Screw You, Rusty “Can I say it, Rusty? Can I?”

by STAN SINBERG

Rusty Hardin loves Tissy, his wife of 35 years. And certainly he loves his two grown sons, Russell and Thomas. But after Tissy and Russell and Thomas, what Rusty loves — really loves — is juries.

“There’s no case that’s too complicated for a jury to understand. I’ll never choose an individual arbiter or judge over a jury,” Hardin says. “I love the experience of meeting a group of strangers, finding out about them, then presenting my client and persuading them that they ought to agree with my point of view.”

And juries love him right back. They pose for pictures for him. They write him affectionate notes. They like the way he gets a bank robber, who insists his killing of a bank teller was an accident, to re-enact the crime and show that it wasn’t, or how he’ll dim the lights in the courtroom to let them imagine the fear a rape victim was feeling at the time it happened. And most important, they almost always give him the verdict he wants.

This is evident in the cases he’s tried involving high-profile sports figures. Hardin’s list of athlete-clients includes former Houston Rocket and NBA hall-of-famer Calvin Murphy (sexual assault/ indecency with a child), quarterback Warren Moon (assaulting his wife) and baseball slugger Wade Boggs (simple assault). Not only did Hardin win those cases, the juries came back in remarkably short order: Murphy was acquitted in slightly over two hours, Moon in less than a half hour, and Boggs in a mind-boggling four minutes.

Even the biggest case that Hardin lost — albeit temporarily — helped cement his reputation as a top trial lawyer.
In a case that was widely expected to be a “gimme” for the prosecution, the jury took almost 10 days to find the Arthur Andersen firm guilty of obstruction of justice for its role in handling documents for Enron. Hardin, the lead lawyer defending Arthur Andersen, was hailed in the media as if he’d won. And typically, the jury came out and praised him.

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“Can I say it, Rusty? Can I say it?” ask a member of the Houston Police Department, approaching Hardin on the street with a big grin and outstretched arms. Rusty smiles indulgently. He knows what’s coming.

“Yes, you can say it.”

“Oh, good,” says the officer, rubbing his hands together, before exclaiming, with relish, “SCREW YOU, RUSTY!”
The Arthur Andersen case may be more significant, but it’s the 2001 Anna Nicole Smith trial that everybody wants to talk about.

“I’ll be giving a talk to 200 button-down accountants, and during the Q&A, they always ask me about her,” Hardin says, referring to the case in which former Playboy centerfold Anna Nicole Smith claimed she was due half the estate of her multimillionaire 89-year-old husband of 14 months, J.Howard Marshall II.

“She was a glutton, whether it was food, alcohol, sex or drugs,” says Hardin. “When we broke for lunch the second day of my cross-examination, I told my brother, ‘In another hour she’s going to self-destruct.’ Sure enough, she did.”
At one point, Hardin asked Smith, “How do you spend $100,000 a week?”
Anna Nicole responded, “Rusty, you have to understand. It’s very expensive being me.”

Hardin continued to get under Smith’s skin. After she claimed that her husband died because he choked on some food, Hardin reminded the 26-year-old stripper that her 89-year-old husband died of a heart attack. Then he asked her “Do you seriously swear under oath that Pierce Marshall ordered people to let his father choke to death? Sobbed Smith: “Yes.” Then Hardin asked “Miss Marshall, have you been taking new acting lessons?”

“Screw you, Rusty,” was Smith’s infamous reply.
“Shortly after that, I was at a Houston Rockets game, and people in the stands started yelling, ‘Screw you, Rusty,’” Hardin laughs. Four years later, it hasn’t stopped.
During the closing arguments, Hardin pulled one of his trademark moves.

“Smith’s side brought up witness after witness who said,
‘J. Howard called Anna Nicole “the light of my life,”’” Hardin says, shaking his head. “So during closing arguments I said to the jury, ‘You know, I was just thinking, what song would capture the mood of this trial?’”
Suddenly the courtroom was filled with a recording of Debby Boone singing “You Light Up My Life.”
“The jury died laughing,” Hardin says.

