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 knew his talent lay in litigation, and the best place for a novice lawyer to get courtroom experience is in a prosecutor’s office. He did not apply with the Dallas County district attorney’s office after graduating from SMU because he was turned off by the formality of the place; Henry Wade’s men had the regimented air of FBI agents, and Rusty preferred a more freewheeling approach. He signed on with Harris County district attorney Johnny Holmes in 1975, cutting his teeth on drunk driving cases and other misdemeanors. For his first jury trial, he was handed a particularly lousy case that had been dodged by prosecutors so many times it had racked up a total of 24 trial settings. The crime: A gay man had cut off his lover’s ponytail in a Montrose bar. “That was the whole case,” Rusty says. “The victim felt very strongly that it was an assault, and no one had the guts to dismiss it, including me.” Most prosecutors in 1976 might have played down the issue of homosexuality. But Rusty picked his jury carefully and talked openly about prejudice against gays “so that jurors would feel terrible if they even started making a judgment based on anything but the evidence.” He won.
The case was the first of what would amount to a wild winning streak: Prosecuting more than one hundred felony jury trials, he never lost a case. Juries handed him guilty verdicts with time to spare—three minutes to convict in a rape case, six minutes to convict in a capital murder case—in what were often the city’s most challenging and high-profile trials. His closing arguments were pure theater. During the capital murder trial of James Means, who pumped fourteen shotgun blasts into an armored truck and killed its driver, Rusty dashed around the courtroom, brandishing the murder weapon and pretending to fire it indiscriminately (“Barooom!”). In the capital murder trial of Karla Faye Tucker’s accomplice, Danny Garrett, Rusty grabbed the pickax, swung it over his head, and brought it down with great force onto his target—a telephone book—so jurors could better visualize the fatal blow. Sometimes he was more subtle: At the conclusion of a rape trial, he turned off all the lights in the courtroom, asking the jury to consider the victim’s fear in the darkness. But his most famous closing argument capped the sensational case of Cynthia Campbell Ray, who manipulated her boyfriend into shooting her parents at point-blank range while she looked on. Rusty recreated the terror of Ray’s two young sons, who were in the room when the murders were committed, then reminded the jury of Ray’s callous comment: “They’re young. They’ll get over it.” Rusty repeated her words in disgust. Writer Clifford Irving, who chronicled the 1987 trial in Daddy’s Girl: The Campbell Murder Case, wrote that Rusty then backed away from Ray “as if afraid of contamination.” Before concluding his case, he hissed, “Shame on you. Shame on you. Shame on you.”
Rusty’s courtroom tactics were often counterintuitive, and he still prides himself on going against the grain. While many of Houston’s top trial lawyers make use of jury consultants and mock trials, Rusty prefers spontaneity. “If I get bound to a script, I can’t react,” he says. In court he assumes a practiced informality, wearing beige and mustard instead of a lawyer’s grim navy and smiling during cross-examination. He believes in treating the court like a living room. “If you’re going to ask twelve people to make a miserable decision,” he says, “don’t make them miserable while you’re doing it.” He delivers brief opening statements, sketching out broad themes but not outlining his case: “The problem with opening statements is that they deprive the jury of discovering the case for themselves. I don’t want the jury to know what’s coming. I want them to be making realizations each night, sitting at home drinking their coffee, thinking about whatever happened that day in court. I want them feeling like they’re making up their own minds, not being spun.” He uses no notes during opening statements and closing arguments, and he claims to never rehearse his orations for fear that he will sound stale. During cross-examinations, he likes to ask witnesses questions that are more conversational than argumentative because, “The trick is not to act like a lawyer.”
After fifteen years at the district attorney’s office, the job began to wear on him. “A trial has to be fun,” he explains. “I used to tell new prosecutors: If they ever dreaded Mondays or looked forward to Fridays, it was time to go.” He had grown weary of the squabbling among Holmes’s lieutenants; as the chief felony prosecutor, he was locked in a power struggle with first assistant Don Strickland to be the next DA, but it was one battle he could not win through the force of his personality. Rusty sidesteps talk of his political ambitions, but if he was waiting for Holmes to retire, the eventual realization that the DA was sticking it out and that his career at the district attorney’s office could go no further must have been a crushing blow. In September 1990 he handed in his resignation to Holmes and switched teams.
