Legendary Houston criminal defense attorney Rusty Hardin has been named special prosecutor in the upcoming court of inquiry that will examine whether or not prosecutorial misconduct contributed to the wrongful conviction of Michael Morton in 1987.
Morton—who spent nearly 25 years behind bars after a Williamson County jury found him guilty of murdering his wife—was freed last October after DNA tests revealed the presence of another man’s DNA on a bandana that was stained with the blood of Morton’s wife, Christine. (The DNA was found to belong to Mark Alan Norwood, a Bastrop dishwasher who was indicted in January for Christine’s murder.) The court of inquiry will examine whether or not former Williamson County D.A. Ken Anderson, now a state district judge, withheld key evidence from Morton’s defense attorneys at trial that could have helped Morton prove his innocence.
Even before Hardin’s appointment, the court of inquiry was already shaping up to be arguably the most fascinating legal event in recent memory. Rarely do prosecutors have to answer tough questions about their conduct, even when they have sent innocent people to prison. (Charles Sebesta, to name but one example, has faced no disciplinary action from the Bar despite the fact that he won a death sentence against Anthony Graves, who was freed in 2010 after eighteen years of incarceration. A federal court determined that Sebesta had won the conviction against Graves using perjured testimony .) Rarely, too, do sitting judges find themselves under such intense scrutiny.
Hardin is an inspired choice, in part because he is equally accomplished as both a prosecutor and a criminal defense attorney. In a profile I wrote about Hardin a decade ago, I noted that during his time as an assistant district attorney at the Harris County DA’s office, he had a remarkable record:
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."
That prosecutor’s instinct, I noted, had not dissipated even in private practice:
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 … "Rusty is well regarded, but he's seen as an outsider," says Dick 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.”
The court of inquiry—whose timing has yet to be determined—is a proceeding unique to Texas, and one that has been used so infrequently that the details of how, precisely, it will work remain a bit hazy. But what little we know is this: Fort Worth judge Louis E. Sturns will oversee the inquiry, and Hardin will assist him in examining witnesses and evidence “to determine if an offense has been committed,” according to the Code of Criminal Procedure. If Anderson is found guilty, the case will be referred to a grand jury.
Hardin has taken on a sitting judge before. As Skip Hollandsworth chronicled in TEXAS MONTHLY, Hardin represented a woman who accused then-U.S. District Judge Samuel Kent of sexual harassment. The federal judge was impeached and sent to prison. Given Hardin’s track record, Scott Henson of the criminal justice blog, Grits for Breakfast, notes: “If Judge Anderson wasn't taking the Court of Inquiry process seriously before - and that's been my sense - you can bet your bottom dollar he is now.”
At the very least, Hardin, whose ferocious charisma was once described by a rival as "slicker 'n deer guts on a doorknob," will ensure that the court of inquiry is not boring. Hardin has managed to make even probate court lively, I noted, when he cross-examined Anna Nicole Smith during her protracted battle a decade ago for control of the estate of her late husband, J. Howard Marshall II:
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