“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.

September 2002By Comments

Rusty Hardin, Houston’s defense attorney of the moment, the lawyer to whom the powerful and the privileged turn when they run afoul of the law, was ducking out of a Rockets game last winter when a fan yelled down at him, “Screw you, Rusty!” Rusty stopped and grinned as more abuse was heaped upon him from the stands. “Screw you, Rusty!” “Yeah, screw you!” Had Rusty sprung another celebrity client to walk free on the streets? Had another jury succumbed to his charms? Not this time: The heckling was a perverse kind of praise. Earlier that day, in probate court, Rusty had cross-examined former Playboy pinup Anna Nicole Smith, whose legal battle for the fortune of her late husband, J. Howard Marshall II, had succeeded in captivating Houston with yet another hometown morality play about sex and money. For hours on the stand, the platinum blonde had striven mightily to convince both the jury and Rusty, representing Marshall Petroleum, that she had married the 89-year-old billionaire for love. After one of her more mawkish declarations of affection, during which she tearfully clutched his photograph to her gravity-defying décolletage, Rusty asked her, “Mrs. Marshall, have you been taking new acting lessons?” Her retort, which was replayed that evening on the local news and circulated around Houston, was soon to be repeated by Rusty’s friends, fellow lawyers, Rockets fans, and even the occasional guy on the street: “Screw you, Rusty!”

Houston loves its criminal defense lawyers, who are defiantly flamboyant and always in the thick of the city’s intrigues. A hothouse of legal talent and court dockets that spill over with tales of mischief and human vice have given rise to a remarkable number of celebrated defenders. The most dazzling among them achieve first-name status: the late, great Percy Foreman, Racehorse Haynes, and now Rusty. He is all things a great defender must be—raconteur, showman, charmer, tactician, egotist—and he has a ferocious charisma that a rival once described as “slicker ‘n deer guts on a doorknob.” Having defended the city’s institutions (Rice University), athletes (Warren Moon, Scottie Pippen), and politicians (nearly a dozen in the Houston area), he has a knack for being in the midst of whatever trial is dominating Houston’s newscasts and the collective consciousness. As a Harris County assistant district attorney years ago, he pursued the city’s lawbreakers with just as much flair, once managing to wring a surprise confession from a defendant on the stand and, in a capital murder trial, persuading the accused murderer to step from the witness box and reenact his crime before the startled jury. As a defense attorney, the sixty-year-old lawyer has enjoyed his share of what Andy Drumheller, an associate in Rusty’s firm, calls “Perry Mason moments, where the witness admits something astonishing and the jurors’ mouths are hanging open,” and he can be shamelessly theatrical, once promising to jump off the Empire State Building if his client was found guilty. (His client was acquitted of all charges.)

Rusty rarely loses, but this summer he found himself on the unlucky end of a verdict in the Arthur Andersen case. Even that loss, in which the Justice Department prevailed in its prosecution of the accounting firm on obstruction of justice charges, has not dampened Rusty’s perennially good mood. Though his career has required him to plumb the depths of human behavior—as a prosecutor, he sent fifteen men to death row—he is relentlessly upbeat, with little patience for any dark nights of the soul. His favorite color is yellow, and he shades his life in its hues, from the lemony sheen of his foulard ties to the buttery gloss of his West University home. Understandably, then, he remains equanimical about the Andersen case, in which losing was not entirely a washout. What was supposed to be an open-and-shut case for federal prosecutors nearly ended in a hung jury, when the jurors announced on the seventh day of deliberations that they were deadlocked; only after the judge sternly ordered them to render a decision regardless did they later return a guilty verdict. Rusty was credited with undermining the government’s case so thoroughly that jurors were at an impasse for ten days, enlarging his reputation well beyond Houston’s city limits. CNN’s Lou Dobbs gushed on the air, “Your performance there—absolutely remarkable.”

Twelve days after the Andersen verdict, Rusty is holding court at La Griglia, in the full rush of the power-lunch crowd. Waiters dart about, trying to fill his water glass, as a who’s who of Houston’s legal community approach his table to pay their respects. Between firm handshakes, fellow lawyers shower him with praise and lusty backslapping. Texas Southern University law school dean John Brittain strides over (“Hello, counselor! Good to see you again, brother!”), followed by former State Bar chair Vidal Martinez (“Rusty, you must live here!”). Bankruptcy court judge Manuel Leal passes by with a genial smile and nod, and defense attorney Robert Sussman dashes over (“Rusty, you did great!”) to swap war stories. Like a politician, Rusty feeds off the energy of the crowd and the press of the flesh; he receives each visitor with the enthusiasm appropriate to a comrade whose company he has been deprived of for too long, no matter how fleeting their separation has been. “If you’re going to get a dose of humility, it’s better to get it on a smaller scale,” he tells well-wishers with an aw-shucks grin. Privately, he whispers between kudos, “I’ve never lost a case and had so many people act like I won.”

