Future Forum: Guilt, Innocence, and the Death Penalty 
“The Trick Is Not to Act Like a Lawyer.”
That’s just one of the secrets of Rusty Hardin, the latest in Houston’s long line of flamboyant defense attorneys—and the man every wrongdoer in town wants on his side.
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Rusty’s office sits on the thirty-third floor of a glossy office tower on Louisiana Street. The second most arresting visual—after the expansive view of the downtown skyline that spreads out like a Hollywood backdrop—is a wall displaying a collection of signed photographs from his more famous clients. There is a photo of Rockets coach Rudy Tomjanovich, whose DWI charges were dropped after he hired Rusty. There is a photo of star third baseman Wade Boggs, who won a lawsuit filed against him by a flight attendant who claimed he had verbally abused her. And there is a photo of ex-Oilers quarterback Warren Moon rejoicing after his acquittal on domestic abuse charges, with a note scrawled by Moon’s wife (she always maintained she had been the aggressor in their domestic disturbance, but the district attorney prosecuted regardless): “Rusty, you are the best!” Below are dozens of family photos of Tissy and their two sons, whose chosen professions are refractions of Rusty’s personality: Russell is an actor, and Thomas is a rookie beat cop on Houston’s west side. (“It can be awkward with some people, but I just remind them that I’m a police officer first,” Thomas says.) Next to Rusty’s desk stands a small bronze statue of Lady Justice, holding her scales aloft. At her feet is a pillow, made for Rusty by several members of a jury, embroidered with the words “My Hero.”
Rusty’s office is on the establishment side of Main Street, far from the courthouse, where most criminal lawyers typically have their offices. Rusty can still betray unease with his line of work: He does not like the term “criminal defense attorney,” for starters, preferring the term “trial lawyer.” He is most likely the only defense attorney in town whose son is a cop. And he does not restrict himself to defense work, frequently taking on civil litigation, as when he won a $65 million jury verdict for the family of an elderly woman who was raped in a nursing home.
In the Anna Nicole Smith trial, Rusty was able to cast himself as one of the good guys, taking the former stripper to task for having cynically played on the weaknesses of a lonely old man. The jury nicknamed him Bulldog for his tenacious cross-examination of the merry widow in what became a knock-down-drag-out war of words so full of zippy one-liners that the weekly legal newspaper Texas Lawyer called it “what legends are made of.” When Anna Nicole apologized for using a profanity on the stand, Rusty responded, “Well, I think it’s important that you be yourself.” When she claimed to have visited her husband days before he died, contradicting earlier depositions, Rusty asked, “Was this before or after you saw the flying saucers?” When she snapped at Rusty that he couldn’t understand her because “you don’t live my life,” Rusty replied, “And I say daily praise for that.” When Anna Nicole would purr in a kittenish voice and flirt with the jury, Rusty was undeterred, asking her the same questions over and over again until she was forced to answer. During closing arguments, Rusty brought in a boom box and played the Debby Boone song “You Light Up My Life”—a reference to Anna Nicole’s insistence that she was the light of her late husband’s life. The jury found that Anna Nicole was entitled to none of the Marshall estate, then serenaded Rusty with the ballad.
The Andersen defense was a harder sell. In the wake of the Enron collapse, Rusty was faced with the task of convincing a jury that Arthur Andersen had done no wrong, when everyone knew that Enron’s accounting tricks had wrecked thousands of lives, blackened the city’s reputation, and led to a downturn in the economy. The government indicted Arthur Andersen on obstruction of justice charges after its Houston office shredded some of Enron’s accounting paperwork last October, just after learning that Enron was under scrutiny from the Securities and Exchange Commission. To win the case, Rusty tried to show that Andersen had shredded paperwork that did not pertain to the SEC investigation. In his cross-examination of David Duncan, the former Andersen partner in charge of Enron audits, who had agreed to testify for the government, Rusty devastated the government’s case, eliciting critical testimony from Duncan: that he had ordered the destruction only of Enron’s extraneous paperwork, as was routine, and that he had preserved documents relevant to an SEC audit, including a smoking-gun memo pointing to Enron’s financial improprieties. Rusty’s cross-examination of Duncan caused enough confusion that the jury initially split 6-6.
