Lawyer's Ruse Didn't Break Rules
Saturday, March 7, 2009
By DEE J. HALL firstname.lastname@example.org 608-252-6132
Stephen Hurley, the Madison defense attorney who used a ruse to get access to the computer of a sexual assault victim in a 2003 case, didn't violate any ethical rules and won't be disciplined, the Wisconsin Supreme Court has decided.
The decision would appear to open the door for defense attorneys to engage in deception, which courts have ruled is OK for police and prosecutors to use when investigating crimes.
But Hurley's attorney, Claude Covelli, said the ruling merely clarifies a rule change passed in 2007, after the complaint was filed, that gives attorneys more leeway when it comes to what constitutes misrepresentation.
"Sometimes it is necessary, to get at the truth, to not identify who you are or what your purpose is," Covelli said.
The Office of Lawyer Regulation charged that Hurley violated rules that an attorney not "make a false statement of a material fact or law to a third person" or "engage in conduct involving dishonesty, fraud, deceit or misrepresentation" while representing a client.
Hurley told OLR that he used an investigator to trick the 15-year-old alleged victim into turning over his computer because he suspected it contained pornography of the type that Hurley's client, Gordon Sussman, had shown the boy. He also feared the boy would destroy the evidence if alerted.
Sussman, founder of Rutabaga paddle sports, was convicted in 2005 of possession of child pornography and repeated sexual assault of the boy over four years starting when the he was 9. Sussman is serving a 13-year prison sentence.
The investigator told the teen he'd won a free laptop computer as part of a research project, but to get it he'd have to turn over his desktop computer.
The switch was made in Indiana with the boy's mother present.
An analysis of the computer found "numerous pornographic images," the court said.
OLR staff had argued that allowing such deception would make victims and witnesses "more guarded, less open and honest and less cooperative."
But referee Judith Sperling-Newton said Hurley's actions were allowed because they were aimed at ensuring his client's right to an effective defense. Sperling-Newton also noted a double standard between prosecutors and defense attorneys - who are all governed by the same Supreme Court rules.
"Dane County District Attorney Brian Blanchard, who filed the grievance against Attorney Hurley, admitted that prosecutors frequently supervise a variety of undercover activities and sting operations carried out by nonlawyers who use deception to collect evidence," she wrote.
Madison Police Detective Bruce Frey said he's upset with the decision because it declares "open season" on victims and witnesses.
"Law enforcement would never be able to take somebody's property," Frey said. "We'd have to get search warrants and have probable cause. What if they (defense) found a bunch of evidence that was harmful to their client? What would they do with it then?"
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