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Stephen P. Hurley

By: WISCONSIN LAW JOURNAL STAFF//May 25, 2009//

Stephen P. Hurley

By: WISCONSIN LAW JOURNAL STAFF//May 25, 2009//

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Prosecutors may deceive criminals by setting up sting operations; civil rights attorneys may use testers who only pretend to want to rent an apartment or apply for a job, to ferret out discrimination.

But may criminal defense attorneys deceive someone, in order to get exculpatory evidence for their client that they can’t any other way?

They can now, thanks to Stephen Hurley, a Madison attorney who did just that, despite uncertainty whether it violated the rules of professional conduct.

Representing a defendant charged with exposing a child to pornography, Hurley was convinced the complainant was actually viewing the pornography on his own, contrary to his assertions.

Subpoenaing the computer wasn’t an option, because the boy was living out of state, and the evidence could easily be destroyed.

So, Hurley sent a private investigator to get the computer by deception — pretending the boy had been selected to get a new computer, but only if he gave his old computer to the investigator. It worked, and as suspected, the old computer contained exculpatory evidence for his client.

“I didn’t know whether it was permissible or not,” Hurley says. “But, I chose to do what would cause me less loss of sleep.”

However, he had to spend five years in hot water for doing so, until February, when the Wisconsin Supreme Court finally held that he did nothing wrong.

Quoting from the referee who reviewed the OLR complaint, the court agreed, “Mr. Hurley was faced with a very difficult decision…: should he zealously defend his client, fulfill his constitutional obligation to provide effective assistance of counsel, and risk breaking a vague ethical rule that … had never been enforced in this way? … A man’s liberty was at stake. Mr. Hurley had to choose, and he chose reasonably.”

In light of Hurley’s dilemma, the court has amended the rules explicitly to allow criminal defense attorneys to use deceit in the representation of their clients, just like prosecutors and civil rights attorneys.

Hurley has also taught trial advocacy and evidence at the University of Wisconsin Law School for the last 20 years. He says, “Ironically, I hated law school. It was the most boring thing I ever did. Now, I’m teaching it. But, when a profession has been good to you, you have to put something back in. Teaching is just my way of doing that.”

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