Indeed, Rusty has a signed photo of all 12 jurors, who ruled against Smith, standing underneath a caption that reads “You lit up our lives.”

Hardin was born 63 years ago in Monroe, N.C., where his father owned a cotton warehouse. He attended a military high school and then Wesleyan University in Connecticut. Upon graduating, he taught school in Montgomery, Ala., before giving up his teaching deferment and enlisting in the Army by cheating on the eye exam (he’s legally blind in the right eye), and doing a tour of duty in Vietnam.
After Vietnam, he worked for republican North Carolina congressman Charles Jonas, for a year, and decided to be a lawyer.

Hardin’s academic record was not particularly notable, and over a two-year period he was rejected by 21 law schools before being admitted to the 22nd, SMU, only because, he says, “It was expensive, so it had fewer applicants.”
He was 31 when he got in, and 34 when he graduated and joined the D.A.’s office. He had always planned to be a defense attorney, but wanted the experience he could get as a prosecutor.

“I expected to do it for three years and then save the world as a defense attorney.” he says. But once there, he saw there were people who really needed to be prosecuted. “So, instead, I did it for 15 years,” he says. He built up a record impressive enough to be named Prosecutor of the Year by the State Bar of Texas in 1989; and he sent 14 defendants to death row.

“As a prosecutor, I always said, ‘The nine most beautiful words in English are “Your Honor, we call the defendant to the stand,”’ because if you’re trying the right guy, there’s always going to be something wrong with his story.”
Like with the aforementioned bank robber who claimed shooting the teller with one of his two guns was an accident. Hardin asked him to re-enact what happened.
“When I had him holding the gun the way he said he held it, he had his hand outside the trigger guard,” Rusty smiles.

When he was 49, Hardin decided there was nowhere else to go in the D.A.’s office, so he ventured into private practice.

“I spent my first year asking myself, ‘How would a lawyer who knew what he was doing do it?’ and realized I didn’t feel comfortable with doing it that way,” he says. “So I decided I wouldn’t have a style, I’d just go with what I felt comfortable with.”

So here’s what he considers no style: cheerful beige suits, a hair style that could be described as “Early Beatles” and a giggle at the ready. Hardin doesn’t look or sound in any way like your typical high-profile civil or criminal lawyer. Nor do the 22nd floor McKinney Street offices of Rusty Hardin & Associates (eight attorneys and assorted staff) with its yellow walls, yellow rug and yellow chairs resemble a typical legal office. But it’s all what he’s comfortable with.
“People describe my manner as ‘down home’ or ‘aw, shucks’ but it’s not that. I just act like I would in my living room.

“I’ve always said that there are lawyers smarter than me, but I have an ear of an average person. When I put witnesses on the stand, I have a conversation with them: What do they know about this? I’m not leading them, not asking questions from a list. The biggest failure of most trial lawyers is that they don’t listen, and they don’t follow up.”
Hardin’s casual, disarming manner often leads to unexpected moments.

During the Calvin Murphy trial, for example, Hardin was getting nowhere with one of the complainants, when he suddenly stopped and asked her, point blank, “Do you sometimes make things up?” Amazingly, the complainant answered, “Yes.”

Instead of stopping there, Hardin pressed on. “Is there any way for the jury to tell when you’re making something up?”
“No,” the complainant admitted.

“This happens all the time,” says Andy Drumheller, who is one of Hardin’s associates and served as a co-counsel on the case. “Rusty isn’t afraid to ask a question to which he doesn’t know the answer.”

Judge Joan Campbell, of the Harris County 248th Criminal District Court, says Rusty taught her that same thing when she came to work for him at the D.A.’s office in 1983.