On June 12 U.S. district judge Melinda Harmon issued a “dynamite charge” meant to loosen the logjam in the deliberation room. Three days later jurors seized on an e-mail that an Andersen attorney, Nancy Temple, had written to Duncan. Jurors believed the e-mail—in which she suggested that Duncan alter an earlier memo giving advice to Enron on its third-quarter earnings—showed that Temple knew Enron’s behavior was improper and likely to attract the attention of the SEC. That was enough to establish criminal intent; they found Andersen guilty. Rusty regrets that Nancy Temple refused to testify; she had taken the Fifth Amendment before trial. “If I could have called Nancy Temple to the stand, Andersen would never have been convicted. The jury had to make a character judgment about someone—worst of all, a lawyer—they’d never seen before.” Rusty sighed at the turn of events. “Before the trial I gave my client a fifteen percent chance of winning. Then we nearly had a hung jury. That’s a pretty big evolution.”
On a sticky summer day one week after the Andersen trial, I watched Rusty face a challenge of a somewhat lesser magnitude: a celebrity DWI case. Even so, four TV news trucks had lined up outside the Harris County courthouse to catch a glimpse of Rusty—grinning in a beige silk suit, French cuffs, and a vivid orange tie—striding into court with his newest client, Rockets guard Steve Francis. Francis had been arrested on DWI charges after running a red light at 4:48 a.m. in his white Mercedes. According to the police, he had slurred his words at the scene, and he had been unsteady on his feet, admitting to the arresting officer that he had had four drinks that night, along with painkillers for an injured ankle. Francis had refused to take a Breathalyzer test, and he had failed the field sobriety test. Rather than seeming sober at the station house, the six-foot-three basketball star, nicknamed Steve Franchise for his indispensability to the Rockets, gave the video camera a goofy grin and a thumbs-up sign.
Rusty was not deterred. Cross-examining the arresting officer, Sergeant Charles Allen, Rusty slowly chipped away at the cop’s credibility, which was critical to the case: The video camera mounted on his squad car had captured some grainy images of the traffic stop but not Francis’ failed sobriety test. Before a courtroom crowded with young lawyers from the district attorney’s office who had come to watch and learn, Rusty was deferential to the police officer but also unrelenting as he tried to paint Allen as a cop so determined to make an arrest that he had found signs of drunkenness in Francis that no reasonable person would have seen. Rusty brightened when the police officer characterized Francis’ manner of pulling over to the side of the road as “reckless.” Rusty played the videotape, which revealed Francis cautiously pulling over to the side of the road. While carrying on an almost genial conversation with the officer, Rusty pointed out inconsistencies and shadings of the truth in Allen’s testimony, subtly playing the race card when he pointed out that Allen had asked a mumbling Francis that night if he spoke English. (“If you’re a twenty-four-year-old African American in this country, do you think you might be offended by that question?”) By the time Rusty asked, “How many times, at 4:48 in the morning, have you gotten impatient with a long light?” sentiment in the courtroom was running high in Francis’ favor, and the notion of running a red light in the dead of night—Francis had come to a complete stop, waited for a few minutes, and looked both ways—began to seem perfectly reasonable. Rusty’s treatment of the police officer was so superficially pleasant that afterward, Sergeant Allen approached him outside the courthouse to thank him. “Rusty!” the cop called after him. “Can I get Steve’s autograph for my son?”
The next day Rusty trotted out Francis’ friends and doctor to explain away his behavior on the night of the arrest: His bloodshot eyes were due to allergies, his unsteady gait to his injured ankle, his fidgetiness supposedly a symptom of attention deficit disorder. Francis took the stand in his own defense and detailed the vast amount of food he had consumed that day—four massive meals and two protein supplements—before he began drinking, a diet clearly large enough to offset the effects of alcohol. But the defense scored its biggest point when prosecutor Chay Taylor asked Francis why, that night, he had counted from one-one thousand to ten-one thousand incorrectly; as she asked Francis the question, she herself counted wrong, omitting the “four-one thousand” from the sequence. Rusty pounced on the gaffe: “Mr. Francis, does the prosecutor look like she’s intoxicated?” Francis replied, as if on cue, “No, sir, but she made the same mistake I did that night.” Rusty delivered a brief but eloquent closing argument, hammering home the fact that Francis had passed his second sobriety test, which was given one hour after his arrest and, unlike the first, captured on video, arguing that this demonstrated reasonable doubt. Rusty had taken a gamble. Because he felt he had a strong case, he had agreed to a bench trial, in which there is no jury. It was a gamble that paid off. Ten minutes after the judge retired to his chambers to make his decision, he announced his verdict: “I’ve got reasonable doubt, so the defendant is not guilty.” The thirty-odd spectators, many of them friends of Francis’, broke into applause.
Rusty strode out of the courtroom as a knot of reporters trailed behind him—“Rusty!” “Rusty!”—and stopped to answer questions about Francis’ acquittal. “We lawyers love saying it had something to do with us, but it wasn’t us,” Rusty said, grinning before the cameras. “It was the evidence.” Of course it was.
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