After the restaurant has cleared of its lunch crowd and the clamor has subsided, Rusty lingers, holding forth on the practice of law. It is a lazy summer afternoon, and he is in a meditative mood. “Think about what we do,” he says. “We ask twelve strangers to decide what happened in a given situation that they know nothing about, based upon what a few people they’ve never met before tell them. Then we ask them to agree on what happened and, if we need them to, to decide on a punishment.” He grins and leans closer, lowering his voice as if to divulge an impossibly intimate detail. His blue eyes are shining. “It’s the most fascinating goddam experience in the world.”

Rusty likes to tell a story about how he got to fight in Vietnam—even though, being legally blind in one eye, he never should have been able to join the Army, much less engage in combat. It’s an old chestnut of a story, polished smooth from years of retellings, but it is instructive, illustrating his ability to get what he wants and to charm even the most irascible of souls.

“It was the winter of 1966,” Rusty begins. “Colder than hell in Fort Dix, New Jersey. We’re out on the firing range, and I’m not getting beans. My gun’s hitting everything except the target. All of the sudden, I hear this bellowing: ‘Hardin!’ It’s this black guy named Sergeant Cheatham. He’s from Kentucky. He’d already served two tours in Vietnam. And he’s loving having a Southern boy he can call ‘boy.’ He starts hollering, ‘Are you left-handed?’ I say, ‘No, Sergeant.’ ‘Then what the hell are you doing shooting that gun left-handed?’ ‘I can’t see out of my right eye, Sergeant.’ ‘What? Well, how the hell did you get in the Army?’ He’s standing behind me, yelling. We’re not looking at each other. Guns are going off all around us, and I’m still trying to hit the target. I say, ‘I cheated on the eye exam, Sergeant. I memorized the chart.’ ‘You did what? You mean we got guys fleeing to Canada, and you cheated to get in?”Yes, Sergeant.’ ‘You’ve got to be the dumbest son of a bitch I’ve ever met. Where are you going from here?’ ‘Infantry OCS, Sergeant.’ ‘You mean if I go back to Vietnam, I might have a cyclops for a platoon leader?’ ‘Yes, Sergeant.’ ‘Well, I’ll be damned.’ At eleven o’clock that night we’re in bed, when all of the sudden, we hear Cheatham: ‘Hardin! Get your ass down here!’ I get down there and he’s standing with two beers in his hand. He says, ‘Come in here. Let’s watch some TV.’ From then on, that guy protected my ass. One time it was twelve degrees and we were supposed to practice this PT exercise for the next week, and he gave me desk duty. When I left basic training, he walked to the bus station with me, and when I got on the bus, he had tears in his eyes.”

Rusty tells this story for effect, as if to say, “Look, I take risks. I can tell a hell of a story. I can make anybody like me.” He learned how to connect with people while growing up in Monroe, North Carolina, where he spent his time alongside men from all walks of life in his father’s cotton warehouse. He was the first person in his family to go to college, attending Wesleyan University, in Connecticut, in 1960. Rusty never moved back to Monroe; he wanted to see the world, though he spent his twenties changing jobs before settling on a law career. After graduating from Wesleyan, he moved to Montgomery, Alabama, where he taught American history at a private high school and met his future wife, Tissy Ely. He was a master orator whose colorful narratives kept his students rapt, but he decided to sign on with the Army, distinguishing himself in Vietnam by “falling asleep during a mortar attack.” After a fifteen-month tour of duty, he moved to Washington, D.C., and worked for a North Carolina congressman, but politics wasn’t the answer. Tissy urged him to apply to law school, but poor test scores nearly scuttled that plan. “There used to be a trivia question at the [Harris County] DA’s office: What senior prosecutor was rejected by twenty-one out of twenty-two law schools?” Rusty recalls. The only school that would take him, the story goes, was Southern Methodist University law school, in Dallas, where he enrolled when he was 31.

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.”

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.

Related Content