Houston’s criminal defense attorneys are alternately seen as scoundrels or folk heroes, snake oil salesmen or street fighters. Rusty falls somewhere in between. He has no desire to occupy the realm of the city’s austere, buttoned-down attorneys who are preoccupied with partnership points and billable hours and whose work is devoid of the physicality of the courtroom. But neither is he comfortable with the most challenging work of the criminal defense attorney: championing the rights of society’s lowest, meanest, and most violent citizens. Rusty likes to keep his hands clean. He has rules: No drug delivery cases, no rapes, and no murders. This is a marked departure from most criminal defense lawyers. “Now, if I truly believe someone is innocent, I’d represent them no matter what the crime,” he says. “But if that’s not the case, there are certain offenses I don’t want to bail someone out of.
“If Rusty ever longs for the time when he was always wearing the white hat, he does so only in private. Most criminal defense lawyers detest society’s most powerful; Rusty embraces them. Most criminal defense lawyers are ideologically opposed to the power of the prosecutorial system and its ability to trample on the rights of the accused. Rusty’s peers, however, suspect that the prosecution side is where his long-term allegiance still lies. Accordingly, Rusty has not ingratiated himself with his fellow defenders in Houston, a scrappy band of brothers who share a common hero, Percy Foreman. “There’s a reason why this city has so many good defense lawyers, and I think it’s largely because of Percy,” says his protégé, Dick DeGuerin. “Dallas never had a defense attorney of Percy’s stature. Dallas had Henry Wade. He was the dominant force there for a long time, and you can still feel his legacy. Dallas lawyers are deferential to the district attorney’s office. They’re more willing to plead out and strike a deal. In Houston the attitude has always been different: We want to fight to the end. Percy gave us that willingness to fight.”
Percy Foreman was the criminal defense attorney against whom all others in Houston will forever be measured. As this magazine once described him, “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.’” Always impeccably dressed, he was a handsome man with a great mane of hair—he would sometimes comb it back in front of jurors to distract them from some nettlesome detail in a prosecutor’s argument—who recited long passages of poetry or Scripture in closing arguments, rhapsodizing in his sonorous voice about his clients’ constitutional rights. Foreman was not afraid to defend the dregs of the earth; to the contrary, he sought them out, representing James Earl Ray and, in the early stages of his appeal, Jack Ruby. He famously defended, and won an acquittal for, Candace Mossler, who was accused of murdering her multimillionaire husband, but he was more often a champion of the little guy, taking old washing machines and even a pair of circus elephants as payment. Foreman, like his heirs apparent, saw himself as the only thing standing between his clients and the power of the state, which he could make a jury believe was intent on repealing the Bill of Rights in the name of law and order. If his cases failed to be notorious before he took them, he made them notorious. His job was to be a thorn in the side of the district attorney and the police department, which he knew to be the enemy.
Foreman schooled a generation of Houston defense attorneys, who have relished taking on, and often freeing, Texas’ most infamous criminals. Racehorse Haynes won two acquittals for millionaire T. Cullen Davis after he was charged with the attempted murder of his wife, Priscilla, and the murders of her daughter and boyfriend, and later, with trying to solicit the murder of the judge who presided over his divorce case. Haynes also represented Dr. John Hill, who was accused of slowly poisoning his wife, Joan Robinson, to death but who was murdered after his case ended in a mistrial, as Tommy Thompson chronicled in Blood and Money. Before DeGuerin represented clients like U.S. senator Kay Bailey Hutchison, he made a name for himself defending Lilla Paulus, the woman accused of conspiracy in Hill’s murder. He went on to represent David Koresh and other unsavory clients, always mindful of Foreman’s example. His brother, Mike DeGeurin (he spells his name differently), freed Clarence Brandley, a black janitor wrongly convicted on rape and murder charges, from death row. Randy Schaeffer sprung convicted cop killer Randall Dale Adams, who was innocent, from prison. Rusty has a different sort of clientele. “Rusty is well regarded, but he’s seen as an outsider,” says DeGuerin. “He’s not one of the guys yet. He’s not a part of the club. I think Rusty isn’t seen as a defense attorney but as the future DA of Harris County. If [Chuck] Rosenthal stumbles, Rusty’s waiting in the wings.”
DeGuerin is gentlemanly about the new kid on the block who has, in recent years, eclipsed him—not in legal reputation, necessarily, but certainly in ubiquitousness in the local news. He takes only one parting shot, in which he damns Rusty with faint praise. “I think Rusty is very talented,” DeGuerin says. “He’s got the makings of a great lawyer.”
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