Hardin has had numerous Perry Mason moments during his career; as a prosecutor, he once persuaded a defendant to confess from the witness stand. He seems to intuitively feel his way through trials, arguing his cases without notes so he can spontaneously respond to whatever twists come his way. And he’s not above engaging in high drama himself. As a prosecutor, he would re-enact crime scenes, brandishing firearms, swinging a pickax or turning off the courtroom lights during a rape trial so the jury could grasp the abject horror felt by the victim. In the Moon case, he told a reporter that if he lost, he would jump off the Empire State Building. And after opposing counsel kept asking witnesses if Marshall had told them that Smith was the “light of his life,” Rusty began his closing arguments by playing a recording of Debby Boone’s “You Light Up My Life.” Several jurors doubled over with laughter.
“Rusty is just so unpredictable,” says Dan Cogdell, a Houston criminal-defense attorney who has tried cases with and against him. “Criminal lawyers are taught to ask short questions — questions we believe we know the answer to so we can control what the witness is saying. Rusty asks open-ended questions. He does not restrain himself to the normal boundaries of litigation.”
And he doesn’t restrain himself to the normal attire attorneys wear in trial, either. “He doesn’t look like some Brooks Brothers wardrobe consultant chained him to a chair,” Cogdell says. “He dresses in colors [tan suits, bright Hermès ties] that create an energy around him.”
His dress and genial courtroom presence are as studied as they are genuine. He separates himself from the other lawyers in the courtroom by not seeming like one. He draws attention in a good way, controlling the courtroom by building a comfortable bond between himself and the jury. He feels that once they’re in that comfort zone, jurors believe he won’t lie to them, and he gets the benefit of the close calls.
“When he started talking to us, it was like talking to a close friend,” recalls Lynn Barker, a juror in the Marshall case. “He made us feel like we were important to him. He wanted us to understand like he did, believe what he believed.” The jurors nicknamed Hardin “Bulldog” for his tenacious three-day cross-examination of Smith. Noted for its one-liners, their icy banter tested her patience and became memorialized in a T-shirt reflecting one of Smith’s responses: “Screw You, Rusty.” In 2001, after a five-month trial, Smith got nothing, but Hardin attained rock-star status.
His national reputation grew exponentially the following year when he led the criminal defense of the Arthur Andersen accounting firm against the Enron task force. The case charging the firm with obstruction of justice should have been a slam dunk for the government. But “Rusty showed extraordinary passion, which in a corporate case was very surprising,” recalls his co-counsel, San Francisco–based attorney Lee Rubin. “He kept it a very close case, because he consistently reminded the jury that Arthur Andersen was people.”
Although Arthur Anderson was convicted (the U.S. Supreme Court later reversed the case), Hardin deadlocked the jury for 10 days and again became the darling of the national press. “Hardin loses battle, but wins stardom,” said one USA Today headline.
The case remains one of the few times when Hardin attacked the prosecution (“for being overzealous”) and challenged the fairness of the judge. “If you watch, you will notice he is not short on courage,” Cogdell adds.
Despite Hardin’s achievements, lawyers, like writers, are judged by their latest work, and some in the media are saying that the true test of his legacy will be his defense of Clemens. And with an unwavering accuser who alleges he repeatedly injected Clemens with steroids, Clemens may have several strikes against him. But he also has Hardin.
“Rusty is the wild card in the case,” Cogdell adds. “If jury trials are a spectator sport, the second Clemens trial is going to be the Super Bowl.”