Executive Director's Perspective: Remembering Rusty - By Melissa J. Schank

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Tuesday, June 4th, 2019

Enjoy the little things, for one day you may look back and realize they were the big things.

—Robert Brault

The Texas Criminal Defense Lawyers Association is proud to announce its 32nd Annual Rusty Duncan Advanced Criminal Law Course, scheduled for June 13–15, 2019, in San Antonio. Named for the late Honorable M. P. “Rusty” Duncan III of the Court of Criminal Appeals, this course is designed to cover state law and scholarly topics as well as cases from the past year that impact your practice today. Who is Rusty Duncan? you ask.

Honorable Maurice Palmer “Rusty” Duncan III celebrated life between 1945 and 1990. He ended his career as a judge in the Texas Court of Criminal Appeals, 1987–1990. Before becoming a judge, Rusty was Board Certified in Criminal Law and practiced criminal defense out of Denton, Texas. He volunteered in a number of ways: Chair, State Bar’s Committee on the Study of the Insanity Defense in Texas, 1982–1983; Co-Chair, State Bar’s Penal Code and Criminal Procedure Committee, 1982–1984; Member, Senate Committee on Development of a Criminal Code of Evidence, 1983–1984; Editor, Voice for the Defense, 1984–1987.

I recently had an opportunity to talk to Bob Hinton, Dan Hurley, David Botsford, and Chuck Lanehart about Rusty’s life. I truly enjoyed all of the war stories and wanted to share a few.

He was a highly competitive, prolific reader, a loving father, and someone who always put himself last. He was instrumental in criminal defense—from his time as an attorney through his stint as a sitting judge on the Texas CCA.

Often when everyone was winding down with a nightcap, Rusty could be found reading a book. He was a professor of literature, one of his passions at St. Edwards University. Bob recalls a time he had his shoulder in a brace and sutures in a half-shaven head. Bob was, like, What on earth happened to you? He said he was playing racquetball and charged into the wall and separated his shoulder and sliced his scalp.

Another time they were skiing and stopped for a liquid lunch—skis were left outside. After lunch, they hit the Black Diamond, a very steep slope. Rusty wiped out, hitting hard, though the skis kept going to the bottom of the hill. Tim Evans, the best skier of the bunch, went to retrieve them while everyone else helped Rusty. He returned with Rusty’s skis—and boots, which were not buckled in.

David mentioned Stearnes v. Clinton, the 1989 landmark case establishing that a judge cannot “unappoint” counsels who previously had been appointed to an indigent defendant merely because appointed counsels are actively and aggressively performing their duties.

Stearnes was a capital murder case, and Carlton McLarty and Chuck Lanehart had been appointed to represent Stearnes. After the DA’s office complained to the judge about Carlton having the audacity to interview the State’s key witness without the DA’s permission, Judge Clinton “unappointed” Carlton and Chuck.

Members of the Lubbock Criminal Defense Lawyers Association passed the hat so LCDLA President Mark Hall and Chuck could to fly to Austin for assistance. There, they met with TCDLA President Ed Mallett, David Botsford, and others, and the TCDLA Strike Force waded in. Botsford, along with LCDLA member Ralph H. Brock, led the charge, filing an original writ of mandamus/prohibition in the Court of Criminal Appeals to keep Carlton and Chuck on the case. After oral argument, the Court of Criminal Appeals granted the writ, prohibiting the “unappointment” and directing that Carlton and Chuck stay on the case. Carlton and Chuck subsequently won the case at trial via a directed verdict from a different district judge.

The back story, known by few, is that Rusty was the driving force on the court, convincing his fellow judges (who had originally but tentatively decided against it) to actually grant relief. So, while Rusty’s name does not appear as the author of Stearnes, he was directly responsible for the law that all of us still hold so precious: Once appointed, you cannot be “unappointed” by a judge for doing your job as a rigorous advocate.

Dan shared many of these war stories and had our group laughing—and in awe of this amazing man and his character. He remarked how Rusty was always helping, displaying heart in everything he did, from criminal defense work to interactions with the people he surrounded himself with. And it saddened me to think that I never got to meet him.

Rusty was one of the only exceptions when it came to naming seminars after members, simply because he was so closely involved in the development of criminal defense in Texas. He was an excellent writer and speaker, always exceeding all expectation, and I’m sure that if he were graded today for a presentation he would rate all fives.

When he was elected to the Texas Court of Criminal Appeals, he couldn’t stay active in TCDLA, yet he remained an advocate for criminal defense attorneys. On the bench, he was instrumental in writing and rewriting the code of criminal procedure—and authored numerous other significant decisions—in no small part because he was respected by all he interacted with.

The tragedy that led to his unexpected death devastated the community. He was taken from us in a car accident caused by a drunk driver on a country road between Austin and Houston—while leaving one funeral to attend another. The ambulance arrived and took his girlfriend and him to the hospital. But he was so concerned for his girlfriend, who had a broken arm, that he insisted they take her first and see to her needs. When they returned to Rusty in the waiting room, he had fallen out of his seat in the waiting room and died because of internal bleeding. He was laid to rest at the Texas State Cemetery in Austin.

We are thankful for great men like Rusty and for those who can, in these reminiscences, remind us why we continue to do the little things that have such a significant impact, whether to one person or to a whole community.