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Prosecutor Turned Defender Taps Full Range of Court Experiences

If Rusty Hardin ever thought he was special, he says, he'd lose all the advantages that have made him one of Texas' most successful prosecutors and famous defense lawyers. Now he's taking on a special role: investigating the wrongful conviction of Michael Morton.

Lawyer Rusty Hardin in his Houston office on Tuesday, July 17, 2012.

HOUSTON — The key to Rusty Hardin’s extraordinary career, in his view, has been his ordinariness. He is just a regular guy.

A regular guy whose expansive office on the 22nd story of a Houston high-rise frames the city’s skyline. A regular guy who is famous for his ice-cream colored suits. A regular guy whose walls are lined with newspaper photos of his superstar clients, including Roger Clemens, Wade Boggs and Warren Moon.

“If I ever thought I was special for a moment, I’d lose every bit of advantage I have,” said Hardin, a 70-year-old lawyer and native of a small town in North Carolina, chatting comfortably in a light-gray pinstriped suit and a bubble-gum-pink tie. “So I’m glad I’m not pretty or anything.”

As a top prosecutor in Harris County, Hardin tried high-profile murder cases and sent 14 criminals to death row. Since switching to the defense in 1990, he has developed something of a specialty in representing famous clients, particularly athletes.

This winter, his experiences as a prosecutor and a defense lawyer will collide in a courtroom drama that lawyers, judges and legal scholars nationwide are watching carefully because of its potentially powerful consequences for the legal system. Louis Sturns, the state district judge in charge of the inquiry, appointed Hardin to serve as special prosecutor in an unusual court of inquiry that will start on Dec. 10. It will determine if Ken Anderson, a former Williamson County district attorney, will face criminal charges for his role in the wrongful conviction of Michael Morton. Prosecutors rarely face criminal charges in cases of wrongful conviction.

Morton, who was convicted in 1987 of murdering his wife, Christine Morton, spent nearly 25 years in prison before DNA testing last year linked the killing to another man. Anderson — now a state district judge — denies any wrongdoing, but defense lawyers say he deliberately withheld evidence that could have led to Morton’s acquittal.

During a dispute over evidence in 1987, the judge had ordered Anderson, the prosecutor in that case, to provide him with the investigator’s reports so he could determine whether there was any information that could help Morton prove his innocence. When a different judge ordered that file unsealed two decades later, Morton’s lawyers found only six pages of police reports. Morton’s lawyers argue that Anderson withheld key evidence that should have been given to the judge and to defense lawyers in 1987.

“The accusations that have been made publicly go to the heart of the fairness of the criminal justice system,” Hardin said. “I think it’s very significant that that be examined.” Hardin joined the Harris County district attorney’s office after graduating from the Dedman School of Law, at Southern Methodist University, in 1975.

His lack of academic aptitude became a source of joking trivia in the district attorney’s office, where he spent 15 years prosecuting criminals. Which prosecutor, his colleagues would ask, had been rejected from 22 of the 23 law schools to which he applied?

“I never did very well on standardized tests. Never have,” Hardin said. “SMU was willing to look beyond it.”

What Hardin lacked in the classroom, he made up for in the courtroom, his colleagues said. His unpretentious style and ability to translate legal issues into everyday language, they said, made him a winner with jurors.

“He is just a master at getting people to listen to him and open up to him and tell him things,” said Lyn McClellan, a former prosecutor who worked with Hardin.

McClellan sat at Hardin’s side when he prosecuted Cynthia Campbell Ray, who was sentenced to life for the 1982 murders of her parents. In a trial that gripped Houston for more than a month — and inspired Clifford Irving’s book “Daddy’s Girl” —Hardin painted for jurors a portrait of a conniving psychopath who fabricated tales of abuse to persuade her lover to kill her parents so that she could inherit their money.

“There is such a thing as a bad seed,” Hardin told the jury, according to the Houston Chronicle. “I’m convinced in my mind that that’s what she is.”

But McClellan said winning was not the end-all for Hardin, who prided himself on his ethics. “That’s the thing he taught everybody while I was there: You do what the right thing is, and then everybody will be happy,” McClellan said.

Hardin says one reason he accepted the appointment as a special prosecutor in the case was his belief that prosecutors have a tremendous responsibility that can have grave consequences if exercised wrongly.

“I grew up in a world of prosecution that took seriously the admonition that a prosecutor’s duty is to the justice system and to seek justice,” Hardin said.

In the Anderson court of inquiry, Hardin will investigate a fellow former prosecutor’s allegiance to that duty.

Anderson has apologized for the justice system’s error in Morton’s case, but he has denied any wrongdoing.

Eric Nichols, Anderson’s attorney, did not respond to requests for comment.

In 1990, Hardin left the prosecutor’s office after he felt he had risen as high as he could without running for district attorney, something he did not want to do.

As a defense lawyer for 22 years, including for many famous clients, Hardin says he also understands that the public is quick to issue its own verdict in such high-profile cases. The public, he said, had decided Clemens was guilty of lying to Congress about using steroids. But with Hardin’s guidance, a Washington jury found the pitcher not guilty in June.

“So many people have already made up their minds,” Hardin said. “But I’ve gotten used to that.”

John Raley, Morton’s pro bono attorney at the Houston law firm Raley & Bowick, said he was certain that Hardin would work hard to seek justice in the court of inquiry.

“Rusty Hardin is a good man,” Raley said. “I trust his integrity and am confident that he will seek justice in this matter.”

Dick DeGuerin, another well-known Houston defense lawyer who has represented clients across the courtroom from Hardin, says the prosecutor-turned-defense lawyer has a perspective that will allow him to understand both sides in the Anderson court of inquiry.

“I hope that this will open some eyes about what goes on in the criminal justice system,” DeGuerin said.

In this case, though, Hardin will not be using the average guy charm that has driven his success with jurors; there is no jury in a court of inquiry.

Sturns will issue final recommendations once the sides present their cases. Hardin said his responsibility in this case was to gather evidence from every perspective, so the judge could make an informed decision.

“I’ve realized sometimes people mess up with horrible consequences with no intent to,” Hardin said. “And then other times, they had every intention of doing something wrong.”

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