“We’d have robbery cases, and the defense would have an alibi witness. Rusty told us, ‘Don’t be afraid to ask the alibi witness anything — because they’re either lying or mistaken or right — and that’s important too. If it’s going to get to the truth of what really happened, don’t be afraid to ask.’”
Hardin himself is less genteel about the matter.

“Not asking questions you don’t know the answer to is one of the dumbest goddamn things I ever heard. I ask questions all the time I don’t have the answers to. If I dodge those questions, juries can see right through that. I’m not afraid of the answers because I don’t go to trial unless I think I’m right.

“Most lawyers don’t like to go to trial, because they don’t trust juries. I hear lawyers say all the time, ‘I don’t think a jury would understand.’ I say it’s our responsibility to make them understand. That doesn’t mean talking down to them; it means talking to them.”

Critics have called Hardin’s style overly “dramatic” and U.S. District Judge Melinda Harmon chastised him for trying to turn the Arthur Andersen trial courtroom into a “circus.” Hardin emphatically rejects the charge.

“What people call dramatic are really only re-enactments. Some people called it dramatic when I turned out the lights in the courtroom. I call it letting the jury feel what the scene was like.”

When the Supreme Court issued its unanimous opinion overturning Arthur Andersen’s conviction last May, Hardin was in Taipei, Taiwan, for a civil case.

“It’s 10:30 p.m. Taipei time when my assistant Linda phones me. I go to the hotel bar to have a glass of wine with another lawyer, to celebrate. Pretty soon the requests for radio and TV interviews come pouring in. All the time, I’m drinking wine, excited by the outcome. Finally at 1 a.m., I start telling reporters, “If I sound as drunk as I feel, you gotta promise not to use it.”

Still, Hardin laments that the damage was done. “The day they were indicted, Arthur Andersen was ruined,” Hardin says. “We’ve lost the presumption of innocence in this country. After the indictment was unsealed, I went to the media and said, ‘Arthur Andersen is not guilty.’ I didn’t talk about the facts. The next day I get a letter from the prosecutor, Andrew Weissmann, ordering me to write a letter saying I’ll stop saying that, or else there will be sanctions.
“I wrote him back, ‘Dear Andrew, I thought you’d like to know that some idiot is writing letters on your stationery and signing your name.’”

Hardin was talked out of mailing the letter.

“But the idea that saying ‘my client is not guilty’ is polluting the jury pool, forgetting that the jury is supposed to go in presuming my client is innocent, shows how backward things have gotten.”

Hardin attended the Supreme Court review of the Andersen case, even though he didn’t argue the appeal. “It was like an out-of-body experience to hear the Supreme Court asking the same questions that I asked at the trial and lost on,” he says.

“It was a tremendously ennobling experience. There were nine different political philosophies parrying. I would’ve been disappointed if we lost, but I wouldn’t have been upset, because I saw the judges trying to do their intellectual best.” Hardin suddenly turns grim.

“I’m very upset about the bashing of judges going on right now by politicians. Nobody is entitled to a judge that agrees with their philosophy. You’re entitled to a judge who is intellectually honest and will fairly listen to both sides. Over the last 15 years, these attacks have become personal. Hugo Black would never have been confirmed if he were nominated today.”

Hardin mentions Justice Black and the civil rights movement several times in conversation, and it sounds like there’s a part of him that longs to be done with civil cases — 80 percent of his practice — and run off to a civil liberties organization like the ACLU. Hardin shakes his head.

“When I left the D.A.’s office, I was 49 years old and had always worked for the government — in the Army, teaching school, then as a prosecutor. I’d always been part of the system. To be an ACLU lawyer or a civil rights lawyer, I think you have to instinctively side against the government. I instinctively support the system, so I’m liable to be more demanding of it from within.”

At one time, it was widely assumed that Hardin would run for D.A. When the then-D.A. stepped down in 2000, Rusty decided against it.
“I’m having too much fun. I just love being a trial lawyer.”